"T" v Curnuck [2004] WASC 139

Application for compensation under s 4 Criminal Injuries (Compensation) Act 1970 (WA) - Compensation for "injury" - What "injury" encompasses - Causation - Compensation awarded

Criminal Injuries (Compensation) Act 1970 (WA), s 4

B v B [2004] WASC 6

B v W (1989) 6 SR(WA) 79

Blezard v Chief Executive Officer of the Ministry of Justice (2000) 23 SR(WA) 278

Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980

HNR v GJF (Dec) [2002] WADC 94

Jones v Macey [2000] WADC 101

K v P (1992) 8 SR(WA) 256

Massie v Czepulkowski, unreported; SCt of WA; Library No 1917; 6 December 1976

McD v Edwards, unreported; SCt of WA; Library No 970529; 10 October 1997

MW v CW [2001] WADC 234

R v Forsythe [1972] 2 NSWLR 951

Re Carter (1984) 4 SR(WA) 219

Re Karra (1984) 2 SR(WA) 97

1 BARKER J: On 8 June 2004, I heard the applicant's application for compensation made under s 4 of the Criminal Injuries (Compensation) Act 1970 (WA) ("the Act") in its original form prior to its amendment in 1976 and ordered that:

1. That pursuant to s 4(1) of the Criminal Injuries (Compensation) Act 1970 the respondent pay the applicant $22,000.00 out of his property by way of compensation.

2. The respondent do pay the applicant's costs of the application, to be taxed.

2 I indicated at the time of making those orders that I would publish reasons in due course. These are the reasons.

3 The applicant is a woman now aged 45 who, for a period of about two and a half years, when she was aged between 14 and 16 years, was sexually abused by the respondent.

4 Because she was a minor at the time of the events referred to below, the full name of the applicant has not been used in these reasons and instead she should simply be identified as "T".

5 At material times, the respondent was the leader of a group called Pathfinders within the Seventh Day Adventist Church, which group was set up for the development of children and teenagers. The applicant, along with others about her age, was a member of the Pathfinders group.

6 On 3 August 1999, the respondent was sentenced to 8 years' imprisonment by Miller J in this Court in respect of an indictment involving another person who was a young girl at material times. On 5 August 1999, the respondent pleaded guilty to a number of charges making up indictments involving the applicant and another woman who was a young girl at material times. He was sentenced to a further 4 years' imprisonment, making an effective total sentence of 12 years on the three indictments. He was made eligible for parole.

7 In his sentencing remarks, Miller J observed of the facts relating to the plea of guilty concerning the applicant that:

"The aggravating aspect of the matter in each case is your role as a senior or adult leader of a church group in which there were young girls you breached the position of trust you held in relation to them."

8 In her affidavit in support of the claim for compensation, which went into evidence, the applicant notes that there were 11 charges on the indictment to which the respondent pleaded guilty and these were only but a few of the sexual offences which the respondent perpetrated upon her during the relevant time period. She says there were many more instances over the period in question during which she was indecently dealt with. She says these 11 particular instances were purely "representative" of a pattern of sexual offending against her. She was able to remember with quite some specific detail what happened on those particular 11 occasions and that is why the police preferred them in the indictment.

9 The applicant says that the conduct of the respondent changed the life she had hitherto been enjoying. When she went to high school, she felt trapped. She felt fear and helplessness because of her predicament, especially as the respondent held a position in the Seventh Day Adventist Church organisation and she did not know who would believe her in preference to his denials. She says the fear which she then felt was something which has continued to be an underlying "sensation" in her life and continues to this very day.

10 She says that, because of what happened to her and because of the way she felt about herself, she became even more isolated not only from children her own age, but also from her parents. She says she developed a sense of shame, felt dirty and cheap, and stopped caring and believed she was not worth anything. The applicant says her self-esteem and confidence plummeted and she came to dislike herself as a person. She recalls blaming herself for having attracted the respondent's attention and considered that she was "the bad one".

11 The applicant says that her years of high school were a disaster and she attributes this to the effect that the respondent's conduct had upon her emotional development. Lack of confidence and self-esteem pervaded her life. She lacked any sense of self-worth and had no ambition to achieve. She could not focus on her studies and her grades became worse. She made no close friends and always was on the outer and something of a loner. She suffered dreams and nightmares. The fear and thought that others would find out about what had happened to her simply would not go away.

12 Later, when she married, the applicant says that her relationship with her husband was affected by the feelings she continued to experience as a result of the respondent's conduct. When she had children, she was particularly concerned that what had happened to her might happen to them.

13 The applicant says that, leading up to the time when she went to the police during 1997 to report the offending, her life had become an absolute mess. Her marriage was on the brink of breaking up. She was having serious problems in coping with day-to-day living. Intrusive thoughts of the abuse, combined with her own feelings of lack of self-worth had caused her to contemplate suicide. She was crying a lot in private. She was physically unwell and struggling to continue her paid employment.

14 The applicant sought medical and psychological advice. Dr Ray Jenner counselled her for almost a year. Dr Nikellys assisted her as her general practitioner for some years. Mrs Barbara Cox-Hosking of Cornerstone Care Counselling in Perth also advised her over four years, particularly in recent times when she was in crisis. The applicant also has consulted Mr Stephen Cohen, a clinical psychologist, from whom she now receives assistance. She says that Mr Cohen has strongly recommended that she receive ongoing and regular counselling for her continuing issues.

15 The applicant says hardly a day goes by when she is not somehow reminded of the past. She finds trusting people, particularly males, a serious problem for her and finds it difficult to work with males, whether they be as patients in her place of employment or as colleagues. She continues to have flashbacks, feelings and memories connected to the offending. She looks back with sadness at what the respondent took away from her and what he did to her life and gets angry with herself that she cannot forget the past and move on.

16 In a medical report provided to the applicant's solicitors, Dr Nikellys, who has been the applicant's general practitioner for some years, provided the following medical opinion on certain relevant matters:

"5. How do you perceive she has dealt with the issues which have arisen during her life and which are connected to the abuse?

Like most individuals who had experienced sexual abuse from a young age they suppress their feelings and maintain secrecy until it is uncontainable. They become depressed, relationships fail, and especially sexual difficulties arise often linked to gynaecological presentations. I observed most of the above by exposing the secret and working with the process. By exposing the secret the depression has lifted it was a slow painful process backed [sic] to perceived normality.

6. Realistically, experience tells us victims of childhood sexual abuse never get over the ordeal. However, how do you anticipate her degree of recovery in respect of the harm inflicted will unfold.

I believe her recovery from depression will be complete, she may require long term medication and time will tell whether she can cope off medication. I believe she will function normally in regards to her job and worldly activities. I believe she will have difficulty with intimacy and new relationships with the opposite gender.

7. In your opinion how significant has the abuse been in this lady's life (and the issues it has created for her) both in the past, currently, and perhaps into the future.

Her abuse has been extensive and long standing and will leave a lasting impression effecting [sic] ongoing relationships. She is a grounded person and I believe her day to day coping will be good."

17 Mr Stephen Cohen in a report to the Court makes the following assessment:

"[The applicant] completed the Impact of Events Scale, the Beck Depression Inventory and the Millon Clinical Multiaxial Inventory-III. The result of these was that she has a moderate level of post-traumatic stress disorder as verified by the Millon Clinical Multiaxial Inventory-III and Impact of Events Scale. She suffers a marked level of depression despite currently taking anti-depressant medication.

Her personality profile is of a person with significant apprehensiveness, feelings of inadequacy and introversiveness ...

She tends to devalue herself and to think that other people are more capable and worthy ...

Therefore she tends to remain aloof and detached, distantly complacent, appearing somewhat apathetic and unable to experience any strong emotional ties with others. She is a very private individual, seen as a loner, who has some acquaintances but typically lacks any intimate friendship.

These assessment results are clearly in concert with a history of multiple sexual abuse at an early age over a lengthy period of time.

[The applicant] has suffered events that involved actual threat to herself. Her response at the time involved intense fear, helplessness and shock.

The sexual abuse is re-experienced through recurrent intrusive recollections in the form of images and thoughts.

She suffers recurrent distressing dreams, nightmares associated with hot and cold sweats on waking.

She at time suffers flashbacks, usually stimulated by events similar to those which occurred at the time of the abuse.

She suffers intense psychological distress at exposure to any internal or external cues that symbolise or resemble any aspect of the assault. She suffers the psychological reactivity on exposure to any cues resembling aspects of the result [sic assault].

She persistently attempts to avoid thoughts, feelings, conversations, activities, places and people as a result of the abuse. She suffers detachment and estrangement as well as the restricted range of affect.

She suffers persistent symptoms of increased arousal as indicated by her difficulty failing or staying asleep, irritability and outbursts of anger and hypervigilance.

The duration of these symptoms has been more than one month.

These disturbances have caused clinically significant distress in her social, educational, occupational and marital areas of functioning.

At the same time [the applicant] suffers significant anxiety as well as marked clinical depression."

18 Mr Cohen has expressed the view that the symptoms of post-traumatic stress disorder, generalised anxiety disorder and clinical depression suffered by the applicant emanate significantly from the sexual abuse that she suffered between 1972 and 1975.

19 At material times, s 4(1) of the Act provided that, where a person is convicted of an offence, the Court may at any time after his conviction, on the application of a person who has suffered injury in consequence of the commission of that offence, order that a sum, not exceeding $2000 if the offence is an indictable offence, be paid by the person convicted out of his property to such other person, by way of compensation for injury suffered by that other person by reason of the commission of the offence. Despite various amendments to the 1970 Act, and the enactment of the Criminal Injuries Compensation Act 2003 (WA), s 4(1) of the 1970 Act continues to apply to the injury suffered by the applicant at the hands of the respondent at the material times.

20 Thus, under the provisions of s 4(1) of the Act as it applied at material times, the maximum award of compensation that can be made to the applicant is $2000 in respect of each offence committed against her and contained in the indictment, thus permitting a maximum of $22,000 to be awarded in respect of the 11 offences.

21 The fact that the offences the subject of the application are only representative of conduct does not have a bearing on the jurisdictional limit of compensation that can be assessed: M v J, unreported; SCt of WA; Library No 920598; 19 November 1992.

22 The maximum compensation prescribed by the Act is merely a jurisdictional limit and is not reserved for the "worst case": S v Neumann (1995) 14 WAR 452.

23 Compensation under the Act is for "injury" within the meaning of the definition contained in s 3 of the 1970 Act. "Injury" is there defined as bodily harm and includes mental shock and nervous shock.

24 It has been accepted that it is probable that the very act of rape itself causes bodily harm to the victim: Sunderland v Curnack [2002] WASC 158.

25 The phrase "mental shock and nervous shock" is one of composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury: S v Neumann (supra).

26 The phrase "mental shock and nervous shock" in the context of the Act has been considered on a number of occasions by the Court and should be given a wide and generous definition. Mental shock and nervous shock comprehends any malfunction of the person that can be said to be a consequence of the impact of the events constituting or associated with the commission of the offence on the mind or the nervous system: Hatfield v Under Secretary for Law, unreported; SCt of WA; Library No 4012; 15 December 1980. In S v Neumann, at 461, Murray J stated:

"[T]he phrase 'mental shock and nervous shock' was one of a composite character borrowed from the law of tort to refer to mental or emotional harm as opposed to physical injury or bodily harm. It was therefore necessary ... to draw a distinction between a mere emotional reaction and something of a more enduring character which may in both the legal sense and in common parlance, be described as an injury."

27 Section 4(1) of the Act refers to the person as a person "who has suffered injury in consequence of the commission of the offence". As a result, the applicant must also establish a causal relationship between the commission of the offences and the injury for which compensation is sought: S v Neumann (supra) at 463. In Fagan v Crimes Compensation Tribunal [1982] HCA 49; (1982) 150 CLR 666 at 673, Mason and Wilson JJ said of words of similar effect:

"There is no basis in the context of the Act itself for regarding the words as having narrow operation. The words are ordinary English words carrying no special or technical meaning. All that is required is a causal relationship ... Whether that relationship exists or not is primarily a question of fact. The fact that other unconnected events may also have had some relationship to the occurrence is not material if the criminal act was a cause, even if not the sole cause."

28 Therefore the compensation to be awarded to the applicant is for the injury suffered by her in consequence of the commission of the offences.

29 The evidence to which I have referred, especially that of the applicant herself and Mr Stephen Cohen amply demonstrates that the symptoms of post-traumatic stress disorder, generalised anxiety disorder and clinical depression from which the applicant continues to suffer, is in each case an injury in consequence of each of the indictable offences of which the respondent has been convicted. Mr Cohen's opinion discloses that while other events not the subject of these particular offences may also have contributed to the various "injuries" the applicant continues to suffer from, each offence may be considered a cause, even if not the sole cause, of those injuries.

30 On the basis of the evidence before me, the compensation to which the applicant would be entitled if the ordinary tortious principles for assessment of damages for personal injury were applied would far outweigh, in each case and collectively, the amount of compensation that may be awarded under the Act. It would be far in excess of the sum of $22,000, which is the maximum amount that can be awarded in aggregate in the circumstances of this case.

31 In these circumstances, in my view, the applicant is entitled to an award of $22,000 in total calculated on the basis of $2000 for each of the 11 offences concerning the applicant committed between 1972 and 1975 of which the respondent has been convicted.

32 For these reasons, on 8 June 2004, I made the orders referred to above.