H v SJM

[2004] QDC 69

[2004] QDC 069

DISTRICT COURT
CIVIL JURISDICTION

JUDGE HOATH

No BD22 of 2004

H	Applicant
and
SJM	Respondent
BRISBANE ..DATE 11/02/2004
ORDER

11022004 T01/CAL8 M/T CMS13/2004 (Hoath DCJ)

HIS HONOUR: This is an application by H, pursuant to the now	1
repealed section 663(b) of the Criminal Code, for criminal compensation for injury suffered as a result of an offence of indecent dealing committed upon her by the respondent, SJM, between the 25th of September 1981 and the 27th of September

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1983.

At the time the offence was committed the applicant was about
14 years of age. The respondent was between 25 and 30 years

of age and was the applicant's sister's boyfriend. The

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offence involved the respondent entering the complainant's
bedroom in her parents' home at about 10.30 at night and
touching her on the breasts and inserting a finger into her
vagina. The indecent dealing persisted for about half an

hour, during which time the applicant was telling the

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respondent to stop and go away. However, he only desisted
when the applicant's sister arrived home.

The applicant suffered no physical injury as a result of the offence. She did not report the offence to the police until

40

almost 20 years later and it was not until the 10th of December 2001 that the respondent was convicted of the offence.

On the 5th of February 2003 the applicant was examined by Dr

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Barbara McGuire, a specialist psychiatrist, for the purposes of this application. During the course of that examination the applicant informed Dr McGuire that she had also been sexually abused by her stepfather from the age of 8, that she 11022004 T01/CAL8 M/T CMS13/2004 (Hoath DCJ) 2 ORDER 60

had difficulties with sexual relationships, that she avoids	1
sexual relationships and finds sex disgusting, that she feels dirty and showers at least twice a day, that she is an obsessional house-cleaner, that she is scared that people can tell that she has been abused by her demeanour, that she

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constantly tries to prove herself that she has low self-
esteem, that she is depressed, that she has sleep troubles,
frequent nightmares, flashbacks, that she is suicidal,
overprotective of her children, has drinking problems and

lacks trust.

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Following that examination Dr McGuire concluded that:

"It's my view that H has suffered from post-traumatic
stress disorder and continues to do so. It has been
present since the time of this particular offence and may

have, in fact, preceded it. I consider that in addition	30
she present with personality problems, which will almost certainly be present for the rest of her life.
The impact of the incident upon her family and social relationships has been profound. Because of her mother's attitude that she should have kept quiet and put up with it, she feels quite intensively unloved and unprotected and her relationship with her mother and sister has virtually ceased.
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As a consequence of the offence, her outlook on life in general is much more pessimistic. She sees the world as a dangerous place. She is overprotective and hyper- vigilant for her children. I estimate that she will continue to need counselling throughout her life."

According to Dr McGuire, there were other factors in the

applicant's background; a childhood that was dotted by sexual 50

abuse committed upon her by her family, being deprived of
maternal emotion, being denied protection as a child and loss
11022004 T01/CAL8 M/T CMS13/2004 (Hoath DCJ) 3 ORDER 60

of schooling, which have contributed to the applicant's	1
present mental state. Dr McGuire expressed the opinion that:

"In this case there obviously are contributing factors
which have affected the impact, severity and
inevitability of her presentation. I think that the

post-traumatic stress disorder preceded this particular	10
incident and was a consequence of earlier sexual abuse. failure to succeed at school and left her very ill- prepared for life. However, I believe that had this incident been the only abuse which she suffered, the likelihood is that she would still have experienced post- traumatic stress disorder.
It's of interest that the flashbacks which experienced
were of his face in her head and related to this specific	20
incident. It's very difficult to apportion in percentage terms the contribution of this particular incident and probably somewhat arbitrary to attempt it. However, I do feel that this incident has made a material contribution to her current state."

Where the offence of which the respondent was convicted has

made a significant and material contribution to the	30
applicant's injury and it is not possible to realistically
separate the effects of the compensable from the non-
compensable causes of the injury, an applicant is entitled to
have her compensation assessed in respect of the whole injury.
See the Queen v. Tiltman, ex-parte Dawe, 1995, Queensland	40
Supreme Court, 345.
Since the decision in the Queen v. Jones, ex-parte McClintock, (1996) 1 Queensland Reports, 524, it has been established that a claim for criminal compensation, pursuant to section 663(b)	50

of the criminal code, is to be assessed, in accordance with
the ordinary principles of assessment of damages for personal
injuries in civil actions, subject to the prescribed maximum.
11022004 T01/CAL8 M/T CMS13/2004 (Hoath DCJ) 4 ORDER 60

In this case, as the injury was suffered prior to the	1
commencement of the Criminal Code Amendment Act 1984, the prescribed maximum compensation is $5,000.
In the absence of any physical injury, the applicant's

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entitlement falls to be assessed on the basis of mental and
nervous shock. For the purpose of this application it is
unnecessary to actually assess the quantum of the applicant's
claim on the basis of a civil claim for damages as it is clear

that such assessment would exceed $5,000.

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Accordingly, I order that the respondent pay the applicant the sum of $5,000, by way of compensation for injury suffered by the applicant, as a result of the offence of unlawful and indecent dealing of which the respondent was convicted on the

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10th of December 2001. I order that the respondent pay the

applicant's costs of and incidental to the application.

...

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HIS HONOUR: I make the formal order in the form of the draft, signed by me and placed with the papers.

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5 ORDER 60