In the matter of an application under the Criminal Injuries Compensation Act 1983 & Pert [2005] ACTSC 111 (3 November 2005)

Last Updated: 23 May 2006

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983 AND LISA MAREE PERT

[2005] ACTSC 111 (3 November 2005)

CRIMINAL INJURIES COMPENSATION - mental and nervous shock - assessment of compensation - no question of principle.

No. CIC 431 of 1999

Judge: Master Harper

Supreme Court of the ACT

Date: 3 November 2005

IN THE SUPREME COURT OF THE )

) No. CIC 431 of 1999

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT 1983

AND: LISA MAREE PERT

Applicant

ORDER

Judge: Master Harper

Date: 3 November 2005

Place: Canberra

THE COURT ORDERS THAT:

The applicant be awarded $45,000 under section 6(1)(c) and $2000 under section 6(1)(a), a total of $47,000 by way of compensation, plus $895 under section 5(4) by way of reimbursement of expenses.

1. This is an application for an award under what was the Criminal Injuries Compensation Act 1983, now the Victims of Crime (Financial Assistance) Act 1983. The applicant is a woman aged almost 36 who was criminally assaulted in June 1999. At that time she was living at a house in Hughes with her two children, having separated earlier in 1999 from her husband from whom she is now divorced.

2. After separating from her husband she continued a friendship with a man who had been a friend of theirs, Andrew Sharpe. It appears that Mr Sharpe had very much greater expectations of the relationship than the applicant. Without going into all of the details of the relationship and of his behaviour towards the applicant, it is enough to say that on 22 June the applicant received a telephone call from Mr Sharpe at work. He told her that there was something he needed to talk to her about which he could not talk about over the telephone. He asked her to come over to his house at Charnwood, which she agreed to do during her lunch break.

3. With some misgivings she went to the house. After some time Mr Sharpe tried to force his attentions on her and ultimately, without any suggestion of consent on her part, he had intercourse with her in circumstances amounting to the crime of rape.

4. The applicant thought about resisting but realised that it was unlikely that anyone would hear her if she cried for help and that attempts to fight what was happening were likely to be futile. After the incident she left the house and got into her car. Mr Sharpe called out to her with some kind of apology and soon after telephoned her mobile telephone number and had a brief conversation with her.

5. She drove to the Magistrates Court in Canberra City, spoke to someone from the Legal Aid Office, went to the City Police Station and reported the rape. She made some enquiries about obtaining a restraining order from the Magistrates Court but was informed that could not be done at that time and that she would have to come back the next morning.

6. She eventually got home that evening. At about 7.30 pm she heard a car stop outside. She looked out and saw Mr Sharpe coming into the house. He brought her some flowers and apologised for his actions earlier in the day but behaved in a way that she described as hysterical. She suggested that he should speak to somebody and get some help.

7. About 9.00 pm he telephoned her house phone. This concerned her because she had arranged for the number to be an unlisted one and she was not aware that Mr Sharpe knew the number. They had a telephone conversation, which caused her some distress. A short time later she called the police. The police came to her house and she took that opportunity to give them the skirt that she had been wearing at the time of the rape earlier in the day.

8. She went to bed and went to sleep. A little after 2.00 am on the following date, but the same night, she was awakened by the sound of breaking glass. She jumped out of bed and went to the top of the stairs. She saw Andrew Sharpe running up the stairs towards her with a wooden stake in his hand raised above his head ranting and yelling. She got past him and went down the stairs to call the police. She rang 000. As she was doing so Andrew Sharpe ran towards her with the stake raised above his head.

9. She screamed into the telephone and felt her head being pushed into the bookshelf and window. He pulled the phone from her and threw it across the room disconnecting it from the wall plug. Her current partner, Mr Copley, was also in the house and by this time was downstairs. He intervened physically with Andrew Sharpe giving the applicant the opportunity to run out the back door of the house. She went back in at one point and saw that her partner had Andrew Sharpe in a headlock. She went to a neighbouring house and woke the occupants. They called the police on her behalf and the police arrived some time later. The applicant's parents also attended the house.

10. Sharpe was apprehended and eventually pleaded guilty to four offences in this Court before Miles CJ. On 24 November 2000 he was convicted of four counts, one of sexual intercourse without consent, one of aggravated burglary, one of assault occasioning actual bodily harm and one of assault. The file in relation to the criminal prosecutions has not been available to me but I infer that the count of sexual intercourse without consent related to the rape in the middle of the day on 22 June and the count of aggravated burglary and the assault counts related to the incidents in the middle of the following night.

11. The applicant commenced an application in this Court for criminal injuries compensation in October 1999 through her previous solicitors, Vandenberg Reid, and that application gave the date of injury as 22 June and 23 June 1999. The injuries were said to be abrasions and post-traumatic stress disorder. The circumstances were very briefly stated in the application and I quote: "The applicant was sexually assaulted. Precise details will be obtained from the Australian Federal Police."

12. The application was lodged in this Court more than a year before the sentencing of Mr Sharpe. Nothing further was done in relation to it until the solicitors filed an affidavit sworn by the applicant on 7 May 2001, annexing a copy of her statement to the police, a Victim Impact Statement, and a report by Ms Barrelle of Canberra Clinical Forensic Psychology.

13. At about this time the legislation was amended to place considerable restrictions on the entitlement of persons injured in the course of commission of crimes. There was some confusion within the community and the legal profession as to the precise effect of those amendments, particularly in relation to injuries which pre-dated them.

14. In that climate Mr Jorgensen of the ACT Government Solicitor's Office wrote to Vandenberg Reid on 7 August 2001 referring to telephone conversations with Mr McDonald of that firm. In that letter Mr Jorgensen said the following:

I confirm the Territory's view that notwithstanding the decision of the Supreme Court in relation to the validity of the new Criminal Injuries Compensation legislation, the appropriate course is to adjourn the current application before the Supreme Court pending the Territory's appeal in the other matter which is currently before the Federal Court and is expected to be heard in the November sittings of that court. I concede that your client would be entitled to an award of financial assistance under the Victims of Crime (Financial Assistance) Act 1983. Were your client to make such an application to the Magistrates Court under that Act the Territory considers appropriate amounts to be awarded as follows; section 10(1)(a) $787, section 10(1)(c) $1,040, section 10(1)(f) $25,000.

15. Whilst the numbers of the sections do not correspond with the legislation under which the present application is made precisely, I take it that the $25,000 was an amount proposed as an amount that would reasonably compensate the applicant for pain or suffering resulting from the injury and that the other amounts represented expenses and disbursements.

16. It appears that Mr McDonald accepted the recommendation. He issued a fresh application, which came before Special Magistrate Thompson in the Magistrates Court on 14 August 2001, a week later. The application was expressed to be in respect of an injury sustained on 22 June 1999 and the relevant injury was stated to be post-traumatic stress disorder. The circumstances in which the injury was sustained were set out as follows:

Applicant was attacked and raped on 22 June 1999 by Andrew Nicholas Sharpe, sentenced in Supreme Court on 24 November 2000 to 3 years imprisonment suspended immediately upon entering into a recognizance to be of good behaviour for three years.

17. It thus appears to me that Mr McDonald drafted that application in the Magistrates Court so as to limit it to the injury suffered by the plaintiff at the time of the rape on 22 June, and deliberately excluded any reference to the home invasion and assault on 23 June. The application was supported by an affidavit sworn by the applicant annexing Ms Barrelle's report and came before Special Magistrate Thompson on 14 August. His Worship extended time for the making of the application and awarded compensation in a total amount of $26,919, made up as had been proposed by Mr Jorgensen in his letter of 7 August.

18. Mr McDonald on 15 August 2002, about a year after these events, filed a notice of discontinuance of the application in the Supreme Court. The applicant says that she had no knowledge that this was being done and that it was done without any specific instructions from her. It appears to me that it was probably done by Mr McDonald in the belief that the applicant had no entitlement to pursue a claim under the legislation for the injuries that she sustained on 23 June 1999.

19. As it turns out that entitlement had not been extinguished. It is not argued on behalf of the Territory that the applicant is prevented from pursuing that application, except by reason of the award made in the Magistrates Court which is submitted to give rise to an issue estoppel or a res judicata in relation to the present application.

20. On 1 October last year the plaintiff, through her present solicitors, applied to have the notice of discontinuance set aside or alternatively for leave to institute a fresh application out of time. On 15 October 2004 Connolly J in this Court made the latter order.

21. The applicant made a fresh application in this Court pursuant to his Honour's order on 22 October 2004, making a claim in relation to injuries sustained on 23 June 1999, particularised as:

(1) injury to head, (2) abrasions and (3) post-traumatic stress disorder with accompanying panic attacks and symptoms of depression.

The circumstances were set out as follows:

On 23 June 1999 Andrew Nicholas Sharpe invaded my residence. He assaulted me and other members of the household at that time, including my child, Courtney Maree Pert.

22. The criminal proceedings relied on as relevant to the claim were those against Mr Sharpe for aggravated burglary, assault occasioning actual bodily harm and common assault. It is that application which comes before the Court today. I should firstly say that I am not persuaded that on 14 August 2001 Special Magistrate Thompson had before him or dealt with any claim in relation to injuries sustained on 23 June 1999 or the events of that day. True it is that his Honour was aware of those incidents because they were referred to in the affidavit of the applicant which annexed, among other things, the police statement setting out details of the incidents of both dates and Ms Barrelle's report which also set out, not surprisingly, the incidents on both days and their effect in psychological terms on the applicant. However, it seems to me that all that was before Special Magistrate Thompson on that date was the claim in respect of the rape on 22 June. I have had the benefit of his Worship's bench sheet but I am unable to glean from that whether his Worship adverted to the issue which confronts me today. I am inclined to the view that in a busy Court with many matters to deal with, his Worship simply accepted the figures put before him as acceptable to the applicant and her solicitors and regarded as appropriate by the solicitors for the Territory. His Worship accepted those figures and made his award accordingly.

23. In those circumstances it seems to me that the present application is properly before the Court and that the applicant is not estopped from pursuing it by the award made in the Magistrates Court in 2001. The legislation as it stood at the time, prior to the amendments to which I have referred, gives jurisdiction to the Court to award compensation to a person who has sustained a prescribed injury. A prescribed injury is defined as "an injury sustained by the person as a result of the criminal conduct of another person." Injury itself is defined to include mental shock and nervous shock.

24. I am satisfied that the applicant sustained some minor physical injury and much more serious mental shock and nervous shock as a result of the home invasion and assault of 23 June, and that she did so as a result of the criminal conduct of Andrew Sharpe.

25. In those circumstances the task of the Court is to assess under section 6(1)(a) the expense reasonably incurred by the applicant as a consequence of the injury, under section 6(1)(b) the pecuniary loss suffered by her as a consequence of any incapacity for work due to the injury, and under 6(1)(c) of an amount that will reasonably compensate her for pain or suffering as a result of any injury. In addition to that, the Court may award an amount not exceeding any expense that she has incurred in making the application other than by way of solicitors' costs.

26. Section 7 of the Act provides that the amounts to be awarded in the first three categories are not to exceed $50,000, although the disbursements incurred in bringing the claim are not part of that ceiling. In relation to section 6(1)(a) I am informed that no claim is made for treatment expenses resulting from those injuries, such treatment as the applicant has had having been covered by her earlier award.

27. A claim is made for future expenses. In that regard there is evidence in the form of a report from Dr Bruce Stevens, psychologist and a principal of the same practice I have mentioned earlier, that she should undergo a further 12 sessions of counselling for trauma and depression at an estimated cost of $176 per hour with a clinical psychologist.

28. Dr Stevens, in his report of 7 December 2004, has evidently been asked to apportion, insofar as it can be done, the plaintiff's psychological symptoms and disabilities between the events surrounding the rape of 22 June 1999 and the events involved in the house invasion of 23 June 1999.

29. Firstly, I should say that Dr Stevens arrives at the conclusion that the applicant suffers from a chronic major depressive disorder, meeting the DSM 4 criteria for that condition, which is, in his opinion, mild on a range of mild to moderate to severe. In the history he noted that in February 2001 at a time when she had a full-time job, four days a week, she was able to work full-time but could not go home after dark. She said: "I now finish work every day at 3.00 pm. I used to go home at lunchtime and turn on all the lights, so that I didn't have to go home in the dark. And I told them about that at work and they've been very supportive". She told Dr Stevens that the rape had affected her greatly. She referred to some of the continuing effects of that incident. S