An Application Under the Criminal Injuries Compensation Act 1983 and Mark Mcmahon [1995] ACTSC 16 (9 March 1995)

SUPREME COURT OF THE ACT

AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and MARK
McMAHON
No. CIC100 of 1989
Number of pages - 3
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Assessment - Indecent assaults on 12 year old male child - Post traumatic stress disorder - Expenses of bringing application - Counsel's fees - Cost of transcript - Medical reports.

Criminal Injuries Compensation Act 1983 s.5(4).

HEARING

CANBERRA, 2 March 1995
9:3:1995

Counsel for the Applicant: Ms H. Cory

Instructing Solicitors: Legal Aid Office (ACT)

Counsel for the Respondent: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

The Court orders that:

1. A final award of compensation be made to the applicant in the sum
of $1,940.00

DECISION

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

2. On 13 November 1989 Arthur Staples pleaded guilty in this Court to nine counts of committing acts of indecency upon, and two counts of engaging in sexual intercourse with, the applicant when the applicant was 12 years of age. He was sentenced to imprisonment for concurrent sentences of 2 and 3 years, with a non-parole period of one year.

3. Although it was not applied for at the hearing, I think it is in the interests of justice to make an order prohibiting the publication of any particulars likely to lead to the identification of the applicant.

4. The applicant is a single man, born on 10 September 1976. When he was about 10 the offender moved into the house next door with his wife and child. The applicant's parents were divorced, and he was living with his mother. The offender befriended him, and the applicant came to look up to him as a father figure.

5. When the applicant was 12, the offender began talking to him about sexual matters and showing him pornographic pictures. The offences then took place in the offender's home over a period of about 5 months.

6. Despite threats made by the offender, the applicant told his mother what had been happening in July 1989. She took him to the Child Abuse Service at Royal Canberra Hospital. The senior social worker elicited complaints of night terrors, bed wetting, poor concentration, poor impulse control and inhibited emotional response. His teacher confirmed his difficulties in concentration and application at school.

7. Mr Dawson, clinical psychologist, saw him over about 24 sessions, both before and after the sentencing proceedings. His initial presentation was one of having been severely traumatised. He diagnosed a post traumatic stress disorder, which over the period of his treatment resolved to some extent, to become mild to moderate in degree.

8. His solicitor referred him for assessment to Professor Waters, then Head of the Department of Child and Adolescent Psychiatry at the Prince of Wales Children's Hospital, who saw him first on 5 September 1991. He concurred in Mr Dawson's assessment. There had been continuing improvement. In Dr Waters' assessment he had by then almost recovered, but there were residual symptoms which might last for another one or two years.

9. In May 1993 Professor Waters, then Director of the Department of Psychiatric Services at St Vincent's Hospital, assessed the applicant again. He had left school and was working. His relationship with both parents was poor. Although he still had some symptoms referable to the abuse he was no longer manifesting a post traumatic stress disorder. Nevertheless, Professor Waters suggested that it would be worthwhile to review how his sexual development had progressed after about another two years.

10. Dr Price had referred the applicant to Dr Sippe, consultant psychiatrist, in July 1994. Dr Sippe saw him at weekly or two weekly intervals for some time thereafter.

11. On 1 January 1995 Dr Sippe supplied a report to the applicant's solicitors. When he first saw the applicant he was anxious and withdrawn. Despite the treatment, Dr Sippe thought that his condition had not stabilised, although there had been significant resolution of the post traumatic stress disorder.

12. In August 1989 the applicant's mother had arranged for him to be examined by Dr Simpson, paediatric surgeon, to check on his physical condition, which was then completely normal. He arranged for him to have stool and urine cultures done, as well as a blood test for AIDS. They were all completely normal.

13. At the time this application was made the limit on compensation that could be awarded was $20,000.00. Counsel for the Territory did not submit that the award should be in any amount less than that. I therefore made an interim award of $20,000.00 on 2 March 1995.

14. Counsel for the Territory did however object to some of the items claimed for the expenses of bringing the application.

15. The amount of $375.00 claimed for counsel is expressly excluded by the terms of subs.5(4).

16. An amount of $210.00 was claimed for the cost of obtaining a transcript of the sentencing proceedings from the Commonwealth Reporting Service. In the circumstances of this case the details of those proceedings were not of any great significance, and on the hearing the certificate of conviction was all that was needed. The transcript was not tendered. I disallow that item.

17. The applicant's physical condition was relevant, even though it was fairly clear that the award would reach the maximum permitted by s.7. I therefore allow the cost of obtaining Dr Simpson's report. It was also reasonable to obtain and tender up to date reports by Professor Waters and Dr Sippe.

18. I therefore allow $1,940.00 for the costs of bringing the application.

19. I make a final award of compensation to the applicant, in addition to the $20,000.00 already awarded, of $1,940.00.