Re An Application Under the Criminal Injuries Compensation Act 1983 and Jrb [1993] ACTSC 85 (23 September 1993)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 AND JRB
No. CIC54 of 1992
Number of pages - 4

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A. HOGAN

HEARING

CANBERRA, 8 July 1993
23:9:1993

Counsel for the Plaintiff: H. Hayunga

Instructing Solicitors: Legal Aid Office

Counsel for Defendant: K. J. Holmes

Instructing Solicitors: Australian Government Solicitor

ORDER

The Court orders that:
1. Compensation be awarded to the applicant in the sum of $50,700.

2. I direct that the sum awarded be paid into Court.
3. On the filing of an undertaking by the solicitor for the
applicant to pay it to the person entitled, I direct payment out to
the solicitor for the applicant of the sum of $700.00, in respect of
fees due to Dr Saboisky.
4. I direct the balance of the sum awarded to be paid out to the
Public Trustee to be dealt with in accordance with s.25 of the
Public Trustee Act.

DECISION

MASTER A. HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 4 December 1992 in this Court the applicant's stepfather pleaded guilty to five counts of engaging in sexual intercourse with the applicant, and one count of indecently assaulting her, she being then under the age of 16 years. He was convicted, and sentenced to imprisonment for cumulative periods totalling 4 years, with a non-parole period of 15 months from 4 December 1992.

3. At the beginning of the hearing I made an order prohibiting the publication of such particulars as might lead to the identification of the applicant or of the offender.

4. The applicant was born in March 1978. She had never lived with her natural father. Her mother had married the offender in March 1987. She had a younger sister, about five years her junior.

5. The offences charged concerned incidents that took place when the applicant was aged 11, 12 and 13 years. However, the offender first started to deal indecently with her when she was only 9.

6. The mode and extent of his conduct seems to have worsened early in 1990, on the occasion which was the subject of the first count in the indictment against him. Not only was there digital penetration but other indecencies over a period of a quarter of an hour. When he stopped because he expected her mother to return home she felt she needed to shower because she felt dirty. She was 11 years old.

7. The second count dealt with an incident later in 1990, when she was 12, and involved digital penetration and fondling of her breasts.

8. The third count related to an occasion in the first half of 1991, when she was either 12 or 13. In addition to his touching her indecently he caused her to masturbate him.

9. The fourth count related to an incident later that year, which involved digital penetration and massaging of her breasts.

10. The fifth count involved an act of digital penetration.

11. The sixth count involved additional elements of cunnilingus, and of his getting into her bed naked, causing her to masturbate him, and attempting to force her to fellatio.

12. It is necessary to recount the nature of the offences charged in order to put into perspective the relationship between the criminal conduct that I can take into account on this application and the injury that she suffered.

13. When the offender was interviewed by police he admitted the offences charged. He also admitted to the acts of cunnilingus and three or four occasions on which he had caused her to masturbate him. When asked how many times he had inserted his fingers into her vagina he replied, "Several times. I honestly don't know how many. I could say five or ten." It is clear from her evidence that that statement was self serving, and that there were many other occasions.

14. But I think that it is probable that even had there been no other incident apart from those charged in the indictment the result for her would not have been much different. I do not think it is necessary to discount the award of damages to any significant extent on account of the chance that those incidents that were not the subject of criminal proceedings made a measurable difference to her injury.

15. Earlier, in primary school, the applicant had been a very good student. In years 7 and 8 her behaviour became erratic, her grades dropped and her mother became concerned. Her hygiene deteriorated. She became angry and argumentative.

16. At about the time of an overseas trip in July and August 1991 the applicant's mother noticed an increasing antagonism by the applicant towards her stepfather. Late in August she was moved to discuss with her daughter the possibility that she was being abused, and the applicant told her what had happened. She forced him to leave the home. Her mother found it difficult to get the applicant to tell her what had happened, or to persuade her to attend at the Incest Centre or the Child at Risk Assessment Unit. After a number of meetings with a counsellor she refused to go any more. It was March 1992 before she would accompany her mother to the police. The detailed statement that she made to the Sexual Assault Unit was taken over 10, 11 and 12 March 1992.

17. Dr Packer, paediatrician, saw her at the Child at Risk Assessment Unit at Woden Valley Hospital on 12 March 1992. Her physical condition was within normal limits.

18. In April 1992 she was seen by Dr Saboisky, consultant psychiatrist, at the request of the Legal Aid Office. At that initial interview Dr Saboisky did not think that she was trusting enough to enable him to explore fully issues such as her anger, sadness, shame or guilt. He was however satisfied that she had suffered psychological injury in the form of relational difficulties, especially with her mother and peers, lability of mood and nightmares. Her self esteem was diminished. He thought it likely that her capacity to enjoy life and cope with vicissitudes would deteriorate. If an appropriate therapist whom she could trust were available, he thought she could benefit from counselling.

19. In March 1993 Dr Saboisky saw her again. In the period since his previous examination she had suffered from the process involved in the criminal proceedings against her stepfather. As she perceived it, he told untruths, and the blame was put on her and her mother, which made her very angry.

20. Her behaviour at school had deteriorated, so that her mother had placed her in a different school. There had been frequent quarrels with her mother.

21. She presented to Dr Saboisky on this occasion as extremely distressed, tearful and depressed. She resented having to go over the matter. In his opinion she was clinically depressed. He thought it likely that she would develop significant personality changes because of the abuse, which he expected to be long standing.

22. Her mother gave evidence that the very process of that interview with Dr Saboisky upset her, so that she was angry with her mother and ran away from home for two days. She has developed an eating disorder, which ranges from not eating at all to over eating and then vomiting. She now smokes cigarettes heavily. There is no evidence to suggest any early amelioration in her condition.

23. Each of the offences charged against her stepfather was an assault upon the applicant. She suffered some damage as the result of each one. She has therefore, on a strict analysis, sustained a prescribed injury in respect of each of those assaults. Those assaults were so separated in time and place that I do not think that they arose "otherwise .... out of the same circumstances" within the meaning of s.7(2) of the Act.

24. The limitation imposed by s.7(1) therefore applies separately to each incident, that is, to each prescribed injury.

25. Yet, so far as her present condition is concerned, it is impossible, whether in the nature of such injury, or on the basis of the evidence in this case, to separate out how much is attributable to each separate incident.

26. In evaluating the evidence I take into account her inability to detail the effects of the injury upon her, which inability is itself a result of the type of injury that it is. If there is a risk in making that evaluation, it is that the extent of the harm could easily be underestimated.

27. I do not think that it is necessary that I should find a specific sum as being attributable to each injury. Taking the six assaults into account, together with the consequences that they together entailed for her, I would award $50,000 for her pain and suffering. The Section 5(4) expenses total $700.00. I award compensation to the applicant in the sum of $50,700.

28. I direct that the sum awarded be paid into Court.

29. On the filing of an undertaking by the solicitor for the applicant to pay it to the person entitled, I direct payment out to the solicitor for the applicant of the sum of $700.00, in respect of fees due to Dr Saboisky.

30. I direct the balance of the sum awarded to be paid out to the Public Trustee to be dealt with in accordance with s.25 of the Public Trustee Act.