Sanderson v Kajewski

[2000] QSC 270

SUPREME COURT OF QUEENSLAND

CITATION:

Sanderson v Kajewski [2000] QSC 270

PARTIES:

MEGAN JAYNE SANDERSON
(applicant)
v
ANDREEW FRANK KAJEWSKI
(respondent)

FILE NO/S:

SC No 5114 of 2000

DIVISION:

Chambers

PROCEEDING:

Application for Criminal Compensation

DELIVERED ON:

12 July 2000

DELIVERED AT:

Brisbane

HEARING DATE:

6 June 2000

JUDGE:

Thomas JA. 

ORDER:

The respondent to pay to the applicant the sum of $35,000.

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – COMPENSATION - QUEENSLAND – unlawful carnal knowledge – effect of Regulation 1B of Criminal Offence Victims Regulation 1995 – need to show “impact because of the offence” – appropriate level of compensation where applicant’s substance abuse, subsequent criminal offence and promiscuity not necessarily attributable to offence in respect of which compensation sought – probability of some of her complaints emerging in any event – scaling down from worst case scenario

Criminal Offence Victims Act 1995 (Qld) s 20, s 22, s 24
Criminal Offence Victims Regulation 1995 (Qld) Reg 1B

COUNSEL:

L Shephard for the applicant
No appearance for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant
No appearance for the respondent

1. THOMAS JA: This is an application for compensation under the Criminal Offence Victims Act 1995.

1. The offences in question were indecent dealing and unlawful carnal knowledge of a girl under 16.  They occurred on 18 January 1996 when the claimant was 14 years old.

1. The offender was the 22-year-old husband of the applicant's cousin with whom the applicant was, until then, on good terms.  The applicant visited her cousin who was heavily pregnant.  She, in company with some other relatives, watched videos, drank alcohol and took marijuana.  The applicant fell ill and vomited.  She went to sleep in a bed in the spare room. 

1. The circumstances plainly show an older man taking unfair advantage of a 14-year-old girl who was sick from over indulgence in alcohol and marijuana.  The taking of the alcohol and the marijuana was no doubt engineered by the offender although the claimant seems to have been a willing enough participant in consuming those substances. However, she could not reasonably be held to have contributed to her injury or the consequences of the unlawful carnal knowledge that later ensued.  The offender persistently visited her that night subjecting her to considerable attention and pressure and, not to use too many words, took unfair advantage of her.  In the result, the applicant was extremely distressed by the incident.  Many adverse impacts are said to have occurred to her life as a consequence. 

1. The entitlement to compensation arises under regulation 1A of the Criminal Offence Victims Regulation 1995 as amended in 1997. This provision applies to the present matter notwithstanding that the offence occurred in 1996. In relation to sexual offences, it is not now necessary that the ordinary definition of "injury" in section 20 of the Act be met. It is expressly declared in regulation 1A that for section 20 of the Act:

"The totality of the adverse impacts of a sexual offence suffered by a person to the extent to which the impacts are not otherwise an injury under section 20 is prescribed as an injury."

1. Whilst that seems an unusual exercise of the regulation-making power, such power is expressly recognised in section 20 itself. It should be remembered, however, that the basis of any compensation must still be an impact "because of the offence" as required by section 24(2).

1. The maximum prescribed amount for such an injury is $75,000. That is the prescription for a worst case scenario. The appropriate exercise is to scale the combination of effects of the injury caused by the crime according to their seriousness within that particular limit. That seems to be required by section 22(4).

1. I turn now to the sequence of the events in question.  There is a helpful report from Dr Axel Estensen.  I also have the affidavit of the applicant herself. Dr Estensen finally concluded that the applicant suffered from a post-traumatic stress disorder as a consequence of the crimes in question.  The evidence suggests that although distressed, her personal performance remained good during the following 12 months, and her school attendance and performance during that period seems to have been better than previous or subsequent performance.

1. However, she seems to have gone downhill after that time and to have suffered the many symptoms that attend such a syndrome for a period of around two and a half years.  Fortunately, there has been an improvement over the last year.  The condition may be summarised from the following extract in Dr Estensen's report.  He says that the effects of the offences include that

".. she has suffered from a post traumatic stress disorder;  lost self esteem, confidence and self worth; experienced depressed and dysphoric moods and feelings of humiliation, guilt and low self esteem;  suicidal ideation and self harm;  experienced a reduction in her sense of trust in people and the world; attempted to compensate, at least in part, through substance abuse."

1. She has had a number of unhappy events which have occurred in the years since the offences were committed.  One of these was the commission by her of an offence of dishonesty when she was employed by Woolworths.  She has engaged to some degree in substance abuse.  She also says that she is concerned that she has been promiscuous.  She also mentions in her affidavit that she has formed a relationship with a young man but says that it is not a sexual relationship.

1. My assessment must recognise a limited although by no means brief period of post-traumatic stress disorder and the fact that she remains affected to some extent, although to a less extent than justifies a psychiatric diagnosis of a disorder.  She will have adjustment problems in the future. 

1. It would be unrealistic, I think, to attribute all of her life's problems to this one incident although it has no doubt played a major part in the problems of which she complains. 

1. The aspects which I have some difficulty in attributing entirely to the offences are matters such as her own substance abuse, her offence and her promiscuity, although it is impossible to sort out precise degrees of causation.   The approach I take is that the offences in question have had a substantial causative effect in the impacts of which complaint has been made but I also take into account the probability that some degree of problems would have emerged in any event.  Noting the improvement in the past 12 months I think that the appropriate level of compensation would be $35,000.  I assess compensation in that sum and order the respondent to pay to the applicant $35,000.