• October 26, 2020

The consequences of being convicted of an offence for Criminal Injury Compensation claims

The consequences of being convicted of an offence for Criminal Injury Compensation claims

The consequences of being convicted of an offence for Criminal Injury Compensation claims 900 577 aelegal

The consequences of being convicted of an offence for Criminal Injury Compensation claims

AA -v- ARW [2020] WADC 131

In September 2015 the offender was convicted of one count of carnal knowledge of a girl under the age of 13 years, two counts of attempted carnal knowledge of a girl under the age of 13 years and four counts of indecent dealing with a child under the age of 14 years (Offences). These convictions were unsuccessfully taken on appeal by the offender.

These offences involved the child sexual abuse of a stepdaughter by her stepfather between 1975 and 1982. In November 2017, the victim filed an application for criminal injuries compensation.

Compensation was claimed pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (WA) (CICA) on the basis that they were ‘proven offences’ for the purposes of the CICA application.

One of the interesting aspects of this judgment was the issue of times limits in child sexual offences matters.

Pursuant to s9 of CICA the time limit for making a compensation application is 3 years after the date on which the offence to which the application relates was committed, or if it relates to more than one offence, the last of them was committed. However, an assessor may allow a compensation application to be made after the 3 years if he or she thinks it is just to do so and may do so on any conditions that he or she thinks it is just to impose.

These offences had been committed some 40 years prior to the application. The court referred to the matter of KBR where Gillan DCJ identified the following non-exhaustive list of factors which might be relevant to the exercise of the court’s discretion:

(a) the history and background to the proposed application; and

(b) the length of the delay; and

(c) the reasons for the delay; and

(d) the nature of the proposed application; and

(e) the consequences for the parties of the grant or refusal of an extension in time, including the extent of any prejudice to the respondent; and

(f) the prospects of the compensation application succeeding; and

(g) whether injustice will be suffered if an extension of time is refused.

The court held that in this matter that because of the  relationship of authority between the victim and the offender, her role in the prosecution of the offender, her personal circumstances, the significant psychological impact that the abuse had had on her, and the recent conclusion of the criminal appeals it was appropriate to permit the late filing of the application.

It should be noted that in Western Australia if a series of sexual offences are committed by the same person but at different times they are deemed not to be ‘related’ for the purposes of a CICA application.

The maximum amount that a victim may be awarded varies depending on the date that the offence was committed. The relevant dates are as follows:

22 January 1971 – 17 October 1976 $2,000
18 October 1976 – 31 December 1982 $7,500
1 January 1983 – 31 December 1985 $15,000
1 January 1986 – 30 June 1991 $20,000
1 July 1991 – 31 December 2003 $50,000
1 January 2004 – present $75,000

The offences were committed between 1976 and 1982 and were deemed to be unrelated. Pursuant to s34 of CICA the maximum that may be awarded for multiple unrelated offences by one offender is twice the maximum. The victim was found to be entitled to the maximum compensation for each offence because of the severity of the acts. The total of her compensation was therefore $7,500 per offence subject to a maximum of $15,000. This award was made in February of 2020.

Part of the assessor’s order was that the offender was obliged, pursuant to CICA s 45(1)(b), to pay the sum of $14,000 to the State of Western Australia.

The offender then, in an effort to avoid this obligation, appealed against the decision of the assessor on the basis that the case against him was fabricated and that he had been wrongly convicted of an offence that he did not commit.

Therefore, the question before the court was whether the offender could have a new or fresh hearing, to prove his innocence, in the CICA forum. In other words, was the assessor able to look behind the curtain of the conviction or was the assessor bound by the decision of the criminal court. The court held that upon a proper construction of the Act this was not possible. The only avenue open to the offender was to challenge the decision of the assessor to grant permission to file the application after the three-year limitation period and/or to challenge the amount of the award. In CICA matters an appeal is a hearing de novo and for the reasons stated above the court found that the assessor’s decision was reasonable and did not interfere with it.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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