TLM v RJC

[2010] QDC 459

[2010] QDC 459

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3618 of 2009

TLM	Applicant
and
RJC	Respondent

BRISBANE

DATE 15/09/2010

ORDER

HIS HONOUR: This is an application for compensation to be assessed pursuant to the provisions of the Criminal Offence Victims Act 1995.

The applicant was born on 18 April 1991.  The respondent was born on 11 February 1958.  The applicant was between the ages of 12 and 14 when the respondent, who was between the ages of 45 and 47, offended against her.  The respondent offended against the applicant in the period between 31 December 2003 and 1 May 2005.

The offences the respondent committed against the applicant were personal offences and were the offence of maintaining an unlawful sexual relationship with the applicant and four counts of unlawful carnal knowledge of the applicant being a child under 16 years of age.

The respondent pleaded guilty to these charges in this Court on 14 May 2007.  He was sentenced in this Court on 10 August 2007 to terms of imprisonment.  On the same day he was sentenced in relation to offences committed against other children.

The application in this matter was filed on 15 December 2009. The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on
1 December 2009. However, even though this application was filed after the commencement of the Victims of Crime Assistance Act 2009 the provisions of the Act provide for an application to be filed before the end of two months after the commencement of the Victims of Crimes Assistance Act 2009, that is, before the 1st of February 2010. The provisions provide that the Court must hear and decide the application under the Criminal Offence Victims Act 1995.

Also with respect to time limits, the applicant had three years after the convicted person's trial - or three years after turning 18 or at any other time the Court ordered - to bring the application.  As the applicant was born on 18 April 1991, she turned 18 on 18 April 2009 and therefore had three years from that date within which to commence this application.  She is within time.

The report of Dr McGuire, psychiatrist, who examined the applicant on 9 February 2010 concludes that the applicant is suffering from post-traumatic stress disorder characterised by nightmares, flashbacks, security fears, hyper vigilant avoidant behaviour, exaggerated startle reflex et cetera.  In
Dr McGuire's opinion the applicant suffers from these conditions to a moderate degree.

Regarding the offences, the applicant told Dr McGuire that at the time she felt frightened, disgusted and ashamed.  It seemed like a guilty secret which was her fault.  Immediately afterwards she would shower and then soak in a bath for an hour trying to get clean.  She is now more distant from her parents and has had particular difficulty with her father because of lack of trust.  She has few friends and was once very popular.

She, at some times, was suicidal but her attitude to life fluctuates.  She's also undergone counselling in the past and although it has ceased she has been advised to undergo counselling in the future.

The process also affected the applicant.  She was very fearful about being involved in the Court proceedings.  She's also had the nightmares, been security conscious and worried about the respondent being released from prison.

She is in a relationship but only tends to go out if she is with her partner.  Her attitude towards sex has been affected.

I am satisfied that the applicant has suffered mental and nervous shock caused by these personal offences.  I assess the applicant's compensation for mental and nervous shock at 20 percent which is the sum of $15,000. 

The applicant is also entitled to compensation for adverse impacts. This is provided for by regulation 1A of the Criminal Offence Victims Act 1995.

The decision of JI v AV [2001] Queensland Court of Appeal 510 is relevant in this area. The effect of the decision is that where an injury suffered by a person can be classified as mental and nervous shock it cannot then be classified as an adverse impact as this would allow a doubling up in the assessment of compensation under the Criminal Offence Victims Act 1995.

In this instance, there have been a number of adverse impacts but they are, according to Dr McGuire, conditions caused by the post-traumatic stress disorder, however, there are, in addition, to the post-traumatic stress disorder other adverse impacts.  There has been the adverse effect of the reaction of others which is to be compensated for separately to mental and nervous shock.

The applicant was bullied by the respondent's nephew at school.  She also felt unsafe at school because of the respondent's relatives.  They would follow her at school and they would say once it was all over, that is, the prosecution of the respondent, that she would get what was coming to her.

She felt intimidated by the respondent's relatives and felt unsafe out on her own.  She also suffered, substantially, a loss of educational and occupational opportunities.  I accept that, as a consequence of the offences, she had problems at school and she did not do as well as she could have. 

Prior to the offences she was a good student and performed well academically.  She was actively involved in sport and played netball and touch football at the school.  She trained twice a week.  She also played netball for a local team and had training for this team after school, however, after the offences were committed against her, her school marks deteriorated.  She had difficulty concentrating and focusing on her school work.  She missed a lot of school as she was tired and depressed and could not sleep at night.  She could also not face the harassment from the respondent's relatives.

The applicant's family decided to move away from the township.  Her mother is an accountant and it had been hoped that the applicant would go to university but her results weren't good enough.  I accept that had the offences not been committed against her, the applicant would have done a lot better at school.

There was also the effect on her family relationships which is to be separately compensated for.  That effect has been substantial as well.

Therefore, for the adverse impacts and the totality of the impact of the sexual offences upon the respondent I allow an amount of 25 percent which is sum of $18,750.

Two issues arise.  One is whether there should be contribution by the applicant because of what may be termed to be her, "consent".  Some cases have reduced the award by as much as a third, however, each case depends upon its own facts. 

I agree with his Honour Judge Brabazon QC who said in B v. B, "The time has come to accept that the offence of indecent dealing is for the protection of children and not their punishment.  As a matter of interpretation of the Code, it should be accepted that the law would not regard her as a party to the offence."  The reference to B v. B is District Court number 76 of 2004.

Even though his Honour then went on to reduce the compensation by one third on account of the applicant's own conduct, that was the case where the girl was in year 8 and the boy was in year 11.  The closeness in age, in my opinion, could explain the result in that case.

The relevant factors in reaching any conclusion must be the age of the applicant, at the age of the offender, whether there is a substantial difference in the ages of the applicant and the offender, the nature of the applicant's consensual involvement in the offences and the circumstances of the individual case.

In my opinion, there is a substantial difference in the ages between the applicant and the respondent.  Further, the respondent was an acquaintance of the applicant's uncle and held a position of trust which he abused in order to commit the offences. 

It was accepted, on sentencing, that the respondent targeted young, vulnerable girls by ingratiating himself either with their parents or the girls themselves or both.

Sentencing proceeded that the respondent flagrantly and repeatedly breached that trust by sexually molesting the girls; further the offence was aggravated in that the ages of the girls were between 12 to 14 years of age.

All these circumstances lead me, in this case, to conclude that there was not true consent and there should not be any contribution made by the applicant with respect to her compensation. 

The other issue is whether there were pre-existing vulnerabilities.  I am persuaded, on the evidence, that there was no pre-existing vulnerabilities justifying a conclusion that some part or all of her compensation was caused by matters other than the offences. 

I am satisfied these personal offences caused the applicant's mental and nervous shock and the adverse impacts she has suffered from.  Therefore, I assess the applicant's compensation in the sum of $33,750. 

I order the respondent to pay the applicant the sum of $33,750 and there will be an order as per the draft initialled by me and left with the papers.

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