D v. H

[2007] QDC 259

DISTRICT COURT OF QUEENSLAND

CITATION:

D v H [2007] QDC 259

PARTIES:

D
Applicant

v

H
Respondent

FILE NO/S:

BD 1941 of 2007

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Brisbane

DELIVERED ON:

17 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2007

JUDGE:

O’Sullivan DCJ

ORDER:

Respondent pay the sum of $20,000 to the applicant by way of criminal compensation

CATCHWORDS:

SOLICITORS:

Legal Aid Office for applicant

No appearance for respondent

1. The applicant seeks compensation pursuant to s 663B(1) of the Criminal Code against the respondent arising from his conviction of one count of unlawfully and indecently dealing with her when she was a child under the age of 14.

1. The applicant was born on 5 April 1986 and is currently 29 years of age.  At the date of the commission of the offences she was nine years and the respondent was aged about 31 years.

1. The applicant’s mother was at that time in the habit of leaving her children each weekend with her sister and her husband, the respondent.

1. The indecent dealing consisted of the respondent rubbing the outside of the applicant’s vagina and inserting his finger inside her vagina.

1. The respondent was also charged with another count of unlawfully and indecently dealing with the applicant but that was not proceeded with and he pleaded guilty to Count 2.  It is therefore on the basis of the facts which constitute that count that the criminal compensation issue arises.

1. The applicant swears:

‘One of the major effects of the abuse upon me has been a fear of men and the inability to engage in sexual relations.  I have always made myself drunk to have sex and more recently started taking drugs in order to have sex.  I have never had sex when I was not drunk.  When I’m sober my thoughts about sex are that it is for sluts, it’s disgusting and it’s dirty.  I have attended counselling which has helped to get off the drinks and alcohol but I still don’t want to have sex.’

1. In her affidavit the applicant adds the following comment to Dr McGuire’s report:

‘My partner has told me that it is women like me who cannot engage in sex easily who force men to rape other women.’

Assuming this to be true, this comment by the applicant’s partner is indeed extremely unhelpful to her in her attempts to progress through counselling.

1. The applicant deposes to her difficulties following the indecent dealing by the respondent, including attempted suicide, self mutilation, anger, promiscuity.

1. The applicant attended drug and alcohol counselling at Chermside Hospital ‘for six months’ (the affidavit sworn 26 November 2005).

1. The applicant has attended counselling with a sexual assault counsellor from the Royal Women’s Hospital for 12 months (affidavit sworn 26 November 2005).

1. The applicant deposes to being ‘overly protective’ of her children who were aged 5 and 8 in November 2005.

1. In her more recent affidavit, the applicant deposes to her improvement in medical and emotional health since her earlier visit to Dr McGuire.  She is now employed as a casual cleaner.

1. The applicant wishes to continue with counselling, but is unable to obtain those services other than by the payment of fees.

1. In her affidavit on 11 July 2007, the applicant swears:

‘I am still preoccupied with the abuse.  I have difficulty sleeping and wake up to four or five times each night.  I still experience flashbacks in which I can see the respondent as he is right there looking at me all the time.’

1. Dr McGuire prepared a report on 15 June 2005 and has prepared a further report dated 26 April 2007.

1. In her more recent report Dr McGuire says:

‘Obviously from this account her mental state is now very fragile.  She continues to demonstrate post-traumatic stress disorder to a severe degree and it is complicated by substance abuse.  She is demonstrating reckless, self harming behaviour.  She uses the mental mechanism of rationalisation and obviously her account of her care of the children indicates that it is inappropriate.  I believe that she has deteriorated since my assessment of 2005 and that there is an urgent need for her to be receiving treatment.’

1. It is clear from the victim impact statement and the affidavit of the applicant, and Dr McGuire’s reports, that the applicant has experienced a number of events which may be linked to her current condition.

1. In helpful submissions provided by the Legal Aid office, I have been referred to a number of the relevant authorities concerning causation.  I have referred, in particular, to the judgment of Justice Holmes in Say v AZ ex parte Attorney-General of Queensland, Appeal 5783 of 2006.

1. The Legal Aid office refers in particular to the comment by Dr McGuire that:

‘I believe that the act of indecent dealing involving her uncle putting his finger inside her knickers to rub on the outside of her vagina, licking his finger and then inserting his finger into her vagina would have been sufficient to make a material and significant contribution to her post-traumatic stress disorder.’

1. I agree with the written submission that:

‘…on ordinary common law principles an assessment of damages having regard to pain and suffering and loss of amenities of life would be made in an amount equal to or exceeding the statutory minimum of $20,000.’

Indeed, I consider that the amount would be considerably in excess of the sum of $20,000.

1. I accordingly order that the sum of $20,000 be awarded under s 663B of the Criminal Code, and I order the respondent to pay this sum by way of criminal compensation.