Application Under the Criminal Injuries Compensation Act 1983 and Ke [1995] ACTSC 22 (16 March 1995)

SUPREME COURT OF THE ACT

APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 and KE
No. CIC113 of 1993
Number of pages - 4
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN AND REGISTRAR A TOWILL

CATCHWORDS

Criminal Injuries Compensation - Assessment - Children aged 4, 3 and 1 sexually assaulted - Effect on mother - Offender charged only with offences against one child - Jurisdictional difficulties - Joint sitting with Registrar - Reform needed.

Criminal Injuries Compensation Act 1983 subs.11(1), subs.11(3).

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 and expenses be awarded to the applicant in the sum of $51,364.00.

DECISION

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

2. The applicant is the mother of A, K and S, on whose behalf, as next friend, she has lodged separate applications for compensation (110, 111 and 112 of 1993).

3. All the applications arise out of the criminal conduct of SW, the details of whose conviction and sentence are set out in the reasons for decision relating to A.

4. In this application also an order has been made prohibiting the publication of any particulars likely to lead to the identification of the applicant or the offender.

5. Wilks was indicted in this Court on charges relating to A. In so far as the injury suffered by the applicant resulted from that criminal conduct, jurisdiction to award compensation may be exercised only by the Supreme Court, whose jurisdiction is conferred on the Master by O.61A r.1(k) SCR: Criminal Injuries Compensation Act 1983 subs.11(1).

6. There were no criminal proceedings brought against W relating to conduct involving K or S. In so far as the injury suffered by the applicant resulted from the criminal conduct of W relating to those children, jurisdiction to award compensation may be exercised only by the Registrar of this Court as persona designata: Criminal Injuries Compensation Act 1983 subs.11(3).

7. It is, of course, impossible to separate out how much of her suffering has resulted from the one set of criminal acts from that attributable to the other.

8. The practical difficulties caused by the structure of s.11 of the Act are many. It is the victims who are most adversely affected. The Court has called for reform of the section many times. There has not been any rational reason advanced, so far as I am aware, to explain the inaction. I feel justified, therefore, in calling it indefensible. I again urge prompt reform.

9. In an attempt to reduce as far as possible the trauma to the victims which would result from separate hearings, the Master and the Registrar sat jointly to hear the applications which proceeded. The application of the youngest child was adjourned generally, until reliable medical evidence becomes available as she grows older.

10. The applicant is a single woman aged 26. She lived with the father of the two girls, AJR, for seven years. The relationship began in early 1987, when she was pregnant with A.

11. A was born on 27 June 1987, K on 5 July 1988 and S on 21 February 1991.

12. The relationship with Mr R ended in October 1991. W was an acquaintance of Mr R's, and was effectively homeless in late 1991. The applicant invited him to share her accommodation, in return for assistance with the rent.

13. The circumstances of the offences relating to the children are set out in the reasons for decision in the applications of A and K.

14. The applicant was extremely distressed and depressed as a result of discovering the assaults on her children. She was terrified of what might happen to her and to them when W was granted bail, especially when she heard that he had breached some of the conditions of his bail. She was so affected that she staged a hunger strike outside the Supreme Court, which resulted in her being taken by ambulance to Calvary Hospital.

15. She felt impelled to give evidence at the sentencing proceedings about the traumatic effects of the crimes upon her and the children.

16. She was distressed to learn that W's sentence had been reduced on appeal, and that he was not dealt with when he breached the terms of his recognisance.

17. Dr Veness, consultant psychiatrist, saw her for a lengthy consultation on 14 February 1994. He studied the documentary evidence and interviewed K and S. She complained to him of depression, nightmares, weight loss and disturbed sleep. She felt guilty about not having protected her children sufficiently. He diagnosed a post traumatic stress disorder.

18. At first she was ambivalent about consulting Dr Veness for treatment, which he perceived as being her way of trying to cope, by withdrawal into a world consisting mainly of herself and the children.

19. She did begin to see him, however, in December 1994 and January 1995.

20. On 21 December 1994 she was taken to Calvary Hospital after having taken an overdose of Valium. She refused to be admitted, and was advised to see Dr Veness.

21. In the New Year she had begun to improve.

22. In his report of 22 February 1995 Dr Veness commented:
"SUMMARY AND CONCLUSIONS

As I said at the outset, KE is suffering from a post-traumatic
stress disorder. She has been exposed or confronted with an
event involving a threat to the physical integrity of her
children. She persistently re-experiences this in the form of
recurrent and intrusive distressing recollections of the events
and a compulsive need to overcome these distressing recollections
and the sense of injustice which accompanies them by dedicating
herself to reforming the ways in which such cases are dealt
with in law and in counselling. She has weeks where she will
work hard upon this project, preparing submissions and so forth
and then there are weeks where she is dysfunctional and
disorganised. During these times she loses self-esteem and
confidence and is at risk of suicide. The work she puts in
towards reform and assistance for other victims is a way of
avoiding the stimuli associated with the trauma. She has
persistent symptoms of increased arousal - sleep disturbance,
irritability, difficulty concentrating and hypervigilance. The
disturbance has caused clinically significant distress and
impairment in social, occupational and other important areas of
functioning (such as child care). She more than adequately
fulfils the criteria for the diagnosis of post-traumatic stress
disorder.
I regard this patient as being in a very fragile state. It will
require a long period of psychotherapy (I estimate three years)
to effect sustained improvement. She worries incessantly about
her adequacies or inadequacies as a mother and worries incessantly
about the behaviour of her children, seeing reflected in it the
effects of their trauma. She finds any reminder of the trauma
difficult to deal with and her composure and confidence is easily
destroyed - such as by remarks from her mother.
Regular treatment sessions have been planned for 1995. Over the
three years I expect she will need to attend for between thirty
to fifty hourly sessions. My standard fee for an hourly session
(which approximates the AMA schedule fees) is $180.00."

23. In my view the total compensation that she should receive is limited by the provisions of s.7 of the Act to $50,000.00.

24. An apportionment of that between the two jurisdictions can be only rough and ready. The offences against A were the first to come to notice, and were the more certain and detailed in their description.

25. So far as the application is within my jurisdiction, for her pain and suffering I award compensation of $30,000.00.

26. The expenses of bringing the application were $1,364.00.

REGISTRAR A TOWILL The facts and circumstances of this application are set out in the judgment of the Master and I do not propose to repeat them. An order has been made prohibiting the publication of any particulars likely to lead to the identification of the applicant or the offender.

2. Because of the jurisdictional issues associated with the determination of this application (as noted in the Master's judgment), it is necessary that I separately consider the application insofar as the applicant's "prescribed injury" resulted from criminal conduct relating to the applicant's daughter, K (see CIC 111 of 1993).

3. I agree with the Master's conclusions as to the nature of the prescribed injury sustained by the applicant as a consequence of the criminal conduct perpetrated by the offender, W, on her children.

4. I also agree with the Master that it is impossible to separate out how much of the applicant's suffering has resulted from the criminal conduct in relation to each of the applicant's children. The totality of that suffering, in my view, merits an award at least to the statutory maximum of compensation that may be awarded under s.7 of the Criminal Injuries Compensation Act 1983.

5. Having regard to the amount of compensation awarded to the applicant by the Master in respect of the suffering caused to the applicant attributable to W's criminal conduct towards A ($30,000), I award compensation in an amount of $20,000 to the applicant in respect of the suffering caused to her as a consequence of the criminal conduct towards K.