RSB v Rar

[2009] QDC 195

DISTRICT COURT OF QUEENSLAND

CITATION:

RSB v RAR [2009] QDC 195

PARTIES:

RSB

(Applicant)

V

RAR

(Respondent)

FILE NO/S:

220 of 2009

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Southport

DELIVERED:

Ex tempore on 15 June 2009

DELIVERED AT:

Southport

HEARING DATE:

15 June 2009

JUDGE:

Kingham DCJ

ORDER:

1. The respondent pay the applicant $30,000 by way of compensation.

CATCHWORDS:

CRIMINAL COMPENSATION – mental or nervous shock severe – adverse impacts from sexual offences

Criminal Offence Victims Act 1995 (Qld), s 24

Criminal Offence Victims Regulation 1995 (Qld), reg 1A.

COUNSEL:

Bagley for the applicant

SOLICITORS:

Cobb & Winter for the applicant

No appearance for the respondent

HER HONOUR:  This is an application by BB as

litigation guardian for RSB, for an order that

RAR pay compensation to her for injuries she

sustained as a result of his offences against her.

The application stated that she proceeded pursuant to a

provision of the Criminal Code, but it is clear from the

submissions by her counsel that it is intended to proceed

pursuant to the Criminal Offence Victims Act 1995, section 24,

and to the extent that it is necessary, I grant leave to amend

the application.

The application was served personally on RAR.  He has

not appeared.  On 1 May 2008, before me, RAR pleaded

guilty to four counts of indecent treatment of a child under

16 under his care, and one count of carnal knowledge.  I

sentenced him to a number of concurrent terms of imprisonment,

the longest being two years, and I suspended those terms after

Mr RAR had served 18 months.

All five charges arose out of incidents that occurred on the

night of the 30th of September 2007 while the complainant,

then not yet 15, was staying at RAR’s house, at the

invitation of one of his sons.  There were acts of digital

penetration, oral sex, procuring RSB to masturbate him,

and sexual intercourse.  As a result, RSB has suffered

mental and nervous shock and other adverse impacts of the

offences.

She has produced a report by Ms Boast, psychologist, who

diagnosed her as still suffering from post-traumatic stress

disorder.  Given the period over which the symptoms have been

manifest, she diagnosed it as a chronic condition.

This is evident from the traumatic event being persistently

re-experienced through recurrent, intrusive recollections,

recurrent nightmares, flashbacks, and intense distress when

touched by others.

All these were frequent shortly after the incident.  They have

receded recently, but not completely, and some impacts are

still routinely experienced.

RSB can no longer bear anyone talking about sexual assault

matters.  She avoids areas where she feels she may encounter

RAR, who lives in the same locality.  She is no longer

physically active, and as a result has put on a large amount

of weight.  She has not pursued her earlier plans to study to

become a teacher, although she is now completing secondary

schooling  part-time at TAFE and is in the process of re-

establishing a smaller group of friends. She feels detached

and estranged from others, including family, and has little

optimism about her future.  She still has difficulty sleeping,

managing her anger, concentrating, and has an exaggerated

startled response.

I accept the condition is chronic, given the period over which

it has persisted.  I did initially query whether the

condition should be considered to be severe.  In the end I

have decided to calculate an award under the item for mental

or nervous shock severe, for a number of reasons.  Firstly,

the length of time over which many of these effects or

manifestations of post-traumatic stress disorder have been

experienced.  Secondly, as well as the post-traumatic stress

disorder, I am satisfied that there is a second compensable

injury under that head.  That is, depression.  Both the

applicant and her parents informed Ms Boast that she has

suffered since these incidents from periods of depression and

suicidal ideation, and has contemplated killing herself on a

number of occasions.  On one occasion, she went so far as to

almost carry out the act. Mr Boast has diagnosed depression,

but not as a symptom of post traumatic stress disorder.

Taking into account both the depression and the

post-traumatic stress disorder, I do think it is appropriate

to make an award under the item mental or nervous shock

severe. The sum that I award will equate to 25 per cent of

the scheme maximum, $18,750.

I also consider RSB is entitled to a further award for

other adverse impacts as a result of the sexual offences.  Her

victim impact statement, which I received at the sentencing

hearing, spoke both of the abuse that she suffered by the

defendant's wife after she disclosed his offences, and her

isolation at school from her peer group, and the bullying that

she experienced.  It's clear that since then she has not been

able to return to school and has had to continue her education

in another forum, and that, on a part-time basis.

She has also become less physically active as a result of

these offences.  That has resulted in a very large weight gain

for a person of her age, and the result of that is a lowering

of her self-esteem.  I suspect that in the future she may

well suffer health impacts if she is not able to deal with the

excess weight that she has gained as a result of these

offences.

Taking those matters into account, and the other aspects that

Ms Boast identified, that of ongoing fear and lack of trust, I

award a further 15 per cent under regulation 1A for other

adverse impacts of the sexual offences.

The total award, then, is 40 per cent of the scheme maximum. 

That equates to the sum of $30,000.  I will order in terms of

the draft that's been handed up by Mr Bagley, inserting the

sum of $30,000 as the amount that RAR must pay

pursuant to this order.

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