JLH v Bucknall
[2010] QDC 389
•18 October 2010
DISTRICT COURT OF QUEENSLAND
CITATION: | JLH v Bucknall [2010] QDC 389 |
PARTIES: | JLH (Applicant) v THE ESTATE OF DAVID JOHN BUCKNALL (Respondent) |
FILE NO/S: | 22/2010 |
DIVISION: | Civil |
PROCEEDING: | Application for Criminal Compensation |
ORIGINATING COURT: | |
DELIVERED ON: | 18 October 2010 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 23 September 2010 |
JUDGE: | Bradley DCJ |
ORDER: | Order that the respondent estate pay to the applicant the sum of $30,000 by way of criminal compensation. |
CATCHWORDS: | CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the deceased respondent was convicted of one count of maintaining an unlawful sexual relationship with the applicant with a circumstance of aggravation – where the deceased respondent was in a relationship with the applicant’s mother at the time of the commission of the offences – where the applicant suffers symptoms of chronic post traumatic stress disorder, anxiety and adverse impacts as a result of the events. Criminal Offence Victims Act 1995 (Qld). |
REPRESENTATIVES: | R Summers of counsel for the applicant instructed by M.A. Kent & Associates No appearance for the respondent |
On 24 April 2001 in the District Court at Ipswich the deceased respondent (“Mr Bucknall”) was convicted, after pleading guilty, of one count of maintaining a sexual relationship with a child with a circumstance of aggravation. The offending took place between December 1997 and January 2001 at Boonah, Silkstone and Ipswich.
The applicant now seeks an order 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). The applicant was born on 9 October 1985 and her application was filed on 27 January 2010.
Service of the originating application was effected on Mr Bucknall on 15 February 2010 by personally delivering it to the Corrective Services Administrative Officer at the Wolston Correctional Centre, where Mr Bucknall was serving his term of imprisonment.
On 16 March 2010 Mr Bucknall died at the Wolston Correctional Centre. It is submitted for the applicant that the application survives the death of Mr Bucknall pursuant to rule 72 Uniform Civil Procedure Rules 1999 (Qld), which provides as follows:
(1) If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies during the proceeding, a person may take any further step in the proceeding for or against the party only if –
(a) the court gives the person leave to proceed; and
(b) the person follows the court’s directions on how to proceed.
(2)If a party to a proceeding becomes bankrupt or dies, the court may, at any stage of the proceeding, order the trustee or personal representative of the party or, if a deceased party does not have a personal representative, someone else, to be included or substituted as a party for the original party.
…
(4)An application for an order under this rule must be served on all persons who could be affected by the order.
I am satisfied that the application has survived the death of Mr Bucknall and I will give the applicant leave to proceed against his estate. On 23 September 2010 I made an order that substituted service be effected on the potential beneficiaries of the estate by posting the application and the supporting material to each of them at their known addresses. In accordance with that order service was effected on 15 September 2010.
There was no appearance by or on behalf of the estate at the hearing of this application.
At the time of the commission of the offence the applicant was aged between 13 and 16 years and Mr Bucknall was in a relationship with her mother. At the same time, Mr Bucknall was aged between 29 and 33 years.
The incidents out of which the charge arose occurred over the course of more than three years. The applicant resided with her mother and Mr Bucknall during the period that the acts were committed, apart from a six month period where the applicant lived with her natural father. According to the applicant, incidents were occurring between the applicant and Mr Bucknall about four or five times a week.
The first incident, particularised by the prosecution and relied upon to support the charge, occurred when both the applicant and Mr Bucknall were in the family swimming pool. Mr Bucknall was giving the applicant a piggy back and he reached behind him and touched her on the vagina on the outside of her swimming costume.
The next occasion occurred in the house, where again Mr Bucknall was giving the applicant a piggy back. On that occasion Mr Bucknall reached behind and placed his hand under the applicant’s underwear and rubbed her vagina. The third occasion involved Mr Bucknall again rubbing the applicant’s vagina underneath her clothing whilst the applicant was on the lounge and Mr Bucknall was sitting on the floor. He also licked her vagina. The applicant jumped out of a nearby window and ran away. Her mother and Mr Bucknall found her and took her home. At this time, the applicant told her mother that Mr Bucknall had touched her. It seems Mr Bucknall was confronted by the applicant’s mother but denied the allegations and the abuse continued.
The next incident occurred under the house whilst the family were living in Boonah. The applicant, who was then 13 or 14 years old, was sitting on a high stool and Mr Bucknall spread her legs and put his hands inside her underwear, taking her underwear off, then undoing his pants and placing his penis on top of his pants. He began rubbing his erect penis up and down against her vagina. Mr Bucknall asked the applicant “Is this what you want?” and the applicant said she was not sure. On another occasion, they were in the lounge room of the house, Mr Bucknall asked the applicant to take her clothes off which she did, then lay down on the floor with her legs spread. Mr Bucknall then took his clothes off and lay on top of the applicant, his penis penetrating her vagina for a few minutes. A further offence occurred when Mr Bucknall entered the applicant’s bedroom and got into her bed. The applicant took her pants of and they engaged in sexual intercourse.
On another occasion the applicant was on her bed in her bedroom and she was undressed and lying over the end of the bed with Mr Bucknall kneeling on the floor and they had sexual intercourse. The next incident occurred whilst the applicant and Mr Bucknall were in his car. Mr Bucknall pulled his penis out of his pants and asked the applicant to play with it, which she did. He then asked the applicant to place it in her mouth and suck on his penis, which she did.
After this particular incident, the applicant went to live with her father for about six months, but she subsequently returned to her mother’s house in Ipswich. Another incident occurred around that time, where the applicant and Mr Bucknall were driving to a quiet area in Mt French State Forest. They lay down a blanket and began kissing and fondling. Mr Bucknall touched the applicant’s vagina and penetrated her with his fingers. They did not engage in sexual intercourse as Mr Bucknall had difficulty sustaining an erection. Another incident occurred in the car, where the applicant and Mr Bucknall were driving and stopped the car near the Booval Shopping Centre and had sexual intercourse in the front seat.
Another occasion of sexual intercourse occurred on the lounge room floor when the applicant’s mother was at work and her two sisters were sleeping. On another occasion the applicant and Mr Bucknall were in the applicant’s bedroom and Mr Bucknall began rubbing the applicant’s vagina under her clothes and he asked the applicant to rub his penis which she did. The applicant was then bent over on her knees and Mr Bucknall was behind her. The applicant recalls Mr Bucknall saying, “Relax, I’m going to do something different.” He then put his finger inside her anus before having sexual intercourse with her. This scared the applicant considerably.
On another occasion, the applicant and Mr Bucknall took a shower together. Mr Bucknall rubbed her vagina while the applicant held his penis and they had sexual intercourse while they were in the shower.
On another occasion the applicant and Mr Bucknall engaged in sexual intercourse while they were sitting in a chair. Mr Bucknall revealed another occasion when he performed oral sex on her and following this the applicant performed oral sex on him. On another occasion the applicant and Mr Bucknall were having sexual intercourse when the applicant’s mother walked into the house. The applicant ran into the bathroom quickly and dressed.
It was not until 2008 that the applicant informed her natural father of the events. On 25 February 2008 the applicant gave a written statement to police. Clearly there was no behaviour on the part of the applicant which contributed to her injuries.
In an affidavit sworn on the 22 January 2010 the applicant relates how the abuse adversely affected her schooling, her social life, and her relationship with her previous partner. The applicant also describes the emotional effect of the offending upon her and that it has caused sleep difficulties and nightmares.
The applicant was interviewed on 26 November 2009, 14 December 2009, 16 December 2009 and 4 January 2010 by Hilary Lennon, a psychologist.
In her report dated 11 January 2010, Ms Lennon wrote that the applicant’s schema (or world view) is:
“…one in which she has an expectation that others will abuse, manipulate or take advantage of her. This belief is congruent with a person who has been sexually abused as a child by a family member.”
The applicant told Ms Lennon:
“I think that I’ve used my body and abused my body, since it happened … feeling like that’s the only way you can get male attention in your life … is to use your body to get it.”
In Ms Lennon’s view, the applicant reported symptoms consistent with Post Traumatic Stress Disorder, including:
· “Reliving the events through intrusive, distressing recollections – thoughts and images;
· Marked distress in reaction to external cues that symbolise or resemble the event;
· Psychological reactivity – intense anxiety in response to the triggers (eg. being touched by her partner (intentionally or unintentionally) when asleep);
· Avoidance of trauma-related triggers (attempting to avoid thoughts, feelings or conversations concerned with the abuse, avoiding media reports of child abuse or movies / TV depicting sexual abuse);
· Depression.”
The testing carried out by Ms Lennon indicates the applicant has severe symptomatology of Post Traumatic Stress Disorder, and places her in the severe range of stress reaction to trauma. The applicant is also placed in the Severe Range of anxiety symptoms
In her report, Ms Lennon also stated:
“… [applicant] has experienced periods of depression, has low self esteem and negative personality traits that can reasonably be presumed as a result of the abuse.”
In Ms Lennon’s opinion, the applicant suffers from Post Traumatic Stress Disorder (chronic), the symptoms of which are moderate in scale.
In addition to compensation for mental or nervous shock, the applicant is also entitled to compensation pursuant to s 1A of the Criminal Offence Victims Regulation 1995 for the adverse impacts of the sexual offending committed by Mr Bucknall. Ms Lennon made the following observations of the applicant:
· “[applicant] continues to experience a strong sense of violation and remains vulnerable to depression;
· She frequently responds to day to day stressors with negative cognitions;
· She continues to experience fear of abandonment that results in inappropriate relationships and a constant need for reassurance;
· She has an inability to trust;
· She experiences guilt and a belief that she could have / should have prevented the abuse.”
Ms Lennon also wrote that the applicant should be referred to a supportive mental health professional for treatment to specifically address her trauma related symptoms and that any compensation would ideally take into account the costs of treatment under the private health system because of the time and resource strains on the public health system.
I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:
Item 32 – mental or nervous shock (moderate) 20% $15,000
Adverse impacts of the sexual offences 20% $15,000
TOTAL $30,000
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I order that the respondent estate pay to the applicant the sum of $30,000 by way of criminal compensation.
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