M v M

[2010] QDC 170

DISTRICT COURT OF QUEENSLAND

CITATION:

M v M [2010] QDC 170

PARTIES:

M
(Applicant)
v
M
 (Respondent)

FILE NO/S:

214 of 2009

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

23 April 2010

DELIVERED AT:

Cairns

HEARING DATE:

12 March 2010

JUDGE:

Everson DCJ

ORDER:

I order that the respondent pay the applicant the sum of $31,500.00 by way of compensation.

CATCHWORDS:

Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS:

Wettenhall Silva for the applicant

1. This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

1. The injuries giving rise to the application were suffered as a result of personal offences for which the respondent was convicted on indictment on 24 July 2008, namely three counts of incest.

Facts

1. The respondent is the applicant’s uncle.  When he was aged 31 and she was aged 17 he had sexual intercourse with her on three occasions. (“the incidents”)

Injuries

1. The applicant suffered psychological sequelae as a consequence of the incidents.

The relevant law

1. COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

1. Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”         

[1][2002] 2 QdR 303 at 310

1. Relevantly the Compensation Table prescribes:

·     Item 33  Mental or nervous shock (severe) …     20% - 34%

1. Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.[2]

   [2]s 25 (8) referring to s 22 (4)

1. Section 1A of COVR is also relevant to this application. It is in the following terms:

“For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.

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 effect 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.

In this section-

Sexual offence means a personal offence of a sexual nature.”

The effect of section 1A was considered in R v Atwell ex parte Julie[3] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:[4]

“The regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20…”

[3][2002] 2 Qd R 367 at 373 per Chesterman J.

[4][2006] QCA 561 at [11]

1. Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum.

The Assessment

1. In her report dated 4 June 2009, Dr Richardson, psychologist assessed that the applicant was suffering from a Post Traumatic Stress Disorder (“PTSD”) in the moderate to severe range and moderate depressive symptoms associated with the incidents. Dr Richardson also expressed the view that the applicant was suffering from adverse impacts falling within paragraphs (a) and (h) of s 1A of COVR which are outside the parameters of her diagnosis referred to above. These relate to the applicant’s strong sense of violation that her “father’s blood” was responsible for the incidents and the extreme conflicts which arose within her family when she reported the incidents to the police after her grandfather urged her not to. I further note that so far as (h) is concerned, the applicant alleges that she has gone from being a regular church goer with a strong faith to someone whose faith has been shattered and who does not attend church at all.

1. Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows:

·     Item 33% - 22%  $16,500.00

· Section 1A COVR – 20% $15,000.00

$31,500.00

Order

1. I order that the respondent pay the applicant the sum of $31,500.00 by way of compensation.