Re an application by Tej

[2009] QDC 228

[2009] QDC 228

DISTRICT COURT
CIVIL JURISDICTION

JUDGE SAMIOS

No 901 of 2009
IN THE MATTER OF SECTION 24 OF THE CRIMINAL OFFENCE VICTIMS

ACT 1995

and
IN THE MATTER OF AN APPLICATION BY T.E.J THAT W.P.McK PAY HER

CRIMINAL COMPENSATION

BRISBANE

..DATE 03/06/2009

ORDER

1-1

HIS HONOUR: This is an application for compensation to be

applicant as a result of a personal offence committed upon the applicant by the respondent. Not only does the applicant seek compensation pursuant to the schedule, she also seeks	10
compensation pursuant to Regulation 1A of the Criminal Offence offence.
The respondent pleaded guilty to one count of indecent	20
treatment of a child under 12 under care on 26 August 2004 at the District Court at Beenleigh.
The offence was committed on the 20th of April 2002. The
applicant and her sister were at home with the respondent.	30
The applicant was 11 years of age at the time the offence was committed. She is currently 18 years of age.
The respondent was 31 year of age when the offence was
committed. He was the de facto partner of the applicant's	40
mother. They commenced a relationship in March 2001 and he moved into the family home in April 2001. He was considered to be a father figure of the family at the time the offence was committed.
50
applicant and her sister were at home with the respondent.

1

assessed pursuant to section 24 of the Criminal Offence
Victims Act 1995 for personal injuries suffered by the

The facts upon which sentencing took place were that the shopping and left them in the care of the respondent. He said 1-2 ORDER 60

1

to them words to the effect, "I'll make you a deal. You take
your tops off and I'll take my shorts off and then I'll let

you go over to your friend's house."

Both girls complied with the request. He removed his	10
underwear and his clothing and his penis was erect. He then
had the applicant try to touch his penis but the applicant
moved her hand away. He sat between the two girls when this
occurred. He then tried to have the applicant's sister place
her mouth on his erect penis. She pulled away. Both girls	20
then pulled their shirts back down. The respondent then informed both girls that they could go and see their friend.
The impact, according to Dr McGuire, has been to a moderate
degree, that is, Dr McGuire, a psychiatrist, is of the opinion	30
the applicant has suffered a post-traumatic stress disorder.
Amongst the effects upon her have been troubles with sexual
relations, flashbacks, difficulty starting relationships, not wanting to talk about the abuse unless somebody brings it up, her change in attitude towards her mother, her being less	40
trusting of men, her running away from home, her leaving
school, her premature sexualisation resulting in the birth of
a child when she was about 14 to 15 years of age, and being
hyper-vigilant with respect to her own daughter. She's
frightened that the same thing will happen to her.	50

In an addendum report, Dr McGuire concludes there have been no significant contributing factors. She notes the father had been physically abusive to her and her mother. Dr McGuire 1-3 ORDER 60

1

says this may have rendered her more vulnerable to stress in

general terms.

She also mentioned that there were two occasions of sexual

abuse by the respondent. Dr McGuire says that if the offence	10
for which the respondent was convicted had been the only
trauma that she had experienced her clinical presentation
would be essentially unchanged. In other words, the offence
for which the respondent was convicted made a substantial and
material contribution to her clinical state.	20
There have also been other impacts. The evidence before me
shows that the applicant has had difficult relationships with other members of the family, including her mother and sister. The applicant has also become hyper-vigilant with respect to	30
her own daughter. She swears that she has been overprotective of her children and does not want the same thing to happen to them. She tends to smother her child and worry that this will only get worse as her children get older.
40
There has also been the additional impact of the loss of
educational and occupational opportunities and effect on her
future security. She has only worked two jobs for short
periods of time and could not think of returning to school to
complete her senior certificate at this stage.	50

There is also the adverse impact of having left home at an
early age. She took up with a young man and became pregnant.
She feels uncomfortable around male doctors and prefers female 1-4 ORDER 60

1

doctors. She doesn't dress in a way that may attract male
attention and she's lost her childhood innocence. She went
from being a happy child to an unhappy child. She devotes

herself now to her daughter. She grew up too quickly.

10

According to her mother, she was too young to have a baby. normal childhood. Her life would have been totally different if the offence had never occurred, in her mother's view.

20

Under section 22 of the Criminal Offence Victims Act, the
compensation to be assessed by the Court is not meant to
reflect the amount of compensation the applicant would be
entitled to under common law. The maximum is reserved for the

most serious cases.	30
Regarding the causation issue, I am satisfied that the
offending behaviour for which the respondent was convicted has
materially contributed to the applicant's condition. It may
be there was another offence and it may be that her father had	40
been physically abusive to her and her mother.
I refer to SAY v. AZ ex parte Attorney-General and note
Justice Holmes' judgment in that case at paragraph 22 where
her Honour said, "Only those injuries to which the relevant	50

offence has materially contributed will be compensable." More
importantly, her Honour said at paragraph 26, "While having
regard to the fact that earlier events are likely to have
contributed to the applicant's psychological injuries, 1-5 ORDER 60

1

although to a much lesser extent than the rape, two factors
lead me to conclude that no alteration should be made to the
percentages allowed. Firstly, the uncharged acts were part of
a continuing course of similar and reprehensible conduct by

the respondent of which the rape was the culmination and,	10
secondly, the applicant, as a child, was powerless, both in that course of events and in what seems to have been a relatively arbitrary decision not to charge the respondent in respect of the earlier acts."
20
I conclude that this is a case where there should be no
deduction made for the applicant's compensation,
notwithstanding the prior physical abuse and the fact that
another offence was committed by the respondent against the
applicant. As I said, I am satisfied the offence for which	30
the respondent was convicted has materially contributed to the applicant's condition.
I am also satisfied on the evidence that the applicant did
nothing directly or indirectly to contribute to her personal	40
injuries pursuant to section 25 subsection 7 of the Act.
In all the circumstances, I assess the applicant's
compensation under Item 32, mental and nervous shock moderate,
at 15 per cent, which is a sum of $11,250.	50

For the adverse impacts, I consider there has been a serious impact upon the applicant over and above her post-traumatic stress disorder, impacting her as a young child, leading to 1-6 ORDER 60

1

her pregnancy and then a young mother at a very young age

without skills to help her bring up her children.

She has also had an adverse reaction to her mother and to her

sister, her sister in particular because she would not come	10
forward about the sexual abuse when the applicant considered her to be the older sibling and who should have said something about it.
There have been other impacts that I have mentioned earlier in	20
these reasons that are over and above post-traumatic stress disorder or mental or nervous shock. For these additional adverse impacts, I allow the applicant 25 per cent, which is a sum of $18,750.
30
The total is therefore $30,000.
I order the respondent to pay the applicant the sum of $30,000.
40

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50

1-7 ORDER 60