B v G
[2003] QDC 157
•3/07/2003
DISTRICT COURT OF QUEENSLAND
CITATION: B v G [2003] QDC 157 PARTIES: B v G FILE NO: D3936/02 DIVISION: PROCEEDING: Application for Criminal Injuries Compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 3 July 2003 DELIVERED AT: Brisbane HEARING DATE: 29 August 2002, 20 June 2003 JUDGE: Hoath DCJ ORDER: I order that the respondent pay the applicant the sum of $21 666 by way of compensation for injury suffered by the applicant as a result of the offences of which the respondent was convicted on 20 February 2002. CATCHWORDS: COUNSEL: Mr S Hamlyn-Harris for the applicant SOLICITORS: Poteri Woods for the applicant
This is an application by B for criminal compensation for injury as a result of the offences of maintaining a sexual relationship and indecent assault of which the respondent G was convicted on 20 February 2002. The applicant was born on 15 July 1983 and is the niece of the respondent. The sexual abuse involved in the maintaining charge commenced when the applicant was 10 years of age and continued through until she was 15 years of age. The offence involved the respondent masturbating in her presence, touching her on the breasts and the vagina and having her touch his penis.
The offence of indecent assault occurred on 15 October 1999 when the applicant was 16 years of age. That offence involved the respondent rubbing the complainant’s vagina and inserting his finger into her vagina. All the sexual abuse occurred when the applicant was either visiting or staying overnight at the respondent’s residence.
The offences first came to the attention of the authorities on 1 January 2000 when the applicant told an Aunty about them. Up to that time she had not told anybody, apart from her young cousin, as she felt nobody would believe her.
At the time the offences were disclosed to the police the applicant was about to commence grade 12. As a result of reporting the matter to the police and the subsequent investigations and charges of the respondent on 30 January 2000 the applicant commenced to suffer considerable emotional distress.
The applicant’s school work suffered. She was given special consideration in respect of her studies. This special consideration became known to her fellow students causing her to become socially isolated from them. She lost interest in playing volleyball and withdrew from a team trip to France. Her final school year, which she feels should have been a most enjoyable experience, she now describes as an absolute nightmare.
From the beginning of the 2000 school year the applicant commenced to receive special guidance from the school guidance counsellor. In February 2000 she began attending Meryan Brown for psychological counselling. From the outset Meryan Brown considered that the applicant was suffering from a number of post-traumatic stress disorder symptoms. The applicant had some 10 sessions of counselling with Ms Brown.
In September 2000 the applicant sought psychological counselling from the Talera Centre. That counselling was initially on a weekly basis and involved a total of 23 sessions. Those sessions ceased in July 2001 when the therapist treating the applicant left the Centre.
| [8] | Erin Atkinson a psychologist who saw the applicant at the Talera Centre gave the following prognosis and recommendation: |
“1. B is a distressed young woman who has suffered significantly as a result of G’s abuse. B was sexually abused by a trusted family member. The abuse itself was coercive and occurred over a very long period of time (9 years). Problems were experienced in her significant parent and peer relationships following disclosure of the abuse. Each of these factors represent risk factors for the development of emotional and behavioural problems in children following abuse.
2. D’s presentation is consistent with a diagnosis of Posttraumatic Stress Disorder, and there are also strong indicators of depression. As a result of the abuse, B has also experienced significant disruptions to her social and academic development.
3. The long-term impacts of childhood abuse are difficult to specify. The literature suggests that there is no specific post-abuse syndrome that develops in adult victims of childhood sexual abuse. Rather, childhood sexual abuse is recognised as a risk factor for the development of a wide range of mental health problems, as well as problems trusting others in relationships and poor self-esteem. In addition, the literature suggests that the best predictor of future distress is past distress. Thus, given the chronic nature of B’s abuse, and the resulting impacts in all areas of her life – emotional, behavioural, relational, and academic – it is predicted that she will be at significant risk for developing problems later in her life. Subsequent danger points for B might be developmental stages (e.g. developing intimate relationships, getting married, having children) which could trigger aspects of her abuse.
4. Due to B’s strong tendency to actively avoid the abuse, it is believed that she will require significant support if she is to gradually confront and work through her abuse experiences, and thus move forward in her life. Therapy can play a significant role in this regard. However, therapy can be a very costly endeavour and this should be considered in an evaluation for compensation.”
On three occasions commencing on 8 March 2000 the applicant was seen by Dr John Taylor, a general practitioner. He was of the opinion that the applicant was suffering from reactive depression and placed her on an anti-depressant medication.
The applicant and her parents were quite close to the respondent’s family. The respondent’s wife was the applicant’s father’s sister. As a consequence of the sexual abuse being reported the respondent and his wife have separated and have subsequently divorced. The applicant feels responsible for the break-up of her Aunty’s marriage, to whom she was quite close, and for her three cousins losing contact with their father. Prior to the offences being revealed the applicant was close to her parents. That relationship became strained and the applicant subsequently left home.
In her affidavit the applicant sets out the adverse effects that the abuse has had on coping with employment, her eating habits, the consumption of alcohol, her relationship with other people and her capacity to enjoy life.
| [12] | On 25 June 2002 the applicant was interviewed by Dr Barbara McGuire, a specialist psychiatrist. In a report dated 4 July 2002 Dr McGuire concludes: |
“In summary it is my view that she has suffered a posttraumatic stress disorder as a consequence of the sexual abuse. I consider that this has been present since the abuse to a severe degree. The probability is that she will retain symptoms for an indefinite period and because the abuse occurred at a time of immaturity it will have a profound effect upon her quality of life. Already her peer relationships have been damaged and she has distanced herself emotionally from her family. In particular I think she is going to have problems with sexual relationships. On only one occasion has she had intercourse and she found this an extremely aversive experience. The likelihood is that this aversion will be maintained.
She, herself, believes that her grades at school deteriorated considerably as a consequence of the abuse and certainly this is a common consequence of childhood sexual abuse. This has been reflected in her diminished employment opportunities. She told me that she had left her job at Woolworths after 19 months because of her incapacity to feel comfortable with customer consequent upon her low self-esteem and general lack of trust. I believe that she does require psychiatric treatment or counselling but find it impossible to estimate the cost of such counselling as there is a possibility for her to obtain therapy without cost. However I believe that she will need therapy for a period of years.”
The offences committed on the applicant occurred over a period in excess of five years both before and after 18 December 1995. Injury as a result of an offence committed prior to that date remains compensable under the now repealed ch 65A of the Criminal Code. Injury occasioned subsequent to that date is compensable under the Criminal Offence Victims Act 1995.
In this case the applicant has suffered no physical injury and her compensation falls to be assessed on the basis of psychological injury. Although both Acts provide compensation based on mental and nervous shock the means of assessing compensation and the maximum compensation payable is different under each Act.
The appropriate way to determine an applicant’s entitlement in a situation where the injury is cumulative and indivisible and occurred as a result of offending which occurred during the currency of both Acts is to assess compensation under each Act and then to make an apportionment to reflect the period over which the offending occurred under each Act.
The offence of maintaining occurred over a period of five years up until 1998. The offence of indecent assault occurred on 15 September 1999. Counsel for the applicant submits that it would be appropriate to apportion one third of the complainant’s injury as occurring prior to 18 December 1995 and two thirds as occurring after that date. I accept that submission.
Under the now repealed ch 65A of the Criminal Code, accepting as I do that the applicant’s injury occurring prior to 18 December 1995, arose out of one cause or closely related causes of conduct, the prescribed maximum compensation for mental and nervous shock is $20 000.
Compensation under the Criminal Code has to be assessed in accordance with the ordinary principals of assessment of damages for personal injury in civil cases subject to the prescribed maximum that I have just referred to. An assessment in accordance with those principals having regard to the applicant’s total resultant psychological injury, which I am satisfied constitutes mental and nervous shock, would result in an assessment in excess of $20 000. Accordingly I assess the applicant’s entitlement under the Criminal Code in the sum of $6 666.00.
In assessing the applicant’s entitlement under the Criminal Offence Victims Act compensation is intended to help the applicant but is not intended to reflect the compensation which the applicant may otherwise be entitled under common law or otherwise and the maximum amount prescribed is to be reserved for the most serious cases as all other cases are to be scaled down according to their seriousness. Mental and nervous shock is an injury set out in the compensation table in Sch 1 of the Criminal Offence Victims Act. That injury has a prescribed range of 2%-34% of the scale maximum of $75 000. The substantive diagnosis of post-traumatic stress disorder suffered by the applicant falls clearly within the definition of mental and nervous shock.
In addition to recovering compensation for mental and nervous shock under the Criminal Offence Victims Act an applicant may recover compensation for an injury constituted by the totality of the adverse effects of a sexual offence suffered by them to the extent to which the impacts are other than an injury referred to in s 20 of the Act. See s 1A(1) of the Criminal Offence Victims Regulation 1995. The prescribed maximum compensation for such an injury is $75 000.
Section 1A(2) of the Regulation provides
“(2) An “adverse impact” of a sexual offence includes the following –
(a) a sense of violation; (b) reduced self worth or perception; (c) post-traumatic stress disorder; (d) disease;
(e) lost or reduced physical immunity; (f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent; (g) increased fear or increased feelings of insecurity; (h) adverse effect of the reaction of others; (i) adverse impact on lawful sexual relations;
(j) adverse impact on feelings; (k) anything the court considers is an adverse impact of a sexual offence.”
It is clear that many of the specified adverse effects set out in that section fall within the definition of mental and nervous shock. It is only if those specified impacts do not fall within the definition of mental and nervous shock that they become the basis for additional compensation. See Jullie v Atwell (2001) QCA 510.
In her report of 1 July 2002 Dr McGuire, having been referred to the specific adverse impacts of a sexual offence as set out in s 1A(2) of the Regulation, comments:
“You asked specifically about adverse impacts due to the sexual
offences:
a) She obviously did experience a profound sense of violation which is epitomised in her description of the offender feeling able to go through her private things. This emphasises the exploitative nature of the offences. b) She has experienced reduced self worth or perception. She believes that she is not good enough, dirty, “grotty”. c) As previously documented she does suffer posttraumatic stress disorder. d) She has not suffered disease but has developed somatic symptoms as a consequence of a dysthymic disorder. e) Because of the depressive component in her presentation she has difficulty motivating herself and to some extent this has reduced her physical capacity. Her aversion to sex may interfere with her capacity to have children. f) She does experience increased fear and feelings of insecurity. She locks doors and windows and has experienced panic attacks on seeing people who resemble the offender physically. g) She has experienced considerable distress as a result of the reaction of peers and appears to have been bullied at school consequent upon the abuse. h) As previously documented she experiences flashbacks and aversive feelings consequent upon lawful sexual relations.”
Dr McGuire then states to some extent “these adverse impacts coincide with the criteria of post traumatic stress disorder represent an elaboration of symptoms outside those criteria”. She does not state, presumably or it is not possible to do so, to what extent they represent an elaboration of such symptom:-
| [25] | Under the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition, the Diagnostic Criteria for Posttraumatic Stress Disorder is stated to be as follows: |
“A. The person has been exposed to a traumatic event in which both of the following were present:
1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others.
2) the person’s response involved intense fear, helplessness, or horror. Note: In children, this may be expressed instead by disorganised or agitated behaviour,
B.
The traumatic event is persistently re-experienced in one (or more) of the following ways:
1)
recurrent and intrusive distressing recollections of the event, including images, thoughts, or perceptions. Note: In young children, repetitive play may occur in which themes or aspects of the trauma are expressed.
2)
recurrent distressing dreams of the event. Note: In children, there may be frightening dreams without recognisable content.
3)
acting or feeling as if the traumatic event were recurring (includes a sense of reliving the experience, illusions, hallucinations, and dissociative flashback episodes, including those that occur on awakening or when intoxicated). Note: In young children, trauma-specific re-enactment may occur.
4)
intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event,
5)
physiological re-activity on exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event,
C.
Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by three (or more) of the following:
1)
efforts to avoid thoughts, feelings, or conversations associated with the trauma,
2)
efforts to avoid activities, places, or people that arouse recollections of the trauma,
3) inability to recall an important aspect of the trauma, 4)
markedly diminished interest or participation in significant activities,
5) feeling of detachment or estrangement from others, 6)
restricted range of affect (e.g., unable to have loving feelings),
7)
sense of a foreshortened future (e.g., does not expect to have a career, marriage, children, or a normal life span).
D.
Persistent symptoms of increased arousal (not present before the trauma), as indicated by two (or more) of the following:
1) difficulty falling or staying asleep, 2) irritability or outbursts of anger, 3) difficulty concentrating, 4) hyperviligance,
5) exaggerated startle response. E. Duration of the disturbance (symptoms in Criteria B, C, and D) is more than 1 month. F. The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.”
It can be seen, even without the assistance of medical evidence, that the bulk of the matters addressed by Dr McGuire in her comments referred to earlier, fall within the criteria for a diagnosis of post-traumatic stress disorder. To separately compensate for them would constitute double compensation.
Bearing in mind the necessity to scale the assessment according to seriousness, an appropriate award for mental and nervous shock under the Criminal Offence Victims Act would be 20% of the scale maximum. So far as the adverse impact suffered by the applicant not encompassed within the definition of mental and nervous shock are concerned I am of the view that an appropriate assessment for apportionment would be 10% of the scale maximum.
Apportioning the total assessment under the Criminal Offence Victims Act to take into account the period over which the conduct, giving rise to the applicant’s injury occurred results in an assessment under that Act of $15 000.
Accordingly I order that the respondent pay the applicant the sum of $21 666 by way of compensation for injury suffered by the applicant as a result of the offences of which the respondent was convicted on 20 February 2002.
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