N v N

[2004] QDC 419

DISTRICT COURT OF QUEENSLAND

CITATION:

N v N [2004] QDC 419

PARTIES:

N
Applicant
v

N
Respondent

FILE NO/S:

43 of 2004

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

15/10/04

DELIVERED AT:

Ipswich

HEARING DATE:

15/9/04

JUDGE:

Richards DCJ

ORDER:

The respondent pay the applicant the sum of $25,000.00 together with costs of this application to be assessed on the District Court scale appropriate to such an award.

CATCHWORDS:

Criminal compensation – s663B of the Criminal Code.

COUNSEL:

SOLICITORS:

Mr Haberman of Dale and Fallu
No appearance for the respondent

1. The applicant is the natural daughter of the respondent.  She and her brother had been removed from the family home by Family Services in circumstances where her mother was ill and unable to care for them adequately.

1. The applicant and her brother with the approval of the Department were to spend the 93/94 Christmas holiday period with their parents. This is when this offence occurred.  The parents were living in a caravan park at the time and on the relevant day the applicant’s mother was out grocery shopping.  The applicant (who was 9 years old) and her brother were watching television. The respondent came in and told her to remove her clothes threatening to cut her throat.  He then lay on top of her and forcefully penetrated her with at least two fingers. When the respondent was finished with the child he told her to piss off and she hid in the public showers for some time.  The matter came to light when she began to behave sexually and inappropriately towards another child in the foster home. 

1. She is now 20 years of age and she has suffered significantly as a result of this sexual abuse. 

1. The respondent pleaded guilty to the charges in the Ipswich District Court on 10 April 1995.  These offences therefore come under the now repealed provisions of the Criminal Code relating to criminal compensation.

1. Any award that is applicable is capped by the statutorily defined prescribed limit.  The upper limit that can be awarded for one course of conduct or closely related courses of conduct is (a) $20,000 in the case of mental shock and nervous shock; and (b) the amount specified in s 14(1)(c) of the Workers Compensation Act 1916 which is now a reference to the Workers’ Compensation Rehabilitation Act 2003 s 140 and Schedule 2 of the Worker’ Compensation and Rehabilitation Regulation 2003 if the injuries consist of more injuries than one. The maximum prescribed amount is the amount applicable at the time the application is heard.[1] 

   [1]Chong v Chong [1999] QCA 314

1. The statutory maximum pursuant to s 140 of the Workers Compensation and Rehabilitation Act 2003 is $157,955.  

1. There is no suggestion that the applicant did anything to contribute to her injuries during this period. 

1. At the time of sentencing the court noted that the offence involved humiliation of the applicant in the worst possible way and that she had been robbed of a normal relationship with both her natural mother and her natural father.  She was examined six months after the incident by Dr McGregor and found that examination intrusive and uncomfortable.  He found a disruption of the hymenal membrane bilaterally with significant scar tissue evident as well as scar tissue at the posterior fourchette.  She now has constant flashbacks and anger towards males generally.  She is depressed, ashamed and guilty.  She suffered from bedwetting which required medication. 

1. She is suffering from posttraumatic stress disorder within the high range.  She was seen by Mr Topping, a psychologist who confirmed this:

“She developed immediately acute stress, distorted asleep and became abusive to others.  She isolated herself from others and lost concentration.  She developed hyper-vigilance, avoidance mood swings, flashbacks, depressed mood and lack of fulfilment of her sense of justice.”

1. It is said the effects of this event will continue well into the future.  She will require 12 sessions of cognitive therapy and 21 sessions of solution focused treatment.  She has been having counselling off and on since she was nine years of age, however, Mr Topping thinks she needs something more than that because she is not getting past the posttraumatic stress disorder.

1. She is entitled to compensation under the Act. Given the significant effect this has had on her, it would be reasonable that she recover the maximum amount of damages for nervous shock, namely $20,000.00.  As to the injuries to her sexual organs documented by Dr MacGregor, there is no applicable item under the workers compensation table, however, a sum of $5,000.00 seems reasonable. 

ORDER

I order that the respondent pay the applicant the sum of $25,000.00 together with costs of this application to be assessed on the District Court scale appropriate to such an award.