Re An Application Under the Criminal Injuries Compensation Act 1983 and Lm [1994] ACTSC 45 (26 May 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND LM
No. CIC47 of 1994
Number of pages - 3

COURT

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

HEARING

CANBERRA, 26 May 1994
26:5:1994

Counsel for the Applicant: Mr M Helman

Instructing Solicitors: Michael T Helman

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $50,850.00.

DECISION

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

2. On 15 October 1993 the applicant's brother pleaded guilty to four charges of incest involving the applicant, and was committed for sentence to this Court.

3. The age of the applicant at the times of the offences was 10, 11, 12 and 14.

4. He adhered to his pleas in this Court, and on 9 February 1994 the Chief Justice ordered that he be released on giving security to be of good behaviour for two years, and to submit to supervision and counselling.

5. On 28 March 1994 I made an order prohibiting publication of any particulars likely to identify the applicant or the offender.

6. I also awarded compensation to the applicant in the sum of $50,850.00. These are the reasons for that award.

7. The applicant was born on 15 May 1976. She is therefore now of full legal capacity, and the application is no longer brought by her next friend on her behalf.

8. The applicant gave a history of having being the victim of sexual abuse by her brother since about the age of 5, when he was 8 or 9. The touching progressed to digital penetration when she was 6, and penile penetration when she was 8.

9. Her mother was aware of what was happening from the time when she was about 11, but was not supportive, and told her not to talk about it. She did however take her to a doctor for pregnancy testing.

10. The four instances that were the subject of criminal proceedings were all of penile penetration.

11. The applicant consulted the Woden Family Services Branch in mid 1992, and then in July 1992 went to the Sexual Assault and Child Abuse Unit, and made a statement.

12. She left home in August 1992, and was admitted to LASA. A report by a carer at that institution was in evidence at the criminal proceedings. It read, in part,
"LM (DOB 15/5/76) was referred to LASA by Sheila Miller of Family and

Community Services Branch, stating LM required urgent
accommodation. LM had attended the Child at Risk Unit, situated at
the Woden Valley Hospital, where she underwent medical examinations
and received initial support. She was admitted here on 25 August
1992 and left on 25 June 1993.
When LM came to LASA she was very frightened that her only brother
would find her and try to enter the premises. She had to leave
home to feel safe and secure, which often made her feel frustrated
as she could not be part of the "nucleus" family. LM felt alone
and abandoned by her parents and was not getting the support she
needed from them.
LM also lost trust and respect for her parents as they did not
believe the allegations she had made. This made her feel guilty as
she did not want to upset her parents. Although she did not feel
part of the family she still loved her parents.
Another problem was when she did eventually go home to visit her
parents to keep that contact, her brother would be there, again
making LM feel threatened and unsafe.
LM was very fearful and I often spent many nights staying up with
her until early morning, as she could not sleep because of
nightmares and uncontrollable crying. Often her nightmares
revolved around her brother, adding to her fear.
During the first few weeks of living here, LM missed a lot of
school because of not being able to concentrate on her work and not
being able to face so many people each day. Her education suffered
and as she already had low reading and writing skills, this added
to her problem of not being able to cope. She often would give up
on her school work and then would fight back again.
LM's first three months here was the most crucial, for her, as she
was extremely vulnerable. She needed lots of reassurance and
support to assist in her recovery."

13. She was referred to the Waramanga Medical Centre. Dr Feltham reported as follows,

"1. I first saw LM on 11/3/93 (she had been seen in the practice
since 4/9/92) and subsequently on 16/3/93, 20/3/93, 25/3/93,
29/4/93, 18/5/93, 27/5/93 and 23/7/93.
2. The diagnosis was depression. She complained of insomnia
(frequent waking through the night), or her mood being "very down",
of anhedonia, loss of concentration and emotional lability. There
were no overt psychotic features although she did express some
mildly paranoid ideation, e.g. her friends talking about her when
she wasn't present, but these seemed to be more of what would be
termed an over-valued ichen rather than a delusion. Her affect was
constricted and depressed and she expressed low self-esteem.
She gave a history of sexual assault by an older brother between
the ages of 5 and 15 years.
Biochemical and haematological profile (including thyroid function
tests) were normal.
3. When I first saw LM she was already on Prothiaden 75mgm at
night. I increased the dose to 100mgm and referred her to Dr M
Tennant, consultant psychiatrist, Phillip Health Centre. Dr
Tennant changed the medication to the new antidepressant, Prozac
(Fluoxetine).
LM was also seeing Ms Di Lucas at the Rape Crisis Centre and Mr
Mark Fitzgerald of FACES.
I last saw LM on 23/7/93 at which time she was no longer taking her
medication and had stopped seeing Dr Tennant. Once again she
appeared depressed and reported problems of sleeping and so I
recommenced her on a small dose of antidepressant medication."

14. At the request of her solicitor Dr Tym, consultant psychiatrist, examined her on 18 March 1994. She was still taking Prozac.

15. He diagnosed severe post traumatic stress disorder. He concluded that she was very severely socially, physically and psychiatrically disabled, and may remain so indefinitely. He advised urgent treatment from a psychiatrist.

16. The injury done to her was, of course, the result of the total course of conduct over the formative period of her life. It is impossible to separate out the harm that was done by the four incidents that were chosen as the subject of criminal proceedings.

17. Such is the severity of her injury however, that Counsel for the Territory, rightly in my view, did not contest the proposition that, since there were four identified instances of criminal conduct, an award of $50,000.00 for the injury suffered from them was justified.

18. The expenses of bringing the application were $850.00.

19. I therefore award compensation to the applicant of $50,850.00