Akr v RJC

[2010] QDC 460

[2010] QDC 460

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 139 of 2010

AKR	Applicant
and
RJC	Respondent

BRISBANE

DATE 15/09/2010

ORDER

HIS HONOUR:  This is an application by which the applicant seeks compensation to be assessed pursuant to the provisions of the Criminal Offence Law Victims Act (1995).

The applicant was born on the 12th of February, 1992.  The respondent was born on the 11th of February, 1958.  The applicant was 12 years of age when the respondent, who was then 46 years of age, offended against her.

The period during which he offended against the applicant is 30 November, 2004, to 1 January, 2005.  The offences committed by the respondent against the applicant were one count of unlawful carnal knowledge of a child under 16, and one count of indecent treatment of a child under 16.

He pleaded guilty to these charges in this court on 24 April, 2007, and was sentenced on 10 August, 2007, to terms of imprisonment.  He was also sentenced to terms of imprisonment for other offences committed against other children.

The Criminal Offence Victims Act (1995) was repealed by the Victims of Crime Assistance Act (2009). This latter Act commenced on 1 December, 2009. The effect of the provisions of these Acts is that the applicant could commence this application within a period expiring two months after the commencement of the Victims of Crime Assistance Act (2009). See section 155, sub-section 2, paragraph B, of that Act.

The application was filed on 18 January, 2010, and is, therefore, within time for these proceedings under the Criminal Offence Victims Act (1995). The Court must hear and decide the application as it has been commenced within time.

The time limit for the bringing of an application is three years from the end of the convicted person's trial, or before the end of three years after the child becomes an adult, or unless the Court otherwise orders at any other time.  And the application is within time, and the applicant has, in fact, turned 18 on 12 February, 2010.

Generally speaking, the respondent befriended these young girls in a town in Queensland.  He was a trusted friend to adults who had relationships with these girls.  He breached that trust to the extent that he had with this applicant, sexual intercourse; and on another occasion, sucked his penis and masturbated him.

The applicant did not suffer physical injuries as a result of these personal offences.  However, it is not surprising that she suffered emotional injuries.

Dr McGuire, psychiatrist, in her report, states the applicant is suffering from post traumatic stress disorder, as indicated by her experience of nightmares, avoidant behaviour, flashbacks, dissociative episodes, security fears, and hyper- vigilance.  She has also demonstrated some borderline personality traits such as self-harming.  In Dr McGuire's opinion, she suffers these conditions to a moderate degree.

The background to these symptoms is that the respondent lived on the same street as the applicant, and she was frightened to go out.  She also did not want to go to school, and did not want to go for some weeks.  Accordingly, her grades declined.

She had trouble going to school in the town, and eventually it was arranged for her to go to school at another place as a border.  She left that school in the first term of Year 12, because she was self-harming.

She saw a counsellor, she had trouble getting off to sleep, she was on medication, she had nightmares, and flashbacks.  She had nightmares and was chronically anxious.  She had difficulty being alone.  She lacked trust, especially in older men; and she did not like being touched, and had an exaggerated start or reflex.

It also interfered with her enjoyment of sexual relations.  She also took an overdose.

Regarding her condition, Dr McGuire in her report states that the effect of the offences upon the applicant were that she experienced confusion, and thought that she was in the wrong and blamed herself.  Immediately after she experienced disgust.  She saw herself as dirty.

Her family were supportive, but there were some disappointments.  She felt sick of life, and wished things were better.  Dr McGuire considers the applicant would need counselling in the future.

The applicant also abused drugs and alcohol.  She also had relationships with other men, that did not work out.  The counselling did not work out.  And even though she would like to go to counselling now, cannot afford it.

I am mindful that in an application of this kind, the compensation ordered by the Court is not meant to reflect the amount of compensation the applicant would be entitled to under Common Law; and that the maximum amount of compensation is reserved for the most serious cases. See sub-sections 3 and 4 of section 22 of the Criminal Offence Victims Act (1995).

I am satisfied the applicant has suffered mental and nervous shock to a moderate degree, on the evidence before me.  She was 12, and the respondent was 46.  It is not surprising that she has suffered the symptoms she has suffered, and I accept they have been caused by the offences committed upon her.

I assess her compensation under Item 33 for mental and nervous shock moderate at 20 percent, which is the sum of $15,000.

However, the Act also provides for adverse impacts to be assessed under the Regulations.  These came into force on the 19th of December, 1997.  Regulation 1A states that the totality of the adverse impacts of a sexual offence suffered by a person to the extent to which the impacts are not otherwise an injury under section 20, is proscribed as an injury.  An amount of up to 100 percent of the scheme maximum may be awarded.

Most of the adverse impacts listed in the Regulation are not applicable in the applicant's circumstances.  That is, I accept she has suffered post traumatic stress disorder, which I have already assessed.  A number of the impacts are caused by post traumatic stress disorder, and must not be compensated again.  See Jullie v. Atwell [2001] Queensland Court of Appeal, 510.

However, there are other adverse impacts that are to be compensated.  The respondent's family in the township has distressed the applicant by their comments and by their reaction towards her.

She also had the uncertainty of sexual relations that followed with other men.  She now has some difficulty in enjoying sex.  And the Regulation also allows for anything the Court considers is an adverse impact of a sexual offence.  In this case, the reaction by the respondent's family has been substantial, and I accept, has had a substantial impact upon the applicant.

Also, I accept, there has been a loss of educational and occupational opportunities for the applicant.  The schooling suffered, and she did not do as well as she could have.  There has been an impact on her family relationships.  There was the need to move away; and even to move away with the family, let alone school.  And she has self harmed.

In my opinion, the applicant should be allowed compensation for these adverse impacts, and I allow the applicant 25 percent, which is a sum of $18,750.

The question arises whether there should be any contribution by the applicant with respect to her compensation. Section 25, sub-section 7, of the Criminal Offence Victims Act (1995) provides "In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the Court must have regard relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury."

The argument here is whether the applicant should have her compensation reduced because she "consented" to the sexual activity.  There are some cases where there has been some deduction for consent.  However, I agree with his Honour Judge Brabazon, QC, who in B v. B, District Court, Number 76 of 2004, said that "The time has come to accept that the offence of indecent dealing is for the protection of children, and not their punishment. As a matter of interpretation of the Code, it should be accepted that the law would not regard her as a party to the offence."

Even though his Honour went on to reduce the compensation by one-third for her conduct, it is my view that the circumstances must be looked at in each case.  In B v. B, the decision of his Honour Judge Brabazon, QC, the child was in Year 8, and the male was in Year 11.  The closeness in age was no doubt considered a relevant circumstance.

Generally speaking, I consider the age of the applicant, the age of the offender, whether there is a substantial difference in the ages, the nature of the applicant's consensual involvement in the offences, and the circumstances of the individual case, must all be looked at, and a judgment made whether there has truly been consent to sexual activity by an under aged applicant.

In the present matter, I consider the great disparity in age, 34 years, and the fact that the respondent was the best friend of the applicant's uncle and a friend of her grandmother, and held a position of trust, which he abused in order to commit the offences, and that the applicant was also a vulnerable person due to her circumstances, leads me to conclude that no contribution is called for in this case.

Another issue that arises in this case is whether the applicant had pre-existing vulnerabilities.  Without wishing to put on the record her unhappy life at the early illness of her mother, and the separation of her parents, these are not matters that persuade me that she was particularly vulnerable to the symptoms she has suffered since these personal offences were committed against her.

I am satisfied the personal offences were substantial material cause for her post traumatic stress disorder and adverse impacts.

I consider what Dr McGuire refers to as her past circumstances are normal vicissitudes of life that did not predispose her to the symptoms she has suffered from since these personal offences were committed against her.  As I said, I accept the personal offences have caused her symptoms, and the right to be compensated.

Therefore, I assess the applicant's compensation in the sum of $33,750; and I order the respondent to pay the applicant the sum of $33,750, and there will be an order as per the draft, initialled by me, and left with the papers.

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