Moran v Marroqin

[2006] QDC 271

DISTRICT COURT OF QUEENSLAND

CITATION:

Moran v Marroqin [2006] QDC 271

PARTIES:

CINA GISELLE MORAN

Applicant

v

ALBERTO ANTONIO MARROQIN

Respondent

FILE NO/S:

No BD4422/05

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 August 2006

DELIVERED AT:

Brisbane

HEARING DATE:

1 August 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

That the Respondent pay to the Applicant the sum of $30,000 by way of compensation.

CATCHWORDS:

COUNSEL:

Mr Menolotto for the Applicant

SOLICITORS:

Keith Scott and Associates for the Applicant

1. This is an application pursuant to s 24 of the Criminal Offence Victims Act 1995. The respondent pleaded guilty on 26 March 2002 to one count of indecent treatment of a child under 16 and under 12 on a date between 7 August 1997 and 1 October 1997 at Brisbane. He was sentenced to imprisonment for a period of two years, suspended after serving a period of eight months. The applicant was born on 19 November 1986 and was aged 10 at the time of the offence.

1. The facts, in brief, were that the respondent, who was 27 or 28 years old at the time of the offence, was the de facto partner of the applicant’s mother.  The applicant at the time of the offence resided in a rented house with her mother.  The sexual assault occurred early one morning when the applicant’s mother was in the kitchen making breakfast.  The applicant had been sleeping on her mother’s bed in her panties and nightshirt.  The respondent who had slept in the same bed, rolled the applicant onto her side, pulled down her panties and positioned himself behind her.  He forced her legs apart and rubbed his penis against the outside of her vagina for some three to five minutes.  During the assault the respondent threatened the applicant with physical consequences if she told anyone about what happened.

1. The applicant, and a psychologist, Geoffrey Grantham depose that the sexual assault has had a severe effect on the applicant’s life.  She feels that she has lost her childhood and her relationship with her mother has been damaged, possibly beyond repair, although that relationship was fraught with difficulty before this event.  The applicant also says that she is not comfortable with her own body and dislikes seeing herself undressed.  She feels exposed and vulnerable getting into the shower.  She has had difficulty with relationships with males.  As at the date of her affidavit of 31 October 2005, she had not been on a date and had very little to do with males and she was still having nightmares about the sexual abuse.  The material also indicates that she became withdrawn and isolated and her grades at school suffered.  She had mood swings, lost friends, gained weight and started staying home from school.  She lost confidence, suffered nightmares, she was afraid of the dark and was nervous of men.

1. She attended counselling sessions on 57 occasions between October 2000 and September 2003.  At these sessions she presented with mood swings associated with tears and withdrawal and fears in relation to people and situations.  She also had intrusive thoughts associated with panic and sleeping difficulties which related to the sexual abuse and the response of her mother when the abuse was disclosed.  When counselling ceased in September 2003, the therapist reported that the applicant’s results were elevated for anxiety, post-traumatic stress, and dissociation, suggesting continuing difficulty and distress.

1. The psychologist diagnosed post-traumatic stress disorder.  He commented that the sexual abuse had had a substantial and wide-ranging impact on the applicant’s life and would continue to do so for years to come.  He also reported on her low self-esteem, feelings of unattractiveness, and anxieties when people were behind her, when she was in crowded places especially when in the presence of males and in dark locations such as the cinema.

1. The psychologist observed:-

“The symptoms Ms Moran described are typical of those experienced by sexual abuse survivors.  They include, sleep disturbance; nightmares; anxiety; concentration problems; social problems at school; anger; anxiety; depressed mood; unwanted thoughts; reduced self-esteem; lack of self-confidence and independence; restrictions in her ability to move freely in the community; unusual levels of vigilance; concerns that she will suffer further harm; difficulty relating to males; and an avoidance of relationships, sexual activity, or even thoughts about sex.  These symptoms constitute post-traumatic stress disorder, a condition from which Ms Moran continues to suffer.”

1. The psychologist also believes that the applicant has suffered a degree of mental or nervous shock which falls within the “severe” range.

1. For the purposes of s 1A of the Criminal Offence Victims Regulation 1995, the psychologist has identified some adverse impacts on the applicant of the sexual offence in question to the extent to which those impacts are not already an injury under s 20 of the Act. These include a sense of violation, reduced self-worth or perception, increased fear or increased feelings of insecurity and an adverse impact on lawful sexual relations. Amongst other adverse impacts he refers to depression, disturbance to family life and disturbance to education.

1. Initially the respondent was charged with a number of counts of the same offence, but eventually the matter was disposed of by his guilty plea to the count mentioned earlier.  It would seem obvious that the mental or nervous shock suffered by the applicant and the other adverse impacts suffered by her were not the result solely of that single episode.  Nonetheless, I am satisfied that the conduct of the respondent on that occasion should be seen as having made a material contribution to the injury suffered by the applicant.  With respect to the assessment of mental or nervous shock suffered by the applicant, I refer to a passage from Mr Grantham’s report in which he says:-

“It appears reasonable to say that the sexual abuse has had a substantial and wide-ranging impact on Ms Moran’s life, and will continue to do so for years to come.  Although sexual abuse survivors cannot generally be expected to return to a level of functioning identical to that they may have achieved in its absence a good deal more recovery than Ms Moran has yet achieved can generally be expected.  She is a young woman who has yet to begin exploring the possibility of friendships and relationships with members of the opposite sex and it remains to be seen how events will progress in this respect.”

1. I think that it is appropriate to assess compensation for mental or nervous shock in the severe range, but close to the beginning of that range.  I would award compensation under Item 33 of the schedule at 22 per cent of the scheme maximum, amounting to $16,500.  With respect to other adverse impacts under Regulation 1A, I think that an appropriate award is 18 per cent of the scheme maximum, which amounts to $13,500.

1. In the result, compensation is awarded in the sum of $30,000 and the respondent is ordered to pay that amount to the applicant.