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Precedent (Australian Lawyers Alliance) |
SEEKING JUSTICE
COMPENSATION FROM OFFENDERS VIA THE SENTENCING ACT
By Nina Vallins
Most victims of child abuse do not disclose their abuse until they are adults. Barriers to disclosing the abuse include prior experiences of being disbelieved or fear of being disbelieved; fear of retribution; overwhelming feelings of shame; and not knowing that the abuse is wrong or criminal and can be reported.[1] However, with the increased awareness over recent years of the prevalence of child abuse, we have seen a rise in the reporting, investigation and prosecution of child abuse offences.
For survivors of child abuse, the experience of being believed by police and prosecutors as adults can be a revelation and a transformative experience compared with their childhood experiences of being ignored, disregarded or disbelieved. Nevertheless, participating in the criminal justice process may be alienating; the victim becomes a witness – one piece of the evidence the prosecution will rely on at the trial of an alleged perpetrator – with decision-making power (to charge and prosecute) residing in the police and prosecution. Seeking compensation can, therefore, be an important part of seeking justice, as the victim is the agent who drives the claim.[2]
This article considers applications for compensation under s85B of the Sentencing Act 1991 (Vic), one of various avenues for survivors to seek compensation in Victoria. A Sentencing Act application (SAA) has the significant advantages of being relatively quick and less expensive than pursuing civil claims, and it requires the perpetrator (rather than an institution) to pay the compensation. It is the experience of Angela Sdrinis Legal that the numbers of victims of child abuse pursuing SAAs has significantly increased in recent years, which is obviously consequent upon the increase in investigation and prosecution of child abuse[3] and likely linked to the Royal Commission into Institutional Responses to Child Sexual Abuse. However, there are also significant hurdles for victims to overcome.
Under s85B, where a court finds a person guilty or convicts a person of an offence, it may order the offender (the respondent) to pay compensation to a person who has been injured as a direct result of the offence (the applicant). The applicant must make the SAA within 12 months of the offender being found guilty or convicted, although an applicant can apply for an extension of time.[4]
‘Injury’ is defined as actual physical bodily harm, a mental illness or disorder or exacerbation thereof, pregnancy, or grief, distress, trauma or other significant adverse effect.[5] The applicant does not need to prove that they have suffered a diagnosed psychological injury. Compensation is available for a wider range of injuries than are generally recognised at common law.[6]
The applicant may seek compensation for pain and suffering, counselling or medical expenses, and for ‘other expenses’ incurred or likely to be incurred as a direct result of the offence.[7] ‘Other expenses’ could conceivably extend to loss of earnings incurred as a direct result of the offence, although it is generally thought not to.[8] An SAA does not affect a person’s right to bring civil proceedings.[9] A compensation order will be a judgment debt due by the offender to the applicant.[10]
Assessment of compensation follows common law principles; however, the order itself is one for compensation, not damages.[11] There had been a common practice of applying a discount of 25 per cent in SAAs before settling on a final figure of compensation. Justice Bell did so in the case of Mirik,[12] saying that ‘the court and the offenders are not usually able to examine the victim’s claim as fully as could a civil court in fully contested proceedings’.[13] The Court of Appeal clarified in Kelley[14] that it would be wrong to apply a rigid discount in every case, and that any common practice of applying a 25 per cent discount ‘should cease’.[15]
The court may consider the offender’s financial circumstances and the nature of the burden that any compensation they would be required to pay will impose,[16] taking into account the effect of an order on the offender’s prospects for rehabilitation.[17] However, the offender’s financial circumstances are ‘not a controlling consideration’.[18]
The Confiscation Act 1997 (Vic) allows for the Director of Public Prosecutions (DPP) to apply for a restraining order over a person’s assets in order to satisfy an order for compensation.[19] In practice, this requires the police investigating the crime to also investigate the asset position of the offender.[20] Where police find assets, they may send the brief to the DPP who will consider whether to apply for a restraining order. The DPP’s policy is to apply for restraining orders only where the applicant is likely to receive $10,000 or more.[21]
Where a restraining order is granted by a court, it does not give a victim an interest or any rights in the property, but it does stop the offender from dealing in the property. The DPP will generally not apply to vary or remove the restraining order while a victim is interested in pursuing a claim for compensation; this, therefore, provides a strong incentive for the offender to pay any order for compensation.[22]
SAAs, like many compensation claims, often settle before they reach hearing. Of those that do reach hearing, only a few child abuse cases are reported. The discussion below draws upon cases where Angela Sdrinis Legal acted.
In 2014, Ronald Buckley was convicted of an indecent assault against AA, committed in 1967. Buckley died while serving his sentence and the SAA was made against his estate. The value of the estate was significant.
AA had alleged that Buckley had committed repeated sexual and physical assaults against him, but Buckley was charged and convicted in relation to one act only. While compensation must be awarded only for the injury caused by the offending conduct, Judge Dean stated that:
‘The award of compensation is for the pain and suffering occasioned by the offence that the respondent was convicted of but, in my opinion, I am entitled to have regard to all of the circumstances surrounding that offending.’[24]
Judge Dean referred to s85B(3) which states that ‘offence’ includes an:
‘Offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.’[25]
Importantly in AA’s case, the prosecution opening in the criminal trial detailed a number of uncharged acts, and Judge Dean considered this as part of the context in sentencing. He therefore considered that the offence to which the respondent pleaded guilty was treated as a sample charge in respect of a course of conduct;[26] and that he was not required to ‘somehow calculate the award of compensation by reference to a single instance of offending’.[27]
AA had already received a payment of compensation for negligence from the State of Victoria and had signed a deed, releasing the State of Victoria and its servants or agents from liability. The respondent submitted that the deed should be a bar to the SAA, as Buckley had been an employee of the State. The deed did not refer to criminal proceedings, a criminal offence or compensation pursuant to the Sentencing Act. The State of Victoria made submissions, noting that the Sentencing Act does not curtail a court’s power to hear an application, even if one of the parties had entered into agreement with another regarding the conduct; the respondent was not a party to the deed; and the deed did not operate to prevent the SAA. Judge Dean agreed.[28]
Judge Dean made an order in AA’s favour for $215,000 in compensation for pain and suffering and ordered that the respondent pay the applicant’s costs due to the complexity of the matter, which required multiple hearings and submissions from third parties.[29]
In 2016, the respondent had been convicted of one count of committing an indecent act on a child under 16, and one count of behaving in an offensive manner. The offences had occurred in the early 1990s when the respondent was the applicant’s teacher. The first charge related to the respondent rubbing the applicant’s inner thigh and brushing against his genitals. The second charge related to exposing himself in the change rooms after sports class. In his police statement, the applicant said that the respondent had exposed himself on a very regular basis over the period of a year; however, the police charged the respondent only in relation to the first time he exposed himself.
The applicant tendered evidence of impact, including a diagnosis of post-traumatic stress disorder, many years of drug addiction, a significantly interrupted work history, and social isolation.
The respondent submitted that the amount of compensation owed to the applicant should be reduced ‘on the basis of the school contributing to the applicant’s distress by permitting the sexual assaults to occur’. Magistrate Lethbridge was not satisfied that the school was negligent in the sense that the respondent would be entitled to contribution from the school as his co-offender.
The respondent further submitted that the applicant ‘failed to mitigate his loss by not attending a psychologist frequently and obtaining treatment which would help resolve his symptoms’.
Victims’ advocates would say a contributory negligence argument in this situation is inappropriate and offensive. Magistrate Lethbridge gave the submission short shrift, noting that the failure of the applicant to seek counselling may be a symptom of the injury. Magistrate Lethbridge also noted that the applicant’s conduct could not be said to have, in any way, physically caused or contributed to his injury or loss; and if he did indirectly contribute to his injuries, there was insufficient evidence to conclude that the contribution was significant or substantial.
Finally, the respondent submitted that the application should be dismissed ‘because the injuries caused by the two offences, as opposed to the course of conduct reported to the psychologist, cannot be isolated’. The Magistrate noted that the applicant’s police statement and the report from the psychologist overwhelmingly focused on the two offences, and that ‘references to other offending are peripheral, vague and unspecified’. Magistrate Lethbridge concluded that:
‘The juxtaposition of specific detailed allegations (forming the basis of charges) with amorphous and general allegations does not prevent or inhibit the court from making an assessment of the injury suffered as a direct result of the offence.’
The Magistrate took the respondent’s financial circumstances into account, including his advanced age and modest assets and income. The Court ordered $50,000 for pain and suffering and $10,800 for future counselling services.
Bernard was convicted of various charges relating to three complainants for sexual assaults committed in the 1990s. All three complainants applied for compensation pursuant to the Sentencing Act and were represented by different law firms. Bernard was charged and convicted only in relation to specific incidents of abuse, although the abuse he perpetrated against two applicants was prolonged and sustained over years. Evidence of further uncharged conduct was provided to the court in the criminal trial as context for the offending.
The respondent had a moderate sum of money in a bank account, which was subject to a restraining order. There was therefore a very limited pool of funds available to the three applicants. The respondent also owed money to Legal Aid.
The respondent made submissions to the Court that his financial circumstances should be taken into account. He would be in his 70s on his release from prison, with ‘bleak’ prospects of employment, and he also had various health complaints. It was submitted that he should not be left without any means to support himself and be forced to rely solely on social security, thereby placing a burden on society and hampering rehabilitation in the broad sense of the word. The Court considered whether rehabilitation should mean rehabilitation to prevent reoffending – that is, does the respondent need funds to keep him from engaging in future offending behaviour towards other children? Or should rehabilitation focus more on ensuring that the offender can reintegrate into society and not be a burden on the taxpayer? The Court did not make a determination regarding the meaning of ‘rehabilitation’, as the entire amount of restrained funds was distributed to the three applicants.
The first applicant had previously received an award of assistance of $8,000 from the Victims of Crime Assistance Tribunal (VOCAT), including $7,500 for special financial assistance. It was submitted that any compensation order should be reduced by that amount in accordance with s85I of the Sentencing Act. Note that in other matters, respondents have made submissions that the compensation order should be reduced by the entire amount of a VOCAT award rather than only the amount that would represent an overlap or ‘double dip’. In Athian v Pang,[32] Mr Athian had previously received $31,325 from VOCAT, including $10,000 for special financial assistance and the rest for expenses and loss of wages. The Court decided in that matter to reduce the compensation by $10,000 only, considering the VOCAT award for special financial assistance to be equivalent to pain and suffering.[33] The Court took the same approach in this case.
Judge Cannon made awards of $100,000 to the first applicant, $500,000 to the second applicant and $20,000 to the third applicant. She further ordered that the first applicant receive 30 per cent of the sum that was the subject of the restraining order, the second applicant 60 per cent and the third applicant 10 per cent.
We have encountered the following issues in advising and acting for our clients. The problems below all relate to matters since the conclusion of the Royal Commission.
An offender’s assets are not restrained for the purpose of satisfying an order for compensation or restitution
As discussed above, a restraining order does not give a victim an interest in the restrained property, but it does provide a powerful incentive for the respondent to pay the agreed or court-ordered compensation (as the respondent cannot otherwise deal with the property). Where there is no restraining order, an SAA should only be made if the applicant is prepared to commence bankruptcy proceedings against the respondent to recover the compensation; the available assets are unlikely to be otherwise dissipated; and the assets will cover the costs of bankruptcy proceedings.
In our experience, police informants will not have investigated an alleged offender’s asset position for various reasons, including that they:
• may not know about SAAs;
• are concerned that it will appear that the victim-complainant is motivated by the prospect of compensation and will lack credibility in a criminal trial; or
• believe that the victim is unlikely to be awarded a sufficiently significant sum of compensation.
If a victim of crime contacts you for legal advice, you should advise the person to ask the police to look into the suspect’s assets, or you should seek consent to contact the police yourself.
The challenge of enforcing orders for compensation
Offenders’ assets should ideally be made the subject of a restraining order before they have the opportunity to transfer assets to their spouses or other persons. This is not an uncommon problem.
Case study one
An offender legally transferred his interest in his house to a family member while the police were investigating his crimes. The DPP successfully sought a restraining order over the offender’s equitable interest in the house. Nevertheless, the fact that the family member was the sole legal owner of the house made the SAA significantly more complicated. We had to negotiate with the family member as well as the offender. The offender denied having any interest in the house and so did not disclose the value of the house in his materials filed for the SAA. This disadvantaged the applicant in negotiations to resolve the matter. If the offender’s asset position had been investigated at an earlier stage in the criminal investigation, this may have prevented the offender from transferring his legal rights in his house to his family.
Case study two
In another matter, the respondent transferred his interest in the marital home during the police investigation, so that he and his wife were tenants in common and the wife had a greater interest. We made an SAA on behalf of our client and the court ordered a significant sum of compensation. We had to deal with the respondent’s spouse to pursue the court-ordered compensation for our client. The spouse initially failed to respond to our letters and we began to investigate the possibility of commencing bankruptcy proceedings. After some time, the spouse retained lawyers who enabled payment of the compensation to our client. We then advised the DPP of this so that it could apply to vary the restraining order so the spouse could sell the property.
Where an offender is charged and convicted of crimes relating to child abuse, SAAs should certainly be considered. It is quite likely to be complicated where: despite a course of conduct over many years the police have charged the offender with only specific assaults rather than representative charges; the police may not have taken steps to restrain the offender’s assets; or there may be only a limited pool of assets from which to pay compensation.
Nevertheless, where there are restrained assets, none of the other problems are insurmountable. Some of the challenges for our clients in criminal matters – memory gaps, chaotic lifestyle, staggered disclosure – are more readily explained as part of the injury in the claim for compensation. The passage of time allows a complex picture of the impact to be painted for the judge’s consideration in determining an award. While a successful criminal conviction provides some form of justice, a payment of compensation by the offender can provide a different, and hopefully restorative, form of satisfaction.
Nina Vallins is a solicitor at Angela Sdrinis Legal, specialising in institutional abuse claims and Sentencing Act Applications. PHONE (03) 9686 6610 EMAIL nina@aslegal.com.au.
[1] R J Pratt and D Tolliday, Understanding the process of child sexual abuse disclosures: What does the research tell us? (2018) <https://www.kidsguardian.nsw.gov.au/ArticleDocuments/953/Understanding_child_sexual_abuse_disclosure.pdf.aspx?Embed=Y>.
[2] See Victorian Law Reform Commission, Victims of Crime Consultation Paper (2015) Ch 10.
[3] See C Butt and T Millys, ‘Sexual assault rates against children hit 10-year high in Victoria,’ The Age, 21 March 2019, <https://www.theage.com.au/national/victoria/sexual-assault-rates-against-children-hit-10-year-high-in-victoria-20190321-p51650.html>; Crime Statistics Agency, Spotlight: Sexual Offences (2017) <https://www.crimestatistics.vic.gov.au/crime-statisticshistorical-crime-datayear-ending-31-december-2016/spotlight-sexual-offences>.
[4] Sentencing Act 1991 (Vic) (Sentencing Act), ss85C, 85D.
[6] Kaplan v Lee-Archer [2007] VSCA 42, [6]; DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116, [24].
[8] An award for loss of earnings was awarded to the first applicant in Brooks v Meade [2017] VSC 172, [30]; but see comments in Athian v Pang [2019] VCC 477, [50] and Harley (a Pseudonym) v Hood [2019] VCC 118, [21] which reflect the common understanding. The Second Reading Speech for the relevant amendment to the Sentencing Act (the Victims of Crime (Amendment) Bill 2000) is silent on the matter.
[11] DPP v Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116; (2006) 14 VR 345, 352 and 356, Esso Australia Pty Ltd v Robertson [2005] VSCA 138, [21]–[30].
[12] RK v Mirik & Mirik [2009] VSC 14 (Mirik).
[13] Ibid, [178].
[14] Kelley (a Pseudonym) v R1 (a Pseudonym) & Ors [2016] VSCA 90.
[15] Ibid, [21]–[22].
[17] Mirik, [137].
[18] Ibid, [177].
[19] Confiscation Act 1997 (Vic), Pt 4, divs 1–2.
[20] See Sentencing Advisory Council, Restitution and Compensation Orders: Issues and Options Paper (2018) 53.
[21] Director of Public Prosecutions, Policy of the Director of Public Prosecutions for Victoria, 27 March 2019, 20.
[22] Sentencing Advisory Council, see above note 20, 51–56.
[23] AA v Buckley (unreported, Victorian County Court, 29 January 2016, Judge Dean) (Buckley).
[24] Ibid, [12].
[25] Sentencing Act in Buckley, [13].
[26] Buckley, [17]–[21].
[27] Ibid, [15].
[28] Ibid, [29]–[32].
[29] Ibid, [36]–[37].
[30] (unreported, Melbourne Magistrates Court, 13 April 2018, Magistrate Lethbridge).
[31] (unreported, Victorian County Court, 13 December 2017, Judge Cannon).
[33] Ibid, [42]–[57].
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URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2019/74.html