At v CDT

[2011] QDC 124

[2011] QDC 124

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2120 of 2009

AT	Applicant
and
CDT	Respondent

BRISBANE

DATE 08/06/2011

JUDGMENT

HIS HONOUR:  The applicant was born on 23 March 1987.  During a period between 24 August 1997 and 1 December 1999 when she was between the ages of 10 and 13 she was sexually abused by the respondent. 

The respondent was born on 13 June 1969.  During the period of the offending he was between 28 and 30 years of age. 

The offences which the respondent committed against the applicant were indictable offences.  They were two counts of indecent treatment of a child under 12 years of age under care, two counts of indecent treatment of a child under 12, and one count of indecent treatment of a child under 16 under care.

The respondent was convicted of these offences on his plea of guilty on 8 March 2007 and received a term of imprisonment. 

The facts behind the offending which were the basis of sentencing the respondent are that with respect to count 1 the applicant and the respondent were in a hotel and the respondent touched the applicant on her vagina and performed oral sex upon her.  On the same night he had the complainant perform oral sex on him.  He also sat on top of her and digitally penetrated her vagina.  While his fingers were inside her vagina he masturbated and ejaculated on her chest.

Count 2 involved the respondent at the same hotel being naked with the applicant.  On this occasion the respondent touched the applicant's vagina with his fingers and mouth.  The respondent attempted to penetrate the applicant's vagina with his penis but he was unsuccessful. 

Count 3 involved the respondent visiting the family home.  He went into the applicant's bedroom and lay next to her.  The applicant fell asleep and when she awoke the next morning she found the respondent's finger was in her vagina. 

Count 4 again involves visiting the family home.  On this occasion in the lounge room the respondent touched the applicant's chest and groin through her clothing.  From there the respondent went to the bedroom and took off his clothing and got into bed.  He touched the applicant's vagina and performed oral sex upon her.  He was lying on top of her and pushed her down so that She could perform oral sex on him.  After this the respondent rolled on top of the applicant and rubbed his penis around the applicant's vagina and then the respondent ejaculated on her.

Count 5 involved the respondent coming around to the applicant's house and went into her bedroom and there the respondent performed oral sex upon the applicant.  The applicant performed oral sex on the respondent and then the respondent put his finger inside the applicant's vagina.

I say these were the facts on sentencing because it does appear from the affidavits in support of this application that there was also occasions when the respondent penetrated the applicant's vagina with his penis.  Those occasions were not charged and I will say something more about that later in these reasons.

The application was filed on 31 July 2009. By the application the applicant seeks compensation to be determined pursuant to the Criminal Offence Victims Act 1995 for injuries suffered by her by reason of these offences.

That Act has been repealed by the Victims of Crime Assistance Act 2009. Nevertheless, the effect of section 167 of the recent act is to provide that the Court must hear or continue to hear and decide the application under the repeal provisions, the repeal having taken place on the 1st of December 2009.

Also regarding the time limit within which to bring the application the applicant had three years from the date of sentence - that is 10 August 2010 - within which to bring the application.  Again, the application is within time.

Finally, the applicant must progress an application and if no step has been taken in the proceeding for a year from when the last step has been taken an applicant who wants to proceed must give a month's notice to the respondent of the intention to proceed.

There is evidence before me this has been done.  The respondent has been served with the application and I can proceed to hear the application.

The applicant has sworn an affidavit in support of her application.  Without repeating the entirety of her affidavit she states the offences committed against her by the respondent have had a devastating effect upon her life.  She feels that her childhood was taken from her from the respondent.  The respondent was her maternal uncle and she had been placed in his care.

She had travelled with him from Scotland to holiday in Australia in July of 1997.  She was 10 years of age.  She trusted the respondent and was excited by the prospect of going to Australia. 

It was after she arrived in Australia that the sexual abuse by the respondent commenced.  She found the abuse humiliating and confusing.  At times she suffered pain as a result of the offences committed against her.  The respondent's behaviour made her feel anxious and uncomfortable and at times frightened.

She was very vulnerable as her mother was thousands of kilometres away.  She had no one to turn to and she felt isolated and helpless. 

She also states the respondent was somebody she should have been able to trust.  She is appalled by the offences committed by him against her.  She will never understand how a member of her family could have treated her with such disregard for her welfare and development.

She feels the offences have profoundly affected her ability to trust others.  She feels insecure in most of the relationships.  She trusts no one.  She feels she cannot trust in her ability to judge others and assess risk.  She is unable to rely on her own judgment in determining who she can and cannot trust.

Her impaired judgment has led to her having difficulties in her personal relationships.  She feels lonely and unsupported.  She seeks companionship and affection but she has poor judgment when choosing partners who are inevitably abusive.

She also states she has problems with self-esteem and self-confidence.  She has poor feelings of self-worth.  She seems to attract men who exploit, abuse, or neglect her.  She feels unworthy of a good relationship.  She has in the past used sex as a means of getting affection but rarely has she obtained pleasure from this.

She states she became a stripper for a month around the age of 18 but gave it up after the owner of the strip club raped her.  She was also date raped at the age of 17 by an older man who had given her cocaine.

She also states she has no close friends.  She has difficulty making and maintaining friendships.  She is short-tempered and aggressive in her relationships.  She can at times be violent in her reaction to other people.  She feels she is an unstable person.  She has no clear understanding of who she is.  She is unclear whether she is confident or a mess.  Her clothes and make-up is all over the place.  She has no clear goals in life. 

She feels that her attitudes to sex and sexual development were never given the opportunity to develop in a healthy way because of the abuse.  She feels the abuse has affected her attitudes and influenced her considerably. 

She also began restricting her eating at the age of 11, and at 12 she began to induce vomiting.  This increased to the age of 14 when she lost a lot of her friends, her grades dropped and she alienated herself from her family.  She had a very poor body image and she thinks she is fat and ugly. 

She also was introduced by the respondent to alcohol, and she abused alcohol.  She is also engaged in self harming.  Over the years she has felt life was not worth living and she has had several suicide attempts.  She has also received treatment for bulimia and depression.  In 2002 she sought treatment, however it appears this did not continue.

The abuse has also had a devastating effect upon her relationship with her mother, she lost respect and trust for her to the point where she would fight regularly with her, and sometimes physically.  Her mother could not cope with that, as a result she was sent to live with her father when she was 15.  This only added to her problems as he was an alcoholic and could not look after her at all.  She still has a strained relationship with her mother due to the fact that she feels she does not really care for her.

The offences have also had a significant effect upon her education, this has been a detrimental effect.  She has had several career changes, she has had several job changes.  She has recently tried to study for a higher national diploma in television production at age 22, but she lost her job due to drinking.  She has also gone to university, but she feels no sense of achievement or pride in what she has done. 

She has had difficulty with her employment in being able to maintain punctuality, and her attention span.  She lives in a Council flat in a deprived area.  She works in a pub to pay the rent which is sometimes in arrears, and she doesn't get enough work to earn income to pay the rent.  She feels frustrated and saddened by the fact that she had the potential to do well academically but could not cope with the aftermath of the offences committed against her.  She has lost the opportunities to undertake tertiary study, and obtain interesting and well paid employment.

The applicant has been examined by Dr Lenihan, a psychiatrist.  He has considered the applicant's circumstances and he concludes that the applicant has suffered an emotionally unstable personality disorder, borderline type, which in Australian terms is a borderline personality disorder.  He says this borderline personality disorder is not an inevitable consequence of sexual abuse in childhood, but there is a strong association.  He states, "Protracted abuse, incestuous abuse, and abuse which crosses generations are all felt to be particularly harmful in terms of later borderline symptoms".  He notes, "These factors are all present in this case".  He would rate the intensity of borderline symptoms as being moderate to severe.

He states, "The borderline personality disorder, being a personality disorder, represents a longstanding, pervasive set of behaviours.  The behaviours are at their most intense in young adult life, but there can be disabling problems throughout adulthood.  It is not amenable to any one particular treatment but it can be helped by a package of interventions, mostly psychological or psychotherapeutic in nature.  On occasion, pharmacological treatments are of some ancillary benefit".

He also notes the applicant has required treatment for an eating disorder of a bulimic nature.  "This involves restricting her dietary intake, then binging in an uncontrolled fashion, finally engaging in compensatory behaviours such as self induced vomiting, laxative abuse etcetera.  This appears to be relatively quiescent at present, but it is likely she will relapse into bulimic behaviours at times of stress in the future". 

Doctor Lenihan has also, in his report, referred to adverse impacts of the offence, in addition to diagnosable mental disorder.  He refers to the fact that the applicant has been left with lasting problems with trust, this is particularly the case in sexual relationships.  He notes, "She has been lead to seek out similar types of men, and to recapitulate and re‑enact abusive dynamics by, for example, taking employment in the sex industry and putting herself in vulnerable situations".

He says this is a commonly seen pattern in those that have experienced sexual abuse in childhood.  He also notes that, "She was exposed to adult sexuality at a grossly inappropriate age, therefore she lost the opportunity to develop her sexuality at her own pace and in a manner that matched her development".  He also notes that, "Her precocious sexuality and the secret of her abuse were likely to distance her from her same sex peers as well as extended family, teachers, and other potential sources of support when she was going through a difficulty adolescence". 

There was also, he notes, the early exposure to alcohol.  He also notes the applicant was exposed to competition for the respondent's affections while he was engaged in other relationships at the same time as he was sexually abusing the applicant.

This facilitated the applicant's accession to the abused, confirmed her in a dependant and vulnerable role, led her to place great store on physical appearance, and also to be chronically unhappy with her own appearance.

Dr Lenehan has also been asked to comment on other contributory factors.  In his first report he refers to the fact that the applicant's father was of no support to her.  He also notes that likewise, her mother was of no support to her.  And then thirdly, there was the geographical factors, that is, the huge distances involved with the applicant's mother being in the UK and the applicant being in Australia, and also within Australia the facilitated isolation and abuse.  These distances also seemed to delay resolution and protract legal proceedings.

In his second report regarding contributory factors, he states, "It is my opinion that the offences committed by the offender has materially and significantly contributed to the applicant's condition."  He would go further and say that, "But for the offences, the applicant would not have developed problems of anywhere near the intensity which he has developed."

Dr Lenehan identifies the vulnerabilities that the applicant faced in the context of this sexual abuse.  I've mentioned the lack of support from her father or mother, and the geographical factors, however, Dr Lenehan states, without these vulnerabilities he's identified, the applicant would not have been available to the respondent to abuse.  Without her genetic vulnerability to alcohol problems and borderline symptoms, these features of her current presentation might not have eventuated to the same degree.

He says it is possible to say, however, that the experiences the applicant experienced would have been likely to cause very significant psychological problems in any child, even one lacking her specific vulnerabilities.  Dr Lenehan does note the abuse was broader than what the respondent was charged with.  He also notes that there were adverse life events, such as being raped, that post-dated the offences under consideration.  However, he sees these to a large extent, stemming from the abuse she suffered.

He quotes from his first report, as follows, "The early modelling of exploitative and abusive sexual behaviour provided by the respondent has led her to seek out similar types of men and to recapitulate and re-enact abusive dynamics by, for example, taking employment in the sex industry and putting herself in vulnerable situations.  This is a commonly seen pattern in those who have experienced sexual abuse in childhood."

He states he appreciates that it may be difficult for the general reader to understand how those who suffered abused could be driven to re-enact it in a compulsive way but this is a well established finding, both in clinical practice and the in the literature.

I bear in mind the judgment of the Court of Appeal in SAY v AZ ex parte Attorney General Queensland 2006 QCA 462.  I also note that in deciding what amount is payable for a given injury, the Court must consider whether there are relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

Broadly speaking, the applicant was faced with a dysfunctional family; further, the offending against her was broader than what the respondent was charged with; and finally, there have been the two rapes when she was 17 and 18 years of age.  The latter do not appear to record anything of substance in terms of the impact they may have had upon the applicant.

It does not follow because she may have been raped that she would suffer consequences that would overwhelm what she is already suffering from at the time of the rapes, and thereafter.  It is difficult to say what impact these factors have had upon the applicant's condition and symptoms.  Except for the rapes, I consider there should be no reduction at all to the applicant's compensation.  As far as the impact of the rapes are concerned, I think a small reduction should be made in this case because they must have had some impact upon the applicant.

In the circumstances, I find the applicant did nothing to directly or indirectly contribute to her injuries.  I am mindful that under the legislation the compensation provided to the applicant is intended to help the applicant and is not intended to reflect a compensation to which the applicant may be entitled under common law or otherwise.  Further, the maximum amount of compensation, provided it is reserved for the most serious case, and the amounts provided in other cases are intended to be scaled according to their seriousness.  See subsections (3) and (4) of section 22 of the repealed Act.

I am satisfied that the applicant has suffered mental or nervous shock.  If it had not been for the rapes I would have allowed the applicant compensation at 34 per cent under the severe item of mental or nervous shock, but I reduce that back for the rapes to 30 per cent.  Therefore, for mental or nervous shock I allow the applicant the sum of $22,500.

The applicant has also suffered adverse impacts of the sexual offence, and in my opinion they have been substantial.  She has been severely injured in a number of respects that I have mentioned earlier in these reasons.  For the adverse impacts I allow the applicant 40 per cent of the scheme maximum, which is a sum of $30,000.  The total, therefore, is $52,500.

MS MUIRHEAD:  Your Honour, I do have a draft order.

HIS HONOUR:  Good.

MS MUIRHEAD:  $52,500, your Honour?

HIS HONOUR:  Yes.

MS MUIRHEAD:  Yes.  Thank you.

HIS HONOUR:  Thanks Callum.  There'll be an order as per the draft, initialled by me and left with the papers.  Do you want that too, Callum?

MS MUIRHEAD:  Thank you, your Honour.
HIS HONOUR:  Yes.  I'll just wait here for the next matter - the next matters that I've got this morning.

MS MUIRHEAD:  I'll - if you - if I may be excused.

HIS HONOUR:  Yes.

MS MUIRHEAD:  Thank you, your Honour.

HIS HONOUR:  I'll just get my Associate to go and find the people outside.

MS MUIRHEAD:  Thank you, your Honour.

HIS HONOUR:  Yes.  Good morning, Ms Muirhead.

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