NWO v Cheney
[2010] QDC 178
•29 April 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
NWO v Cheney [2010] QDC 178
PARTIES:
NWO
(Applicant)
v
VINCENT JOHN CHENEY
(Respondent)
FILE NO/S:
74/2009
DIVISION:
PROCEEDING:
ORIGINATING COURT:
IPSWICH DISTRICT COURT
DELIVERED ON:
29 April 2010
DELIVERED AT:
Ipswich
HEARING DATE:
22 March 2010
JUDGE:
Bradley DCJ
ORDER:
I ORDER THAT THE RESPONDENT PAY TO THE APPLICANT THE SUM OF $22,500 BY WAY OF CRIMINAL COMPENSATION
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the respondent was convicted of two charges of indecently dealing with the applicant – where the respondent was in a relationship with the applicant’s daughter at the time of the commission of the offences – where the applicant suffers symptoms of anxiety and distrust, chronic post traumatic stress disorder and major depression as a result of the events.
Criminal Offence Victims Act 1995 (Qld).
Criminal Offence Victims Regulation 1995 (Qld).COUNSEL:
SOLICITORS:
Mr J Ryan, solicitor of Ryan Lawyers for the applicant
No appearance for the respondent
On 13 January 1999 in the District Court at Southport the respondent was convicted of two charges of indecently dealing with the applicant who was then a child under the age of 12 years and who was under his care. The offending took place between 29 June and 30 August 1997 at the Gold Coast.
The applicant now seeks an order for compensation for the injuries suffered by her because of the offences pursuant to s 24 of the Criminal Offence Victims Act 1995 (the Act). The applicant was born on 3 July 1989 and her application was filed on 11 May 2009. Pursuant to s 40(1)(b) of the Act the applicant has until 3 July 2010 (her 21st birthday) to make an application to the court for a compensation order. Her application is therefore within time.
The applicant’s solicitors confidentially obtained the respondent’s last known address from the Department of Community Safety. Personal service was attempted to be effected at that address but was unsuccessful. Evidence was placed before me that the address remained the respondent’s address and on 22 March 2010 I made an order for substituted service permitting service to be effected by posting the application and the supporting material to the respondent at his last known address. In accordance with that order service was effected on 8 March 2010.
There was no appearance by or on behalf of the respondent at the hearing of this application.
At the time of the commission of the offences the applicant was eight years of age and the respondent was married to her mother. Both the respondent and the applicant’s mother were drug users at the time and the respondent and her brother lived a very unstable and dysfunctional life with their mother. There was frequent violence perpetrated on their mother by the respondent.
The incident out of which the two charges arose occurred on the one day. The applicant was helping her brother wash his hair in the shower and got her clothes wet. The respondent told her to take her clothes off until her brother came out of the shower. The applicant took her clothes off and the respondent told her to lie on the bed. The applicant did as she was told as she was terrified of what the respondent would do if she disobeyed him. The applicant lay very still and felt uncomfortable and embarrassed. The respondent put his mouth on her genitals and grabbed her hand and made her masturbate him. The respondent told the applicant not to tell anyone or her mother would divorce him and he would hurt her. The applicant then put her clothes back on and hid from the respondent.
The applicant recalls telling her mother what the respondent had done to her a couple of days later and believes that her mother confronted the respondent but he told her that he was looking for an insect bite near her vagina.
It was not until the applicant told her teacher what had occurred that a complaint was made to the police. The applicant was interviewed by police on 17 November 2007.
In an affidavit sworn on 26 February 2009 the applicant states:
“I relate many of the difficulties in my life to the respondent’s sexual abuse and that for an extended period I was forced to remain living with him. I remain fearful that the respondent will seek me out for revenge for his being jailed as he is a particularly violent person.”
The respondent pleaded not guilty and the applicant was forced to give evidence in open court in front of the respondent. This she found terrifying and she felt that the respondent was attempting to intimidate her.
The applicant was interviewed on 22 October and 26 November 2008 by Rachelle Hampson, a psychologist. In her report dated 27 November 2008, Ms Hampson details the violent, disruptive and dysfunctional life the applicant led when her mother lived with the respondent. Regarding the trial, Ms Hampson notes “she is still haunted by the memory of this court experience and said for many years she worried she must have done something wrong as she was told by [the respondent’s] lawyer she had lied.”
Even after the applicant’s mother’s relationship with the respondent was terminated the applicant suffered psychological and emotional difficulties and described herself as becoming “very depressed, lonely and thought of suicide often.” The applicant at that stage began self harming by cutting her arms.
In late 2006 the applicant commenced a relationship with her current partner and became pregnant with her son who was born on 16 May 2007. The applicant now enjoys her relationship with her partner and her son who she cares for full-time.
In Ms Hampson’s opinion the applicant was already vulnerable because of her circumstances when the respondent sexually abused her. The sexually abusive behaviour exacerbated her fear and her inability to trust those adults in her life who were meant to be care givers. The applicant is still “deeply ashamed and embarrassed” that anyone should know about what the respondent did to her. The applicant does not appreciate that her response to the offending is in fact normal.
The applicant feels unsafe in public because she may come across the respondent and becomes highly distressed and angry if things are not exactly in place and the house secure at her home. The applicant displays symptoms of anxiety and distrust in her ability to cope with an unpredictable environment. The applicant finds it difficult to relax, she has trouble falling asleep and has been plagued with nightmares about the respondent.
The applicant has struggled with her relationship with her mother as a result of the offending although has re-established a relationship with her in recent times.
The applicant told Ms Hampson that she “looks for danger around every corner, everyone is a threat to me”. The applicant often feels sad and depressed and will cry easily and often. Until her son was born the applicant had a sense of worthlessness.
The applicant stated that she will “disconnect” if anything occurs during her sexual relationship with her partner that reminds her of the respondent’s abuse.
In Ms Hampson’s clinical opinion the applicant’s psychological condition meets the DSM-1V-TR criteria for chronic post traumatic stress disorder and major depression.
Clearly, on the facts there was no behaviour whatsoever on the part of the applicant which contributed to her injuries.
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 offences committed by the respondent. It is Ms Hampson’s opinion, and it is clear from the material before me, that the applicant has suffered from a sense of violation, a reduced sense of self worth; fear and feelings of insecurity; the adverse effect of the reaction of others in that she is very sensitive to others perceived disapproval of her and their anger and sadness. The offending has also had an adverse impact on her sexual relationship with her partner.
It is Ms Hampson’s opinion that although the applicant had a very chaotic and tumultuous childhood nevertheless the sexual offending by the respondent has resulted in her suffering a significant degree of mental and nervous shock. Ms Hampson recommends that the applicant undergo ten sessions of counselling with a psychologist.
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) 15% $11,250
Adverse impacts of the sexual offences 15% $11,250
TOTAL $22,500
‗‗‗‗‗‗
I order that the respondent pay to the applicant the sum of $22,500 by way of criminal compensation.
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