SYB v HXC

[2012] QDC 393

DISTRICT COURT OF QUEENSLAND

CITATION:

SYB  v HXC [2012] QDC 393

PARTIES:

SYB

(Applicant)

v

HXC

(Respondent)

FILE NO/S:

350 of 2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Brisbane

DELIVERED ON:

17 October 2012

DELIVERED AT:

Brisbane

HEARING DATE:

25 September 2012

JUDGE:

Kingham DCJ

ORDER:

1.   I order the respondent pay the applicant $42,750 by way of compensation for injuries the applicant sustained as a result of the offences for which the respondent was convicted on 3 August 2007.

CATCHWORDS:

CRIMINAL COMPENSATION – PSYCHOLOGICAL INJURIES –  PHYSICAL INJURIES – where the applicant suffered severe mental or nervous shock – where the applicant suffered minor to moderate physical injuries - where the applicant developed ADHD, post traumatic stress disorder and a recurrent depressive disorder in partial remission as a result of the offence – what compensation level is appropriate in the circumstances.

Criminal Offences Victims Act 1995 s 24, Schedule 1.

Criminal Offence Victims Regulation 1995 s 1A.

Victims of Crime Assistance Act 2009 ss 154, 155.

COUNSEL:

R Bowler for the applicant

SOLICITORS:

John M O’Connor & Co for the applicant

1. This is an application by SYB for compensation for the physical and psychological injuries he sustained as a result of criminal offences committed on him by his half-brother, HXC, between 1 September and 10 October 2004. SYB was then only 11 years old. He is now an adult.

1. HXC, who was 17 at the time he committed the offences, pleaded guilty on 3 August 2007 to 1 count of rape and one count of indecent treatment of a child under 12.

1. HXC also pleaded guilty on 3 August 2007 to a further count of indecent treatment of a child under 12, in relation to SYB’s younger brother, JHZ. That is the subject of a separate claim for criminal compensation.

1. The application was made under the Criminal Offences Victims Act 1995. Although that Act was repealed by the Victims of Crime Assistance Act 2009, transitional provisions of that Act (ss 154, 155) provide for the application to be made and decided under the COVA s24.

1. HXC was served with the application and supporting material but did not attend the hearing.

The offences

1. SYB was staying with his older brother in HXC’s caravan. HXC was then 17 years old. The indecent treatment charge relates to a photograph HXC showed to SYB. There is little information about this offence in the remarks of Judge Noud, who sentenced HXC, and it is of limited consequence in this application. The physical and psychological injuries are attributed to the rape, not to indecent dealing.

1. SYB woke to find HXC had taken off his pants and underpants and inserted his penis in SYB’s anus. SYB did not know how long penetration had lasted. He awoke as HXC withdrew his penis. SYB’s brother, JHZ, witnessed the offence.

1. It seems the incident ended when SYB’s mother came to the closed door of the caravan to check on the boys. SYB told Dr Hatzipetrou, the psychologist who provided a report for these proceedings, that HXC had threatened him with a butter knife not to tell anyone about the incident. Although there was a dispute at sentence about whether a knife was involved, HXC conceded he threatened the boys.

1. SYB did not contribute to the circumstances of the offence and there is no reason to reduce the award that might otherwise be made to him.

The injuries

1. The physical injuries SYB sustained were a sore bottom for 4 days with pain and bleeding on bowel movements and a tear in his anal sphincter. More enduring, and more serious, were the psychological injuries he sustained.

1. At age 19, 8 years after the event, Dr Hatzipetrou assessed SYB. Dr Hatzipetrou had regard to descriptions of SYB’s behaviour shortly after the incident given by SYB and his foster parents, with whom he still lives. Dr Hatzipetrou considered SYB suffered mental or nervous shock shortly after the event, which was likely to have been severe. In forming that conclusion, he took into account evidence of parental neglect, and deprivation, including that he and his brother had some 15 foster placements before settling with his long term foster parents.

1. Dr Hatzipetrou particularly noted the benefit to SYB arising from the commitment and care provided by his foster parents who received all five siblings from SYB’s family, and his attachment to an older foster brother. 

1. SYB has received counselling over two distinct but extended periods. Dr Hatzipetrou had access to records arising from that counselling. The history paints a picture of a disturbed and troubled youth with ongoing distress, anger, anxiety, fear and an elevated concern about vulnerability, in particular to sexual abuse.

1. At the time of assessment, SYB presented with ADHD, post traumatic stress disorder and a recurrent depressive disorder in partial remission. Dr Hatzipetrou described these mental health problems as severe and largely attributable to the impact of the sexual offences.

1. This diagnosis was consistent with an earlier joint report of Sharon Clayton, Social Worker, and Dr Moore, consultant psychiatrist, who assessed both boys in 2007.

1. Dr Hatzipetrou also identified other adverse impacts which he said were separate to his diagnosis of mental or nervous shock: persistent feelings of reduced self worth or perception; a sense of violation; increased fear or feelings of insecurity; and the impact of long suppressed anger responses on his relationships, mental state and socialisation.

1. The details of the basis for his assessment are explored in Dr Hatzipetrou’s report. The extent of the impact of both the mental or nervous shock and the other adverse impacts is also indicated by Dr Hatzipetrou’s recommendations for further treatment. He recommended further psychological treatment, including cognitive behaviour therapy, involving some 50 sessions. He also recommended psychiatric treatment for SYB for post traumatic stress disorder. 

The assessment

1. I assess compensation on the following basis:

1. Against the items listed in Schedule 1 to the COVA, I assess the sum of $24,000:

(a)        Item 1 – Bruising/Laceration etc (Minor/Moderate) – I award in the middle of the range, taking into account that the impacts were shortlived, which is 2% of the Scheme maximum which equals $1,500;

(b)        Item 33 – Mental or Nervous Shock (Severe) – The range for this item is 20% to 34% of the scheme maximum. I take into account the enduring impact of these injuries, but also the potential contribution of parental neglect not associated with the offences, in determining an award of 30% of the scheme maximum which equals $22,500.

1. Under section 1A of the Criminal Offence Victims Regulation, I assess a further sum of $18,750, or 25% of the scheme maximum, to reflect the other adverse impacts of the offence. In arriving at that sum, I have assessed at the lower end of the range for mental or nervous shock (severe) given the type and enduring nature of these adverse impacts.

1. The total compensation awarded, then equates to 57% of the scheme maximum, which is $42,750.

1. I order HXC pay SYB $42,750 by way of compensation for injuries he sustained as a result of the offences for which HXC was convicted on 3 August 2007.