P v A

[2009] QDC 272

DISTRICT COURT OF QUEENSLAND

CITATION:

P v A [2009] QDC 272

PARTIES:

P

Applicant

and

A

Respondent

FILE NO:

160 of 2009

DIVISION:

Civil

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED ON:

24 August 2009

DELIVERED AT:

Maroochydore

HEARING DATE:

14 August 2009

JUDGE:

K S Dodds, DCJ

ORDER:

A pay to P the sum of $22,500

CATCHWORDS:

CRIMINAL COMPENSATION – where applicant suffered post traumatic stress disorder as a result of the offences of maintaining an unlawful sexual relationship with a child with circumstances of aggravation, six offences of indecently dealing with a child with circumstances of aggravation and two offences of rape of which the respondent was convicted on 31 October 2006

Criminal Offence Victims Act 1995

Criminal Offence Victims Regulation 1995 s 1A(2)

COUNSEL:

A J Kimmins for the applicant

The respondent appeared on his own behalf

SOLICITORS:

Bennett & Philp Lawyers for the applicant

The respondent appeared on his own behalf

1. This is an application for criminal compensation.  The applicant is P.  The respondent is A.

1. On 31 October 2006 the respondent was convicted of a number of offences against the applicant.  They were:

·     Maintaining an unlawful relationship of a sexual nature with a child under 16 years with circumstances of aggravation, committed between the 1 January 1998 and 31 December 2001;

·     Six counts of indecent dealing with a child under the age of 16 years with circumstances of aggravation, committed variously between 1 January 1998 and 31 December 1998, 1 January 1999 and 31 December 1999, 1 January 2000 and 1 December 2000 and 1 January 2001 and 31 December 2001;

·     Two offences of rape, committed between 1 January 2001 and 31 December 2001.

1. The respondent was served with the application and accompanying material.  On 28 July 2009 he wrote to the Registrar of the court.  I have given the letter an exhibit number, exhibit 2 in the proceeding.  He advises he is fighting the false accusations on which he was convicted and proceeds to detail matters which he says are in support.  He says that in the four year period the offences are concerned with, the complainant was never frightened of him and that the complainant’s mother will be investigated for fraud.

1. In view of the letter, arrangements were made to have the respondent appear in the matter by video-link and that occurred.  In what he said in the video-link up, he repeated and enlarged upon what he had said in his letter.  He seemed to say that if the applicant was suffering any psychological symptoms, they would be due to guilt because of what she has falsely accused him of.  He did not wish to question the psychologist, a Ms Yoxall whose report to the court is the basis for the injury said to be done to the applicant as a result of the offences of which the respondent has been convicted.

1. Counsel for the applicant provided an outline of submission in which were listed the documents to be read on the hearing.  One of those documents was the affidavit of the applicant filed on 11 June 2009.  There is no affidavit of the applicant filed on 11 June 2009, however there is one filed on 9 June 2009.

1. Another document referred to in counsel’s outline is an affidavit of Benjamin Robert Ruback filed August 2009 with exhibits being the indictment, applicant’s police statement, statement of arresting officer and statement of medical practitioner. 

1. There is an affidavit of Mr Ruback filed on 11 August 2009 which contains as exhibits a copy of the indictment, a copy of the sentencing remarks of the sentencing Judge, a copy of the certificate of conviction and a copy of the judgment of the Court of Appeal in the respondent’s unsuccessful appeal against conviction.

1. There is another affidavit of Mr Ruback filed on 9 June 2009 which does exhibit the indictment, the applicant’s police statement, the statement of the arresting officer and the statement of a medical practitioner. 

1. In counsel’s oral submissions he read the originating application file on 9 June 2009, the affidavit of J.S. Yoxall filed 11 August 2009 and the affidavit of the applicant filed 12 August 2009.

1. The applicant was born on 20 February 1991.  Over the four year period the offending occurred she was between 6 and 10 years of age.  She was the stepdaughter of the respondent.

1. The offending included digital penetration of the applicant and one incident of penile penetration.  The latter incident occurred in 2001 and was the last occasion any offending behaviour occurred.

1. There are two affidavits of the applicant on the file.  One filed on 11 August 2009 and another filed 9 June 2009.  In those the applicant details the effects the offending behaviour has had upon her.  She deposed to the fact that she saw a psychiatrist, Dr Epstien on 31 March 2008 and a psychologist, a Ms Yoxall on 21 July 2009.  Reports by each of those persons are annexed to affidavit material on the file.  All of this material has been served upon the respondent and since he appeared unrepresented on this proceeding I am of the view I should consider it all, despite the fact that counsel for the applicant made no reference to the content of Dr Epstien’s report.

1. Dr Epstien’s report is an exhibit to the affidavit of Benjamin Robert Ruback, filed 9 June 2009. 

1. Both reports appear to be thorough.  Dr Epstien expressed the following opinion:

“The sexual abuse was at the more severe end of the spectrum.  However the applicant was a resilient person and appeared to have coped very well with it.  However she showed manifestations commonly seen in survivors of childhood sexual abuse including problems with trust, especially trust of older men, difficulty with sexual behaviour, increased concerns with regard to safety and security and appeared to be experiencing occasional flashbacks when having sexual activity.” 

She had some features of mild post traumatic stress disorder, but did not meet the full criteria for that diagnosis.  However she should be considered as having that disorder. 

He thought that treatment may be of benefit when she begins having a regular sexual relationship in which the sexual abuse may become intrusive and disturbing.  He considered she may also require assistance when she has children of her own and becomes fearful about them being sexually abused.  She had a score of 61-70 on the global assessment of functioning scale in DSM IV-TR which indicated mild symptoms of some difficulty in social occupational or school functioning.  Generally however she seemed to be functioning pretty well and had some meaningful interpersonal relationships.  He considered her condition may have an effect on her ability to carry out day to day work duties and/or employment because of problems with anxiety and difficulty in dealing with older men.

1. Ms Yoxall’s report which was based upon her interview and assessment of the applicant on 21 July 2009 appears to paint a more serious picture.  She considered the psychological impact of the sexual offences extensive, permeating most, if not all aspects of her current functioning.  In support of that opinion she set out in some detail in her report what the applicant told her about aspects of her life.  She does not appear to have been referred to Dr Epstien’s report.  She considered her testing revealed a person with significant unhappiness, moodiness and tension, low self-esteem, difficulties concentrating, making decisions and a feeling of hopelessness, agitation, confusion and stress.  The tests revealed sexual dissatisfaction, negative thoughts and feelings during sex, confusion regarding sexual issues, sexual problems in relationships and shame regarding sexual activities or responses.  There were evident intrusive post traumatic reactions such as nightmares, flashbacks, or intrusive and upsetting memories.  There was evidence of avoidance to cope with the stress and evidence of dissociative symptomatology.  She expressed the opinion that the applicant was suffering a post traumatic stress disorder and a dysthymic disorder.  She considered the sexual assaults had had “a profound impact upon” the applicant.  She considered the offences had had a “devastating impact--- on P’s development of a sense of self and identity; her understanding of relationships and intimacy; her belief in her capacity to judge the character of others and to protect herself; and her capacity to navigate and modulate her emotional experience and expression”.

1. Ms Yoxall also considered a number of the adverse impacts set out in section 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) which she considered the applicant had suffered: a severe sense of violation, a severe reduction in self-worth, a severe and adverse impact on her capacity to participate in lawful sexual relations, a severe and adverse impact upon her feelings because she lives between the extremes of emotional detachment and emotional distress, and increased sense of insecurity. Ms Yoxall did not however, deal with the question whether any and which of these adverse impacts she has referred to, are a component of the post traumatic stress disorder which she diagnosed.

1. There is a considerable difference in emphasis between the reports of Dr Epstien and Ms Yoxall.  Accepting as I must the convictions, the material before me establishes that the offending upon which the convictions are based, resulted in psychological injury to the applicant.

1. Doing the best I can on the evidence before me, I assess compensation under the Compensation Table, Schedule 1 to the Act, at 30% of the scheme maximum.  That amounts to $22,500.

1. I do not assess any separate amounts for adverse impacts under the regulation.  I am not satisfied on the evidence that the impacts Ms Yoxall refers to are not part and parcel of the post traumatic stress disorder which she diagnosed.

1. I order A pay to P, the sum of $22,500 by way of compensation for injury done to her, by reason of the respondent’s conviction of the abovementioned offences on 31 October 2006.