D and P

[2004] QSC 90

[2004] QSC 090

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MACKENZIE J

No 1812 of 2004

D	Applicant
and
P	Respondent
BRISBANE
..DATE 29/03/2004

JUDGMENT
29032004 T09/BC5 M/T 1-2/2004 (Mackenzie J)

HIS HONOUR: The respondent to this application under the	1
Criminal Offence Victims Act (1995) pleaded guilty to carrying
on the business of trafficking in cannabis as well as the
personal offences of a sexual nature upon which the
application is based. They were committed on the applicant

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when she was 15 years of age; she is now 18.

The respondent had a clientele of young people in his

business. On the day of the offences, the applicant went to

his home to purchase cannabis. While she was there, she

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consumed alcohol and smoked cannabis. There were others

present at various times. She decided to stay for the night

because she did not want to go home drunk. She was

subsequently given amphetamines by the respondent. She was

then persuaded by him to go to his bedroom where he put the

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question to her what he would get in return for the drugs he

had given her.

He took his jeans off and exposed himself. He then briefly

forced his penis into her mouth. He told her to remove her

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jeans and underwear and lie on the bed on her stomach. He

then had sexual intercourse with her from behind. He then

performed oral sex on her, kissed her on the mouth and again

penetrated her vagina. After that he committed sodomy on her.

He again tried to force his penis into her mouth but she bit

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him.

The personal offences to which he pleaded guilty were two

offences of unlawful carnal of a girl under 16, one of sodomy
29032004 T09/BC5 M/T 1-2/2004 (Mackenzie J) 2 JUDGMENT 60

and two of unlawfully and indecently dealing with a girl under	1
16. He was sentenced on the basis that the applicant was not
a consenting party but that he had an honest and reasonable
but mistaken belief as to consent.

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The applicant suffered only minor physical discomfort from the

offences but, needless to say, she felt degraded by the

experience. Afterwards, she says, she lost self-esteem and

has bad memories of the event as well as a concern she may

have contracted AIDS. Fortunately, tests have proved negative

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in that regard. She says also that the incident has affected

her capacity to have the degree of intimacy in personal

relationships that she thought would be normal.

Notwithstanding that, she has been in a stable relationship

for four years and had a son in July 2002. She also claimed a

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history of sexual interference by her father when she was

about six. However, nothing of the type that occurred in this

case happened in those incidents, and she said she does not

remember them as vividly as the present ones.

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She was somewhat rebellious in the family and school

environment before the relevant events and, according to her

affidavit, had actually left school by then.

Dr McGuire, a psychiatrist, reports that in her opinion the

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applicant has a diagnosable psychiatric disorder, post

traumatic stress disorder, as evidenced by her symptoms of

flash-backs, nightmares, avoidance of cues reminding her of

the incident, anxiety and depression. She considers the
29032004 T09/BC5 M/T 1-2/2004 (Mackenzie J) 3 JUDGMENT 60

symptoms are present to a severe degree. She believes that	1
the offences reinforced pre-existing problems as a result of
the alleged conduct of her father, thereby rendering her more
vulnerable to the offences. The response may possibly have
been more severe than what otherwise may have happened. Dr

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McGuire says that the applicant experiences a sense of

violation and markedly reduced self-worth. She also suffers

anxiety and insecurity, rendering her virtually housebound

unless accompanied.

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The applicant is also entirely aversive of sexual relations, a

condition that the doctor believes will continue for an

indefinite period. Dr McGuire also says that despite her

situation, she appears to have a fairly optimistic view of the

future with an ambition to obtain her year 10 certificate to

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gain employment in a vocation that she is interested in

pursuing.

The somewhat intractable relation between regulation 1A of the

Criminal Offences Victims Regulation (1995) and the provisions

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of the Act itself were discussed in dialogue between Ms Fadden

and me in the course of the hearing. It is not the occasion

to say more about the regulation at this point except to

reinforce the recognition of the members of the Court in

Jullie v. Attwell [2002] 2 Qd R 367 that a wholly consistent

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interpretation of Regulation 1A is very difficult. Not the

least of that is the interface between the condition of post

traumatic stress disorder and specific categories that have

been listed.
29032004 T09/BC5 M/T 1-2/2004 (Mackenzie J) 4 JUDGMENT 60

In any event, the regulation prescribes that the totality of	1
the adverse impacts of a sexual offence suffered by a person
to the extent that impacts are not otherwise an injury under
Section 20 are prescribed as an injury. The definition of
"adverse impact" sets out a number of consequences that are to

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be taken into account including anything not in the specific

examples that the Court considers is an adverse impact. The

range of compensation that may be awarded for adverse impacts

of sexual offence apart from post traumatic stress disorder is

from 1 per cent to 100 per cent of prescribed amount which is

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at present $75,000. There is an obligation to scale

compensation for a particular injury according to seriousness

with the maximum allowable being reserved for the most serious

injuries.

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In a broad sort of way, the applicant's decisions on the day

placed her in the environment in which the offences occurred.

However, she was young at the time and apparently not used to

alcohol or amphetamines. She did nothing that indicated that

she was interested in engaging in sexual activity with the

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respondent, whatever else she may have been interested in. In

reality, she was preyed on by the respondent who was in his

mid-30s. In the particular circumstances, no reduction under

Section 25(7) is required.

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I accept that the incident has had relatively serious effects.

However, the serious, physical consequences referred to in

regulation 1A(2)(d)(e)(f) were not suffered. She has

fortunately been in a stable relationship for about four years
29032004 T09/BC5 M/T 1-2/2004 (Mackenzie J) 5 JUDGMENT 60

albeit subject to the emotional limitations referred to	1
earlier. According to the psychological assessment, there is
some hope that her future will not be permanent impaired to
the same extent as her past has been. There is evidence of
minor bruising. The minimum amount prescribed is accepted as

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appropriate compensation for that - that is, a sum of $750.

With regard to mental or nervous shock, the claim is for 30

per cent. It is always open to debate where a particular

injury falls in the scheme of things. It is, however, in my

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view, not outside a proper exercise of discretion to allow for

that amount in this particular case. A slightly smaller

amount may also have been justifiable, but since it is an

imprecise science I am prepared to accept that submission.

With regard to the effects not falling within the diagnostic

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criteria of post traumatic stress disorder, after debate

during the course of submissions, I am satisfied that 15 per

cent is appropriate for that. The total amount is therefore

46 per cent which represents an award of $34,500.

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6 JUDGMENT 60