Re An Application Under the Criminal Injuries Compensation Act 1983 and An [1994] ACTSC 84 (25 August 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND AN
No. CIC64 of 1994
Number of pages - 3

COURT

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

HEARING

CANBERRA, 18 August 1994
25:8:1994

Counsel for the Applicant: Mr J. Constance

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Publication of any particulars likely to lead to the identification of the applicant be prohibited.
2. Compensation be awarded to the applicant in the sum of $31,904.25.
3. The compensation awarded be paid into Court.
4. The sum of $627 be paid out to the applicant's solicitor.
5. The sum of $1,277.25 be paid to the applicant's next friend on account of the costs of treatment.
6. The balance, namely $30,000, be paid to the applicant's next friend, to be held by her on trust for the applicant until he attains the age of 18 years.
7. The next friend be authorised to pay out of the fund the professional costs of bringing the application, in such sum as is certified by the Registrar.

DECISION

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

2. Stuart Ian Bain was charged in this Court with five counts of engaging in sexual intercourse with, and one count of committing an act of indecency upon, the applicant on 15 and 24 September 1990, the applicant then being 13 years of age.

3. He pleaded guilty to those charges, and on 13 May 1991 Gallop J sentenced him to concurrent sentences of imprisonment for 2 years, suspended upon his entering into recognizances to be of good behaviour for two years.

4. Because of the nature of the criminal conduct and the age of the applicant, I made an order at the hearing prohibiting the publication of any particulars likely to lead to the identification of the applicant.

5. The criminal conduct, although encompassed in five counts, took place on two occasions, on the two dates referred to.

6. The offences on 15 September involved oral intercourse and two anal intercourse offences. Those involved on 24 September involved manual acts of indecency and two acts of anal intercourse.

7. The offender was sentenced by a Judge with vast experience in the criminal law, and it is no part of my function to enquire into or comment on that sentence. But the mitigating circumstances that His Honour took into account in that sentencing do not affect the conclusion that I come to on the evidence in this application that the applicant was truly a victim. He was not imposed upon by force, but at the age of 13 he was seduced by a man of 22, who used pornographic videos and alcohol to achieve his objective. It was not suggested that Section 15 of the Act had any application in the circumstances of this case.

8. For some time before the incidents took place the applicant had been under treatment for a psychological condition called Attention Deficit Disorder which involves immature behaviour and emotional instability, and one effect of which was a failure to reach his full potential as a student. He had been responding to treatment, but in some respects was vulnerable to exacerbation of the condition by the criminal conduct.

9. His shame and grief were such that he did not at first inform his parents of what had happened. He was afraid that he might have contracted AIDS, and made enquiries about tests.

10. When he did reveal what had happened those tests were arranged, and were negative, but he still has a residual fear of infection, and, of course, some months had to pass before the tests were complete.

11. His parents took him to Mr Dawson, clinical psychologist, for counselling, but he was unavailable for ongoing involvement. He did however treat the applicant in a series of sessions in April, May and June 1993.

12. Mr Dawson commented that, while there was no strong evidence that the applicant suffered post traumatic stress disorder as such, he did appear to be displaying some of the symptoms. He gave evidence particularly about intrusive thoughts, a numbing of responsibility, irritability, concentration difficulties, interpersonal problems and damage to his self image.

13. He had a further interview with the applicant the day before the hearing, and noted that he was still subject to intrusive thoughts, bouts of irritability associated with those flashbacks, and affecting his concentration. His social confidence and adolescent maturation was affected. He still expected the effects to last for some time to come.

14. His patchy academic performance can not be entirely attributed to the effects of the criminal conduct, but I do not doubt that they were worse than they would otherwise have been.

15. The principles on which compensation should be awarded in cases of sexual misconduct do not depend upon whether the victim was male or female. They take account of the actual effects of the conduct upon the particular victim, and every case will be different, no matter what the victim's sex.

16. On the evidence in this case, taking account of the severity of the effects, the length of time for which he has suffered, and the prospects for the future, I think that the injury calls for a moderately substantial award.

17. For his pain and suffering I award $30,000 to the applicant. The costs of treatment were $1,277.25. The expenses of bringing the application were $627.

18. I award compensation to the applicant of $31,904.25.

19. The applicant was born on 6 November 1976. He will have full legal capacity in less than three months. The expenses of administration for such a short period would outweigh the advantages of investment.

20. I direct that the compensation awarded be paid into Court. I order that the sum of $627 be paid out to the applicant's solicitor. I order that the sum of $1,277.25 be paid to the applicant's next friend on account of the costs of treatment. I order that the balance, namely $30,000, be paid to the applicant's next friend, to be held by her on trust for the applicant until he attains the age of 18 years.