R.L.H v Curtis

[2001] QSC 137

SUPREME COURT OF QUEENSLAND

CITATION:

R.L.H v Curtis [2001] QSC 137

PARTIES:

R.L.H
(applicant)
v
ALEXANDER CURTIS
(respondent)

FILE NO:

S 361 of 2001

DIVISION:

Trial Division

`

PROCEEDING:

Application for Criminal Compensation

DELIVERED ON:

10 May 2001

DELIVERED AT:

Brisbane

HEARING DATE:

26 April 2001

JUDGE:

Wilson J

ORDER:

That the respondent pay the applicant $45,000.00 because of the injury she sustained when he indecently assaulted her on 17 January 1997.

CATCHWORDS:

CRIMINAL LAW – ORDERS FOR COMPENSATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – Application for compensation by victim of sexual offence – where victim aged 15 when offence committed – where victim suffered post traumatic stress disorder

Criminal Offence Victims Act 1995 (Qld), s 19, s 20
Criminal Offence Victims Amendment Regulation (No 1) 1997 (Qld)

M.R. v Webb [2001] QCA 113, Appeal No 4166 of 2000, 27 March 2001, cited.
Sanderson v Kajewski [2000] QSC 270, 12 July 2000, considered.
Whyte v Robinson [2000] QCA 99, Appeal No 7292 of 1999, 28 March 2000, applied.

COUNSEL:

M.J. Eastwood for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Appleyard Lawyers for the applicant
The respondent appeared on his own behalf

1. WILSON J:  This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995.

1. The applicant was born on 5 March 1981.  On 17 January 1997, when she was aged 15, she was indecently assaulted by the respondent, a man then aged 79 years.  On 21 February 1998, he was found guilty by a jury of one count of indecent assault and one count of indecent assault with a circumstance of aggravation.  He was sentenced to 18 months imprisonment.

1. The Criminal Offence Victims Act provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant (s 19). “Injury” is defined in s 20 as bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table, which is a schedule to the Act, or prescribed under a regulation. Compensation is intended to assist the applicant, but not to reflect compensation to which he or she may be entitled under the common law or otherwise. The court may not award a total of more than the “scheme maximum”, which is $75,000.00. Various categories of injuries and degrees of severity are set out in the compensation table. With respect to each, there is a range, expressed as percentages of the scheme maximum, within which compensation may be awarded. The maximum amount is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness: see M.R v Webb [2000] QCA 113, Appeal No 4166 of 2000, 27 March 2001.

1. In the present case the applicant claims $75,000.00 which is the maximum which may be allowed under the head of compensation “the totality of the adverse impacts of a sexual offence” which was recognised by the Criminal Offence Victims Amendment Regulation (No.1) 1997 (Qld), which came into effect on 18 December 1997.  Compensation is to be assessed in accordance with legislation in force at the date of assessment: (Whyte v Robinson [2000] QCA 99, Appeal No 7292 of 2000, 28 March 2000), and so this head is applicable in the present case. An “adverse impact” includes:-

“ (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.”

1. The respondent advertised for home help, seeking responses from girls aged 15-16.  The applicant responded to that advertisement.  She was still attending school, still living with her parents and still a virgin.  Her parents adopted a responsible attitude to the situation, her father driving her to the respondent’s premises on the first day (16 January) and her mother driving her there on the second day (17 January).  On 17 January the respondent produced some marijuana and invited the applicant to smoke it.  She had had previous experience with marijuana and she willingly smoked it.  Subsequently when she was affected by marijuana, and perhaps some alcohol, he indecently assaulted her by rubbing a lubricating cream over the area of her vagina and buttocks after having removed her pants and underclothing.  Shortly after that he inserted his finger into her vagina.  When she recovered her faculties, she left the respondent’s house and made a prompt complaint about the incident.

1. In an affidavit sworn on 5 January 2001 the applicant said:-

“4.  At the time of the assault I as [sic] 15 years of age. I had completed year 10 but had not as yet made a decision whether I would return to school in 1997 to complete year 11.

5. Following the assault I was constantly upset and would burst into tears for no apparent reason.  I had difficulty sleeping and experienced nightmares.  I constantly had recollections of the assault.  I had nightmares about the assault.  I became fearful that as my assailant knew my address he would come looking for me.  As a result I would make my father check outside the house every evening to ensure my assailant wasn’t lurking there.

6. Following the assault I was required to undergo tests to ensure that I had not contracted HIV or any other infectious disease.  In the period when I had to await the results I was particularly stressed and fearful.

7. Following the assault I became withdrawn.  I did not feel like socialising and for this reason I did not return to school to complete Year 11.

8. Prior to the assault, I had an occasional social drink, mainly with my family.  After the assault I commenced to drink to excess to try to block the incident from my mind.  I still drink to excess to try to block the incident from my mind.”

1. She went to New Zealand for about 3 months from March 1997, where she stayed with relatives.  The uncle with whom she stayed has sworn:-

“3. I have known [the applicant] since she was born.  Although I live in New Zealand, I know [the applicant] quite well because we lived near each other and saw each other regularly.  When the family moved to Australia we still saw [the applicant] on a regular basis of once a year and still do see [the applicant] on a regular basis.

4. Before [the applicant] came to New Zealand to stay with me I had last seen her 3 months before the assault.

5. On the occasion when I last saw [the applicant] prior to the assault, she seemed a happy well adjusted girl.

6. She was quite a different child when she came to stay with me following the assault.  When she came to stay with us following the assault she was wilful and uncontrollable.  She also appeared withdrawn and unhappy.  Her personality was significantly different than it was before the assault.”

1. She returned to Australia for the committal proceedings against the respondent in May 1997.  She found these particularly stressful.  In September 1997 she commenced employment with Coles at Beenleigh, and she still works there.  She has attempted suicide twice – in November 1997 and September 1999.  She becomes distressed and bursts into tears at which times she cannot cope with any activity.  She has suffered significant bouts of depression.  She is afraid of other men.  She has had flashbacks of the incident.  She has had difficulty sleeping.  She has been fearful of being alone.  Since September 2000 she has been undergoing counselling.  This has been of some assistance.

1. The applicant relied upon a report by Dr Ian J. Harvey, a clinical, consulting psychologist.  In his opinion she is suffering from a chronic post-traumatic stress disorder.  He said (inter alia):-

“Although the assault happened so long ago, even after this time [the applicant] is still significantly depressed and experiencing chronic PTSD, as well as continuing to experience significant loss of esteem through severe interruption to her education and establishing a career.  She has also experienced significant losses and limitations to her normal development, normal life-style, and enjoyment of her personal, recreational, sporting and social life.

……………

Whether [the applicant] recovers sufficiently in the future from the Chronic PTSD with which she has been experiencing since January, 1997, and to what extent, will determine what her future holds.  The probability is real that she may now never be able to regain the opportunity she would have had for further education and a good career, had she not been sexually assaulted at the age of 15.  The great tragedy of this happening to such a young girl, and its likely life-lasting effects, is enormously damaging to her and to the society in which she lives, which may thereby lose her contribution.  It is to be hoped that she may at least recover to some meaningful extent in the future.  Whether she will, however, is still unknown and, at least, very problematic.”

1. In considering the appropriate award of compensation I have gained assistance from the decision of Thomas JA in Sanderson v Kajewski [2000] QSC 270, 12 July 2000. There the respondent was convicted of indecently dealing with and having carnal knowledge of a girl then aged 14. He was aged 22 and the husband of her cousin. He took advantage of her when she was sick from over indulgence in alcohol and marijuana. Compensation was assessed 4 ½ years later. She had suffered a post-traumatic stress disorder. For the first 12 months she had coped reasonably well but thereafter she had gone downhill and had various symptoms for about 2 ½ years before some improvement. Thomas JA was not satisfied that the incident was the sole cause of all her present problems (which included an offence of dishonesty, substance abuse and promiscuity), although he accepted that it played a major part. He allowed compensation of $35,000.00.

1. In the present case there is nothing to suggest any other cause of the applicant’s present problems.  Having regard to the opinion of Dr Harvey, her future is uncertain.  In all the circumstances I consider that an appropriate award is $45,000.00.

Order:

That the respondent pay the applicant $45,000.00 because of the injury she sustained when he indecently assaulted her on 17 January 1997.