SLH v JEH

[2010] QDC 175

[2010] QDC 175

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2361 of 2009

SLH	Applicant
and
JEH	Respondent

BRISBANE

DATE 21/04/2010

ORDER

HIS HONOUR:  This is an application by which the applicant seeks compensation to be assessed pursuant to the Criminal Offence Victims' Act 1995 and the regulations.  The application is within time in accordance with the provisions of the Victims' of Crimes Assistance Act 2009. 

The respondent has been served with the application and supporting material, I can therefore proceed to asses the compensation.  On 21 May 2008, the respondent pleaded guilty to a number of offences with respect to his daughter.  These offences were committed between the 1st of March 2002 and the 16th of October 2005.  They were offences of a sexual nature.

The applicant was between the ages of 12 and 16 when these offences were committed upon her by the respondent who is her biological father.  He was sentenced on indictment to a term of imprisonment.  The offences are numerous in number and involve quite some detail.  However they, generally speaking, involve the respondent taking indecent photographs of the applicant; digitally penetrating her vagina; touching her on the breast and a number involve rape by way of fellatio.

I simply do not propose to place on the record the detail, as I do not think it is necessary.  However, I am satisfied that the applicant was sexually abused by the respondent over a long period of time and that it had a significant impact on her as I found when I sentenced the respondent for these offences. 

The applicant states that if she had not been sexually abused she probably would have done better at school.  There was conflict within the family regarding the revelation of these offences.  Her half sister was also involved in the offending.  She has been ostracised and scapegoated by a number of the members of the family, including her mother.  She retains some relationship with one brother of a large family.

She was suicidal at the age of 16 and took an overdose of panadol.  She was admitted to hospital.  She found it difficult seeing her half sister out when she was shopping.  She also received counselling once a week.  This was organised by her school, however she found it made her feel worse and she ceased the counselling.

She also had problems sleeping.  She lacks trust, she feels helpless.  She has been very intimidated by her father and frightened by his threats and the fear persists.  She has been deprived of her family and feels lonely.  She has engaged in self-harm activities.  She is concerned about the other members of the family and their relationship with her father. 

She also had nightmares about her father coming to get her and she had flashbacks.  She had security fears.  Her sexuality was affected to some extent, she lacked trust in men.  However, I note thankfully that she does have a relationship with a partner although this may have it's difficulties because of the sexual abuse she has suffered.  She is hyper vigilant and overprotective of children and will be overprotective of children. 

She experiences confusion about sexual boundaries.  She takes pains not to dress provocatively.  She has difficulty communicating:  although she has an administrative job she's not adept to talking to customers.  She has increased irritability.

Dr McGuire, psychiatrist, who has the examined the applicant is of the opinion, and I accept this opinion, that the applicant has suffered post-traumatic stress disorder characterised by nightmares, flash backs, avoidant behaviour, emotional numbing and security fears.  Dr McGuire considers this is of a severe degree.

The applicant has also suffered from adverse impacts from the offending.  Most of these adverse impacts are within the category of post traumatic stress disorder and are therefore not to be separately compensated from the mental or nervous shock I find suffered by the applicant because of the offences.

However, one adverse impact is to be separately compensated and that is the adverse effect of the reaction of others.  That is, her family has ostracized her and scapegoated her and this has had a significant effect upon her.  Her mother has accused her of lying about the abuse despite the father pleading guilty in Court.

I bear in mind that the compensation is to be assessed by comparing the injuries suffered to the injuries listed in the compensation table and those prescribed in the regulation.  Also, the compensation ordered by the Court is not meant to reflect the amount of compensation the applicant would be entitled to under common law.  Further, the maximum is reserved for the most serious cases.  I am also satisfied that the applicant did nothing to directly or indirectly contribute to her injuries.     

In all the circumstances, I am satisfied the applicant is to be compensated under item 33, mental or nervous shock severe, in an amount of 30 per cent or a sum of $22,500.  She is also to be compensated under regulation 2A for adverse impacts and in this regard I consider the adverse impacts to be serious and to be significant in the circumstances. 

I had an opportunity to observe the respondent over a number of days and I consider he would be able to command belief in him by others and I accept that the applicant could be ostracised and scapegoated by the family, in particular her mother.  I therefore award the applicant an amount of 25 per cent or a sum of $18,750 for adverse impacts.  Now, that is a total of $41,250.  I order the respondent to pay the applicant the sum of $41,250. 

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