Criminal Injuries Compensation Act 1983 and S [1995] ACTSC 29 (30 March 1995)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and S
No. CIC46 of 1994
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 - Repeated sexual assaults by brother - Applicant aged from 7 to 10 years - Brother convicted on only one count - Injury caused by long course of conduct.

Application CIC 33/93 (Supreme Court of the Australian Capital Territory, Miles CJ, 14 April 1994, unreported.)

HEARING

CANBERRA, 30 March 1995
30:3:1995

Counsel for the Applicant: Mr I. Nash

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Respondent: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

The Court orders that:

1. The publication of any particulars which may lead to the
identification of the applicant or the offender is prohibited.
2. Compensation be awarded to the applicant in the sum of
$51,407.00.

DECISION

A HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983. These are the reasons for the award that I made on 30 March 1995.

2. On 11 August 1993 the applicant's brother was indicted on six counts alleging sexual offences committed by him on the applicant between 9 January 1983 and 25 February 1986.

3. Over that period the applicant was aged 7 to 10 years, and her brother 14 to 17. At the time of the trial she was 17 and he was 25.

4. The accused pleaded guilty to one count of indecent assault, and the jury acquitted him of the other six charges. He gave evidence at the trial and at the sentencing stage. Although he denied the actual charges on which he was acquitted, he admitted to a course of sexual misconduct with his sister over a period of 2 years, ending in 1985.

5. In sentencing him on 17 September 1993 the Chief Justice took into account the fact that, had the accused been dealt with promptly by a Children's Court after the offence, he would probably have been put on probation. He remarked that there was no sentencing option available to him which was entirely appropriate. He convicted the accused, and without passing sentence released him on a bond to be a good behaviour for 2 years, and to pay $500 compensation for the applicant. He later paid that compensation.

6. At the hearing of this application, on 30 March 1995, I made an order prohibiting the publication of any particulars likely to lead to the identification of the applicant or of the offender.

7. Counsel for the applicant, and counsel for the Territory, both submitted that a "broad brush approach" to the question of the causation of the applicant's injury is appropriate in this case, similar to that adopted by Miles CJ in Application CIC 33/93, Supreme Court of the Australian Capital Territory, 14 April 1994.

8. This applicant's life story is heartbreaking. Her parents separated when she was 2 years old. She then lived with her mother, 3 elder brothers and an elder sister. All her siblings, except her sister, mistreated her. Only the accused perpetrated sexual abuse on her, but that lasted from the time she was 4 to the age of 10. The incidents were at their peak between ages 7 and 9, the period covered by the charges in the Supreme Court.

9. She first disclosed what had been happening to her at the age of 12, to a girlfriend from school. Later that year she complained to her mother, who responded in a way that only increased her suffering and confusion. She was often absent from school, claiming to be suffering from headaches, nausea, sore throats and stomach cramps.

10. She began to attend Dr Evans, general practitioner, in November 1988. She was concerned about her genital development because of the sexual abuse. Dr Evans reports that she continued to attend her practice with symptoms of anxiety which included insomnia, headaches, depression and poor concentration. She was treated with counselling and various medications.

11. During 1989 she was attending School Without Walls, where a sympathetic teacher was able to help her and guide her towards getting professional help. He continued to be a confidant while she remained at the school, and gave evidence on this application, confirming by his observations her complaints of distress. Her time at this school was the one positive experience that she had during her education.

12. The Court proceedings took place in 1992.

13. On 18 February 1993 she was examined by Dr Veness, consultant psychiatrist.

14. She was still waking at night with nightmares. She had difficulty concentrating at school. She was sometimes so anxious as to be nauseated. She had been particularly depressed at and after the Court proceedings. The experience which she interpreted as having the jury disbelieve her was particularly traumatic. Dr Veness concluded that she continued to suffer from chronic anxiety. She would always remain vulnerable to depression.

15. Her present general practitioner has been seeing her since April 1994. She was still withdrawn, socialising poorly, and not coping due to panic attacks. He preferred treatment by counselling rather than medication, but was not able to predict for how long she would require treatment.

16. Also in June 1994 she sought counselling from a local Community Health Service. The social workers at that service also confirm that her symptoms are continuing, and that she is in need of lengthy intensive treatment.

17. In the light of that history and prognosis, I am satisfied that a proper award of compensation for her pain and suffering is limited by the provisions of s.7 of the Act, even when the compensation already paid to her is taken into account.

18. The expenses of bringing the application are agreed at $1,407.00.

19. I therefore award compensation to the applicant of $51,507.00.