JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
ACT : CRIMINAL INJURIES COMPENSATION 2003
CITATION : J [2023] WACIC 2
CORAM : K HAFFORD
DELIVERED : 6 JANUARY 2023
FILE NO/S : CIC 2197 of 2022
BETWEEN : J
Applicant
Catchwords:
Child sexual abuse – Proved offence – Alleged offence – Assessment of damages – Extension of time – Maximum for related offences – Turns on own facts
Legislation:
Criminal Injuries Compensation Act 2003, s3, s 6, s 9, s 12, s 16, s 17, s 19, s 30, s 31, s 48, s 64
Result:
Compensation granted
Representation:
Counsel:
Applicant : Not applicable
Solicitors:
Applicant : Patrick J Cannon Coburn & Associates
Case(s) referred to in decision(s):
A v D (1994) 11 WAR 481
AJH v LAM [2018] WADC 126
AKM v GJH [2020] WADC 152
E [2021] WACIC 4
Hansen v Bolton [2017] WADC 25 [14]
Hill v Clarke [2015] WADC 93 [13]
Houlahan v Pitchen [2009] WASCA 104
JLM [2020] WACIC 7 at [46]
KMA v DFS [2010] WADC 6
Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers [2020] WADC 27
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
Munsell v The Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No D970275, 12 September 1997) 3
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118
Re ATS [2017] WADC 92 [28]
Re Carter (1984) 4 SR (WA) 219
Re McHenry [2014] WADC 92 at [18]
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
S v Neumann (1995) 14 WAR 452, 463
SJR v JJC [2020] WADC 161
SL (by her next friend NL) [2014] WADC 178
TAW v NJS [2011] WADC 187
Underwood v Underwood [2018] WADC 13
VPAN [2011] WADC 40 at [94]
Winiarczyk v Tsirigotis [2011] WASCA 97
Reasons for Decision:
1 By application dated 3 August 2022 the applicant, “J”, made a claim for compensation for injuries she suffered as a consequence of offences between 16 April 2002 and 16 April 2003 by the offender “CGB”, who was a friend of the applicant’s parents, and which were described in the application form as “sexual assault”. The applicant was born on 16 April 1993 and was aged between nine and 10 years when the offences were committed and was aged 28 years when her solicitors lodged the application. On 17 November 2022 I made an award of compensation in favour of the applicant which the applicant accepted. On 17 November 2022 the applicant requested reasons for my decision which I provide below.
Evidence provided
2 The application was supported by a letter requesting an extension of time for late lodgement, a statement of events/victim impact statement dated 27 July 2022, a timeline prepared by the applicant, a bundle of documents in relation to the prosecution of the offender obtained from the Department of Public Prosecutions, a report from Ms Maryanne Stewart, Consultant Psychologist dated 13 April 2022 and an invoice for Ms Stewart’s report. Upon request, the applicant also provided her school reports from both primary and high school and her resume.
3 After reviewing the materials provided with the application, I requested clarification from the applicant in relation to possible alleged offences and received a further statement from the applicant plus photographs which contained images of the applicant at events referred to in the statement and other photographs taken by the alleged offender. The photographs include images of the applicant in skimpy clothing better suited to an adult woman and/or the applicant posing in a sexualised manner and a number of photographs have been taken at an angle to look up the applicant’s skirt or the legs of her shorts.
The circumstances giving rise to the offences/alleged offences
4 The applicant resided with her parents in a town in the Kimberley region of Western Australia. “CGB” was a friend of the applicant’s parent’s and for a period of time resided in a double decker bus which was parked in the applicant’s parent’s back yard. Between January 1998 and December 1999, when the applicant was aged five or six years old, she would regularly visit “CGB” and recalls he would have discussions with her which she described as “inappropriate”, would take photos of her which exposed her underwear and would have her sit upon his lap and then “accidentally” have his chair fall over whist she was sitting on his lap so she would end up lying on top of him. I have been provided with photographs of the applicant which were taken by “CGB”, and which show her underwear. The offender was not charged for this conduct. “CGB” later moved to another location and the applicant was allowed on occasion to visit him alone. The applicant’s father passed away when she was seven years old, and she described her relationship with “CGB” as filling some of the void her father’s death had caused.
5 When the applicant was aged nine years old, and “CGB” was aged 57 years old, she visited him at his market stall. He took her to his rural property, where he directed the applicant to sit on his lap whilst he was seated in a computer chair. After a brief period of time “CGB” directed the applicant to remove her boardshorts and underwear before returning to an away facing seated position on his lap. “CGB” then used his hand to rub the applicant’s vagina, causing her physical discomfort. “CGB” attempted to have the applicant touch his penis through his clothes but was unsuccessful due to her away facing position. He then showed the applicant a number of photographs of himself engaging in naked adult group sex. The applicant was very uncomfortable and persuaded the offender to drive her home. On 16 November 2021 “CGB” was convicted in the District Court at Perth of 2 counts of indecent dealing with a child under 13 years for his conduct on this occasion which occurred on an unknown date between 16 April 2002 and 16 April 2003. I am satisfied proved offences as defined in section 12 of the Act were constituted.
6 When the applicant was aged about nine or 10 years, between about January 2002 and December 2003, she would visit “CGB” at his market stall. On one occasion “CGB” bought the applicant a coin purse and asked to take photographs of her holding the coin purse, requesting she “pose ‘sexy'”. I was provided with a copy of this photograph. The applicant recalled “CGB” taking numerous additional photographs of her, noting in some photographs he did not use the camera’s flash and so could not see up her skirt and so used the flash in the next photograph. I was provided with copies of two of these photographs. The offender was not charged in relation to these offences.
7 For the applicant’s 11th birthday on 16 April 2004, “CGB” took her for a flight on his microlite glider. “CGB” insisted the applicant change into something “sexy” before he would take her on the glider, which she did. The applicant’s mother was present before take-off and the applicant was only alone with “CGB” whilst on the flight, and when he landed on the beach to take photographs of her on the glider. The applicant recalled “CGB” placing his hand on her upper thigh during the flight and also taking “upskirt” photographs of her on the glider and afterwards when in the hangar. Copies of these photographs were provided. The offender was not charged for this conduct.
8 Section 17 provides an award of compensation for an alleged offence can be made if an Assessor is satisfied the claimed injury and any claimed loss occurred as a consequence of an alleged offence. An alleged offence is defined in section 3 of the Act. Section 3 of the Act provides ‘satisfied’ means ‘satisfied on the balance of probabilities’. It must therefore, be more probable than not 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. Having considered the applicant’s statements and having viewed the relevant photographs, I was satisfied the conduct of “CGB” surrounding the taking of the photographs and in touching the applicant as outlined above comprised alleged offences of indecent dealing with a child under the age of 13 years which occurred on a date unknown between 1 January 1998 and 31 December 1999, on a date unknown between 1 January 2002 and 31 December 2003 and on or about 16 April 2004, pursuant to section 17 of the Act. I amended the award pursuant to section 19(1) of the Act to include these alleged offences.
Medical evidence
9 In her report dated 13 April 2022 Ms Maryanne Stewart, consultant psychologist reported the applicant had consulted with her on 39 occasions between November 2015 until the date of the report. The applicant presented with symptoms of post-traumatic stress disorder (PTSD), general anxiety, depression and stress. Ms Stewart attributed the applicant’s PTSD symptoms predominantly to the sexual abuse she experienced as a child. Ms Stewart reported the applicant suffers from low mood, diminished interest and pleasure in daily activities, weight loss, fatigue, low self-worth, difficulty concentrating, irritability and excessive worrying. The applicant experiences recurrent, involuntary and intrusive distressing memories of traumatic events and associated nightmares, dissociative reactions (including flashbacks) and distress at cues of the distressing events. She noted the applicant is hypervigilant, has strong avoidance tendencies that impact her day to day functioning and an eating disorder which has required hospitalisation. She reported the applicant has trust issues with her family, partner and friends which cause isolation, impact her decision making and ability to attain life goals. Ms Stewart further reported the applicant’s eating disorder and hypersomnia mean she has little energy, is often unwell, does not have the concentration required to do basic household duties and she struggles to care for her children. Her anxiety has prevented her from obtaining her driver’s licence, causing transportation difficulties and adding to her social isolation.
Other evidence
10 In her statement dated 27 July 2022 the applicant described the incidents caused her to have nightmares and wet the bed. She described difficulty maintaining friendships when at school and an inability to fit in with her peers or concentrate whilst at school. The applicant lacked motivation. This, combined with her difficulties with her peers, caused her to leave school in year 11. Between 2010 and 2012 the applicant was involved in a domestic violence relationship before she entered into a relationship with her current partner, who is also the father of her two children. The applicant completed a Certificate II and a Certificate III in Horticulture in 2014. She gave birth to her first child in March 2016 and her second child in October 2018. Whilst pregnant she suffered from severe depression. She also reported experiencing issues with housing, having difficulty in finding affordable housing and then with maintaining the property to an acceptable standard due to her depression and concentration difficulties. She began working part-time in horticulture with her partner in late 2020 and was able to cope with this as she reported to her partner and didn’t suffer from the usual anxiety she experienced when attempting work. Additional concerns arose in her relationship with respect to the fidelity of her partner and with finances and her statement indicated these matters caused her a level of anxiety and distress. The applicant described being hypervigilant with her children, being concerned about them being looked after by others and described having a panic attack when her daughter first went to school. The applicant experienced a tonic clonic seizure on 15 December 2021 and a subsequent milder seizure on 24 December 2021 which she attributes to her poor diet. I was not provided with any medical evidence as to the occurrence of or cause of the seizures. The applicant has had to modify her diet after the seizures and described difficulty managing this given her previous dietary issues which caused a restriction to her food intake by way of both quantity and food choices. The applicant described ongoing nightmares which cause disturbed sleep and fatigue.
11 The applicant’s school reports indicate a declining performance between primary school and high school. Reports were only provided for the period from 2005 to 2009. The reports for primary school noted a responsible and conscientious student who was confident, responsible with a positive attitude. The reports for 2008 and 2009 described a lack of motivation and sporadic work rate.
12 The applicant’s curriculum vitae indicated she was self-employed between April to September 2020 as a horticulturist. No evidence was provided of the applicant’s earnings, if any, whilst running this business. The applicant was then employed as a production nursery hand between September to November 2020, working a maximum of three days per week. This employment came to an end when fidelity issues arose with the applicant’s partner and she separated from him for a period of time.
Injuries
13 I find as a result of the incidents the applicant sustained a psychological injury comprising post-traumatic stress disorder, anxiety and depression. The applicant has experienced symptoms including:
(a) Repeated, disturbing and unwanted memories and nightmares of the incidents;
(b) Distress and upset on being reminded of the incidents;
(c) Irritability;
(d) Excessive worry and hypervigilance;
(e) Impeded concentration;
(f) Sleep disturbance;
(g) Fatigue;
(h) The development of an eating disorder, with weight loss;
(i) Low self-worth;
(j) Reduced confidence; and
(k) Lack of trust in relationships.
Extension of time
14 The offences occurred on unknown dates between about 16 April 2002 and 16 April 2004. Pursuant to section 9(1) of the Act the application should have been brought by 16 April 2007. By section 9(2) of the Act, a compensation application may be brought after three years if the assessor thinks it is just to do so. The burden is on an applicant for compensation to explain to the satisfaction of the court the reasons for the delay in bringing the application. The applicant provided a letter dated 27 July 2022 which identified she was a minor when the offences were committed and when the limitation period expired. The applicant also explained the incidents were not reported to police until she was 18 years old (in 2012), but the police investigation took some time, with the offender having re-located overseas and changed his name to avoid extradition. The prosecution of the offender was completed in November 2021. Subsequent to the sentencing the applicant, who lives in Queensland, then had to locate a solicitor who could assist her in bringing this application.
15 In Hansen v Bolton, Herron DCJ set out the factors may be relevant to the exercise of the court’s discretion under s 9(2) as including:
(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 the 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.
16 In determining whether it was just to grant an extension of time for the applicant to bring her application pursuant to section 9(2) of the Act, I noted the application arose from childhood sexual abuse and the delay was considerable, being approximately 15 years after the expiry of the limitation period. If the extension was not so granted, then the applicant would be denied compensation. That on its own does not justify the granting of an extension of time to make her application. However, given the convictions of “CGB”, the prospects of proceeding to an award on a compensation application brought within time would have been high. I considered additional reasons to exercise my discretion in the applicant’s favour where she was a minor both when the offences occurred and when the limitation period expired and she brought the application less than 12 months after the prosecution of the offender was finalised. As a result, I considered it just to grant the applicant an extension of time within which to bring her application.
Method of assessment
17 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’. Under Section 3 of the Act, ‘satisfied’ means ‘satisfied on the balance of probabilities’.
18 As the last offence occurred after 1 January 2004, the maximum amount of compensation payable for a single offence is $75,000.https://ecourts.justice.wa.gov.au/eCourtsPortal/Decisions/ViewDecision?returnUrl=%2feCourtsPortal%2fDecisions%2fSearch%3fsearchText%3dassessment%26jurisdiction%3dDC%26advanced%3dFalse&id=4a622e4d-b72c-41f8-8612-c5ea3dac176b#_ftn41 The applicant was the victim of multiple unrelated offences by one offender and accordingly she is entitled to an amount not exceeding twice the maximum of a single offence, namely $150,000. The maximum in the Act under section 31(1) is a jurisdictional limit and is not reserved for the worst cases. 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.
19 Assessment of damages for loss and injury suffered by a young child at the commencement of her schooling and life is a complex task. Sweeney DCJ commented:
The recognised and well documented long term effects of child abuse, particularly chronic child abuse by a family member however are such that it would be quite impossible for this court to attempt to disentangle the long term effects of any offending behaviour from any possible long term effects from other childhood factors and the vagrancies of life generally, even if it were appropriate to do so.
Assessment of the applicant’s claim
Assessment of non-economic loss
20 Pursuant to section 12 and section 16 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’.
21 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.
22 The injuries I have found the applicant to suffer are set out in paragraph 12 above.
23 In JLM I conducted a review of District Court decisions of general damages awards in Criminal Injuries Compensation matters, noting the range varied from $15,000 for a single incident of indecent dealing to $125,000 for two separate incidents which included sexual penetration. I also considered the decision of Lawrence v Province Leader of the Oceania Province of the Congregation of the Christian Brothers in which Herron DCJ described the nature and extent of the sexual abuse as being in the range of the most severe types of sexual abuse.
24 Subsequent decisions in relation to offences of child sexual abuse include:
a. E involved multiple counts of indecent dealing over approximately 15 months. “E” suffered from post traumatic stress disorder, anxiety and an eating disorder. Injuries were assessed at $130,000.
b. SJR v JJC involved a single incident comprising sexual penetration (penis/vagina) of the applicant who was then eight years old applicant by a 14-year-old friend of her brother. The applicant was noted by the consultant psychiatrist who reviewed her to have been “emotionally traumatised” by the offences and was diagnosed with post-traumatic stress disorder. Judge Sharp considered the appropriate amount for general damages exceeded the jurisdictional limit of $75,000.
c. AKM v GJH involved two incidents comprising an unlawful sexual assault and unlawful indecent dealing with a person under the age of 16 years. No diagnosis was provided of the applicant’s condition but on his statement, it was accepted the trauma suffered by the applicant comprised mental and nervous shock for the purpose of the definition of injury under the Act. Judge Sharpe considered the appropriate amount for general damages exceeded the jurisdictional limit of $100,000 and awarded compensation in that amount.
25 The applicant has sustained a psychological injury which impacts upon her personal relationships, and her ability to engage in employment. The symptoms include intrusive flashbacks, nightmares and disturbed sleep, lack of trust, lack of confidence, lack of self-worth, an eating disorder, hypervigilance and impaired concentration. I accepted the applicant’s injury has a significant and ongoing impact on her quality of life. I took into account the applicant experienced additional trauma in her life including a domestic violence relationship, severe depression whilst pregnant, and ongoing stressors in her relationship with her partner, with finances and with her health, some of which may be attributable to the consequences of her psychological injury. In all of the circumstances of this case I considered an appropriate award of general damages for the injuries suffered by the applicant to be $150,000.
Future Treatment expenses
26 Loss under the Act includes ‘expenses that are likely to be reasonably incurred by or on behalf of the victim for treatment that the victim is likely to need as a direct consequence of the injury suffered by the victim’.
27 Ms Stewart, consultant psychologist, commented the applicant will require further long-term, regular therapy to support her to gain a decent quality of life. However, she did not provide an estimate of the applicant’s future treatment requirements. I noted the applicant had attended Ms Stewart for 39 sessions to date, of which 33 sessions were between February 2020 and April 2022. I allowed an amount of $5,000 for future psychological treatment.
Report fees
28 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.
29 The applicant incurred the cost of obtaining the medical report from Ms Stewart in the amount $198.00. I allowed this amount.
Assessment of loss of earning capacity
30 The applicant is entitled to compensation for ‘loss of earnings as a direct consequence of the injuries’ she suffered. Loss of earnings includes loss of earning capacity.
31 The applicant was a child when the incidents occurred. Her school reports immediately after the offending showed no apparent difficulties. However, her high school reports were characterised by a lack of motivation, concentration and effort. Ms Maryanne Stewart, consultant psychologist opined:
I believe [the applicant]’s history of childhood sexual abuse has significantly impacted her education, and past, current and future employment capabilities. Due to [the applicant]’s mental health difficulties she ended her schooling in Grade 11, finding it difficult to concentrate on her study and interact with peers. Other attempts at study, such as Certificate in Childcare were also aborted due to an inability to focus. [The applicant] managed to attain a Certificate 2 and 3 in Horticulture in 2014. Ongoing financial struggles, transport and accommodation difficulties, poor social support, physical health issues and low self-worth means it is difficult for [the applicant] to maintain her career in horticulture and selling plants, which is her passion.
32 Since reaching adulthood, the applicant has only maintained paid employment for a total period of two to three months, whilst she was able to work under the supervision of her partner. I accept there has been an impact on the applicant’s earning capacity and allowed the amount of $150,000.
Summary of the assessment
33 I assessed the applicant’s claim as:
Non pecuniary loss $150,000
Loss of earning capacity $150,000
Future treatment expenses $5,000
Report fees $198
SUBTOTAL $305,198
34 However, I am bound by the jurisdictional maximum of $150,000 which applied to this matter and accordingly on 17 November 2022 I made an award in favour of the applicant in the amount of $150,000. I did not withhold any monies for future treatment pursuant to section 48(1) of the Act as my assessment for injuries and other losses greatly exceeded the jurisdictional maximum.
35 When I made the compensation award, I considered it appropriate to prohibit any publication pursuant to section 64(a) of the Act which is likely to lead to the identification of the applicant due to the nature of the offences. I hereby extend that order to these reasons.
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
