DL v Martin

[2010] QDC 362

DISTRICT COURT OF QUEENSLAND

CITATION:

DL  v Martin  [2010] QDC 362

PARTIES:

DL (By her Litigation Guardian, ML)

Applicant

V

PETER SIDNEY CHARLES MARTIN

Respondent

FILE NO/S:

24 of 2010

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

24 September 2010

DELIVERED AT:

District Court Ipswich

HEARING DATE:

10 September 2010

JUDGE:

Bradley DCJ

ORDER:

Order that the respondent pay to the applicant the sum of $26,250 by way of criminal compensation.

Direct that such sum be paid to the Public Trustee of Queensland whose receipt therefore shall be sufficient discharge to the respondent. 

Direct that from such funds the Public Trustee pay to the solicitors for the applicant costs and outlays incurred in the making of this application to be assessed on an indemnity basis and further direct that the Public Trustee of Queensland hold the balance in trust for the maintenance, welfare and advancement of the applicant until she attains her majority. 

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the respondent was convicted of one count of unlawfully and indecently dealing with the applicant, a child under 12 years – where the applicant suffers from Post Traumatic Stress Disorder as a result of the incident.

Criminal Offence Victims Act 1995 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)
Criminal Offence Victims Regulation 1995 (Qld).

REPRESENTATIVES:

Y Chekirova of Counsel for the applicant instructed by Campbell & White Lawyers

No appearance on behalf of the respondent

1. On the 16^th of June 2009 the respondent was convicted in the District Court at Ipswich of unlawfully and indecently dealing with the applicant, a child under 12 years. 

1. The applicant by her Litigation Guardian, her mother, now applies for compensation for the injuries suffered by her because of the offence pursuant to s.24 of the Criminal Offence Victims Act (1995) (“the Act”).

1. The applicant was born on the 29^th of July 2000 and the offence occurred on an unknown date between the 10^th of December 2004 and the 25^th of December 2005 making her 4 or 5 years of age at the time of the commission of the offence. 

1. The respondent is currently serving a term of imprisonment at the Capricornia Correctional Centre and service of the application and the supporting material has been effected upon him in accordance with the provisions of the Uniform Civil Procedure Rules. There was however no appearance by or on behalf of the respondent at the hearing of this application.

1. The applicant’s mother married the respondent’s half brother in mid 2000.  On occasion the applicant would accompany her stepfather to his parent’s place where the respondent also lived.  On one occasion when the applicant was visiting she was watching TV in the house when the respondent came in and asked her to meet him in the shed in the back yard.  The applicant did not follow the respondent straight away but a short time later went down to the shed and found the respondent inside. 

1. The applicant walked into the shed and noticed some lollies there as well as some tools such as a tape measure.  The applicant told police that she was not initially worried as she thought she was going to get a lolly.  The applicant however became worried as she did not want the respondent to touch her.  The applicant told police she was wearing a singlet and boxer shorts and the respondent pulled down her shorts and underwear and touched her with his hands on the outside of her vaginal area.  The respondent reached around and touched her on the bottom.  The whole incident only took a short period of time.  It was some time before the applicant made a complaint to her grandmother. 

1. Clearly in the circumstances there was no behaviour whatsoever on the part of the applicant which contributed to her injuries. 

1. I have before me an Affidavit sworn by the applicant’s mother in which she states that the applicant has become “more clingy since the incident” and that the applicant “remembers what happened to her but will not talk to me about it or how she feels”.  The applicant’s mother states that the applicant feels afraid when it is dark and has nightmares and is scared of men and does not trust men or boys anymore.  The applicant has problems concentrating and becomes angry easily.  The applicant’s mother confirms that the applicant did not suffer these problems prior to the incident.

1. On the 9^th of March 2010 the applicant was interviewed in the company of her mother by Dr Chris Richardson, a Psychologist.  In a report dated the 11^th of July 2010 Dr Richardson gives her psychological opinion that the applicant’s psychological condition meets the DSM-1V-TR criteria for Post Traumatic Stress Disorder and that her state appears to be in the mild to moderate range. 

1. The applicant’s mother told Dr Richardson that because of threats and her fear of retribution from the respondent and his family she and her family have had to relocate and she does not want the respondent to know their whereabouts. 

1. In addition to Post Traumatic Stress Disorder, Dr Richardson is of the opinion that the applicant has suffered other adverse impacts as a result of the offending.  In particular the applicant has suffered a sense of violation in that she reports she felt “yucky” and she “wanted to wash herself straight away” when the incident occurred.  The applicant has also suffered increased fear or increased feelings of insecurity in that she experiences “significant levels of distress associated with insecurity and fear, she is generally afraid and particularly afraid of the dark.  She is also hypervigilant and reports that she can no longer trust people, particularly males”.  A need for the applicant and her family to move from the Ipswich region in order to feel safe can be categorised as the adverse effect of the reaction of others. 

1. Although the applicant is not yet sexually active, Dr Richardson notes “that research indicates that child sexual abuse is likely to have significant negative repercussions on the future relationship and sexual experiences of the individual as they enter adolescence and adulthood”. 

1. Finally Dr Richardson notes that “Miss DL experiences significant distress that she reports is associated with [the respondent’s] behaviour” which amounts to an adverse impact on feelings. 

1. Dr Richardson concludes that “it is apparent that the behaviour of [the respondent] has had a profound effect on Miss DL and she should attend counselling to assist her gain some control over her distress.  Given her symptoms, it is expected that 21 sessions with an appropriately qualified therapist, would assist her gain some control over her distress and help her maintain equilibrium in her daily activities”. 

1. In addition to compensation for Mental or Nervous Shock pursuant to the Compensation Table which is Schedule 1 to the Act, the applicant is also entitled to compensation for the adverse impacts of the sexual offence pursuant to s.1A of the Criminal Offence Victims Regulation (1995). 

1. I assess compensation in accordance with the legislation as follows:

Moderate, Mental or Nervous Shock             15%  $11,250

Adverse Impacts  20%  $15,000

Total  $26,250

1. I order that the respondent pay to the applicant the sum of $26,250 by way of criminal compensation.

1. I direct that such sum be paid to the Public Trustee of Queensland whose receipt therefore shall be sufficient discharge to the respondent. 

1. I direct that from such funds the Public Trustee pay to the solicitors for the applicant costs and outlays incurred in the making of this application to be assessed on an indemnity basis and I further direct that the Public Trustee of Queensland hold the balance in trust for the maintenance, welfare and advancement of the applicant until she attains her majority.