DN v AJE

[2008] QDC 77

DISTRICT COURT OF QUEENSLAND

CITATION:

DN v AJE [2008] QDC 77

PARTIES:

D.N THROUGH HIS LITIGATION GUARDIAN J.N

Applicant

AND

A. J. E

Respondent

FILE NO/S:

BD500/08

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

8 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

26 March 2008

JUDGE:

Nase DCJ

ORDER:

1. That A.J.E pay to D.N the sum of $22,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995; and

2.    That the moneys be paid to the Public Trustee of Queensland on behalf of the said D.N.  The Public Trustee is authorised, in its discretion, to disperse such sums from time to time for the advancement, welfare, education, and maintenance of the said D.N; and

3.    The Public Trustee is further authorised to pay to the applicant’s solicitor, out of the said monies, any reasonable legal expenses of and incidental to this application.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION FOR VICTIM – assessment of compensation under Criminal Offence Victims Act 1995 for serious sexual assaults against a child

Criminal Offence Victims Act 1995, ss 20, 21, 22, 24

Cases considered

JI v. AV [2001] QCA 510

COUNSEL:

Mr P Saggers for the applicant

No appearance from the respondent

SOLICITORS:

Howden Saggers Lawyers for the applicant

Respondent was not represented

1. On 6 December 2005 the respondent pleaded guilty in the District Court of Brisbane to a series of seven sexual offences committed on a young boy (D.N).[1]  He was sentenced to an effective term of five years imprisonment.  Under the sentencing orders he will be eligible for post‑prison, community based release after serving one‑third of the term of imprisonment.

   [1]On the same date he was sentenced to a concurrent term of imprisonment of 18 months for a separate offence of operating a motor vehicle dangerously, committed with a circumstance of aggravation.

1. D is the applicant for a compensation order pursuant to the Criminal Offence Victims Act 1995. E is the respondent. E has chosen not to appear or to be represented at the hearing of the application. As a consequence the application proceeded in his absence and solely on the materials placed before the court by the applicant.

1. The offences charged were committed over an 18‑month period when D was aged seven and eight years.  E was a friend of D’s father and insinuated his way into the family circle.  The most serious of the offences are the charge of rape by digital penetration of the anus, and the charge of attempted rape constituted by an actual attempt to sodomise D.  The indecent treatment charges involve acts of fellatio.  The single charge of exposing the boy to an indecent act was constituted by exposing him to an act of masturbation.

1. The series of offences were aggravated by the serious abuse of the friendship the respondent enjoyed with the boy’s parents and by the serious threats to the boy.  It is sad that such a young boy was treated so very badly.  The harm caused to him has been severe.

1. Under the legislative scheme introduced by the Criminal Offence Victims Act 1995, on conviction of a personal offence an application may be made to a court for a compensation court order (s 24).  An application can only be brought by “the person against whom the offence was committed” (s 24(2)), and the order can only be made in respect of “the injury suffered by the applicant because of the offence” (s 24(2)).

1. By s 20 of the Act, injury is defined to mean:

“(a)… bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or described under a regulation.”

The definition of injury was expanded by Regulation on 18 December 1997.  The Regulation relevantly provides:

“1A(1)For section 20 of the Act, the totality of the adverse impacts of the sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is describe as an injury;

(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 affect 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;

(3)in this section sexual offence means a personal offence of a sexual nature.”

1. The Regulation has been held to be complementary to s 20, and not a comprehensive provision for the adverse impacts of a sexual offence (JI v AV [2001] QCA 510).

1. The claim advanced on behalf of the applicant is for mental or nervous shock, and for the residual adverse effects of a sexual offence (Regulation 1A). I am satisfied the applicant has suffered an injury (mental or nervous shock) and is in addition entitled to a claim for the residual adverse effects of the offences. I am additionally satisfied the offences founding the jurisdiction of the court are all personal offences within the meaning of s 21 of the Act.

1. The applicant child was referred to a psychologist (Mr Johns) for a medico‑legal assessment.  He was interviewed on 6 August 2007 for that purpose.  The psychologist thought the best diagnosis for D was that he suffered from a Specific Phobia.  The main symptoms Mr Johns identified for his diagnosis are:

·    a marked and persistent fear with respect to the anticipation of further sexual abuse perpetrated by the offender;

·    exposure to stimuli which resembled the offender almost invariably provoked an immediate anger or anxiety reaction;

·    that marked avoidance behaviour could be reasonably anticipated with respect to actual exposure to the offender; and

·    marked aggressive episodes, and to some extent, regular troubled thoughts (an entanglement of disturbed dreams and assault‑related ruminations) significantly interfered with everyday life.

Although outside the criteria for phobic behaviours, the applicant child has been bed‑wetting since the offences.  Generally the psychological affects on D have been long‑lasting and have affected many aspects of his life.

1. I accept the opinion evidence of the psychologist.  I also note that Mr Johns believes he would benefit from formal counselling.

1. The method of assessment under the legislative scheme introduced by the Act involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act.  The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

1. Mental or nervous shock is dealt with in Items 31 (mental or nervous shock – minor), 32 (mental or nervous shock – moderate), and 33 (mental or nervous shock – severe) of the compensation table, where the ranges prescribed are 2‑10%, 10‑20%, and 20‑34% respectively of the prescribed maximum.  I agree with Mr Saggers’ submission that an award of 20% is appropriate.

1. I also agree the applicant is entitled to an allowance under the Regulation for the residual adverse impacts of the offences not covered by the allowance for mental or nervous shock.  In the circumstances, 10% of the scheme maximum will be allowed.

1. The applicant is therefore entitled to an award of 30% of the scheme maximum ($22,500).  I am satisfied this allowance should not be reduced under s 25(7) of the Act, as in this case there is no conduct on the part of the applicant which should reduce the award to which he is otherwise entitled.

1. The formal orders will be:

1. That A.J.E pay to D.N the sum of $22,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995; and

2.          That the moneys be paid to the Public Trustee of Queensland on behalf of the said D.N.  The Public Trustee is authorised, in its discretion, to disperse such sums from time to time for the advancement, welfare, education, and maintenance of the said D.N; and

3.          The Public Trustee is further authorised to pay to the applicant’s solicitor, out of the said monies, any reasonable legal expenses of and incidental to this application.