A v Townsend

[2003] QDC 449

DISTRICT COURT OF QUEENSLAND

CITATION:	A v Townsend [2003] QDC 449
PARTIES:	A by her litigation guardian A Applicant v DAVID MERVYN TOWNSEND Respondent
FILE NO:	BD 1990 of 2003
PROCEEDING:	Application for Criminal Compensation
DELIVERED ON:	21 August 2003
DELIVERED AT:	Brisbane
HEARING DATE:	18 August 2003
JUDGE:	O’Brien DCJ
ORDER:	That the respondent, David Mervyn Townsend should pay the applicant the sum of $3,000 by way of compensation for injury suffered by the applicant by reason of the offence for which the respondent was convicted in the District Court of Brisbane on 24 February, 2000.
CATCHWORDS:	CRIMINAL COMPENSATION – EXPOSING A CHILD UNDER 12 TO AN INDECENT ACT – MENTAL OR NERVOUS SHOCK – where conduct at lower end of scale of seriousness – whether offence was a “personal offence committed against the applicant”
N v Gouge & Hutchinson (File No 383 of 2003, delivered 12 June 2003) R v Kazakoff ex parte Ferguson (2001) 2 Qd R 320
Criminal Offence Victims Act (Qld) 1995, s 19
COUNSEL:	Ms J Fadden (sol) for the applicant No appearance by the respondent
SOLICITORS:	Legal Aid Queensland for the applicant

1. This is an application for compensation brought pursuant to the provisions of the Criminal Offence Victims Act of 1995. On 24 February 2000 the respondent, David Mervyn Townsend pleaded guilty before me in the District Court of Brisbane to an offence of exposing a child under the age of 12 to an indecent act. The present applicant was the complainant in respect of that matter and she now seeks compensation in respect of injuries allegedly suffered by her as a consequence of the commission of the offence.

2. It is necessary that I should make some reference to the circumstances of the offence. At the relevant time the applicant was a five year old child who had been playing with her friend of similar age at the rear of a block of units in which that second child lived. The respondent also lived in one of the units and the two children dared him to pull down his pants. He did so and the second girl then ran off. He then dared the applicant to pull down her pants which she, in turn, did. As offences of this nature go this incident fell very much at the lower end of the scale of seriousness and given the age of the applicant at the time I find no conduct on her part which contributed in any way to any injury which she might have suffered.

3. I am not at all certain that an offence of wilful exposure would of itself be a compensable offence for the purposes of the legislation. I had occasion to consider this issue in the matter of N v Gouge and Hutchinson File No 383 of 2003 delivered on 12 June 2003 and for the reasons there given I would have difficulty in regarding such an offence as a “personal offence committed against the applicant” as referred to in s 19 of the Act. However so far as the present applicant is concerned the sentencing proceeded on the basis that not only had the respondent exposed himself but had then invited the applicant to remove part of her underclothing and she had complied with that request. I am satisfied that this last mentioned conduct represents a compensable offence for the purposes of the legislation.

4. The applicant clearly suffered no physical injuries in the matter but she has been seen by a psychiatrist, Dr Barbara McGuire. Dr McGuire reports as follows:-

   “[A] presented as a happy, friendly, quite trusting little girl who appeared to be developmentally appropriate. I had the impression that she is unclear about detail of the incident, but that she feels that something bad happened to her. I do not believe that she is suffering from a psychiatric condition at present although the mother describes symptoms indicative of traumatisation which were present for the first six months. These include night terrors, nightmares, and avoidance of cues which remind her of the incident. It seems unlikely that those symptoms are present now.

   I do consider that the mother’s own traumatic sexualization has contributed to the effect of the incident on the child. I believe that the mother experienced a reawakening of her own problems as a result of the incident and that this has contributed to [A]’s symptomology. The incident seems to have renewed pessimism that the mother has felt about the life of [A].

   I believe that when the incident occurred, [A] experienced confusion and bewilderment and a strong feeling that she had done something wrong. I think it is possible that this has persisted. The immediate after effect of this was sleep disturbance and the experience of nightmares. I think that the incident caused very considerable family disturbance as a result of the mother’s experience as a child and the experience of [N]. At this stage I do not believe that the child needs counselling. From her own account the mother’s symptoms have settled over the last three years. So long as the family continues to be stable and secure, it is improbable that the child will experience significant symptoms.”

5. I am satisfied from the above that, although the applicant has suffered an injury which constitutes mental or nervous shock for the purposes of the legislation (see R v Kazakoff ex parte Ferguson (2001) 2 Qd R 320), the effects on her have been relatively minor. I consider that the effects have not been so dramatic as the applicant’s mother might have suggested and as Dr McGuire has stated the mother’s own experiences may have contributed to the applicant’s symptomology. In my view this is a case which calls for no more than a modest award of compensation somewhere towards the lower end of item 31 of the schedule. I propose to make an award of 4 per cent of the maximum of $3,000. I order that the respondent, David Mervyn Townsend should pay the applicant the sum of $3,000 by way of compensation for injury suffered by the applicant by reason of the offence for which the respondent was convicted in the District Court of Brisbane on 24 February,