GLC v LRD
[2012] QDC 119
•31 May 2012
DISTRICT COURT OF QUEENSLAND
CITATION:
GLC v LRD [2012] QDC 119
PARTIES:
GLC
(applicant)v
LRD
(respondent)FILE NO:
42/2010
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
Beenleigh
DELIVERED ON:
31 May 2012
DELIVERED AT:
Brisbane
HEARING DATE:
11 April 2012
JUDGE:
Dearden DCJ
ORDER:
That the respondent LRD pay the applicant GLC the sum of $37,500
CATCHWORDS:
Application – criminal compensation – indecent treatment of a child under 16 under care – leave to proceed granted - mental or nervous shock – adverse impacts – whether competing contributory factors
LEGISLATION:
Criminal Offence Victims Act 1995 (Qld)
Victims of Crime Assistance Act2009 (Qld)
Uniform Civil Procedure Rules (UCPR) r. 389(2)
CASES:
JMR obo SRR v Hornsby [2009] QDC 147
Tyler v Custom Corp Ltd & Ors [2000] QCA 178
SAY v AZ; ex-parte Attorney General of Queensland [2006] QCA 462
COUNSEL:
F Muirhead (solicitor) for the applicant
No appearance for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
No appearance for the respondent
Introduction
The respondent, LRD, appeared before Judge Nase at the Beenleigh District Court on 30 August 2004 and entered pleas of guilty to one count of indecent treatment of a child under 16 under 12 under care, one count of indecent treatment of a child under 12, one count of indecent treatment of a child under 16, and two counts of indecent treatment of a child under 16 under care, each in respect of the applicant GLC. On each count, the respondent was sentenced to a prison probation order, of twelve months’ imprisonment and three years’ probation.[1]
[1]Exhibit A (verdict and judgment record), Affidavit of Melissa Lo affirmed 1 February 2012.
Facts
The respondent, on a number of occasions, was babysitting the applicant, and utilised those occasions to rub the applicant on the outside of her vagina (outside of clothing) – count 1; touched the applicant on the outside of her vagina (inside her clothing) – count 2; touched the applicant on the outside of her vagina (inside of clothing) – count 3; touched the applicant on the outside of her vagina (inside of clothing) – count 4; and touched the applicant on the outside of her vagina (inside of clothing) – count 5. The applicant was aged between 10 and 12 years of age at the relevant time. The applicant’s family and the respondent’s family were friends, and the respondent regularly babysat the applicant.[2]
[2]Exhibit C (Schedule of Facts), Affidavit of Melissa Lo affirmed 1 February 2012.
Injuries
The applicant suffered mental or nervous shock, and adverse impacts, as a result of the offences.
The Law
The application in these proceedings was filed on 28 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The application complies with the relevant transitional provisions of VOCAA ss. 154 and 155, and has been brought in compliance with the relevant timeframes pursuant to COVA s. 40(1).
I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.
Leave to proceed
The proceedings were commenced on 28 January 2010 by solicitors previously representing the applicant, but no further action was taken with respect to the proceedings between that date and the transfer of the file to Legal Aid Queensland in October 2011. Service was effected on the respondent on 9 February 2012. There was no appearance by the respondent at the hearing of the application.
I am satisfied, given the factors outlined in Tyler v Custom Corp Ltd & Ors [2000] QCA 178, that leave should be granted pursuant to Uniform Civil Procedure Rules (UCPR) r. 389(2) to continue with the application. In particular I am satisfied that there was a satisfactory explanation for the delay; that it was not the fault of the applicant; and that no prejudice has been caused to the respondent as a result of the delay.
Compensation
Ms Muirhead, who appears for the applicant, seeks compensation as follows:-
(1) Item 33 – Mental or Nervous Shock (severe) – 20%-30%
The applicant was diagnosed by Dr Barbara McGuire, psychiatrist, as suffering “post traumatic stress disorder” which the applicant “exhibits to a severe degree”. Dr McGuire bases this diagnosis on the applicant’s experience of nightmares, flashbacks, sleep disturbance, avoidant behaviour, hypervigilance, exaggerated startle reflex and low self esteem. Dr McGuire noted that the applicant “also exhibits borderline traits and has experienced substance abuse… and [the applicant] also has a history of oppositional defiant disorder.”[3]
[3]Exhibit A (report dated 23 January 2012) p. 4 Affidavit of Barbara McGuire affirmed 28 February 2012.
Ms Muirhead submits that in the circumstances, there should be an award of 30% of the scheme maximum ($22,500) in recognition of the serious nature of the mental or nervous shock suffered by the applicant.
There are potential contributing factors to the applicant’s injuries. As the Court of Appeal indicated in SAY v AZ;ex parte the Attorney General of Queensland [2006] QCA 462, there may be circumstances in assessing criminal compensation where a “broad brush approach” will be necessary.[4]
[4]SAY v AZ ex-parte Attorney General of Queensland [2006] QCA 462, per Holmes J, para 23.
Dr McGuire expresses the view that “it is probable that [the applicant] did experience a dysfunctional family life prior to the abuse.” Dr McGuire notes that the applicant’s parents separated and her father was incarcerated in prison on drug offences, but expresses the view that it is “hard to evaluate this because [the applicant] can’t remember when the abuse started.”[5]
[5]Exhibit A, p. 5, Affidavit of Barbara McGuire affirmed 28 February 2012.
Dr McGuire is clear in her view that “the offences for which the respondent was convicted were responsible for [the applicant’s] post traumatic stress disorder and … there is a high probability that they contributed to her borderline personality traits and may have been responsible for her oppositional defiant disorder.” Dr McGuire also believes that it is “possible that the diagnosis of attention deficit hyperactivity disorder may have been attributable to the sexual abuse.”[6]
[6]Exhibit A, p. 5, Affidavit of Barbara McGuire affirmed 28 February 2012.
In those circumstances I do not consider there should be any reduction or contribution of other factors. Accordingly I award 30% of the scheme maximum ($22,500) pursuant to item 33.
(2) Criminal Offence Victims Regulation (COVR) s. 1A – Adverse Impacts
Dr McGuire identifies impaired schooling and ability to learn,[7] and the fact that the applicant’s partner was not sympathetic towards her[8] as compensable “adverse impacts” not otherwise pre-requisite to or part of the diagnosis of post traumatic stress disorder.[9]
[7]COVR s. 1A(2)(f).
[8]COVR s. 1A(2)(h).
[9]Exhibit A, p. 5, Affidavit of Barbara McGuire affirmed 28 February 2012.
In addition, Ms Muirhead identifies, pursuant to COVR s. 1A(2)(k), the applicant’s difficulty in accessing medical treatment;[10] the impact on the applicant’s parenting;[11] the impact on the applicant’s schooling and educational opportunities;[12]and the self inflicted scarring arising from the applicant’s self harming from the age of 12 using sharpeners;[13] as being further adverse impacts compensable because they arise from the sexual offences committed against the applicant.
[10]Affidavit of GLC sworn 24 February 2012, para 31.
[11]Affidavit of GLC sworn 24 February 2012, para 24.
[12]Affidavit of GLC sworn 24 February 2012, para 16.
[13]Affidavit of GLC sworn 24 February 2012, para 20.
Dr Trevor Harris, plastic and reconstructive surgeon, in a detailed report, identifies “multiple cutaneous scars, some of which are hypertrophic, involving the right forearm, the left forearm, the left thigh and above the left ankle, as scars for which there was no reasonable treatment could improve their appearance.[14]
[14]Exhibit A, pp. 4-5, Affidavit of Trevor Harris sworn 27 February 2012.
In these circumstances Ms Muirhead submits that an award of 20% of the scheme maximum ($15,000) should be made for adverse impacts pursuant to COVR s. 1A. I accept the submission and accordingly award $15,000 pursuant to COVR s. 1A.
Contribution
The applicant has not contributed in any way, either direct or indirect, to her own injuries.[15]
[15]COVA s. 25(7).
Conclusion
I order that the respondent LRD pay the applicant GLC, the sum of $37,500.
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