Application Under the Criminal Injuries Compensation Act 1983 and A [1995] ACTSC 21 (16 March 1995)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and A
No. CIC110 of 1993
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 - Sexual Assault - Boy aged 4 - Likelihood of psychological harm.

HEARING

CANBERRA, 23 February 1995
16:3:1995

Counsel for the Applicant: Mr G. Stretton

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Respondent: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Compensation be awarded to the applicant in the sum of $15,684.00.

2. I order that sum to be paid into Court.
3. I direct that the sum of $15,000.00 be paid out to the Public Trustee to

be dealt with in accordance with s.25 of the Public Trustee Act 1985.
4. I direct that the sum of $684.00 be paid out to the applicant's solicitor.

DECISION

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

2. On 28 July 1992 W, on his plea of guilty, was convicted before the Chief Justice on one count of committing an act of indecency upon the applicant, and one of committing an act of indecency in his presence. At the time of the offences, 20 March 1992, the applicant was 4 years of age.

3. W was sentenced by the Chief Justice to 2 years imprisonment with a non-parole period of 1 year. On appeal to the Federal Court of Australia the sentence was varied by allowing his release after he had served 6 months imprisonment, on a bond to be of good behaviour and to accept treatment and supervision.

4. On 23 February 1995 I made an order prohibiting the publication of any particulars which might lead to the identification of the applicant or of the offender.

5. A was born on 27 June 1987, and was living with his mother, KE, and his two younger sisters, K, then aged 3, and S, aged 1.

6. W had come to live at their home as a boarder in March 1992, helping to pay the rent. He sometimes looked after the children while their mother was out.

7. On 20 March 1992, while Mrs E was not at home, W indecently fondled A, and exposed himself to him. A told his mother what had happened the next day, after she noticed a bruise on his left cheek and dried blood in his nostril.

8. On 22 March 1992 his mother took him to the Child at Risk Assessment Unit at Woden Valley Hospital, where he was examined by Dr Packer, paediatrician. Blood tests were taken, which were normal. There were some indicators of possible anal penetration, but not sufficient to demonstrate it. In a later conversation with Detective Sergeant Fiona Crombie, A explained the bruise on his cheek by saying that Wilks had pushed him out of bed, and he had fallen on a toy truck. From what he then said I would infer that if there had been any anal penetration, it was digital. The evidence would certainly not have sustained a criminal charge, and there is sufficient doubt about it to enable me to find that the after-effects on A were caused by the incident which was the subject of the criminal proceedings.

9. The applicant's solicitors referred him to Dr Tym, consultant psychiatrist, for examination and report. Dr Tym saw him on 29 July 1993 and 2 September 1993. He reviewed all the documentary material, and listened to the tapes recording the interviews between the police and A and his sister K. There was some evidence of disturbed dreams, but in Dr Tym's judgment there was no unequivocal evidence of any still-persisting psychological disorder or disturbance which was directly attributable to any specific incident.

10. However, there was an increased statistical risk of his developing problems in sexual adjustment later in his development. It was more probable than not that there would be no specific, definable, abnormality as medium or long term sequelae. He advised continuing, though infrequent, psychological or psychiatric surveillance, so that help would be promptly available if he should need it.

11. A's mother was devastated by the assault on A. Evidence then came to light indicating that the two younger children had also been assaulted. When she was being interviewed by Dr Tym she naturally found it difficult to be specific about the changes in A's behaviour since the assault. She has, however, sworn an affidavit in January this year which gives much more detail of nightmares, bed wetting, anger, withdrawal and inappropriate behaviour. Some of these details are supported by the evidence of Mr R, the father of the two younger children.

12. I am persuaded that it is in the interests of this applicant, and of all the members of the family, to make a final award now, rather than an interim award with finality being postponed for some years.

13. I have, therefore, considered carefully Dr Tym's comments about the statistical probabilities of later sequelae in the light of the subsequent detail of behavioural problems, which indicate a higher degree of risk than might at first appear from the terms of that report. This award will at least ensure that appropriate assistance will be readily available if problems do arise in the future.

14. For his pain and suffering I award $15,000.00. The expenses of bringing the application were $684.00.

15. I award compensation to the applicant in the sum of $15,684.00. I order that sum to be paid into Court. I direct that the sum of $15,000.00 be paid out to the Public Trustee to be dealt with in accordance with s.25 of the Public Trustee Act 1985. I direct that the sum of $684.00 be paid out to the applicant's solicitor.