Harley (A Pseudonym) v Hood [2019] VCC 118 (13 February 2019)

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IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

HARRIET HARLEY (A Pseudonym)	Applicant

v

DARYL HOOD	Respondent

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2019
DATE OF JUDGMENT:	15 February 2019
CASE MAY BE CITED AS:	Harley (A Pseudonym) v Hood
MEDIUM NEUTRAL CITATION:	[2019] VCC 118

Judgment: Judgment for the applicant, Harriett Harley, in sum of $174,565.50 as an award of compensation pursuant to the provisions of s85B of the Sentencing Act 1991.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Perry	Mr C Hardman

For the Respondent	Ms A Cannon	Mr N Agetzis

1 The applicant, Harriett Harley,[1] seeks an order for compensation from the respondent, Daryl Hood, pursuant to s85B of the Sentencing Act 1991 (as amended) (“the Act”).

2 The applicant issued her application on 17 August 2018. The respondent had been sentenced by me on 18 September 2017.[2]

3 The applicant was represented by Mr M Perry of counsel. The respondent was represented by Ms A Cannon of counsel. Both counsel made oral submissions in the course of the application which took place on 29 January 2019. There was no viva voce evidence given on the day of the application.

(a) Exhibit A1, the Victim Impact Statement of the respondent dated 29 August 2017;

(d) Exhibit A4, sentencing reasons of this Court dated 18 September 2017.[3]

5 The applicant brings this proceeding pursuant to s85B of the Act. Division 2 of Part 4 of the Act provides that a victim may obtain a compensation order from the offender. In this case, Ms Harriett Harley, the applicant, is a “victim” within the meaning of the Act. The respondent, Daryl Hood, was convicted and sentenced on 18 September 2017 as the “offender”.

6 The legislative provisions set out in the Sentencing Act relating to s85B compensation claims has been considered by Bell J in RK v Mirik and Mirik,[4] and J Forrest J in Stevens v Baxter.[5] Bell J, with whom J Forrest J agreed, set out the following relevant principles applicable for claims for compensation under the Act:

7 In my sentencing reasons dated 18 September 2017,[7] I have set out fully the surrounding circumstances of the offending by Mr Hood against Ms Harley. I do not propose to repeat the full circumstances set out in those Reasons for Sentence.

8 A brief summary of the offending against the applicant in this case by the respondent is Mr Hood persistently offended against the applicant between May 2010 and November 2013. Mr Hood pleaded guilty to a charge of common assault of the applicant in that period of time which had a “rolled-up” sixteen separate incidents of offending against the applicant. In short, the assaults and or abuse that was the basis of the offending were degrading, unprovoked and persistently abusive of the applicant.

9 Mr Hood also pleaded guilty to recklessly causing serious injury to Ms Harley on 18 August 2012.

10 On a later date, being 5 September 2012, Mr Harley pleaded guilty to a charge of intentionally causing injury. On this occasion, the assault was by way of kicking.

11 On 9 September 2012, Mr Hood kicked and stomped on the applicant’s left thigh.

12 On 23 December 2012, Mr Hood verbally abused and spat on the applicant. He grabbed her and pushed her in the face, causing a cut to her lip.

13 In total there were some twelve charges of causing injury either recklessly, intentionally or causing serious injury to Ms Harley.

14 All of the offending was accompanied by verbal abuse from Mr Hood to Ms Harley. His abuse was persistent and degrading in its nature. The applicant and the respondent had maintained a domestic partnership over the period of some four years in which this offending took place. The offending was a consistent, controlling physical and psychological abuse of Ms Harley.

15 Ms Harley has sworn a Victim Impact Statement which became exhibit “A1” in this application. The Victim Impact Statement was the same Victim Impact Statement tendered at the time of the plea and sentence for Mr Hood.

16 In the Victim Impact Statement, Ms Harley sets out that for the period of the relationship of some four years, and the four years since the ending of that relationship, that she has suffered ongoing trauma from the respondent’s physical assaults and verbal abuse. The main injury to the applicant is one of suffering from depression. As a result of the injuries and, more particularly, the psychological and psychiatric sequela to the offending by the respondent, the applicant lost her employment as an account manager, which was a position she had held for some twenty-one years. The applicant has not been able to resume employment since the time of separating from the respondent. The applicant has suffered from feelings of fear, guilt, grief, sorrow, shame and embarrassment.

17 The photographs set out in the seven pages of exhibit “A2” in this application clearly indicate the nature and extent of the actual physical injury to the applicant in the course of the relationship with the respondent. These photographs clearly display brutal and callous injury to the applicant which was inflicted by the respondent. Such brutality and physical assault, combined with the verbal abuse, was persistent over the period of some three years.

18 Upon the cessation of the relationship, the respondent placed a caveat on the applicant’s home. She could not have any dealings or sell the house. She could not live in the home as it was the place of the assaults and would bring back memories to her.

19 The applicant speaks of vivid memories and disturbing flashbacks as having an ongoing effect on her as a result of the offending by the respondent. It was not until the caveat that the respondent had placed on the property had lapsed in January 2016 that the applicant could sell her house and obtain some emotional and financial relief from the sale of that property.

20 The applicant has been in receipt of psychological treatment in order to ameliorate her symptoms. This treatment has continued on an ad hoc basis with a psychologist. The applicant has found it necessary to move interstate so that she can distance herself in a psychological and physical sense from the offending. She still harbours fear of seeing the respondent and the distress that that would cause to her. On the positive side, the applicant has been able to enter into a new relationship and hopefully will be able to gain some understanding and further peace from that relationship. The very unhappy time and period of being assaulted by the respondent may be put behind her.

21 I find that the persistent nature of the assaults has had a very significant impact upon the psychological and psychiatric welfare of the applicant, Ms Harley. Ms Harley has been unable to return to paid employment. Prior to this relationship with the respondent, the plaintiff had held constant and significant employment and is now unable to work at this time. The applicant has made no claim for loss of earnings or earnings into the future in this application, and that is appropriate.

22 The applicant relied upon a report of Associate Professor Peter J Doherty, consultant psychiatrist, which was dated 25 May 2018. This report was exhibit “A3” in this application.

23 Professor Doherty took a history from the applicant. He noted that the applicant continued to suffer poor quality sleep, as she wakes up after four hours and it takes her some time to get back to sleep. The applicant continues to have an occasional disturbing dream or nightmare about the respondent and his behaviour towards her. Professor Doherty noted that the applicant complained of significant stress headaches and pain in her feet, hips and lower back. Professor Doherty noted that the applicant’s mood was very sad and fluctuates from time to time. Professor Doherty noted that the plaintiff has received clinical psychological treatment from Ms Barbara O’Loughlin over a period of some two years. Initially the treatment was face to face and regular however since the applicant has moved residence, the counselling is predominantly conducted over the phone.

24 After performing a mental state examination on the applicant, Professor Doherty diagnosed the applicant as suffering from two current psychiatric conditions: The first is Post-Traumatic Stress Disorder. The second is Major Depressive Disorder. He described the symptoms as being in the range of moderate to severe. He noted that the applicant required further clinical need for psychological treatment from a psychologist. Up to the present time, the applicant has not been treated by a psychiatrist and she chooses not to take any medication in respect of her psychological condition. Professor Doherty’s opinion was that the applicant has persistent symptoms and that her coping mechanisms have not been re-established. She has totally lost confidence in herself and has a diminished trust in people who are not her immediate family. She has not been able to return to employment due to this condition.

25 Professor Doherty noted that the applicant has a significant impairment in relation to social, domestic and leisure activities which are persisting some four years after the cessation of the relationship.

27 This is a significant effect on the applicant who, prior to the offending against her by the respondent, was able to maintain full employment and a meaningful social and work life.

28 The applicant is now forty-nine years old and in a relationship. She has had to move from her previous residence as a result of her reaction to the offending by the respondent in this case. She has lost her work capacity and her ability to engage in a normal social life. She is constantly in fear and has flashbacks of the offending against her. The impact of the offending against the applicant has been profound and long lasting. On the evidence before me, it is apparent that the impact upon the applicant will continue for a number of years into the future. Professor Doherty recommends ongoing psychological treatment, and an allowance will be made for that ongoing treatment.

29 It is difficult to assess the cost of the future treatment with great accuracy. I note that the Victims of Crime Tribunal had made an estimate of $6,200 for future psychological treatment. I take into account the fact that the applicant is now consulting a psychologist predominantly by telephone and in a sporadic fashion. The sum of $6,200.00 would be an excessive amount to allow for the future costs of psychological treatment. I assess the cost of future psychological treatment in the sum of $4,000.00. The applicant has already had paid on her behalf the sum of $510.50 for treatment by Ms Barbara O’Loughlin, psychologist. The applicant has also spent $55.00 on medications in the initial stages of treatment. That is a total of $4,565.50 for past and future medical treatment.

30 In making my assessment for compensation for pain and suffering, I have taken into account all the matters referred to in these Reasons. I have also taken into account that the applicant continues to be unemployed, and on the assessment of Professor Doherty, unlikely to maintain employment into the future. This loss of employment, not the wages, but the sense of meaning and wellbeing for the applicant, is a significant issue for her. Combined with that, the ongoing symptoms of Post-Traumatic Stress Disorder and Depression are significant in the manner in which they impact upon her daily life.

31 The applicant has shown considerable resilience in being able to re-engage in a relationship and moving to a new residence in an attempt to re-establish herself. I have regard to the principles set out by Bell J in RK v Mirik and Mirik.[8]

32 I am also required to take into account the financial circumstances of the respondent. The respondent is currently in custody, serving the sentence imposed on him by me on 18 September 2017. The respondent swore an affidavit dated 12 November 2018 which was Exhibit “R3” in this application. In summary, in relation to his income, the respondent set out the rental that he received from a property was $480 gross per week and that his expenses in relation to the same property were approximately $470 per week. The respondent owns a property at 57 Rosemary Avenue, Croydon Hills. He stated that his estimated value of the property was $700,000 and that he maintained a mortgage on that property of $265,000. The respondent declared other assets amounting approximately to $8,000. The respondent also noted a loan from his father for legal fees in the sum of $55,000. There was no record or contract in relation to that loan with his father. In accordance with s85H of the Sentencing Act, I find that the respondent has sufficient assets to satisfy an order for compensation for pain and suffering and medical expenses.

33 I have previously referred to the matters set out in exhibit R3 when considering the financial circumstances of the respondent. I will not repeat the matters raised in that affidavit. The respondent swore a more recent affidavit dated 8 January 2019 (exhibit “R1”). The affidavit predominately concentrates on the respondent’s work and contribution to the house at Mooroolbark owned by the applicant. The respondent deposed to his work injury and recovery causing financial strain within his relationship with the applicant. The respondent set out more fully his “claim” on the Mooroolbark property and his ultimate withdrawal of the caveat on that property in September 2015. The respondent was sentenced on 18 September 2015. The respondent deposed that whilst he is a qualified plumber and gas fitter, due to his injury, his work options are limited once he is released from prison.

34 The respondent states he is remorseful and has commenced to address his offending behaviour by private drug and alcohol rehabilitation. He states he has had no contact with the applicant and does not want to in the future.

35 I have taken these matters into account when assessing the award for compensation to the applicant.

36 The respondent also relied on an affidavit of Joanne Lamborn dated 11 January 2019 (exhibit “R2”). I have read this affidavit carefully and other than to say it provides a history of the relationship between the applicant, the respondent and Ms Lamborn, it adds nothing relevant to the assessment for compensation arising from the offending by the respondent. The matters raised in paragraph 14 of the affidavit trivialise the seriousness of the matters to be considered in this proceeding. I have given no weight to the contents of Ms Lamborn’s affidavit when considering my decision in this proceeding.

37 After a consideration of all the factors in this case and taking into account the principles set out in the authorities referred to earlier in these Reasons, I find that the appropriate award for compensation for pain and suffering for the applicant is One Hundred and Seventy Thousand Dollars ($170,000.00). I add to that sum the figure of Four Thousand Five Hundred and Sixty Five Dollars and Fifty Cents ($4,565.50) for future medical and like expenses.

38 Pursuant to s85B of the Act I order the respondent pay compensation in the sum of $174,565.50 to the applicant.

County Court of Victoria

Harley (A Pseudonym) v Hood [2019] VCC 118 (13 February 2019)