Ko v CC & MC

[2010] QDC 100

[2010] QDC 100

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3280 of 2009

KO

Applicant

and

CC

and

MC

First Respondent

Second Respondent

BRISBANE

..DATE 24/02/2010

ORDER

HIS HONOUR: This is an application by which the applicant seeks criminal compensation to be assessed pursuant to the provisions of the Criminal Offence Victims Act 1995 for injuries sustained as a result of personal offences committed against her by the respondents. The applicant was born on the 15th of August 1990. The first respondent is her step-father. The second respondent is her biological mother.

The first respondent married the second respondent in 1994.  The applicant swears that when she was 10 years old, in the year 2000, the first respondent began inappropriately touching her.  Without repeating the detail, the applicant swears to touching of her anus and her vagina and also penile penetration of her vagina and attempted penile penetration of her anus. 

This conduct occurred on a number of occasions throughout the years until the applicant was about 15 years of age.  That is, in the year 2006.  On this occasion - at this time the applicant swears the first respondent and the second respondent began attempting to make her fall pregnant with her step-father's child.  There was also a document written by the applicant the effect of which was that the applicant was agreeing to be impregnated with the first respondent's semen to bring about a pregnancy. 

The reasoning or rationale behind this production of a child by the applicant was because the respondents had had two children who had suffered from a disease.  As a consequence they were, to a significant extent, disabled.  They had to wear colostomy bags.  The applicant was required to perform sexual intercourse with the first respondent and her mother, the second respondent, encouraged this conduct. 

Ultimately when the applicant was 16 years of age she complained to the police.  The first respondent and the second respondent were then charged with the offence of maintaining a sexual relationship with a child.  They duly pleaded guilty and were sentenced.  The first respondent was sentenced to eight years imprisonment.  The second respondent was sentenced to six months imprisonment followed by three years probation. 

In my opinion the difference in actual sentence between the respondents could be because the second respondent, as the mother of the two boys who were significantly disabled, was required to care for these boys.  Otherwise, I conclude that both respondents caused the same loss to the applicant.  The applicant has sworn that as a consequence of the respondents' actions she experienced nightmares and trouble sleeping, she avoids people and populated areas and has very few friends. 

She believes the respondents' attempts at contacting her has added to her fear after the abuse has ended.  She thinks of the abuse constantly.  She has great difficulty engaging in lawful sexual relationships and avoids and distrusts men.  She had suicidal thoughts when she was 16.  She is fearful for her safety and habitually double-checks locks and latches. 

Her education was adversely affected.  Her employability has also suffered.  She feels as though the respondents violated her.  Their actions caused her great pain, both emotional and physical.  As a result of the actions of the respondents she has lost the ability to maintain a relationship with her younger brothers whom she cares for very deeply.  She feels as though her family life has been taken away from her. 

The applicant has been examined by Dr Maguire, a psychiatrist.  Dr Maguire concludes that the applicant's symptoms have caused her to suffer from post traumatic stress disorder to a severe degree as demonstrated by her exhibition of nightmares, flashbacks, avoidant behaviour, exaggerated startle reflex and hypervigilance.  Dr Maguire also concludes this effected her schooling and her education generally and therefore her employability. 

The Act also allows for adverse impacts of a sexual offence to be compensated.  I should say I am satisfied the applicant has suffered mental or nervous shock to a severe degree but I am also satisfied on the evidence that she has suffered from adverse impacts of the sexual offences committed by the respondents.  She has suffered a sense of violation, reduced self worth, disease - sorry, has diminished capacity to form normal relations, fears further contact from the respondents.  She lacks trust and is unlikely to form satisfactory sexual relationships.  The evidence also indicates that when she was a young child and was being penetrated both anally and vaginally she suffered pain. 
I am satisfied the applicant did nothing to directly or indirectly contribute to her injuries.

Doing the best I can, I am satisfied the applicant should be compensated under item 1, bruising/laceration et cetera, minor, two per cent, a sum of $1500.  Under item 33, mental or nervous shock, severe, 30 per cent, a sum of $22,500.  And under the regulation 1A, of the Criminal Offence Victim regulations, adverse impacts of a sexual offence at 30 per cent, which is a sum of $22,500, making a total of $46,500 or 62 per cent. 

I therefore order the respondents to pay to the applicant the sum of $46,500, to pay jointly and severally the applicant the sum of $46,500. 

...

HIS HONOUR:  Yes, thank you.  There will be an order as per draft initialled by me and left with the papers. 

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