JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

CITATION : ALKAISI [2024] WACIC 2

CORAM : C F HOLYOAK-ROBERTS

DELIVERED : 16 JULY 2024

FILE NO/S : CIC 3346 of 2023

BETWEEN : ALIA ABDUL-HASSAN ABDUL JALIL ALKAISI
Applicant

Catchwords:

Assessment of damages – Psychological injury – No medical evidence

Legislation:

Criminal Injuries Compensation 2003, s 3, s 12, s 35, s 45

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Not applicable

Case(s) referred to in decision(s):

Nil

Reasons for Decision:

1 Alia Abdul-Hassan Abdul Jalil Alkaisi (applicant) who was born on 19 May 1990 has made an application for compensation for an incident which occurred on 12 December 2022 at Exmouth. The application was lodged on 21 October 2023. On 24 November 2023 I awarded the applicant $7,500 compensation for injuries suffered as a consequence of the offences. By email dated 3 July 2024 Regional Alliance West, the applicant’s solicitors, on behalf of the applicant, requested my reasons for decision which are set out below.
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) which authorises an assessor to award compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of a proved offence which is defined in section 3 of the Act. Mitchell Kevin John Threlkeld (the first offender) entered a plea of guilty to the charge of being armed or pretending to be armed in a way that may cause fear in the Magistrates Court at Geraldton on 13 April 2023 in relation to the offence. Grant Sidney Stoddart (the second offender) entered a plea of guilty to the charge of threaten to damage dwelling at night in the Magistrates Court at Exmouth on 16 March 2023 in relation to the offence. As such, I was satisfied proved offences as defined in the Act were constituted.
3 There are two Statements of Material Facts (SOMF), one which relates to the first offender and one which relates to the second offender. The SOMF in relation to the first offender states the circumstances of the incident as follows:
At about 2am on Monday the 12th of December 2022, the accused was at 49 Snapper Loop, Exmouth.
The accused was in company with a co-accused.
The accused had attended the address earlier in the night but had been told to leave the address by the victim.
The accused later returned and walked up to the front door of the house with a wooden Mattock over his right shoulder.
The accused used the mattock to knock on the front door. The accused stood on the porch whilst the co accused punched the front door and jumped around in an aggressive manner.
On Thursday the 9th of February 2023 the accused was arrested where he declined to participate in an Electronic record of interview.
The accused released to protective bails condition with the present charge preferred.
Explanation: “I was very drunk”.
4 In relation to the second offender, the SOMF outlines the circumstances of the incident as follows:
At approximately 2.08am on Sunday the 11th of December 2022, the accused was on the front porch of 49 Snapper Loop Exmouth in company with another male who was in possession of a mattock.
The address is occupied by Alia ALKAISI and other housemates.
The accused and the male have attempted to intimidate ALKAISI and threatened to enter the address by punching the front door security screen.
The accused has continued to act in a threatening manner by standing on the porch punching into his hand and yelling ‘Exmouth Elite’ at the front of the address. These actions have been captured on the occupant’s CCTV that she was live streaming at the time. These actions caused the occupant fear and alarm that he would enter the address.
On the 19th of January 2023 the accused was interviewed on Police issued Body Worn Camera where he made the admissions to the offence.
The accused was summonsed with the present charged preferred.
Explanation: “I don’t remember why I did it, I was drunk”
5 The SOMF relating to the first offender has the incident as 12 December 2022 and in relation to the second offender the SOMF has it as 11 December 2022. In her application form, the applicant listed the incident as occurring in December 2022. The security video obtained by police of the front door of the applicant’s premises records the incident having occurred on 11 December 2022. I am therefore satisfied the incident occurred on 11 December 2022 and amend the award accordingly.
6 The applicant did not provide any documents in support of her application. In relation to her injuries, she identified on her application form she was fearful in her own house, could not sleep and did not want to leave her house for months after the incident. She advised she was too embarrassed to seek treatment as “I live in a small town and I didn’t want anymore people talking about the incident”.


7 On 3 November 2023 the case manager on behalf of the Office of Criminal Injuries Compensation asked the applicant for the contact details of any person she may have sought psychological treatment from. By return email of the same date the applicant responded by advising she had not received any treatment due to discomfort in speaking about the incident in a small town.
8 During the course of investigating the circumstances of the incident I obtained information from the Western Australian Police in relation to the offences. Included in that information was a statement from the applicant as to the incident.
9 She stated she was at home with her friend on the date of the incident when at approximately 9:00pm she heard a knock at the door which she answered by herself. The first offender (Threlkeld), whom she said she knew through mutual friends and had met once, was standing in her doorway. She says the first offender asked her whether she had “anything” which she later stated was in reference to illegal drugs. She described herself as feeling shocked as she had no idea why he would come to her house asking for them.
10 She said a short time later there was a knock on the side door of her house and when she opened it, the first offender was there asking again whether she had “anything”. She said “no” and told him to leave, closed the door and went back inside with her friend.
11 A short time later there was a third knock, this time at her side door by another person, not the first or second offender, asking if she had “anything”. She said “no”, asked why they were her asking for it and closed the door and went back inside.
12 Later in the night there was a knock at the door by a second uncharged person asking for cigarettes. She could hear her house mate speaking to him. She yelled for him to leave and threatened to call police, which she did, reporting people had come to her house.
13 She said she received a visit from police to make sure that no-one was there which made her feel safer.


14 She said later her housemate received a telephone call which she heard as her housemate placed the call on speaker. She heard male voices asking whether the applicant had any drugs to which her friend responded “Why do you think she has drugs?”.
15 The applicant’s friend left at approximately 1:00 am and the applicant locked all the doors and went to her bedroom to prepare for sleep. At approximately 2:00 am she heard a car pull up outside, looked out her bedroom window and saw a white four-wheel drive parked on the road across from the house. She called “000” and heard loud banging and bashing on the outside of the house and thereafter described the incident. She said during the incident she “stayed in my room as I was scared for my safety”.
16 She said she woke the next morning, went through the CCTV footage and observed two males banging on her door, one of whom she recognised as being the first offender.
17 She said the incident made her feel scared and she did not know why the offenders would come to her house, especially in an aggressive manner. She was afraid for her safety and felt lucky to be okay after observing what she saw on the CCTV footage.
18 Given the information contained in the applicant’s application form and police statement, I was prepared to assess the application notwithstanding the applicant had not sought any treatment in relation to the incident.
19 Having regard to the evidence I was satisfied the applicant suffered mental and nervous shock pursuant to section 35 of the Act. She was the person against whom the offence was committed. I was satisfied the reaction of the applicant was of an enduring character (DR v CD [2018] 148). I base this conclusion on the applicant’s police statement signed by her on 13 December 2022 where she said she was “afraid for my safety” and the incident “made me feel scared” and in her application lodged approximately 10 months after the incident where she stated she was “fearful in my own house, I couldn’t sleep, I didn’t want to leave my house for months after the incident”. I accept the applicant experienced psychological symptomatology as a consequence of the incident for “months after the incident”.
20 On the information available to me I awarded the applicant $7,500 compensation for her injuries.
21 The applicant claimed for counselling services and therapy for future treatment. However, I had insufficient evidence to be satisfied, firstly the applicant required the treatment, and secondly, the cost and duration of the treatment. As such, I declined to make an award for future treatment.
22 Given the applicant’s concerns about the offender’s being aware of her claim and being in a small community, I barred proceedings pursuant to section 45(1)(a) of the Act under Part 6 of the Act with respect to the first and second offender.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

C F Holyoak-Roberts, CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

17 JULY 2024

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : VAN BEEK [2024] WACIC 1

CORAM : K HAFFORD

DELIVERED : 5 FEBRUARY 2024

FILE NO/S : CIC 3070 of 2023

BETWEEN : DAVID JOHN VAN BEEK
Applicant

Catchwords:

Assault – Proved offence – Victim committed a separate offence – Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003, s 12, s, 18, s 19, s 39, s 41, s 35
Medicines and Poisons Regulations 2016
Road Traffic (Drug Driving) Regulation 2007
Road Traffic Act 1974, s 64AC(1), s 66C, s 66D, s 66E

Result:

Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Not applicable

Case(s) referred to in decision(s):

Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
AW (pseudonym initials) v CD (pseudonym initials [2023] WADC 36 at [44]
Chase v Francis [2020] WADC 34 at [37]
Martin v Martin [2015] WADC 138
NBS v MAC [2013] WADC 83
Pym v Richardson [2018] WADC 156
Re AW [2022] WADC 96 at [57]

Reasons for Decision:

1 By way of an application dated 20 September 2023 Mr Van Beek (the applicant) submitted an application for criminal injuries compensation pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) in relation to an incident which occurred on 19 April 2022.
The offence
2 On 19 April 2022 the applicant was riding his motorcycle in a southerly direction along Kwinana Freeway when he became involved in a verbal altercation with another driver, Ms Amy Sparks. Ms Sparks contacted her partner, Mr Hayden Bilson, (the offender), who was also driving his vehicle in a southerly direction on the Kwinana Freeway. The offender drove in an erratic manner, and flashed his lights at the applicant, causing the applicant to pull over onto the side of the freeway. The offender stopped his vehicle near the applicant, exited the vehicle and walked towards the applicant to confront him. The applicant rode past the offender and as he did so was pushed by the offender, causing him to lose balance of the motorcycle and fall onto the road surface. The applicant sustained serious injuries as a result of the fall.
3 The offender was convicted of Acts or omissions causing bodily harm or danger to any person in the Magistrates Court at Rockingham on 27 April 2023. I am satisfied the offender’s conviction of the offence of Acts or omissions causing bodily harm or danger to any person is a proved offence for the purposes of section 12 of the Act.
The applicant’s injuries
4 The applicant sustained a comminuted and displaced fracture of the neck of the left humerus with antero-inferior dislocation of the humeral head as a result of the incident. He underwent surgery at Fiona Stanley Hospital on 20 April 2022, but the outcome of the surgery was poor function and anterior subluxation of the left humeral head. The applicant underwent further surgery at Fremantle Hospital in October 2022 comprising removal of the Phylos plate and a reverse total shoulder replacement. His recovery was complicated by a MET (Medical Emergency Team) call for rigors and by a methicillin resistant Staphylococcus epidermis infection. The applicant had a prolonged recovery and in February 2023 was noted to have ongoing restricted movement, pain upon sleeping and difficulty using cutlery. In addition, the applicant reported significant psychological impact from the incident.
The discovery of tetrahydrocannabinol in Mr Van Beek’s blood
5 In the course of police investigations into the incident, the applicant was required to provide a blood sample for analysis. The blood sample was tested by the Chemistry Centre (WA) and showed a positive test for tetrahydrocannabinol (cannabis). The applicant was charged with driving with prescribed illicit drug in oral fluid or blood.
6 Police records indicate the applicant’s legal representative made a submission to the Police Prosecutor the charge should be dismissed on public interest grounds taking into account the injury was caused to the applicant, not by him; the low reading of tetrahydrocannabinol in the applicant’s blood; that the applicant was prescribed medicinal cannabis and the applicant’s lack of previous similar offending. The charge was subsequently dismissed for want of prosecution on 25 May 2023.
The source of the tetrahydrocannabinol
7 The applicant’s lawyer submitted to police in the course of the prosecution the tetrahydrocannabinol was from a prescription of medicinal cannabis. The applicant repeated that submission in this application, stating ” . . . the cannabis was NOT illicit, but prescribed and I was following my doctors recomdations(sic)”.
8 The applicant provided a number of medical documents in support of his application, including records from Rockingham Hospital which indicated upon admission to hospital on 19 April 2022 he advised medical staff he had “smoked THC this morning” and a medical report from a Dr Yin Wee dated 28 February 2023 with respect to the applicant’s admission to Fiona Stanley Hospital on 20 April 2022 which stated the applicant “smoked two to three joints of cannabis per day”.
9 Additional medical records provided by the applicant included a Notification of Treatment form dated 29 July 2022 indicating Dr Brian Walker of Serpentine Medical Centre prescribed Cannatrek T25 (dried herb formula) to the applicant on 29 July 2022. Pursuant to section 19 of the Act I requested the clinical records from Serpentine Medical Centre which recorded the applicant’s first attendance upon Dr Brian Walker was on 29 July 2022, on which date he was prescribed medicinal cannabis due to pain from the injuries sustained in the incident and was advised of the driving restrictions which applied when taking medicinal cannabis. The date of this prescription was after the incident.
10 There is a requirement under the Medicines and Poisons Act 2014 and the Medicines and Poisons Regulations 2016, Part 11 Division 3 for Notification of a prescription of medicinal cannabis to be given to the Medicines and Poisons Regulations Branch (MPRB) of the Department of Health. Pursuant to section 19 of the Act I obtained records from the MPRB which indicated the first prescription for medicinal cannabis was given to the applicant on 29 July 2022, consistent with the records obtained from Serpentine Medical Centre. As the first prescription of medicinal cannabis was made on 29 July 2022, after the incident, I find the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis prescribed in Western Australia.
11 I obtained the applicant’s medical records from Stirk Medical Group pursuant to section 19 of the Act. These records indicate the applicant requested his medical practitioners prescribe medicinal cannabis to him on 8 February 2017 and on 21 February 2017 but those requests were refused. The applicant advised he had been attempting to obtain legally prescribed cannabis from 2002. The applicant also advised he saw Dr David Jones at Stirk Medical Group on 14 April 2022 and was encouraged by him to self-medicate with cannabis and the applicant was therefore acting under medical authorisation. The records from Stirk Medical Group contain no record of a consultation on 14 April 2022, although the applicant did attend Dr Jones on 11 April 2022 in relation to a squamous cell carcinoma and chronic obstructive pulmonary disease.
12 The applicant was requested to advise where the medicinal cannabis he consumed on 19 April 2022 was sourced. The applicant advised it was obtained from Louise Graves and the Nimbim Hemp Embassy. I then issued a notice pursuant to section 19 of the Act to obtain details of the prescriptions issued to the applicant by Louise Graves and the Nimbin Hemp Embassy. In response, the legal representative for Louise Graves and the Nimbin Hemp Embassy advised no prescriptions had been issued to the applicant.
13 In the course of correspondence sent by the applicant subsequent to a preliminary refusal of his application, the details of which are set out below at [23] to [27], the applicant sent an email dated 12 December 2023 which relevantly states:
… on my part there was a missunderstanding (sic). Because a health professional was involved the cannabis was not illicit I can now confirm this not to be the case. A error on my part that would bring your declination up to date. I will now conclude my correspondence with you and except (sic) defeat humbly. I look forward to your final outcome in due course.
14 I have found (at [10]) the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis prescribed in Western Australia. Further, there is no evidence the applicant was prescribed medicinal cannabis from an interstate source and I find the tetrahydrocannabinol found in the applicant’s blood on 19 April 2022 was not from medicinal cannabis. The applicant’s submission he had consumed medicinal cannabis on 19 April 2022, which was made to police and to this office, was incorrect.
Significance of tetrahydrocannabinol when driving
15 Section 64AC of the Road Traffic Act 1974 states:
64AC. Driving with prescribed illicit drug in oral fluid or blood
(1) A person who drives or attempts to drive a motor vehicle while a prescribed illicit drug is present in the person’s oral fluid or blood commits an offence.
16 Tetrahydrocannabinol (cannabis) is a prescribed illicit drug pursuant to regulation 3 of the Road Traffic (Drug Driving) Regulation 2007. There is no exemption in the legislation for persons who have been prescribed medicinal cannabis. Therefore, any person with tetrahydrocannabinol in their blood stream whilst driving is therefore committing an offence, irrespective of whether the cannabis was from a prescribed or an illegal source.
A separate offence: Section 39
17 The Criminal Injuries Compensation Act 2003 provides “for the payment of compensation to victims of offences in some circumstances”. One of the restrictions upon compensation being awarded is set out under section 39 of the Act, which states:

39. No award if victim was engaged in criminal conduct
    (1) If an assessor is satisfied —
    (a) that a person was injured as a consequence of the commission of an offence; and
    (b) that the injury was suffered when the person was committing a separate offence,
    the assessor must not make a compensation award in favour of the person. (emphasis added)

18 The effect of section 39 is if an applicant was committing a separate offence at the time he or she was injured, the claim for compensation must be refused. Relevant factors in relation to the application of section 39 include:

1. An assessor has no discretion to allow an application when the applicant is committing a separate offence.
2. There is no requirement the separate offence being committed by the applicant be a proved offence.
3. There is no requirement there be any causal connection between the injury suffered by the applicant and the separate offence committed by the applicant, but merely a temporal connection.
   Application of facts to section 39 of the Act
   19 The evidence before me establishes the following:
4. The applicant tested positive to tetrahydrocannabinol in his blood stream as a result of a blood sample taken shortly after the incident; and
5. The applicant was riding his motorcycle when he was assaulted by the offender.
   20 I find when he was injured, the applicant was committing a separate offence pursuant to section 64AC(1) of the Road Traffic Act 1974, namely driving with a prescribed illicit drug (tetrahydrocannabinol) in his oral fluid or blood.
   21 I find there is a temporal connection between the applicant’s injuries and the separate offence as the applicant was riding the motorcycle (despite having a prescribed illicit drug in his blood) when he was pushed by the offender.
   Preliminary determination and applicant’s responses
   22 On 9 November 2023 I wrote to the applicant advising the evidence before me indicated, when injured, the applicant was committing a separate offence pursuant to section 64AC(1) of the Road Traffic Act 1974, namely driving with a prescribed illicit drug (tetrahydrocannabinol) in his oral fluid or blood. As a result, I advised I had reached a preliminary determination I must refuse the application pursuant to section 39 of the Act, and invited the applicant to provide any submissions in response prior to 9 December 2023. The applicant has provided responses on 10 November 2023, 14 November 2023, 16 November 2023, 7 December 2023, 8 December 2023, 12 December 2023, 14 December 2023, 18 December 2023, 4 January 2024, 8 January 2024, 12 January 2024 and 27 January 2024.
   23 The applicant’s various responses raised three main issues. First, the applicant submitted he had consumed medicinal cannabis on the day of the incident and therefore was not committing a separate offence. I have set out above at [7] to [13] the evidence relevant to this submission. The applicant was not prescribed medicinal cannabis until after the incident, and therefore had not consumed medicinal cannabis on 19 April 2022. The applicant accepted this in his email dated 12 December 2023, which is set out at [13], above. Further, irrespective of the source of the cannabis, it is illegal to drive a vehicle in Western Australia with tetrahydrocannabinol present in the driver’s oral fluid or blood.
   24 Second, the applicant asserts the blood test which revealed levels of tetrahydrocannabinol should be disregarded as the police officer should not have taken a sample from him as the applicant was a victim, not the offender. The applicant submits the blood sample was taken as the police officer incorrectly identified him as the offender. This submission is incorrect as I reviewed the police statement of the police officer who required the blood sample and this identified the applicant as having been the victim of a road rage incident that ultimately led to him being knocked off his motorbike.
   25 Section 66E of the Road Traffic Act 1974 permits police to require a blood sample test from any person in charge of a motor vehicle whose physical condition would make them incapable of providing a sample of oral fluid. The powers to obtain an oral sample are quite broad and under sections 66C and 66D apply to any person in charge of a motor vehicle, or any person believed to be in charge of a vehicle whose use has been an immediate or proximate cause of personal injury or damage to property. When requesting the blood sample from the applicant the police officer stated “I believe you may have been the driver of a motor vehicle that was in an incident occasioning injuries consistent with Grevious (sic) bodily harm and as such I require you supply a sample of your blood to me.” I accept the police officer was able to compel the provision of the blood sample from the applicant as he was a person in charge of a vehicle for which there were reasonable grounds to believe was an immediate or proximate cause of personal injury or damage to property. Further, by reason of the applicant’s serious injuries, he was under the care of St John Ambulance staff when police arrived at the scene and not able to participate in a preliminary oral fluid test pursuant to section 66C or to provide an oral fluid sample pursuant to section 66D. This meant the blood test was the default option pursuant to section 66E. I consider the police officer lawfully obtained the blood sample.
   26 In addition, pursuant to section 18(2) of the Act, an assessor is not bound by rules or practice as to evidence or procedure but may inform himself or herself in any manner he or she thinks fit. In the event I am incorrect and the police officer was not able to require the applicant to provide a blood sample, I am still able to have regard to the results of the blood test.
   27 Third, the applicant raised the issue he was not convicted of any offence. There is no requirement under section 39 of the Act the separate offence committed by an applicant be a proved offence. I have set out the relevant case law at [18], above.
   Determination
   28 I accept the applicant sustained significant injuries as a result of a proved offence. However, the applicant’s blood sample taken shortly after the incident tested positive for tetrahydrocannabinol (cannabis) and I find he was committing a separate offence of driving with prescribed illicit drug in oral fluid or blood when he sustained those injuries. I adopt the comments of Black DCJ in AW (pseudonym initials) v CD (pseudonym initials:
   There is an obvious disparity between the very small quantity of drugs involved in the appellant’s offence and the very serious nature of the offences committed against the appellant. I note however that s 39 of the CIC Act does not allow me, where I am satisfied that s 39(1) applies to an application, to then exercise any discretion regarding the proportionality between the two sets of offending so as to decide if the appellant ought still to be compensated, at least to some extent. The terms of the provision are clear that if s 39(1) is made out then I ‘must not’ make an award of compensation in favour of the appellant.
   This is a case where the punishment did not fit the crime. Nonetheless, having found that the appellant was committing a separate offence at the time he sustained injuries from a different offence, I must not make a compensation award in favour of the appellant.
   29 Pursuant to section 39 of the Act, I now refuse this application.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

K Hafford, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

5 FEBRUARY 2024

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : Criminal Injuries compensation Act 2003

LOCATION : PERTH

CITATION : WATSON -v- JOHNSON [2023] WACIC 4

CORAM : C F HOLYOAK-ROBERTS

DELIVERED : 1 JUNE 2023

PUBLISHED : 1 JUNE 2023

FILE NO/S : CIC 291 of 2023

BETWEEN : ALEXANDER WATSON
Applicant

    AND

    ANGELINA TANIA JOHNSON
    Offender

Catchwords:

Proved offence, Scratches to face

Legislation:

Criminal Injuries Compensation 2003, s3, s12, s19

Result:

Compensation awarded

Category: C

Representation:

Counsel:

Applicant : Not applicable
Offender : Not applicable

Solicitors:

Applicant :
Offender :

Case(s) referred to in decision(s):

DR v DC [2018] WADC148

C F HOLYOAK-ROBERTS:

Reasons for Decision

1 Alexander Watson (the applicant) who was born on 27 October 1981 made an application on 29 January 2023 for compensation for injuries suffered as a consequence of an offence which occurred on 22 June 2022 at Madora Bay (the offence). On 5 May 2023 I awarded the applicant $500 compensation for injuries suffered as a consequence of the offence. By email dated 8 May 2023 the applicant requested my reasons for decision which are set out below.
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) which authorises an Assessor to award an applicant compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of a proved offence which is defined in section 3 of the Act. Angelina Tania Johnson (the offender) entered a plea of guilty to the charge of assault public officer at the Mandurah Magistrates Court on the 22 July 2022 in relation to the offence. As such I was satisfied a proved offence as defined in the Act was constituted.
3 The circumstances of the incident are outlined in the incident report as follows:
On Wednesday the 29th of June 2022 at about 10:20pm we were tasked to an address in Madora Bay for a recovery order for a child.
During the recovery order Monique JOHNSON (mother of the child) and Angelina JOHNSON (Moniques mother) became highly agitated and attempted to prevent the recovery. Angelina grabbed the child whilst in S/C WATSONS arms and began clawing at S/CWATSONs face leaving 7x scratches on the right side of the face, resulting in bleeding.
Monique and Angelina had to be restrained using empty hand tactics to provent (sic) them both from continuing to attack S/C WATSON.
The child was removed and taken from the address unharmed.
4 In support of his application the applicant provided a statement of events and victim impact statement together with fourteen photographs of his injuries. Copies of his medical notes were obtained pursuant to section 19 of the Act from Rockingham Medical Centre where he attended post incident.
5 The photographs depict scratches to the applicant’s face of a superficial nature, one being deeper and longer than the balance of the scratches. The applicant alleged there was scarring left by the scratches but it is difficult to ascertain any scarring in the pictures provided.
6 The medical notes obtained pursuant to section 19 of the Act indicate the applicant first attended his general practitioner on the 5 July 2022 complaining of recent scratches to his face when on duty. He was also worried about an unrelated infection on his arms. Antibiotics were prescribed for the unrelated infection also in the hope they would cover any risk of infection in relation to the scratches the applicant sustained in the incident. He was reviewed on the 8 July 2022 by telehealth and the unrelated skin infection together with the scratches were discussed. By 27 July 2022 he was experiencing no infections related to this incident.
7 In his victim impact statement, the applicant said following the incident he used alcohol sanitiser to clean the wounds to his face. He felt disgusted and dirty and could not sleep at night. He said he was worried over the next few days and weeks he would acquire some sort of infection although it was explained to him he would not require blood tests as his injuries were caused by fingernails and not teeth. He said he suffered disturbed sleep for a number of days and found himself becoming short tempered. He was mocked for the injuries to his face by his colleagues and other criminals (which is non-compensable) and felt frustrated. I have no evidence the applicant’s psychological symptoms were long term nor that he sought any treatment for it.
8 Having regard to the evidence I was satisfied the applicant suffered physical injury as a result of the incident. In relation to any psychological sequelae, to award compensation for mental and nervous shock pursuant to section 35 of the Act, I must be satisfied the symptoms are of an enduring character so as to amount to an injury in legal sense and common parlance as opposed to a mere emotional reaction (DR v DC [2018] WADC148). I accept the applicant experienced psychological symptomology as a consequence of the incident but on the information available to me I was not satisfied the symptomology was of an enduring character. I therefore declined to award compensation for the psychological component of the claim.
9 On the evidence available to me the applicant’s physical injury resolved by 8 July 2022 although his injury was discussed when he presented on two subsequent occasions for an unrelated infection. Therefore, on the information available to me I assessed the applicant’s injury at $500.
10 The applicant made no claim for any losses and therefore no award was made in relation to those items.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

C F Holyoak-Roberts, CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

4 JULY 2023

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : K [2023] WACIC 3

CORAM : R CAPARARO

DELIVERED : 5 APRIL 2023

FILE NO/S : CIC 239 of 2021

BETWEEN : K
Applicant

Catchwords:

Nil

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 9, s 12, s 16, s 17, s 30, s 31, s 33, s 34, s 45, s 64

Result:

Compensation granted

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Sparke Helmore Lawyers

Case(s) referred to in decision(s):

AKM v GJH [2020] WADC 152
B v W (1989) 6 SR (WA) 79
Hansen v Bolton [2017] 25 WADC [14]
Hatfield v Under Secretary for Law (Unreported, WASC Library No 4012, 15 December 1980)
Houlahan v Pitchen [2009] WASCA 104 [107]
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 [125]
S v Neumann (1995) 14 WAR 452 [463]
Underwood v Underwood [2018] WADC 13

Reasons for Decision:

1 By application dated 12 February 2021, “K” (the applicant) made an application for compensation for incidents in the period between 31 July 1993 and 1 November 1993. On 14 June 2022, I awarded the applicant $100,000. The offender, ACC, has advised of his intention to appeal the decision. The reasons for my decision are set out below.
2 The application was made pursuant to sections 12 and 16 of the Criminal Injuries Compensation Act 2003 (the Act). Section 12 of the Act authorises an assessor to award compensation if satisfied the injury claimed occurred as a consequence of a proved offence. Section 3 of the Act provides a proved offence is a ‘crime, misdemeanour or simple offence of which a person has been convicted’.
3 Sections 16 of the Act authorises an assessor to award compensation if satisfied the injury claimed occurred as a consequence of alleged offences in certain circumstances. Section 3 of the Act defines an alleged offence as a ‘crime, misdemeanour or simple offence of which no person has been convicted’.
The offences
4 The applicant was born on 10 August 1979 and is currently aged 43 years. At the time of the offences the applicant was 14 years.
5 The offender was convicted of offences between 31 July 1993 and 1 November 1993 of indecently dealing with a child over 13 years and under the age of 16 years at Koongamia in the District Court at Perth on 4 April 2018.
6 The offender was charged with 30 charges relating to the applicant on various dates between 31 July 1993 and 13 March 1994.
7 On 17 January 2017 counts 1, 2 and 5 were discontinued, these related to allegations of indecent dealing in the period 31 July 1993 to 22 August 1993 at Hovea and a date unknown between 31 July 1993 and 13 March 1994 at Koongamia.
8 A further indictment was filed on 16 March 2018, comprising of 27 charges relating to the applicant. The trial proceeded and on 21 March 2018 a further 4 counts, that had not formed part of the original indictment, were discontinued. The offender was convicted of a single offence against the applicant as identified above.
9 The offender was acquitted of over 20 counts relating to the applicant, with these generally related to allegations of sexual penetration and indecent dealing.
Proved offences
10 The offender was convicted of an incident on a date unknown between 31 July 1993 and 1 November 1993 at Koongamia. This pertained to the offender showing the applicant and an associate of the applicant video footage on a handheld video camera that the offender owned. The footage showed school aged boys, some naked in the showers in a changeroom, with the penises of the naked boys in the video able to be seen. The offender told the applicant and his associate that he had shot the video himself at school. At the time of these incidents the offender was aged 21 years.
Alleged offences
11 The applicant also alleges on the same date the offender had showed him porn containing boys and children. On other occasions he had showed the Applicant gay porn, normal porn and child porn. These did not form part of the offences for which the offender was charged.
12 His statement records the alleged offender mainly showed him child porn with young children in them. The offender was not charged with these incidents, but I accept that they occurred and whilst they did not form part of the award were indicative of behaviour generally of the alleged offender.
13 I am satisfied a proved offence as defined in the Act was constituted. I am also satisfied alleged offences, which had been discontinued, were likely to have occurred and that alleged offences as defined by section 16 of the Act were constituted.
Extension of time
14 The application was lodged by the applicant on 12 February 2021. The offence for which the offender was convicted occurred in November 1993. This is a delay of 28 years.
15 Pursuant to section 9(2) of the Act an application for compensation must be made within three years after the date on the offence relates was committed; or if it related to more than one offence, the date on which the last one of those offences were committed. However, an assessor may allow an application for compensation after the three year period if she or she think it is just to do so on any conditions that he or she thinks it is just to impose.
16 As the last incident alleged occurred in 1994, the application was required to be lodged by 1997. The application was in fact lodged on 12 February 2021. Accordingly, the applicant requires an extension of time within which to bring his application for compensation.
17 His Honour Judge Herron, DCJ outlined the factors relevant to the exercise of the courts discretion in considering when it is appropriate to allow an extension of time. Factors that may be relevant to the exercise of the court’s discretion under s 9(2) of the Act include:
(a) the history of and background to the proposed application;
(b) the length of the delay;
(c) the reasons for the delay;
(d) the nature of the proposed application;
(e) the consequences for the parties of grant or refusal of an extension of time, including the extent of any prejudice to the respondent;
(f) the prospects of the compensation application succeeding; and
(g) whether injustice will be suffered if an extension of time is refused.
18 I accepted the applicant had had a troubled life since the incident being incarcerated from an early age. The applicant had substance abuse issues, as well as ongoing mental health issues. He did not report the incident to police until his mid-thirties, after which time the offender was prosecuted.
19 The applicant was only released from prison in 2019 and found the process of providing evidence about the incidents to police difficult.
20 The applicant recorded in his victim impact statement he did not feel mentally capable of bringing the application immediately after the conclusion of the trial against the offender as he did not want to remember the incidents again. He also recalled difficulties in obtaining assistance due to his ongoing incarceration and hospitalisations.
21 I accepted it was just and reasonable in the circumstances to grant an extension of time in which the applicant could lodge his application for compensation.
Evidence
22 In support of the application, the applicant provided the following documents:
(a) District Court transcript of sentencing.
(b) Statement of applicant dated 20 January 2021.
(c) District Court indictment and list of witnesses.
(d) Applicant’s police statement dated 28 August 2015.
(e) Report of Diane Paddon-Jones, Southwest Psychological Solutions dated 27 April 2020.
(f) Letter from Annie Rickman, Southwest Support Coordination, undated.
(g) Psychiatric report of Dr Adam Brett, Consultant Psychiatrist, dated 10 May 2017.
23 In addition, a notice was issued to the Department of Corrections for a copy of all documents relating to the applicant, in particular his medical records.
24 Where applicable these documents will be referred to further below.
25 In the statement of the applicant dated 20 January 2021, the applicant states, that he had a good childhood and was a happy kid with older sisters and that his parents had separated when he was four. He participated in little athletics and judo and was always happy and safe. He confirmed that he suffered from Attention Deficit Hyperactivity Disorder (ADHD) and was a rebellious child, but just prior to the incident he had moved from his mother’s home to live with his father. He recalls being happy living with his father, having two step‑brothers and one step‑sister.
26 In relation to the circumstances of the incident, the applicant recalls that in 1993 when he was 13 years he met the offender. He identified himself as “Adam Troy” and he had met him on the bus. The applicant recalls he later found out the offender’s true name was in fact ACC.
27 He recalls he hung out with the offender as he thought he was cool because he was older, tough and strong.
28 The applicant recalled the offender appeared to be doing things that seemed fun to him at the time and that the offender had lots of cool stuff and would often buy alcohol for the applicant. The offender had a car which the applicant thought was great as he could drive, and he would often go to the applicant’s house to pick him up.
29 The offender told the applicant on occasions that he was a police officer and at the time the applicant said he believed him. He recalls that in 1993 the offender took the applicant and another boy to a bedroom. He remembered the bedroom was separate to the main structure of the house that the offender lived in and was like a granny flat out the back.
30 The applicant recalled that the offender got a video camera out, showed them the video, he said that he took. The video was of young boys showering. He said the video was from a school.
31 The applicant recalled the offender showing him lots of pornographic videos and pictures, touching him and that he did a lot of things to him on many occasions.
32 The applicant recorded in his statement of 20 January 2021 the abuse started in August 1993 and finished a week or two before he went to gaol for the first time in 1994. He recalls he got away from the offender by going to gaol and when he was released he hung out with a new group of friends. At the time it was difficult for him to talk about what happened. The applicant recalled there were seven other incidents which did not form part of the charges against the offender.
33 With regards to the impact of the events, the applicant records following the offender showing him pornography for the first time, it was the beginning of the end of his life. He records in his statement that since the incident he has been in and out of jail and mental hospitals or homeless. It was his perception that following the incidents he started to act out.

34 At the age of 14 years the applicant was placed in detention for stealing cars. It was the applicant’s belief the offender had ruined his life and brought him as a child into an adult world. He did not want to watch the videos, but the offender made him watch. He did not understand what was happening. The applicant records in his victim impact statement every relationship since that time has been strong and confused and that sex is associated with negative feelings and confusion. He records he has flashbacks during sex, struggling with erections and during the majority of his sexual relationships he has been on drugs or out of control. He recalls that the pornography and what the offender did affected him and that as a result and a way to block out the trauma, he started to inject methamphetamines at age 19 years and continued to take drugs, including methamphetamines on a daily basis to age 35 years.
35 At age 21 years he had a drug induced psychosis and had had other periods in which he suffered from drug induced psychosis. He had abused drugs and had been addicted to drugs. He recalls being in mental hospitals a number of times connected to his drug use. He also records as a result of taking methamphetamines to block out the trauma he often felt agitated and aggressive and could recall talking about the devil. He records following his release in 2019 he had counselling which has assisted.
36 The applicant records “I still struggle everyday with the trauma. I have traumatic thoughts constantly running through my head and I have extremely difficult time with it. I have thoughts of pornography and about being raped or murdered by men.” He also records that after the offences occurred, he was not able to continue with his education. He started a job as a spray painter, but struggled to concentrate and spent time in and out of gaol. This occurred in his opinion as he became angry and violet towards grown men as he associated the offender with grown men. He stated not a single day passes in which he does not have horrible thoughts about the offender.
37 As indicated above, such was the trauma caused that he only first reported the incidents to the police in 2015 after which time police proceeded to prosecute the offender and the case was concluded in 2018.

Method of assessment
38 Section 30 of the Act sets out the general powers of an assessor providing:
(1) On a compensation application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered.
39 Section 3 of the Act defines ‘satisfied’ to mean ‘satisfied on the balance of probabilities’.
40 In assessing the amount of compensation which should be awarded the Court should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount is not to be fixed as punishment of the offender or as an expression of sympathy for the victim (B v W (1989) 6 SR (WA) 79).
41 The amount of damages for non‑economic loss must be fair and reasonable compensation for the injuries received by the applicant and the disabilities caused, having regard to current general ideas of fairness and moderation: Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118 [125]; Underwood v Underwood [2018] WADC 13; Houlahan v Pitchen [2009] WASCA 104 [107]. The amount must be proportionate to the situation of the particular applicant: Houlahan [107]. Having considered the information available to me, I found the applicant suffered a clear psychological injury with various reports giving the applicant a diagnosis of schizoaffective disorder, with a differential diagnosis of recurrent drug induced psychotic episodes; polysubstance abuse; attention deficit hyperactivity disorder and dissocial (anti-social) personality disorder.
42 His decline in mental state seems largely to have coincided with the event for which the offender was charged and convicted. Whilst the applicant had had challenging behaviours, his psychological condition spiralled after the incidents with him being diagnosed as suffering from bi-polar effective disorder and the applicant embarking on a path of drug abuse and delinquent behaviour.
43 The applicant himself has described his struggles since the incident as identified above.
44 Whilst the applicant did suffer from ADHD at the time when he was suffering from issues at school, I accept the acceleration in his behaviour and deterioration in mental state was triggered by the incident for which the offender was convicted and for those incidents for which he was charged and the matters then discontinued.
45 Psychological symptoms are compensable as defined in the Act. In Underwood v Underwood, Gething, DCT comments the term ‘injury’ in sections, 12, 13 and 16 include “mental and nervous shock”: (CIC section 3). This phrase contemplates the impact of the offence on the mind or nervous system: Hatfield v Under Secretary for Law (Unreported, WASC Library No 4012, 15 December 1980), Burt, J. It refers to ‘mental or emotional harm as opposed to physical injury or bodily harm’: S v Neumann (1995) 14 WAR 452 [463]. It must be of a more enduring character so as to amount to an injury, as opposed to a mere emotional reaction.
46 I am satisfied that the applicant’s symptoms were enduring in character and continued to this day so as to amount to mental and nervous shock for the purposes of the definition of ‘injury’ under section 3 of the Act. This was exemplified by his inability to deal with the incidents or even acknowledge they had occurred until his mid-thirties.
47 I accepted the applicant suffered and continues to suffer from a significant psychological injury which has had an ongoing impact on his everyday life.
48 The maximum amount of compensation that could be awarded for a single offence at the time of the incident was $50,000 (s 31(1) of the Act). As the injury occurred to the applicant as a consequence of two or more offences committed by one person that are not related offences within the meaning of s 33(1) then the amount awarded must not in aggregate exceed $100,000 (s 34 of the Act).

49 I determined the appropriate award for general damage injuries suffered by the applicant to be is $100,000, taking into account the jurisdictional maximum permitted under section 34 of the Act for more than one offence.
50 I apportioned $50,000 to the proved offence for which the offender was convicted and $50,000 to the alleged offences I was satisfied occurred.
51 I ordered pursuant to section 45(1)(b) of the Act that the offender, ACC be limited to pay $20,000.
52 When I made the compensation award, I considered it appropriate to prohibit publication likely to lead to the identification of the applicant due to the nature of the offences. I hereby extend the prohibition on publication of anything likely to lead to the identification of the applicant to these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

R Capararo, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

5 APRIL 2023

JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : CHARTERIS [2023] WACIC 1

CORAM : K HAFFORD

DELIVERED : 6 JANUARY 2023

FILE NO/S : CIC 811 of 2020

BETWEEN : NICOLE ELIZABETH CHARTERIS
Applicant

Catchwords:

Other – Alleged offence – charge not determined – Alleged offence – no person charged – Assessment of damages – Mental and nervous shock – Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 12, s 16, s 17, s 19, s 30, s 48

Result:

Compensation awarded
Compensation refused

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : Not applicable

Case(s) referred to in decision(s):

A v D (1994) 11 WAR 481
B v W (1989) 6 SR (WA) 79
Dulieu v White & Sons [1901] 2 KB 669
Hill v Clarke [2015] WADC 93 [13]
Houlahan v Pitchen [2009] WASCA 104
KMA v DFS [2010] WADC 6
M v J and J v J (Unreported WASC, Library No 920598, 19 November 1992)
MES v KG (1995) 12 SR (WA) 330, 331 ‑ 332
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re ATS [2017] WADC 76[28]
Re Carter (1984) 4 SR (WA) 219
Re TLJ [2016] WADC 74
Re Utting [2011] WADC 10
RJE v Bandy (Unreported WASC, Library No 1365; 31 May 1974)
Robertson v Baker [2014] WADC 14
Shorey v PT Limited [2003] 77 ALJR 1104
Winiarczyk v Tsirigotis [2011] WASCA 97

Reasons for Decision:

1 By application dated 18 May 2020 Nicole Elizabeth Charteris (the applicant) claimed compensation for injuries sustained as a consequence of alleged offences committed by “GC” on 3 February 2020, 3 May 2020 and 18 May 2020. I now provide reasons for my decision.
2 The application with respect to the incident on 3 February 2020 was made pursuant to section 17 of the Criminal Injuries Compensation Act (the Act). The applications with respect to the incidents on 3 May 2020 and 18 May 2020 were made pursuant to section 16 of the Act. Both sections 16 and 17 of the Act authorise an Assessor to make an award of compensation for an alleged offence if an Assessor is satisfied the claimed loss and injury occurred and that it did so as a consequence of an alleged offence. Pursuant to section 3 of the Act ‘satisfied’ means ‘satisfied on the balance of probabilities’. It must be more probable than not that the alleged offending occurred. An applicant who claims compensation under the Act where no conviction has been entered bears the burden of proving the offence.
Evidence
3 In support of the application, the applicant provided her Statements to Police dated 4 February 2020, 3 May 2020 and 18 May 2020 (the first page of each document only), an unsigned document entitled Statement of Injuries, eight pages containing photographs of her computer screen showing the “Income report” for her business and a quote to obtain a psychological report. When asked to provide additional information the applicant also provided her income statements from 1 July 2020 to 30 June 2021 (202 pages), individual monthly statements for the periods September 2019 to June 2020, income tax returns for the financial years 2018 to 2021 and income statements for the financial years 2019 to 2021. The applicant also provided a report from Ms Lisa Dominguez, clinical psychologist dated 5 August 2021.
4 Pursuant to section 19 of the Act I obtained the applicant’s medical records from Myaree Medical Centre. I also obtained the Police Briefs for each incident, the Incident reports relating to the applicant’s complaints to police about the alleged offender and the transcript from the Magistrates Court on 18 November 2020 with respect to the incident which occurred on 3 May 2020. In response to a request I made Ms Dominguez produced a supplementary report dated 2 October 2021.
The Alleged Offences
5 In her Statement of Injuries the applicant provided the following background to the offences:

1. [GC] is a neighbour who lives 4 houses away diagonally opposite our home (approximately 50 metres away) in a culdasec (sic) at [address redacted].
2. GC has become a significant nuisance to myself since residing at our property for the last nine years with an increase in his sexually and mentally abusive behaviour, particularly within the last five years where he has attempted to engage with me on a regular (weekly, sometimes daily) basis, despite being asked to remove himself from our property by myself, my husband, police and mental health care workers which includes the following unwanted behaviour:
   · Persistent and unrelenting sexual harassment
   · Persistent and unrelenting mental harassment
   · Stalking behaviour (sneaking up behind me, watching me from my neighbours (sic) property and his property for long periods of time)
   · Tormenting behaviour
   · Taunting behaviour
   · Theft of my property (Gardening tools, sprinklers etc) and of our tradesman’s property (tools) entering our property for maintenance and renovations
   · Calling my dog to him to improve his ability to engage with me consistently.
3. [GC]’s persistent unwanted and mentally abusive behaviour in conjunction to his unwillingness to comply with our requests lead(sic) to a successful VRO (Magistrate determining sexual violence & harassment) on November 19, 2019, which he has breached on three separate occasions since this time which includes the following:
   · Tuesday 4th February 2020 led to him being arrested by police and warned.
   · Sunday 3rd of May lead to him being arrested by police, charged and convicted of breaching his VRO.
   · Monday 18 May 2020 led to him being arrested by police, charged and convicted of breaching his VRO.
   6 The alleged offender lived on the same street as the applicant and was a 77 year old man who had been diagnosed with dementia. The applicant refers in her statement, and when speaking to Ms Dominguez, clinical psychologist, to many years of harassment from the alleged offender. Her application was brought with respect to three incidents only.
   7 Due to the extensive history referred to in the statement and in Ms Dominguez’s report, I obtained a copy of the applicant’s interactions with the police in relation to the alleged offender. The first incident reported to police was on 17 November 2019. The Incident report recorded the applicant was distressed about her neighbour coming onto her yard and standing there. She told police she’d had ongoing issues with him for six years and he had been sexually inappropriate in the past. She advised police she was a psychologist, “something is wrong with [the alleged offender]” and she was in the process of obtaining a restraining order against him. Police attended on 19 November 2019 and spoke to the alleged offender. Police recorded the alleged offender having described going to the applicant’s house to advise her of a wine which was on sale at Liquorland and was a “deal too good to miss”, but she misunderstood and her husband called him a “sexual molestor”. The alleged offender advised police he tried to diffuse the situation by offering the applicant seeds from a rare tree in his garden but the applicant began yelling at him to get off her property. Police advised the alleged offender to avoid the applicant’s property.
   8 The applicant subsequently applied for a violence restraining order in relation to the alleged offender and a hearing was held on 19 November 2019. The applicant described the alleged offender’s conduct to the Magistrate as:
   In the last few days – this has been happening for the last five years – that amount of times, the 500 times that he has been approaching me on my property when my husband is out. He does it to all the females in the street and surrounds. He often walks around in his underwear, and he won’t take no for an answer. It’s absolutely tormenting.
   -So we ask – so over the last probably three years – he started five years ago – you know, feigning friendliness, but he just – every time I go out into my garden, he is there right behind me, talking, and the subject always turns to sex, and I don’t feel safe in my home. I’ve stopped gardening. I haven’t been able to sleep, I haven’t been able to work. I’m a psychologist, so it’s important for me to be – you know, to have my downtime on the weekends, and despite police and mental health nurses – social workers attending his property, he hasn’t stopped. He now stands on the boundary of my property, all around it, when I am outside, as soon as I come outside my front door. And I tell him to leave, and he refuses to leave, so I often – you know, if I have gardened on the odd occasion, which I did with a friend on Sunday, who is also a psychotherapist, he said – he agreed with me that he has got a psychiatric condition.
   9 On 29 November 2019, police served Violence Restraining Order 2019 04714 upon the alleged offender. The conditions of the order included the alleged offender was not to communicate or attempt to communicate with the applicant, not behave in an intimidatory, offensive or emotionally abusive manner towards the applicant, approach within five metres of the applicant or to enter or remain upon the property where the applicant lives, works or is educated.
   Incident 1 – 3 February 2020
   10 On 4 February 2020 the applicant reported to police she was out the front of her house watering the garden when GC approached and began pacing back and forth about 4 metres from her. He spoke to her, saying “Can I say something to you?” and then said, “There is something I wanted to say to you, but if you don’t want me to say it I will go away”.
   11 The applicant attended Murdoch Police station to report the offence and provided a video of the incident. The video confirms the words the alleged offender spoke, but the video is dark and the person taking the video cannot be identified. Police interviewed the alleged offender in relation to the offence and he confirmed that he was the person in the video but denied he approached or spoke to the applicant. GC advised police he spoke to the applicant’s husband and it was her husband who took the video footage. Police did not consider there was sufficient evidence to proceed with any charges against the alleged offender.
   12 The application in relation to this offence was brought pursuant to section 17 of the Act and I am required to be satisfied an alleged offence occurred. I have reviewed the video footage of the incident. The alleged offender made no attempt to enter the applicant’s property. In addition, due to the quality of the footage, I cannot be sure the alleged offender approached within 5 metres of the person who recorded the footage. To be satisfied there was a breach of the Violence Restraining Order I must accept the alleged offender was communicating with the applicant. Whilst I can be satisfied the alleged offender was speaking to a person at the applicant’s property, the video does not identify that person. On 22 April 2022 I wrote to the applicant, advising I could not be satisfied the incident occurred as alleged, as it was open to me to find the offender was speaking to her husband, not to her. I suggested she provide a statement from her husband confirming it was not him the offender spoke to. The applicant was regrettably distressed by my query in relation to this alleged offence, in particular she was concerned I was accusing her of “lying” about the incident. Requesting additional evidence in support of an application is not an accusation of dishonesty, rather it provides an applicant an opportunity to substantiate the claim being made, and to address any gaps in the evidence.
   13 In a response dated 19 May 2022 the applicant advised her husband did not have a clear recollection of this incident “given this was so long ago and he is confused with the other 500 times he approached me but he can confirm that GC [redacted] was trying to speak to me again – otherwise he would not have been outside speaking to him asking him to leave me alone following an incident. If it is essential to the outcome of this claim that he sign something, then I will have him do so” (emphasis added). Given the applicant advised her husband had no clear recollection of the incident I considered there to be no point in obtaining a statement from him. The applicant’s response contains an acknowledgement at some stage that evening her husband was outside speaking to the alleged offender. It is therefore possible the alleged offender was indeed speaking to the applicant’s husband.
   14 In the same response the applicant provided two videos demonstrating alleged breaches. She provided the following description of the footage, explaining:
   One was an evening when he breached the VRO standing in my bush at night and one during the day showing him pacing up and down my boundary on our neighbour next doors’ property whilst I was in my front yard. As you can see, following the continued harassment on these days, I went back inside the house to get my phone, so in the first video I had to walk toward him again locating him in the bushes and the 2nd video he was further away than he initially was (up against my boundary trying to talk to me). He was within 5 metres of my person which led to the VRO breaches. It is me behind the camera in both of these videos.
   The first video referred to in the applicant’s response is of this incident as it includes the offender speaking the words referred to in paragraph [10] above and in the applicant’s statement dated 4 February 2020. That statement does not refer to the applicant locating the offender standing in her yard, and then going inside to get her phone before returning outside to record him. The applicant’s statement also does not refer to the applicant’s husband going to speak to the alleged offender as referred to in her email dated 19 May 2022.
   I do not consider the further submission from the applicant provides any additional evidence to satisfy me the alleged offender was speaking to her in the video. It may be the alleged offender spoke to the applicant earlier, and then spoke to her husband later in the evening. It may be the alleged offender spoke to the applicant on two separate occasions. Neither of these scenarios are described in the statement dated 4 February 2020. I consider the events of that evening to be unclear and I cannot be satisfied an alleged offence occurred. I therefore refuse the application in relation to this incident.
   Incident 2 – 3 May 2020
   15 The second incident occurred on 3 May 2020. In her statement to police dated 3 May 2020 the applicant stated she was standing at the end of the driveway of her house when the alleged offender walked up to her and said “excuse me”. The applicant did not want to look at him or talk to him so turned away and said “Fuck off”. The applicant went inside to tell her husband GC was outside and grabbed her phone and took it outside in an attempt to film the alleged offender near her property. He was not there and the applicant returned inside. In her statement to police dated 3 May 2020 the applicant commented:
4. I was feeling very shaken.
5. It’s the compounding nature of the situation. I feel like he is stalking me and I can’t go outside and enjoy my gardening.
6. I just want this situation to stop.
7. It has caused me to lose sleep at night.
8. The ongoing anxiety leaves me feeling very stressed.
   16 At 10:47 am the applicant telephoned police. The police CAD report recorded the applicant’s advice to police the alleged offender had “breached his VRO again and has come up to her on her own property and says things like “you’re very sexy’ and makes lewd comments”. The description of the incident recorded by police based on the initial call from the applicant is inconsistent with the applicant’s statement to police.
   17 Police attended that afternoon and spoke to the alleged offender who made admissions he had spoken to the applicant as he wanted to tell her earlier in the week her bins had tipped over and all the contents had fallen out. The Statement of material facts states the words spoken by the alleged offender were “Seeing that you are out here and you are close, I wanted to tell you about those bins that you had out on Friday and what I was willing to do to help you with that.” The alleged offender was charged with breach of violence restraining order. The prosecution brief contains a report from Dr Roger Clarnette, Consultant in Geriatric Medicine, dated 10 February 2020, which reported GC was suffering from significant cerebral atrophy, with a deteriorating mental state over the previous two years which was manifested by behaviours including wandering around the local suburb talking to strangers and looking in bins and deteriorating social skills with an inability to appreciate cues from normal human interaction. On 18 November 2020 the charge was dismissed in the Magistrates Court at Perth with the Chief Magistrate noting the alleged offender was suffering dementia and in a locked environment at Bentley Hospital. I am satisfied an alleged offence occurred in relation to this incident.
   Incident 3 – 18 May 2020
   18 On 18 May 2020 the alleged offender entered the applicant’s front garden to place two bricks around the bottom of a sign which displayed her business information and which was located approximately five metres behind the applicant’s letterbox. The applicant told the alleged offender to leave and he replied ‘Don’t be silly, look what I’ve done, I’m just trying to help you.’ The alleged offender then left the applicant’s property taking the bricks with him, as requested by the applicant. The applicant telephoned police at 4.57 pm, advising of the incident and that the alleged offender “has dementia and is constantly moving items in the street”. Police attended that evening and spoke to the alleged offender who made full admissions in relation to the incident and explained to police “I was just trying to help, I like helping. I wasn’t breaching the order, I wasn’t committing violence against her, I was trying to stop the sign blowing over”. The applicant was noted by police to be “shaken by the incident” and in her statement to police dated 18 May 2020 stated “[GC] makes me feel shaky, anxious and exasperated”. The alleged offender was charged with Breach of Violence Restraining Order. On 12 August 2020 the charge was dismissed in the Magistrates Court at Perth for want of prosecution. I am satisfied an alleged offence occurred in relation to this incident.
   The applicant’s injuries
   19 In her Statement of Injuries, the applicant stated:
   [GC]’s behaviour has caused me Significant Psychological and Mental distress, which includes the following:
   · Safety Issues
   · Hypervigilance
   · Compounded Mental Anguish
   · Fear.
   20 In an email dated 19 May 2022 the applicant commented:
   [T]he sexual and general persistent long-term harassment instigated by Mr Ciantar which had deeply affected my personal and professional life over a period of eight (8) years – especially the impact it was having on my relationships, freedom, mental health, finances and ability to perform adequately in my professional life whilst he was persistently targeting me. I could not walk outside my front door without being approached by him despite my long-term request in addition to my husband’s and family or friends visiting requests that ‘he leave the property immediately’. He refused constantly and would often sneak up behind me when I was gardening alone and be within 2 feet to the back of me discussing inappropriate sexual topics, pace up and down my boundary and my neighbours (sic) property whilst I was gardening.
   21 The applicant attended Ms Lisa Dominguez, clinical psychologist, on 15 February 2021 and 15 March 2021 subsequent to which Ms Dominguez produced a report dated 5 August 2021. The applicant provided a history of harassment by the alleged offender for a period of seven years, from 2013 to 2020. She described the alleged offender having visited her home approximately 500 times over the seven year period despite her asking him not to. She gave an example of having opened her front door, she thought to the postman, whilst wearing just a robe with her hair in a towel. The alleged offender was at the door and despite her telling him she couldn’t talk to him he kept speaking to her, mainly about the garden before he asked if she was naked under the towel. She described crying from this when her husband got home as “it triggered old stuff, creepy neighbour”. She described GC, who was in his 70s, walking around the street in his pyjamas. She described GC standing in the neighbour’s yard and staring at her, or walking along the boundary of their property in the neighbour’s yard, taunting her.
   22 The applicant described intrusive and distressing memories including unpleasant dreams of “powerlessness” with GC or someone like him in her dreams, flashbacks of when he was around and distress from reminders of the harassment including people knocking on the door and seeing his house and garden. She described avoiding gardening, answering her front door, lack of motivation, disturbed sleep, increased alcohol consumption and weight gain. The applicant also described irritability and marital strain caused primarily from lack of support from her husband who she reported told her she “overreacted” to GC. The applicant, who is a psychologist, described an impact on her ability to work due to impaired concentration, feeling overwhelmed and under stress. She reported to Ms Dominguez this led to financial strain which caused additional stress.
   23 Ms Dominguez commented:
   Ms. Charteris’ was harassed for an extended period (over 7 years), culminating in a VRO against her neighbour for sexual misbehaviour. What is the psychological impact of these injuries? Ms. Charteris has experienced extensive psychological concerns as a result of this her experiences. As mentioned, her symptoms meet the criteria for PTSD as per the DSM-5, including viz., re-experiencing, avoidance, negative alterations in mood and cognition, and hyperarousal. . . . Given the assessment profile and her self-report, it is my opinion that she experiences Severe symptoms of PTSD. Further, given the specificity of the triggers, it is also my opinion that these symptoms have been caused directly by the harassment.
   Ms. Charteris reported that she has experienced a depressed mood for a lengthy period (more than two years). She also is plagued by insomnia, low energy, low self-esteem, poor concentration, and moments of ‘hopelessness’. In my opinion, she is dysthymic, and this condition is chronic in nature, commencing in response to the ongoing harassment from George. She also experiences anxious distress, specifically feeling keyed up and tense, having problems concentrating, and living with fears that something awful may happen. In my view, her symptoms met the criteria for Persistent Depressive Disorder (Dysthymia) with Anxious Distress.
   Ms. Charteris disclosed that she drinks more now than she did before the harassment. There was quite a notable increase in her use of alcohol, increasing from an occasional, ‘social’ drink to a couple each night. In my opinion, she is probably engaging in this behaviour as a maladaptive behavioural pattern aimed at controlling her symptoms of PTSD, Dysthymia, and anxiety.
   24 Ms Dominguez recommended the applicant have between 10 to 20 sessions of psychological treatment, recommending EMDR therapy at a cost of $267 per consultation.
   25 It is important to note whilst the applicant submits the alleged offender harassed her for several years, her claim is in relation to only three incidents, and she is unable to be compensated for any conduct by the alleged offender which does not comprise an offence. The applicant described the impact of the alleged offender upon her mental health prior to the restraining order being issued as:
   I emailed him to say, “I’m not taking this any more. I can’t stand it. I can’t work, I can’t – I’m not sleeping, and I want you to leave me alone”. That was a year and a half ago, and he sent me a song to say, “Don’t go out tonight, there’s a bad moon on the rise”, or something like this. He is threatening and I don’t feel safe in my home. I bought myself a dog, and often I’ve had to leave her outside with all my gardening tools because he has come again, and I go inside, and I call my husband.
   On her own evidence the applicant and her ability to work, sleep and feelings of personal safety were impacted by the behaviour of the alleged offender prior to the restraining order being issued, and prior to any offences being committed.
   26 On 13 August 2021 I wrote to Ms Dominguez seeking clarification of her report, requesting she distinguish between the impacts of the three alleged offences for which the applicant had brought her claim compared to the seven years of harassment prior to this. Ms Dominguez responded in a report dated 2 October 2021, commenting:
   Ms. Charteris experienced harassment for a sustained period of seven years. This culminated in a Violence Restraining Order (VRO) on February 3, 2020, protecting her from [G]. As noted in my report dated August 5, 2021, she consequently experienced symptoms of PTSD, and Dysthymia with anxious distress. She was on shaky grounds.
   Having a VRO probably gave her hope that things might return to ‘normal’, however, this was no doubt dashed every time [G] breached the Orders – three times over an extended period of months. In my opinion, given the ongoing harassment and her mental health functioning, she had less resilience, coping, and the internal fortitude to effectively manage these breaches. In response, she described feeling defeated when she encountered George.
   In my opinion, the breaches exacerbated her already compromised mental health. She described symptoms consistent with a diagnosis of PTSD (unresolved), Major Depressive Disorder and General Anxiety Disorder . . . More specifically, Ms. Charteris explained that her symptoms of depression intensified. They were clearly worse than her pre-episode status. She felt constant and ongoing depressed mood every day, an overwhelming sense of fatigue, sadness, loss of interest in activities she used to enjoy, lack of motivation, poor concentration, and sleep disturbances. Further, her symptoms of anxiety also increased, and her worry was excessive, pervasive, pronounced and interfered with a wide range of functions. She continues to feel these symptoms.
   27 On 24 September 2021 the Psychology Board imposed a condition upon the applicant requiring her to be supervised by another registered psychologist with respect to certain matters. It was apparent these disciplinary proceedings were in progress when the applicant attended Ms Dominguez, but there was no mention of those proceedings in either of Ms Dominguez’s reports. By way of correspondence dated 22 April 2022 I enquired of the applicant whether she had advised Ms Dominguez of the disciplinary proceedings as I anticipated a person subject of such proceedings would have some level of concern in relation to the process and outcome of those proceedings. I was concerned this may have impacted the applicant’s presentation to Ms Dominguez and thus the reliance that could be placed on Ms Dominguez’s reports. By way of correspondence dated 19 May 2022 the applicant advised the complaint was a “Vexatious complaint” which had been received on 16 February 2020 and did not cause her concern. She did not mention the complaint to Ms Dominguez as it had limited impact upon her and in her experience it is usual for psychologists to limit discussions about such notifications or complaints with their peers. I accept the applicant’s submission in this regard.
   28 I considered the applicant’s records from her general practitioner at Myaree Medical Centre, reviewing her records for the period 8 November 2016 until 2 November 2021. No mention is made in those records of any mental health concerns, the difficulties with GC or the incidents subject of this claim.
   29 When determining the injuries sustained by the applicant I must have regard to the circumstances of the offending as I must be satisfied the injury was suffered as a consequence of the alleged offences. In the second incident the alleged offender attempted to advise the applicant about an issue with her rubbish bin being tipped over. The third incident involved the alleged offender attempting to prop up the applicant’s business sign so it did not fall over. I accept in approaching the applicant the alleged offender was in breach of the violence restraining order and so alleged offences were committed. These alleged offences were however at the lower end of the scale of any offending. The alleged offender had dementia (which was known to the applicant), was ignoring social cues and becoming a nuisance to his neighbours, including the applicant. The impact of the two alleged offences upon the applicant as described by the applicant was considerable given the nature of the incidents and raised the issue of whether the applicant was a person of normal fortitude.
   30 It is well established principle a defendant must take the plaintiff as he finds him, both physically and psychologically. This is generally referred to as the ‘egg shell skull’ rule. In Shorey v PT Limited Kirby J said:
   [44] The principle of law is that a negligent defendant must take its victim as it finds her and must pay damages accordingly. It is not to the point to complain that the injury, in the form of the fall, was trivial in itself and that it would be unfair to burden the respondents with the obligation to bear costs consequent upon the fact that the appellant was peculiarly susceptible to developing bizarre symptoms inherent in a conversion disorder. If such symptoms were genuine and a consequence of the subject trauma, the apparent disproportion between cause and effect is not an exculpation for the negligent party. It does not render the damage ‘unforeseeable’ or otherwise outside the scope of the damages that may be recovered. As Dixon CJ explained in Watts v Rake:
   ‘If the injury proves more serious in its incidents and its consequences because of the injured man’s condition, that does nothing but increase the damages the defendant must pay. To sever the remaining leg of a one-legged man or put out the eye of a one-eyed man is to do a far more serious injury than it would have been had the injured man possessed two legs or two eyes. But for the seriousness of the injury the defendant must pay’
   31 In her report dated 2 October 2021 Ms Dominguez opined the harassment from the previous seven years caused the applicant to have less resilience, coping and internal fortitude to manage the breaches.
   32 I find the applicant sustained an exacerbation of a pre-existing psychological condition as a result of the alleged offences. The applicant’s mental health was already compromised by the events prior to the alleged offences and she was suffering from PTSD and Dysthymia, with anxiety. The applicant described symptoms of depression for two years prior to her review with Ms Dominguez in August 2021, and I therefore find the depressive symptoms also commenced prior to the alleged offences. However, I accept the depressive symptoms intensified after the alleged offences.
   Method of assessment
   33 Section 30 of the Act sets out the general powers of an assessor. It provides ‘on application in respect of injury suffered by a victim as a consequence of the commission of an offence, an assessor may award such compensation that the assessor is satisfied is just for the injury and for any loss also suffered’.
   34 In assessing the amount of compensation I should have regard solely to the injury suffered by the applicant in consequence of the commission of the offence. The amount of compensation is not to be fixed as punishment of the offender or as an expression of sympathy for the victim. The correct approach to adopt in assessing the amount of compensation under the Act is to apply the ordinary tortious principles for assessment of damages, subject to the limitations imposed by the definitions of ‘injury’ and ‘loss’ in the Act, and to the jurisdictional limit of the Act.
   Injury
   35 Pursuant to section 12 of the Act a victim who suffers injury as a consequence of the commission of a proved offence may apply for compensation for the injury and any loss suffered. ‘Injury’ is defined in section 3 of the Act as ‘bodily harm, mental and nervous shock, or pregnancy’.
   36 The amount of damages for non-economic loss must be fair and reasonable compensation for the injuries received by the applicant and the disabilities caused, having regard to current general ideas of fairness and moderation. The amount must be proportionate to the particular situation of the applicant.
   37 Having regard to the medical evidence outlined above, I found, as a result of the offences, the applicant suffered from a psychological injury comprising an exacerbation of pre-existing symptoms of depression and anxiety. I considered an appropriate allowance for the applicant’s injuries to be $7,500.
   Loss of earnings
   38 The applicant is entitled to compensation for ‘loss of earnings as a direct consequence of the injuries’ he suffered. Loss of earnings includes loss of earning capacity.
   39 The applicant is self employed as a psychologist, operating her business out of her home. Her income tax returns and income statements demonstrated the following earnings:
   

Financial year ending 30 June Income earned according to income statements Gross earnings according to income tax returns
2018 (Not provided) $130,148
2019 $259,402 $146,791
2020 $282,956 $152,844
2021 $201,984 $148,409

40 On 18 October 2021 the applicant submitted “the losses will not likely be reflected clearly on my tax returns given my income increased each year. However, you will see that the annual increases were significantly reduced as a result of this stressful situation (see period in particular from 2018-2019 taxation year – there was only a 10k increase that year as opposed to the normal 40-50k annual increase). This is why I provided you the original paperwork for losses of income for each period that this person’s behaviour affected my work, sleep, relationships, mental health and inability to attend work due to consistent attendance to police stations and magistrates court on those days. Please note, my income for 2020/21 period (since the perpetrator ceased sexually harassing me) is 200k. This shows how much these events affected me previously in the earlier periods.” The applicant is unable to claim for any losses which predate the incidents. She is also unable to claim for losses caused by attending police or court.
41 On 2 December 2021 the applicant referred me to the income statements and described her claim for loss of earnings as based on her earnings averaging $22,000 to $26,000 per month normally but dropping to $19,000 in December 2019 when “the behaviour of the perpetrator escalated requiring court attendance, police reports and attendance by police to my home on multiple occasions that this provides evidence of days taken off and income lost” and further dropping to between $12,000 to $16,000 in March to May 2020 when “the behaviour continued to escalate leading me to take considerable time off during this period due to incapacity to focus and concentrate on my work and patients.”
42 I have found alleged offences occurred in May 2020. The applicant’s submission indicates a negative impact on her earning capacity prior to the alleged offences having occurred. On 19 May 2022 the applicant submitted:
The dates you are referring to indicate purely when [GC] breached the Restraining Order 3x,  not the psychological, personal and professional damage he has caused to my person over many years which led to the VRO and subsequent breaches. Have these incidents, my distress and financial loss periods been taken into account also? Trying to match up my financial losses with his persistent harassment I would suspect would be impossible. But as you can see from the income statements I have provided – as the years went by and it was normal for me to increase my annual income by 20-30k, however this began to go backwards as a result of my distress, insomnia and inability to see patients on particular days as a result.
I cannot compensate the applicant for any impact on her earnings prior to the alleged offences having occurred in May 2020.
43 I reviewed the applicant’s monthly income statements and note the following:
Month Earnings Number of in person appointments Number of telephone appointments Any periods not worked
September 2019 $22,945 95 1
October 2019 $25,485 82
November 2019 $25,743 104
December 2019 $19,043 74 1 24/12/19 to 31/12/19
January 2020 $25,794.35 94 –
February 2020 $26,600 94 –
March 2020 $12,342 39 8 12/3/20 to 23/3/20
April 2020 $16,970 18 33
May 2020 $16,863 50 23
June 2020 $24,250 78 11

44 The applicant took no time off work subsequent to the incident which occurred on 3 February 2020, sustaining no loss of earnings that month. The applicant’s appointments in May 2020 show no impact from the alleged offences which occurred on 3 May 2020 and 18 May 2020.
45 The biggest impact on the applicant’s earnings was in March 2020. As I did not accept the incident on 3 February 2020 comprised an alleged offence, and this is before the alleged offences occurred in May 2020 I cannot award any compensation for it. However the circumstances of the loss and the applicant’s explanation of that loss are relevant to the weight I can place on the applicant’s evidence. For reasons that become apparent below, I formed a view the applicant exaggerated the impact of the incidents upon her, and upon her ability to work.
46 The applicant did not work between 12 March 2020 and 23 March 2020. Upon returning to work on 24 March 2021 the applicant only saw patients by telehealth/videolink for the balance of the month. This was a significant change in the applicant’s business model with only two telehealth/videolink appointments recorded in the 6 months prior to this date. In April 2020 the applicant also had a majority of telehealth/videolink appointments. On 15 March 2020 the Western Australian State Government declared a State of Emergency with respect to the Covid 19 outbreak. Nonessential businesses were unable to open for a period of time, and when permitted to re-open were on restrictions with respect to face-to-face contact. Restrictions were put in place in relation to persons leaving home which included shopping for essentials, to work or study if you could not do so from home, caring for family members, exercise and for health care. On 22 April 2022 (and prior to my reaching a determination that the incident on 3 February 2020 was not an alleged offence) I wrote to the applicant advising I had reached a preliminary determination not to make an award for loss of earning capacity on the basis any impact to her business between March and May 2020 was due to the impact of the covid outbreak and not the alleged offences.
47 In an email dated 19 May 2022 the applicant advised she travelled interstate for this period of time “to recover psychologically”. I have no medical evidence the applicant was unfit to work over this period of time. I requested the applicant provide evidence of her interstate travel, which she did on 8 December 2022. The E-Ticket, Itinerary Receipts and Tax Invoices provided by the applicant indicates she flew from Perth to Melbourne on 11 March 2020, returning on from Brisbane to Perth on 23 March 2020. These dates are consistent with the time period she did not work. However, the ticket from Perth to Melbourne was issued by Virgin Australia on 23 December 2019, prior to the alleged offending. I do not accept the applicant travelled interstate “to recover psychologically” from the alleged offences, given she purchased her air ticket in December 2019.
48 On 19 May 2022 the applicant advised in response to the preliminary determination:
In regards to ‘the telehealth sessions’ you are suggesting in 2020, I continued with face to face sessions with patients (when I felt I could cope mentally on particular days) up until January 2022 this year. I took a lot of time off during the incidents in 2020/21/22 not only to attend the police station, complete paperwork, document evidence and attend the Magistrates Court but in addition to experiencing severe insomnia as a result of Mr Ciantar’s persistent harassment which ultimately diminished my livelihood. As such multiple time off was required where I could not see patients as per normal for several days at a time. Regarding restrictions, Psychology is considered an ‘essential service’. I saw patients face to face on certain days (where I could mentally) because the office was large enough to reduce transmission to and from patients – so hence I continued. Sure, there may have been a slight drop off initially due to COVID concerns by patients over an initial two week period, but this period included recovering from my mental health breakdown which resulted in taking considerable time off. I am a very busy Psychologist with increasing annual income generally so this is a true account of the impact his persistent behaviour had on me financially. To use COVID as a reason ‘not to consider my financial losses or experiences’ appears very convenient in your attempts to dismiss this application.
49 I therefore reviewed the applicant’s monthly income statements in detail to determine which days each month she did not work, to establish the periods of time subsequent to the alleged offences she was unable to work. The applicant’s income statements show no income for the following days each month:
February 2020: 1-2 (weekend); 8-9 (weekend); 15-16 (weekend); 22-23 (weekend); 29 (weekend)
March 2020: 1-2 (long weekend); 7-8 (weekend), 9, 12-23; 28-29 (weekend)
April 2020: 4-5 (weekend), 11-12 (weekend), 13 (Easter Monday Public holiday), 18-19 (weekend), 25‑27 (long weekend)
May 2020: 2-3 (weekend), 9-10 (weekend), 17 (Sunday, the applicant worked on 16/5 – Saturday), 18, 24 (Sunday), 31 (Sunday)
June 2020: 1 (Public holiday), 6-7 (weekend), 10, 13-14 (weekend), 19 (Friday), 21 (Sunday – note applicant worked on Saturday 20/6), 27-28 (weekend)
Other than the period surrounding the State of Emergency in March 2020 I was only able to identify four days subsequent to the alleged offence on 3 February 2020 the applicant did not work being 9 March 2020, 18 May 2020, 10 June 2020 and 19 June 2020. With respect to 18 May  2020, the applicant had worked on Saturday 16 May 2020 and it may be this day was a planned day of leave. I requested the applicant provide me with her diary so I could determine what client appointments had been cancelled but she refused, citing privacy concerns. Whilst I could have insisted she provide this to me under section 19 of the Act I did not consider the diary to be vital to the applicant establishing her claim. The third alleged offence occurred at about 4.47 pm on 18 May 2020. Given the offence occurred so late in the day I consider it unlikely the applicant was prevented from working on this day due to the alleged offence. I have no evidence as to why the applicant did not work on 10 June 2020. Although she did not work on Friday 19 June 2020, she did work on Saturday 20 June 2020 and this could be indicative of flexibility in work practices. Based upon the applicant’s own business records I do not accept the applicant’s submission she was prevented from seeing patients for “several days at a time” due to the alleged offences.
50 I have also considered the medical evidence in relation to the applicant’s incapacity to work. She did not attend a medical practitioner in relation to her injuries. The report from Ms Dominguez dated 2 October 2021 states:
She has not been able to work regularly since the breaches, finding it difficult to provide psychological services while she, herself, is feeling anxious and depressed. (She is only now trying to return to work and is doing so in a very paced and staggered manner).
The applicant’s financial records do not demonstrate an inability to work regularly, or that she has returned to work in a very paced and staggered manner. She has had limited time off work. Her earnings by June 2020 had recovered to pre-pandemic and pre-incident levels. No evidence was provided of ongoing losses after that date. I find the applicant exaggerated the impact of the alleged offences on her work capacity when speaking with Ms Dominguez. I do not accept the applicant’s injuries resulted in any loss of earnings and make no award in this regard.
Report fees
51 The applicant is entitled to compensation for expenses that arise in obtaining any report from a health professional or counsellor in relation to the injury suffered by the victim.
52 The applicant incurred the cost of obtaining the medical report from Ms Dominguez in the amount $2,178. I allow this amount.
Future treatment expenses
53 The applicant is entitled to compensation for expenses that are likely to be reasonably incurred for any treatment the applicant is likely to need as a direct consequence of the injury suffered by the victim. In her report dated 5 August 2021 Ms Dominguez recommended the applicant have between 10-20 (and possibly more) sessions of Cognitive behavioural therapy, including EMDR therapy at a cost of $267 per consultation. This report was written on the basis the applicant’s condition, including that caused by the conduct of the alleged offender prior to the offending, was compensable. In her report dated 2 October 2021, despite acknowledging the applicant’s mental health was compromised prior to the alleged offending, Ms Dominguez repeated this recommendation. I have difficulty accepting this recommendation as the applicant had untreated PTSD, dysthymia with anxious distress and depressive symptoms prior to the alleged offending. I also note there is no evidence of the applicant seeking psychological treatment subsequent to Ms Dominguez’s recommendation being made. However, despite these observations, I accepted the applicant suffered an exacerbation of her symptoms as a consequence of the alleged offences I was satisfied occurred and allowed $1,500 for future treatment at $150 net (after Medicare contribution has been deducted from a consultation fee of $267) for 10 consultations, to be paid in accordance with section 48 of the Act.
Summary of assessment
54 I assessed the applicant’s injury and losses as follows:
Head of damage
Injury $ 7,500
Report expenses $ 2,178
Future treatment expenses $ 1,500
Subtotal $11,178

55 I make an award in favour of the applicant in the amount of $11,178 of which the amount of $1,500 is payable for future psychological treatment pursuant to section 48(1) of the Act. On 15 December 2020 I made an interim payment in the amount of $2,178 for payment to Mindstate Psychology for Ms Dominguez’s report and I deduct that amount from the sum payable to the applicant.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

K Hafford, ASSESSOR OF CRIMINAL INJURIES COMPENSATION

6 JANUARY 2023