T v W

[2012] QDC 45

DISTRICT COURT OF QUEENSLAND

CITATION:	T v W  [2012] QDC 45
PARTIES:	T (applicant) v W (respondent)
FILE NO/S:	BD2807/09
DIVISION:
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:
DELIVERED ON:	10 February 2012
DELIVERED AT:	Brisbane
HEARING DATE:	10 February 2012
JUDGE:	Samios DCJ
ORDER:	1.    Respondent to pay the Applicant $52,500
CATCHWORDS:
COUNSEL:
SOLICITORS:

1. This is an application pursuant to section 24 of the Criminal Offence Victims Act 1995. The applicant seeks compensation to be assessed for injury she suffered because of personal offences committed by the respondent against her.

2. This is an application by which the applicant seeks compensation to be assessed under section 24 of the Criminal Offence Victims Act (1995). The applicant was born on the 23rd of January 1991.

3. When he was between eight and 10 years of age, he was offended against by the respondent between the 25th of March 1999 and the 10th of May 2001.  The respondent was between 30 and 32 years of age at the time of the offending. 

4. The respondent pleaded guilty in the District Court at Beenleigh to the indictable offence of maintaining a sexual relationship with the applicant, who was under 16 years of age with a circumstance of aggravation. 

5. On the 10th of August 2006, his Honour Judge Tutt sentenced the respondent to imprisonment for a period of 20 years.  The respondent had not only offended against the applicant, who was a child, he had also offended against other boys in quite a serious way.  The respondent appealed against his sentence to the Court of Appeal.  The Court of Appeal dismissed his appeal on the 1st of December 2006. 

6. This application was filed on the 1st of October 2009. The Victims of Crime Assistance Act (2009) commenced on 1 December 2009. It repealed the Criminal Offence Victims Act (1995). However, the Victims of Crime Assistance Act (2009) contained transitional provisions. One of those provisions is section 167.

7. The effect of 167 is that as the applicant filed his application before the repeal, then the Court must hear or continue to hear and decide the application under the repealed provision. 

8. It is also to be noted that the application must be brought within three years of the convicted person's trial, or if the applicant is a child at the time of the trial, before the end of three years after the child becomes an adult.

9. In this case, as the applicant was born on the 23rd of January 1991, he would have turned 18 on the 23rd of January 2009.  He, therefore, had three years from his 18th birthday to apply for criminal injuries compensation.  That is, he had until the 23rd of January 2012.  As he filed his application on the 1st of October 2009, he again is within time to bring this application.

10. The evidence before me shows the respondent has been served with notice of this application.  He is a prisoner and the documents have been duly served.  The Public Trustee has advised that it no longer has any interest in the respondent's estate.  The documents were left also with the Deputy General Manager at the Capricornia Correctional Centre.  Therefore, again, there is no impediment to my assessment of the applicant's compensation. 

11. This is a case where the application was filed on the 1st of October 2009.  It was done to protect the applicant's interests by the Legal Aid Office.  The applicant, though, has not taken any further steps until service upon the respondent on 10 January 2012. 

12. The respondent has been provided with one month's notice in accordance with the rules of the applicant's intention to proceed with the application.  However, the applicant also needs leave to proceed because there has been more than two years since the last step was taken in the application. 

13. The relevant principles on an application for leave to proceed are set out in Tyler and Custom Credit Corp Limited and Others [2000] Queensland Court of Appeal 178.  Considering all those factors set out in the judgment of her Honour Justice Atkinson, I have come to the view that the applicant should be given leave to proceed. 

14. He has been the victim of serious offending against him. The Legal Aid Office acted in his interests by filing the application before the repeal of the Criminal Offence Victims Act (1995). It took time to obtain the supporting affidavits and included in those affidavits is medical evidence to support the application.

15. All the relevant evidence is available and there is no prejudice to the respondent by the delay.  As he has said in his recent letter sent to the Legal Aid Office, he does not want to participate in the application and is regretful for what he did.  Therefore, I give the applicant leave to proceed with the application. 

16. As can be gleaned from the sentencing remarks before his Honour Judge Tutt, the respondent offended against a number of boys.  There were 10 counts of maintaining a sexual relationship with a child under 16 with circumstances of aggravation.  The respondent sodomised these boys while they were under his care and there was the aggravating factor that they were under 12 years of age.  His offending extended over a period from 1994 to 2001. 

17. In relation to the applicant, a friend of the applicant's mother introduced the respondent to the family.  The applicant's mother was separated from her husband at the time and was recovering from treatment for cancer.  As a single mother, she became reliant on the respondent's friendship, particularly in relation to her boys, including the applicant.

18. The respondent built a rapport with the applicant through gifts and activities.  Needless to say, the respondent was in a position of trust and abused that trust. 

19. In relation to his injuries, the applicant was infected by the respondent.  The applicant required considerable medical attention for the infection.  The respondent was positive for HSV-1 and HSV-2.  He had lesions on his penis

20. The abuse of the applicant started with the respondent making him shower with him and moved onto masturbation and oral sex and eventually penetration.  The abuse happened most nights.  The applicant states that during and for many years after the offending, he got really bad nightmares which were horrific.  The nightmares were often of the respondent on a bike chasing him and doing sadistic things to him.  In other dreams, the respondent was abusing his family and torturing him.  He frequently woke up crying from these nightmares.  He still gets nightmares and he has difficulties going to sleep.  He thinks about the abuse constantly.  He finds it hard to get the memories out of his head.

21. He felt guilt for having introduced his friends to the respondent and so leading them to the abuse.  He states, "I felt like crap.  I felt that the respondent's abuse of my friends was my fault.  I feel shameful, dirty and self-hatred."

22. The applicant states that after the abuse, he felt different from other people.  He feared people could tell that he had been abused.  He felt it increasingly difficult to make and maintain friendships.  He started to withdrawal and his social life fizzled out.  He wanted just to stay home.  He also started to self-harm.  He also felt anger and irritable.  He did not like crowds and he felt security conscious.  He regularly and frequently checked the locks and windows around his home.  He needed to sleep with the light on. 

23. He also felt dirty and avoided sexual activity.  Relationships with two girlfriends did not last very long.  He found sex difficult to take part in.  He tried counselling but found that difficult.  He found it difficult to discuss the abuse and deal with all the issues.  He also has felt anxious and he also has a feeling of impending doom. 

24. The applicant's mother has also made statements to the psychiatrist, Dr McGuire.  She confirms the difficulties he had following the abuse.  His schooling was also affected.  They also left Queensland to get away from the respondent and what had happened.  She also refers to the fact that the applicant's father has distanced himself since the abuse.  That is, distanced himself from the applicant.

25. Dr McGuire, the psychiatrist, has provided a report.  She states that, in her opinion, the applicant suffers from post-traumatic stress disorder, characterised by nightmares, flashbacks, avoidance behaviour, numbing, detachment and exaggerated startle reflex.  In her opinion, he suffers from this condition to a moderate degree.  The applicant also, I have mentioned, became infected.  He became infected with genital warts.  In Dr McGuire's opinion, the applicant is in need of counselling. 

26. I find that the applicant has suffered mental or nervous shock as defined in the Act.  In my opinion, he should be awarded compensation under item 33 for mental or nervous shock severe, an amount of 30 per cent, which is a sum of $22,500.  However, the applicant has also suffered, I find, adverse impacts. 

27. He was a young boy when he suffered from this abuse.  It has had an impact on him which I have already found to be mental or nervous shock, but he has also suffered, in addition, the adverse affect of the reaction of others.  That is, his father has distanced himself from the applicant.  It appeared his father just withdrew from him once the abuse became known and no longer wanted anything to do with him. 

28. Another adverse impact not covered by mental or nervous shock is the disease that the applicant has suffered.  He was found to have sustained herpes and genital warts.  He's had repeated episodes of these conditions.  He finds this embarrassing and difficult.  He was horrified to discover that he had contracted a disease from the respondent. 

29. He also has found it difficult to access medical treatment.  He does not like to be physically examined by doctors male or female.  This has caused problems for him obtaining treatment.  He has, at times, because of his concerns about being examined, delayed getting treatment and this has made his health situation worse.  He's also suffered a lot of pain as a result of the infection, and it was only when it became unbearable that he then got treatment. 

30. In addition, his schooling was affected.  This has affected the work that he has been able to obtain since leaving school.  He completed grade 10 but when he started grade 11, he could not complete the first time because he could not cope with the work.  He wanted to be a lawyer or a doctor.  Since leaving school he has had jobs.  However, he has been sacked from them.  He has found it difficult to interact with people and cannot be relaxed.  He feels numb and detached from others.  This makes work difficult for him. Another impact has been an impact on his weight and self-image.  The respondent used to give him steroids and this caused the applicant to become very large.  He has reduced in weight.

31. Another impact not covered by mental or nervous shock is that he found the need with his mother to move interstate to get away from the respondent.  This has put him at a distance from his relations.  There was also financial strain on his mother which added to the difficulties they were experiencing after the abuse was disclosed. 

32. In the circumstances, for adverse impacts, I allow the applicant 40 per cent, which is a sum of $30,000.  The total, therefore, for compensation is $52,500.  I order the respondent to pay the applicant the sum of $52,500.  I am unable because of the legislation to order the respondent to pay the applicant his costs of the application.  There will, therefore, be an order as per the draft initialled by me and left with the papers.