B v G

[2003] QDC 455

DISTRICT COURT OF QUEENSLAND

CITATION:	B v G [2003] QDC 455
PARTIES:	B v G
FILE NO/S:	3325/03
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	23 December 2003
DELIVERED AT:	Brisbane
HEARING DATE:	17 December 2003
JUDGE:	Judge Hoath
ORDER:	1.   I order that the respondent pay the applicant the sum of $15,000 by way of compensation for injury suffered by her as a result of the offences of indecent dealing of which the respondent was convicted on 20 February 2002.
CATCHWORDS:	CRIMINAL COMPENSATION
COUNSEL:	Mr P O’Neal for the Applicant.
SOLICITORS:

1. On 7 November 2001 G pleaded guilty to three counts of indecently dealing with B.  Those offences were committed on 15, 30 and 31 October 1999.  At the time the offences were committed B was nine years of age.  She was the niece of G.  The offences involved G exposing his erect penis to B, rubbing her legs and chest whilst pressing against her with his erect penis and inserting his finger a short way into her vagina. 

1. B now brings this application pursuant to s 24 of the Criminal Offence Victims Act 1995 for compensation for injury suffered by her as a result of those offences.

1. The applicant suffered no physical injury as a consequence of the offences and her claim for compensation is on the basis of mental and nervous shock and the totality of the adverse impacts of a sexual offence insofar as those adverse impacts do not constitute mental and nervous shock.

1. In March this year the applicant, who was then 13 years of age, narrated the effects that the offences have had upon her to her solicitor as follows:

(a)         it feels weird when she is getting dressed;

(b)         she turns on the shower before she gets in or undressed so no-one else could get in;

(c)         she has problems participating in age-appropriate conversations with her friends;

(d)        her marks have been going down at school since she saw the respondent again;

(e)         she has experienced disturbed sleep;

(f)         she holds the door of the toilet so no-one can come in;

(g)         she is sometimes afraid to go to the toilet;

(h)         she is afraid to go out with anyone because they might hurt her;

(i)          she does not want to talk to her parents or anyone else about her problems.

1. Mr Luke Hatzipetrou, a psychologist, who interviewed the applicant in October and November 2002 reported that upon examination the applicant:

(a)         presented as timid;

(b)         wears excessive clothing in an attempt to cover exposed areas of her body;

(c)         demonstrated anxiety when changing clothes at a friend’s house or the swimming pool;

(d)        reports fears of being touched by others and avoids exposing her body during normal peer activities such as sport;

(e)         avoids social activities and sex education classes and movies depicting scenes of a sexual nature;

(f)         experiences flashbacks of the offences;

(g)         experiences intermittent nightmares which are difficult to remember but distressing enough to break the cycle of sleep;

(h)         demonstrates resistance to discuss the offences with family members and is easily agitated when confronted with stressors.

1. As a result of the interviews with the applicant Mr Hatzipetrou concluded “Ms B has been subjected to a significant psychological disorder resulting in emotional distress and continued recollection of a traumatic event.  These offences have impacted on development and achievement in several areas of functioning.  Whilst she has demonstrated improved academic and relationship functioning, she will require ongoing support throughout childhood and adolescence.  This support is likely to be provided by family and educational assistance.”

1. In April, May and June this year the applicant was seen by another psychologist, Jennifer Adams.  The consultations with Jennifer Adams came after the applicant experienced a panic attack at school and a similar incident at her father’s home.  Those attacks occurred at a time after the applicant saw the respondent who had recently been released from custody.  It is difficult to know what to make of the panic attack incidents.

1. Jennifer Adams states that “they appear to have been triggered by the sudden and unexpected sighting of her uncle after his release from prison.  Not only was this particular event symbolic of the original trauma of the perpetrated offences, it actually re-traumatised Lauren.  Hence the panic attacks appear to be better accounted for by another disorder, namely PTSD.”

1. Whilst the applicant was no doubt disturbed at seeing the respondent again she did at the time of both attacks have real worries about school issues. 

1. Assessing the extent of the injury sustained by the applicant in this case presents considerable difficulty.  The seriousness of offences and the period over which they were committed cannot be an indicator of the extent of any injury likely to be suffered by a victim but it can be borne in mind in this case that the offences of which the applicant was convicted involved three incidents at the lower end of the scale of sexual abuse occurring over a period of a fortnight.  The applicant however was only nine at the time and the offender was a trusted uncle.

1. Shortly prior to the respondent’s sexual abuse of the applicant there had been significant upheaval in the applicant’s family.  The applicant’s father suffered financial loss and as a consequence lost his business and the family home.  The family then moved to Queensland and the applicant’s parents then separated.  In a victim impact statement tendered on the sentencing of the respondent the applicant’s mother refers to that separation as being painful.

1. Both psychologists conclude that the applicant displayed symptoms consistent with a post traumatic stress disorder. Such a disorder constitutes mental and nervous shock. There is no evidence before me that any of the consequences suffered by the applicant do not fall within the definition of mental and nervous shock and require separate assessment as the adverse impacts of a sexual event as that term is defined in s. 1A(2) of the Criminal Offence Victims Regulation 1995.

1. Compensation under the Criminal Offence Victims Act 1995 is not intended to reflect the compensation to which the applicant may be entitled under a common law action and in determining the quantum of the applicant’s entitlement it must be borne in mind that the maximum compensation is reserved for the most serious case and the amounts in other cases must be scaled down according to their seriousness.

1. The maximum compensation for mental and nervous shock is 34% of the scale maximum.  In my view a reasonable assessment of the applicant’s entitlement in this case is 20% of the scale maximum namely $15,000. 

1. I order that the respondent pay the applicant the sum of $15,000 by way of compensation for injury suffered by her as a result of the offences of indecent dealing of which the respondent was convicted on 20 February 2002.