R v L
[2006] QDC 387
•21 November 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
R v L [2006] QDC 387
PARTIES:
R
Applicant
v
L
Respondent
FILE NO/S:
BD 2786/05
DIVISION:
Civil
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
21 November 2006
DELIVERED AT:
Brisbane
HEARING DATES:
10 February 2006, 20 June 2006, 5 September 2006 and 31 October 2006
JUDGE:
McLauchlan QC DCJ
ORDER:
That the Respondent pay to the Applicant the sum of $44,250 by way of compensation.
CATCHWORDS:
COUNSEL:
Mr Smith for the applicant
SOLICITORS:
Trilby Misso for the applicant
This is an application under the Criminal Offence Victims Act 1995 for compensation for injuries sustained by the applicant as a result of offences committed by the respondent, namely indecent treatment of a child under 16, and indecent treatment of a child under 16 with a circumstance of aggravation, in respect of which the respondent was convicted in the Rockhampton District Court on 16 February 1999.
The respondent pleaded guilty to both counts and was sentenced to imprisonment for 12 months suspended after 3 months for an operational period of 12 months. Count 1 on the indictment alleged indecent treatment of a child under the age of 16 years with a circumstance of aggravation, between 30 June 1995 and 30 January 1996. Count 2 alleged indecent treatment of a child under the age of 16 years between 31 January 1998 and 1 March 1998.
The applicant in her affidavit sworn on 5 April 2005, confirms the accuracy of the statement she made to the police in relation to these matters, and which is annexed to the affidavit. She refers to 2 incidents which occurred on 25 February 1998, involving the respondent touching her on her vagina and inserting his finger into her vagina and moving it in and out. Clearly enough, these incidents, or perhaps an extended incident, constituted the offence alleged between 31 January 1998 and 1 March 1998.
The applicant also says in her statement that there had been previous occasions, one of which had occurred when the family was living at another address. Another 3 occasions of similar offences occurred at the address specified in Count 2. These occasions all involved rubbing the outside of the applicant’s vagina, on at least some occasions, outside her clothing. She mentioned 2 occasions when she was in Grade 6, the year being 1997, and another occasion in 1998.
Nothing in the statement points to an offence having occurred in 1995. In submissions made on sentencing the prosecutor stated that the complainant was aged 9 or 10 in relation to Count 1, and aged 12 in relation to Count 2. That seems to be a conclusion drawn from the period specified in Count 1, as being that during which the events charged occurred. However the applicant turned 10 on 24 January 1996, and there is no persuasive evidence or indication in the material that the offence should be considered to have occurred before that date.
These matters are mentioned because there is a submission that compensation should be assessed both under the Criminal Code and under the Criminal Offence Victims Act 1995 which came into effect on 18 December 1995. A sufficient case has not been made out for the assessment of any compensation under the Criminal Code, in my opinion.
Compensation is accordingly to be assessed under the Criminal Offence Victims Act 1995. I have no doubt that the offences of which the respondent was convicted, made a material contribution to the psychological and psychiatric injury suffered by the applicant and disclosed by the material. The worst incident was that involving the penetration of the applicant’s vagina by the respondent’s finger. It appears likely that there were other instances of touching or rubbing the vagina which are uncharged, and which occurred before the more serious incidents. The respondent was the perpetrator of all these offences and in the circumstances is responsible for causing the injurious consequences to the applicant, unless it is shown that there were other causes which also operated to bring about that injury.
The applicant deposes, in the affidavit referred to, that she suffered a variety of feelings and reactions following the commission of these offences, resulting in the following:
(a) Since the assaults she has become very withdrawn and distrustful of people;
(b) She has suffered from an eating disorder;
(c) Her education was affected and she feared going to school;
(d) She is scared that the respondent will come back for her;
(e) She feels ashamed when she is naked and dislikes being touched;
(f) She often has self-harming and suicidal thoughts, and
(g) She feels that the respondent has destroyed her life.
She has seen a psychologist who states that she has developed a chronic, severe and disabling form of post-traumatic stress disorder. She continues to have regular flash-back imagery of the abuse, as well as nightmares from which she wakes in a distressed state. She has a high level of distrust, particularly of men, and she continues to feel highly angry regarding what has happened to her. She is reticent with respect to sexual contact. She is much more introverted and withdrawn because of the offences. In the psychologist’s opinion she has suffered a severe degree of mental and nervous shock and will have a permanent, partial psychological disability in the high range of the severe scale.
The applicant was also seen by a psychiatrist, Dr Barbara MacGuire. The psychiatrist says that the applicant presented with post-traumatic stress disorder which she experiences to a severe degree. It appears to have been present since the onset of the abuse. She estimates that the effects will probably be life-long although there may be a dimunition in her symptoms over time. The condition is likely to affect her capacity for employment and also to choose an appropriate mate. The criteria for diagnosis are nightmares, flash-backs, avoidant behaviour, depression and anxiety.
Both the psychologist and the psychiatrist refer to other possible contributors to the applicant’s condition. The psychologist states:
“There have been a number of other psycho-social stressors in this woman’s life that would have contributed to her psychological decompensation, including the deaths of relatives and the discovery of her true father’s identity in 1998. However, it is my opinion that the sexual abuse continues to be the main contributing factor in her present emotional status.”
The reference to the discovery of her true father’s identity, is a reference to the fact that the respondent was thought to be the applicant’s father but this was discovered not to be true as a result of DNA testing.
The psychiatrist says:
“I note that Dr Stephen Moore has regarded [R] as being depressed at the times that he has seen her with significant stressors being family bereavements. However, it is my view that the abuse perpetrated by her stepfather would have made a material and significant contribution to her post-traumatic stress disorder.”
In SAY v AZ: ex parte A-G Qld (2006) [QCA 462], Holmes JA said (at paras 22 and 23:
“In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.
Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury would depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship offectum and offender, in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.”
I accept that the applicant suffered some vaginal bruising and pain in the course of the offences and that it is appropriate that she be compensated under Item 1 of the Schedule at 2% of the scheme maximum, that is $1,500.
Compensation is then sought under Item 33 of the Schedule which relates to severe mental or nervous shock and in respect of which the range is from 20% to 34% of the scheme maximum. Admittedly the applicant has suffered a severe degree of post-traumatic stress disorder. Equally, there are other more serious psychiatric and psychological disorders which may be suffered and which fall under the rubric of “mental or nervous shock”. Under this head I think it is appropriate to award compensation to the extent of 27% of the scheme maximum, amounting to $20,250.
A further application for compensation is made under the Criminal Offence Victims Amendment Regulation (1) 1997. I am satisfied that an application is available under the Regulation although some of the offences for which the respondent was responsible may have occurred before 19 December, 1997. I accept that there is some evidence to support the following adverse impacts under Regulation 1A, namely a sense of violation, reduced self-worth or perception, increased fear or increased feelings of insecurity, adverse affect of the reaction of others, adverse impact on lawful sexual relations, and adverse impact on feelings. Regulation 1A(2)(k) also includes as an adverse impact -
“Anything the court considers is an adverse impact of a sexual offence.’
In relation to that it is submitted that I should consider the following –
1. Impact upon future employment prospects;
2. Development of an eating disorder;
3. Drug usage;
4. Impact upon sport and other recreational pursuits;
5. Impact upon future parenting;
6. Impact upon school and education;
7. Effects of medication, and
8. Need for ongoing psychological and psychiatric therapy and medication.
I agree that there is some evidence to support all these impacts upon the applicant and that they are impacts not included in, or incidental to, “mental or nervous shock” which is the subject of Item 33 of the Compensation Table.
Compensation under the Regulation can be awarded in an amount up to 100% of the scheme maximum of $75,000. It is submitted on behalf of the applicant that an award ought to be made of 70% of the scheme maximum, amounting to $52,500. I think it is likely that there will be some amelioration of the applicant’s situation as she grows older and is increasingly distanced by time from these very unpleasant events which have occurred to her. On the other hand she is likely to suffer, to some degree, psychologically from these matters for a large part of her life. Although it follows from the provisions of the Regulation that the totality of adverse impacts on the victim may warrant a greater award than would be warranted for the mental or nervous injury inflicted upon her, the extent of the injury under each head remains a question of fact in each case. In this case, I think an award under the Regulation substantially higher than under item 33 would not be justified on the material. In view of the many adverse impacts relied on, and for which some support can be found in the material, I am prepared to award a further 30% of the scheme maximum under the Regulation. This amounts to $22,500. That produces a total award of $44,250.
I mentioned earlier that there may have been other matters that contributed to the plight of the applicant. I think, however, that these matters would not have made a significant contribution to her psychiatric and psychological state, viewed in the context of the offences committed against her, and that no account need therefore be taken of them.
The respondent is ordered to pay to the applicant the said sum of $44,250.
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