VFT v RVG
[2011] QDC 315
•14 December 2011 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
VFT v RVG [2011] QDC 315
PARTIES:
VFT
(Applicant)
V
RVG
(Respondent)
FILE NO/S:
BD 174 of 2010
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
14 December 2011 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
4 November 2011 (with further written submissions received on that date)
JUDGE:
Irwin DCJ
ORDER:
The respondent pay compensation to the applicant in the sum of $42,750 pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld).
CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the applicant was convicted of one count each of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation, in relation to the applicant - where the applicant suffered lacerations at the vaginal introitus and to the anal skin, a post-traumatic stress disorder and adverse impacts under reg 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) as a result of the offences - assessment of compensation.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the applicant was convicted of one count each of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation, in relation to the applicant - where the respondent was sentenced on the basis that he was an equal participant or partner in the sexual exploitation of the applicant - where it was submitted that the offences involved a breach of the applicant’s physical integrity - whether the applicant was a person against whom a personal offence had been committed - whether the application was for compensation for an indictable offence committed against the person of the applicant.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the applicant was convicted of one count each of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation, in relation to the applicant - where the applicant’s claim for adverse impacts extended to problems with accommodation, loss of possessions and loss of faith - whether these were adverse impacts for the purpose of reg 1A (2) (k) of the Criminal Offence Victims Regulation 1995 (Qld).
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the applicant was convicted of one count each of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation, in relation to the applicant - where the applicant suffered a post-traumatic stress disorder as a result of the offences - where the post-traumatic stress disorder was compensable as mental or nervous shock - where the applicant had previously had a very restrictive way of life and was rejected by her family - where the applicant had run away from the parental home - where the applicant also exhibited a borderline personality disorder - where there was psychiatric evidence that the borderline personality disorder was not believed to be directly attributed to the offences but the offences had a reinforcing effect on it - where the applicant would have suffered the same level of post-traumatic stress disorder had her only experience been the offences committed by the respondent - whether in these circumstances there were other factors than the respondent’s offending which contributed to the post-traumatic stress disorder and which required some allowance to be made or a lower percentage of compensation to be fixed.
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the applicant was convicted of one count each of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation, in relation to the applicant - where the applicant engaged in the offences against the applicant in conjunction with a juvenile co-offender - where the co-offender was sentenced separately - where the co-offender could not be joined as a respondent to the application and separate proceedings could not be brought against the co-offender under the Criminal Law Offence Victims Act 1995 (Qld) - where the respondent was sentenced on the basis that he was an equal participant or partner in the sexual exploitation of the applicant - whether the respondent was liable to pay the total amount of compensation assessed.
Acts Interpretation Act (Qld), s 32C (a)
Criminal Code 1899 (Qld), s 663B
Criminal Offence Victims Act 1995 (Qld) (repealed), ss 20, 21, 22, 24, 25, 26, 30, Schedule 1
Criminal Offence Victims Regulation 1995 (Qld) (repealed), ss1A, 2
Victims of Crime Assistance Act 2009 (Qld), ss 154, 155
AT v FG [2004] QCA 295, cited
Beil v Hansen, unreported, No 1256 of 2008, 5 June 2008, cited
French v Green [1997] QCA 464, applied
GKB v Bell [2009] QDC 304, cited
JMR obo SRR v Hornsby [2009] QDC 147, applied
PAJ v AAK [2010] QCA 78, applied
JI v AV [2002] 2 Qd R 367, applied
R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320, cited
R v Moors, ex parte Alex [1994] 2 Qd R 315, cited
R v Tiltman, ex parte Dawe [1995] QSC 345, cited
R v Ward, ex parte Dooley [2001] 2 Qd R 436, applied
Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, cited
RMC v NAC [2009] QSC 149, cited
RZ v PAE [2008] 1 Qd R 393, cited
SAN v LJC [2010] QDC 349, cited
Street v Brabyn, unreported, No 137 of 2003, 17 July 2006, cited
Vlug v Carrasco [2007] 2 Qd R 393, applied
WHG v LJC [2010] QDC 395 , cited
Wren v Gaulai [2008] QCA 148, cited
Zarcov & McKenna v Jones [2001] QCA 442, cited
COUNSEL:
F. Muirhead for the applicant
No appearance by or on behalf of the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
No appearance by or on behalf of the respondent
HIS HONOUR:
INTRODUCTION
The applicant seeks compensation pursuant to section 24 of the
Criminal Offence Victims Act 1995 (QLD) (the Act) for physical
injury, mental or nervous shock and adverse impacts claimed to
have been sustained by her as the result of the offences of
knowingly procuring prostitution of a young person and
knowingly participating in the provision of prostitution with
a circumstance of aggravation of which the respondent was
convicted on his pleas of guilty on 30 March 2009. On that
date on each offence I sentenced the respondent to two and
a-half years' imprisonment suspended after serving nine months
with an operational period of two years. The sentences were
to be served concurrently.
The Act was repealed by the Victims of Crime Assistance Act
2009 (QLD) (The 2009 Act) which commenced on 1 December 2009.
Subject to one matter, the transitional provision in section
155(1)(a) of The 2009 Act requires the application to be
determined in accordance with the Act, as it was made on 20
January 2010. This was within two months, after the
commencement of the 2009 Act, it being the earlier of the
dates required by section 155(2)(b).
The conviction of the respondent also happened before
commencement as required by section 155(1).
WHETHER A PERSONAL OFFENCE HAD BEEN COMMITTED AGAINST THE
APPLICANT
However section 155 only applies in this way if as required by
section 154(1)(a) the applicant could have applied to the
Court for an order requiring the payment for compensation or
injury because of a personal offence committed before
commencement, under section 24 of the Act.
Section 24(2) permits such an application to be made by "a
person against whom a personal offence" has been committed.
By virtue of section 21, a personal offence is an indictable
offence committed against the person of someone. Because in
this case the application extends to the totality of the
adverse impacts of a sexual offence, under section 1A of the
Criminal Offence Victims Regulation 1995 (QLD) (the
Regulation), I refer for completeness to section 1A(3) which
defines "sexual offence" to mean a personal offence of a
sexual nature.
Accordingly for the application to be determined under the
Act, it is necessary that application is for compensation in
respect of a conviction for an indictable offence committed
against the person of the applicant including a sexual offence
for the purposes of the Regulation.
The offence of knowingly procuring prostitution of a young
person charged that between 17 June 2008 and 23 June 2008 at
Brisbane in the State of Queensland the respondent procured
the applicant to engage in prostitution and the applicant was
not an adult. The offence of participating in the provision
of prostitution with a circumstance of aggravation charged
that between those dates, the respondent knowingly
participated in the provision of prostitution by the applicant
and the applicant who was not an adult was to his knowledge
engaged in the provision of prostitution. The applicant was
named in each case.
As I said in my sentencing remarks, the applicant was known by
the respondent to be a school student who was 16 years of age
and her personal circumstances were also known to him. At
that time I stated these personal circumstances as being
either that she had been evicted from home as has been put to
me by the prosecution, or had run away from her parental home
as was said by the respondent's counsel. On the information
now available to me, I proceed on the latter basis.
However, importantly the respondent knew that she had no place
to live except for the premises where he and his 16-year-old
partner were then living. This was a unit which required a
rental of approximately $1,000 a week. I also proceeded on
the basis that as the respondent must have known the applicant
was emotional and vulnerable and she was threatened with
homelessness through eviction if she did not cooperate in a
plan for her to raise some money to cover the joint expenses
of accommodation in this unit by engaging in prostitution.
These joint expenses were also shared by the other juvenile
whom I accepted may have been the person who threatened the
applicant with these consequences.
I note that on 25 January 2010 this juvenile was sentenced by
another Judge on her plea of guilty to one count each of
knowingly procuring prostitution of a young person and
possession of tainted property. However, I said that even
giving the respondent the benefit that he did not threaten the
applicant with those consequences of homelessness as opposed
to this being done by his juvenile partner, it was the fact
that he was aware of these circumstances and was prepared to
rely upon them. I also proceeded on the basis it soon became
apparent to him that the applicant did not wish to go along
with this arrangement. Therefore, I sentenced him on the
basis that he was prepared to take advantage of a vulnerable
girl for financial gain. This gain was $4,500 which came from
the applicant to his juvenile partner.
As I also put it, this was a case which involved the sexual
exploitation of the applicant for commercial purposes in which
she was used as if she was a piece of meat. It is also
relevant that the sentence proceeded on the basis that there
was some injury to the applicant as a result of engaging in
the sexual activity which she was procured to engage in by the
respondent. This is that she bled.
Further, the respondent's credit card was used for the purpose
of advertising her for prostitution. He also drove her to the
premises for her to engage in acts of prostitution and
provided security for her by waiting while those acts were
engaged in. As a result, I sentenced him as an equal
participant or partner in the exercise which resulted in his
conviction for the offences against the applicant.
For the purposes of this application, I have further evidence
about the circumstances of these offences from the applicant's
affidavit affirmed on 16 February 2011 and filed on 8 June
2011. Her police statement of 1 December 2001 is Exhibit A to
This affidavit. The affidavit included the following
paragraph: "9: The offences committed by the respondent and
[the juvenile] involved an ad being placed in a newspaper and
Then the respondent driving me to houses of complete
strangers. I was horrified when I realised what they were
doing, but there seemed no way out. I had nowhere to go and
no family I could rely on for support. I experienced rough
sexual activity from one of the men which caused bleeding from
both my anus and vagina. I was taken by the respondent and
[the juvenile] to the homes of four different people and
forced to provide sexual services."
Her statement provides more detail about the sexual services
involved. In fact, there were five occasions where she was
forced to provide these services. She engaged in prostitution
with one of the customers on two occasions. One of the
customers was a woman and this occasion involved reciprocal
oral sex. In addition to vaginal, oral and anal sex, she had
a dildo inserted into her vagina. In addition to bleeding,
she suffered some pain.
It is submitted on behalf of the applicant that in these
circumstances the application is for compensation in respect
of a conviction of the respondent for indictable offences
committed against the person of the applicant, including
sexual offences for the purposes of The Regulation because the
offences involved a breach of her physical integrity.
In support, reliance is placed on R v. Moors, ex parte Alex,
[1994] 2 QdR 315; French v. Green [1997] QCA 464;
and RZ v. PAE [2008] 1 QdR 393.
In Moors, Mackenzie J considered the scope of the somewhat
differently worded previous legislation, section 663B of the
Criminal Code 1899 (QLD) which provided "where a person is
convicted of an indictable offence relating to the person of
any person", the Court on application of a person aggrieved by
the offence may order compensation be paid to the applicant.
His Honour said at 320: "The concept of an offence relating
to the person of any person is in my view used in
contra-distinction to an offence relating to property." In
RZ v. PAE, the Court of Appeal agreed with and adopted this
statement as applicable to section 21 of the Act.
Mackenzie J followed this proposition with the statement:
"The person aggrieved by the offence in my opinion is a person
in respect of whose person the offence was committed. The
relevant offence is the offence referred to in the
indictment."
In French v. Green, the Court of Appeal applied this statement
to resolve the issue which arose for consideration and said at
page 6: "The use of the expression 'any indictable offence
relating to the person of any person' is intended to define a
particular category of cases in connection with which
compensation is to be payable. The relevant qualifying factor
is that the offence related to the person of any person...It
is quite clear that the reference is to the physical person
and not to a person's property. Further, it is the offence
which must relate to the person, not any injury caused
thereby. In order that compensation be payable the offences
charged must have a relationship to the person of the
applicant".
As McGill SC DCJ also observed in GKB v. Bell, [2009]
QDC 304 at [14], the decision of French v. Green was referred
to with apparent approval by the Court of Appeal in RZ v. PAE.
Reference is made to the judgment of McMurdo P and Philippides
J at 401[41]-402[42] in the latter case. Although dissenting,
de Jersey CJ said at 396[11] that the analysis in that case is
equally applicable to section 21 of The Act. In that case it
was held that an offence of attempted indecent treatment of a
child which involved a promise by the respondent to give the
child money in return for the child permitting the respondent
to perform an indecent act on him was an indictable offence
committed against the person of someone although the child
declined to do so. The majority said that it was unnecessary
that such an offence involve actual contact with the body of
the victim.
As I found in this case, the respondent was convicted of two
offences which involved the sexual exploitation of the
applicant for commercial purposes in which she was used as a
piece of meat. She experienced the sexual activity described.
I agree that this involved the breach of her physical
integrity. They were offences having a relationship to the
person of the applicant. The offence of knowingly procuring
her to engage in prostitution involved procuring her to
perform sexual acts in return for money in which the
respondent shared. This in itself would be sufficient for the
offence charged to have a relationship with her person even if
the applicant did not engage in these acts so as to have
physical contact with any person. In this case the applicant
did engage in these acts as a result of which the second
offence involved the applicant knowingly participating in
this.
Therefore, the application in this case is for compensation in
respect of convictions for indictable offences committed
against the person of the applicant. Once this position is
reached, it is clear that these are also sexual offences for
the purposes of the Regulation. Accordingly, I proceed to
determine the application under the Act.
SERVICE OF THE RESPONDENT
Because all attempts to locate and serve the respondent with
the originating summons had proved unsuccessful, on 4 August
2011 Samios DCJ ordered that service of it and the supporting
affidavits be effected by publishing an advertisement in the
Courier Mail and by posting the documents to him care of a
specified address.
It was further ordered that the respondent be deemed to have
been served 14 days after the placing of the advertisement or
the posting of the documents, whichever was later. The
advertisement was to state that the application would be heard
in the District Court of Queensland at Brisbane on 1 September
2011 at 10 a.m. The unchallenged evidence is that that the
advertisement was placed in the Courier Mail on 6 August 2011
and the documents were posted to the respondent on 4 August
2011 in accordance with this order. Accordingly, he was
deemed to have been served on 20 August 2011. In fact, this
was confirmed by the respondent phoning the applicant's
legal representative, Ms Muirhead, on 11 August 2011 and
confirming that he had received the material sent by post.
During the conversation, Ms Muirhead strongly suggested that
he obtain legal representation. This was confirmed in a
letter from her to the respondent on that date. On 30 August
2011, the respondent advised her by phone that he had received
legal advice from a solicitor whom he identified. He also
said that he was not intending to contest the application at
that stage and did not object to it proceeding on 1 September
2011. However, he said he had an appointment with the lawyer
on 31 August 2011.
On that date, this lawyer advised that his firm would not be
acting on the respondent's behalf and the respondent did not
intend to appear at the hearing.
When the application came before the District Court the
following day, the chamber judge declined to hear it on the
basis that it should be determined by the sentencing judge.
At that time, I was on extended leave. However, arrangements
were able to be made for it to be heard by me at 9 a.m. on
4 November 2011.
Accordingly, on 6 September 2011, Ms Muirhead caused a letter to be posted to the respondent at the address at which the material relevant to the application had previously been
sent. As indicated, the respondent had previously advised
that he had received that earlier material. This letter
advised as to when the application would now be heard.
This was also confirmed in a letter of 20 September 2011
directed to the lawyer with whom Ms Muirhead had previously
spoken.
As affirmed in an affidavit of Miss Lo of the applicant's
solicitors, Legal Aid Queensland, sworn on 19 October 2011 and
filed by leave on 4 November 2011, she caused a further letter
to be posted to the respondent at the same address. This
letter confirmed when the application would be heard and
enclosed another affidavit affirmed by her on 27 September
2011 annexing a report by Dr Heale which was to be relied on
at the hearing. Each of the affidavits were filed by leave.
As at 19 October 2011, the applicant's legal representatives
had received no further contact or response from the
respondent or anyone representing him. He did not appear
before the Court.
When he failed to appear before me on 4 November 2011, being
satisfied that service had been effected in accordance with
the order of Samios DCJ and that he was aware that the
application was to proceed on that date, as well as being
aware of all relevant material relied upon to support it, I
proceeded to hear the application in his absence.
CIRCUMSTANCES OF THE OFFENCE
In addition to the circumstances I have already referred to,
the applicant says in her affidavit that she met the
respondent through the juvenile after she left home following
a family disagreement. As she said in her statement, which is
an exhibit to the affidavit, she was having problems at home
during this time and wanted to move out. It was in these
circumstances that she was offered accommodation with the
respondent and the juvenile in their unit. The threatened
eviction if she did not cooperate in raising money through
prostitution was from this unit.
She deposes that by leaving home, she was making a point to
her parents and establishing her independence. She thought
she would only be gone for a week. She thought she would pay
her way through a part-time job in the afternoons while still
going to school. Instead, she ended up feeling like a
prisoner and being forced to work as a prostitute to pay her
way. This was her first experience of sex. She did not feel
she could turn to her strongly-religious family and she did
not want people to know what was happening to her. As a
result, she felt trapped. She felt she would be better off
dead.
In her statement, she said that after the last job, she felt
really distressed and wanted to die. She had to be restrained
by the applicant and the juvenile from jumping from a window
of the upper-floor apartment. They also had to restrain her
after she cut her wrists. In her affidavit, the applicant
deposes to starting to cut herself at some time after the
first sexual encounter. It was through cutting herself that
she was able to get away from the respondent and the juvenile.
The juvenile called a mutual friend about this. The applicant
was allowed to leave the unit with this friend. She did not
go back. The police were then informed.
INJURIES AND MEDICAL REPORTS
The applicant says that what happened has had a devastating
effect upon her life. After the offences, she thought about
suicide. She deposes that after she got away, she felt
physically and mentally exhausted. Her attempt to return to
school did not work out. She was unable to concentrate and
focus on schoolwork. She was bullied and teased at school
because of rumours of what happened to her. Most of her
school friends did not want to associate with her. She was
humiliated by the names she was called. As a result, she was
unable to settle back into school. She just wanted to hide
and stay inside. She started truanting and was suspended.
She did not return and did not complete grade 12.
On leaving school, she signed up for a retail training course,
but was again unable to concentrate and focus. As a result,
she did not complete the course. She says she can't get a job
because she is scared around strangers and feels frightened in
big crowds of people. She also says that these ongoing fears
and the lack of trust has been caused by the offences. As a
result, as at 16 February 2011, she was in receipt of
Centrelink benefits with a disability component.
She also feels that because of the offences, she has been
unable to do further Jewish studies, which had been her
expectation and that of her family. Although her father and
sisters do not know exactly what happened other than she was
involved with the police, this involvement has made their
reaction to her worse. She did not try to contact the family
for six months because of her father's anger about her
involvement. Her mother, who was aware of what happened,
tried to contact her. However, this was hard because of her
father's attitude.
A few months before she affirmed her affidavit on 16 February
2011, there was some reconciliation with her father and her
mother was allowed to see her. She was also allowed to go
home and see her mother. Her sisters also started to talk to
her again. According to her, it took a lot of effort to
rebuild this family contact. She felt she had lost them
completely. However, she still felt they would never accept
her again.
According to her statement, between the third and fourth
occasion she engaged in prostitution, she had her first
experience with drugs. This was to make her feel happy. As
she says in her affidavit, after the offences, her life just
went bad. She used a lot of drugs and alcohol to try to
forget the memories of what happened and to make her sleep.
She went through a state of not wanting to be sober and not
caring what happened to her. This was because she felt
worthless. She stopped caring what she did and what happened
to her. She got involved with the wrong crowd. This resulted
in her letting men use her for sex because she did not think
she deserved anything else. She did not know where she would
sleep each night and sometimes slept on the streets, although,
as at 16 February 2011, she had found a permanent place to
live.
When using drugs, she experienced some unpleasant side effects
and she felt her health suffered. As at 16 February 2011, she
was still trying to stop using drugs. She had been reducing
this and her alcohol intake over the previous year. Just as
she had not used drugs before the offences were committed
against her, her only previous consumption of alcohol had been
a sip on a Friday night at home.
She lost her enjoyment of food after the offences and became
bulimic. As a result of the eating disorder, she lost a lot
of weight, although by 16 February 2011, she had overcome this
and returned to a normal weight.
She experienced nightmares of a sexual nature following the
offences. Initially, these were every night. As a result, at
16 February 2011, she was still experiencing them a couple of
times a week. They were worse and more frequent if she had to
discuss the offences and was exposed to sexual abuse on
television.
The applicant feels she can't trust people any more. This
makes it hard for her to make and maintain friendships. She
suffers terrible mood swings, becoming angry and taking it out
on herself and others. She becomes angry and distressed when
she has to talk about what happened. It takes her days to
settle down after this.
Because she felt dirty and indelibly marked by her experience,
after she got away, she showered six or seven times a day to
try to make herself clean. Even about two and a half years
later, she was still showering three times a day. She also
felt ruined. This lasted for about a year. By the time of
her affidavit, she still felt like damaged goods at times. At
that time, she still hated being touched by men. This
extended to being medically examined. She was even distressed
by people bumping into her in the street. It made her feel
dirty, angry and uncomfortable.
She does not like looking at herself, especially without
clothes. She feels that the offences have distorted her self
image. She does not enjoy dressing or taking care of herself.
She relies on her housemate to help her with dressing. She
wants to be covered so as not to attract attention from
others, particularly males. Consistently with this, she can't
believe any compliments she receives.
Although she had been dating a boyfriend for 10 months before
her affidavit, she feels uncomfortable with his compliments
because she believes she is ugly. She also doesn't like him
seeing her in the bathroom or when she is dressing.
Sexual intimacy with him is a problem because she can get no
pleasure or enjoyment from it. She feels that she has been
denied the opportunity to experience her own sexual development in a normal, healthy way.
She was afraid that she had caught some disease from sexual
contact with the people with whom she had had sexual contact.
She underwent testing for HIV, hepatitis and other sexually
transmitted diseases. Although this was negative, it was a
distressing and worrying time.
The applicant gets nervous if she is in the suburb where the
offences took place. She also avoids going into the city and
shopping centres by herself because on more than one occasion,
she saw the juvenile offender. This made her fearful.
Whereas before the offences, she had faith, this has been
derailed by the offences. She now finds it hard to believe in
God and does not believe she is likely to.
She had been receiving psychological treatment for about a
year and a-half up to the time of her affidavit. She finds
this is helping her. Although the cost is covered by
Medicare, she will have to pay herself for any additional
sessions beyond that allowed by Medicare in any one year.
Dr McGuire is an experienced psychiatrist, having been
registered as a specialist in this field since 1972. She
interviewed the applicant on 13 July 2010. In addition, she
perused the applicant's statement and the transcript of the
sentencing proceedings. As a result, she prepared a report
dated 14 July 2010 and an addendum on 1 December 2010. These
are exhibited to her affidavit which was affirmed on
8 December 2010 and filed on 7 January 2011.
The applicant agrees that the effects on her life of the
offences are correctly detailed in the 14 July 2010 report.
It is to be noted that Dr McGuire's report details these
effects approximately two years after the offences. The
applicant deposes that as at 16 February 2011, about two and
three-quarter years after the offences, these effects on her
life are continuing.
In addition to the psychological effects of the incident,
Dr McGuire refers to physical injury to the applicant which is
also the subject of the application. This is a one-centimetre
vaginal laceration at the vaginal introitus and a small
healing laceration in the anal skin which was found when she
was examined by the Sexual Assault Service at the Royal
Brisbane Hospital on 27 June 2008.
As stated by the Prosecutor at the sentence, this corroborated
her account that she sustained an injury which bled as a
consequence of engaging in prostitution.
I note that the opinion of the medical practitioner who
examined her at the time was that these injuries were caused
by stretching the skin, causing it to split as a result of
sexual penetration.
Dr McGuire notes that the incident has had a very big effect
on her employability. The drugs the applicant became involved
with after the offences were cannabis, amphetamine and
cocaine. She formed a relationship with a heroin addict. On
occasion, she passed out and woke to find needles around her.
As a result, she believes she was given heroin, although she
couldn't remember it. The applicant said she was "always off
her face" and became involved in drinking and stealing. She
was still drinking when Dr McGuire interviewed her. She
didn't like being sober because it felt boring. Dr McGuire refers to the applicant being depressed. Reference is also made to her being suicidal after the incidents, her lack of trust in anybody, her avoidance of various streets and
suburbs and her difficulty in getting to sleep.
At the time she saw Dr McGuire, her father was sometimes
allowing her into the house, but her sisters were still
shunning her. Her younger sister had come at her with a knife
on one occasion and put a pillow over her face. Another
sister threw a dinner plate at her. Her father's anger at her
for not following the rules had extended to hitting her on the
head, although from what I have referred to from the
applicant's affidavit, there appears to have been some
improvement in her relationship with her family since
Dr McGuire's interview.
The applicant told Dr McGuire that while she was not very
smart at school, she was good at maths. She had speech
therapy for seven years and had difficulty with spelling and
reading. She had been bullied at primary school and didn't
have friends until grade 8.
At the time of the interview, she sat at home and smoked most
of the time. She was still smoking cannabis from 6 a.m. She
preferred not to talk about the incident and tries to block it
out. Consistently with the applicant's description of how she
now dressed, Dr McGuire saw that she was wearing somber
clothes which covered her body.
Although she was physically well with no disorder of thought
or perception, as indicated, she appeared depressed.
Dr McGuire's diagnosis is that the offences committed by the
respondent have been a substantial and significant
contribution to the applicant suffering a post-traumatic
stress disorder to a severe degree. This is a recognised
psychiatric disorder within DSM IV. It meets the following
diagnostic criteria for the condition:
. Experiencing an event which offered a threat to the
physical integrity of the self;
. The response involved intense fear, helplessness or
horror;
. The traumatic event is re-experienced in the form of
nightmares and flashbacks;
. The avoidance of thoughts or conversation associated with
the trauma;
. The avoidance of activities, places or people that arouse
recollections of the trauma;
. Exhibiting a restricted range of effect;
. Sleep problems and irritability.
Dr McGuire observes that the applicant believes that she is
getting better over time, but said she doesn't let people know
she is upset.
As at 14 July 2010, Dr McGuire considered that the applicant
will continue to suffer symptoms into the foreseeable future.
As I have indicated, she was continuing to suffer these
symptoms. Dr McGuire considered that she still needed
counselling, and she enjoyed counselling. She was also
continuing to receive counselling seven months later.
Dr McGuire also found that she exhibited borderline
personality traits.
Further, as a result of her experiences, she had been led into
substance abuse. This is also a recognised psychiatric
disorder under DSM IV. She does not believe it is directly
attributed to the offences. In her opinion, it is likely that
the offences had a reinforcing effect on pre-existing
symptoms.
Dr McGuire also refers to the applicant having previously led
a very restrictive way of life and being rejected by her
family.
She was unable to apportion a percentage amount to the
contribution of other factors to the development of the
applicant's borderline personality disorder. However, she
opines that not only did the offences committed by the
respondent materially and significantly contribute to her
condition, but that the applicant would have suffered the
level of post-traumatic stress disorder had her only
experience been that of the offences committed by him.
Further, in response to the question: "Is it possible to
separate the effect of the offences for which the offender was
convicted from the applicant's other life experiences?", she
replied: "The offences are primarily responsible for her
symptoms."
Dr McGuire found it very difficult to separate the effects on
the applicant of the conduct by the respondent from the
effects of the conduct by the juvenile offender because they
appeared to be working in collusion.
Dr McGuire also addresses the issue of whether the applicant
has suffered any adverse impacts of the sexual offences for
the purposes of section 1A(1) of the regulation. She
addresses the adverse impacts in paragraphs (a) to (k) of
section 1A(2).
In her opinion, paragraphs (a), (b), (c ), (g) and (i) were
either a prerequisite to or part of a diagnosis of
post-traumatic stress disorder.
For the purpose of (a), Dr McGuire confirmed that the
applicant experienced a sense of violation.
With reference to (b), reduced self worth involves subjecting
herself to self-hatred. Her self-esteem was low and she
suffered nightmares.
Dr McGuire said about (g) that she had increased fear, she was
hypervigilant whenever she went out and has an exaggerated
startle reflex. In addition, she could not be in the house
alone.
In relation to (i) concerning adverse impact on lawful sexual
relations, particular reference was made to her very bad
choice of partners and to the significant problem of her
promiscuity.
Paragraph (c) simply relates to the applicant suffering from
the diagnosed post-traumatic stress disorder.
Dr McGuire considered paragraphs (e), (j) and (k) to be
inapplicable.
Paragraphs (d) and (f) were not included in the diagnosis of
post-traumatic stress disorder.
Paragraph (d) concerns disease. Dr McGuire observed:
"She did not sustain disease; said she hadn't cared about that
aspect. She did not believe her body was of concern and she
did not value herself."
Paragraph (f) concerns lost or reduced physical capacity
(including the capacity to have children whether temporary or
permanent). Dr McGuire says about this:
"She wants marriage and children and believes she'll be able
to do this, but thinks she probably won't be good enough."
According to Dr McGuire, paragraph (h) which concerns the
adverse effect of the reaction of others, is not a feature of
post-traumatic stress disorder. Her observation about this is
that the applicant's sisters call her names and her mother
does nothing.
The applicant has also attended Dr Heale, whom I understand to
be a general practitioner. As indicated, her report is
exhibited to Miss Lo's recent affidavit. This report is
dated on 4 March 2011, not long after the applicant's
affidavit.
According to that report, the applicant first attended her on
9 December 2008, about five and a half months after the
offences. On this occasion, the applicant reported difficulty
in trusting anyone, feeling fearful in all public situations
and having frequent nightmares in which she revisited the
events which had occurred. She was extremely quiet and
withdrawn in her speech and behaviour. During many subsequent
consultations, she had a friend with her for reassurance and
support.
At the time of the report following the applicant's regular
visits to the psychologist, she was still reporting some
nightmares and lack of confidence in public places or around
unfamiliar people. She had still not felt able to undertake
study or employment.
Dr Heale enlarged upon her experience with nightmares by
reporting that some months previously the applicant reported
increasing difficulty with sleeping. She began to have
nightmares with content relating to the sexual abuse again.
The applicant told her that she had started to use marijuana
regularly and more alcohol than before. Dr Heale counselled
her that this could be contributing to the sleep disturbance.
She was subsequently able to cease the use of marijuana and
reduce her alcohol intake. There had been a subsequent
improvement in her sleep. The applicant smokes 15-20
cigarettes a day, which is a habit commencing since the
offences.
Prior to commencing contraception, she had an unplanned
pregnancy with her regular partner and a termination in July
2010. Dr Heale's conclusion is that since the assaults, the
applicant has suffered significant harm to her life and
development as a young person.
She was unable to finish her secondary schooling, was unable
to undertake employment and limited in her ability to develop
herself as an independent adult due to the fear and anxiety
engendered by the attacks upon her. She also notes that the
applicant has undertaken some behaviours which have exposed
her to additional health and psychological risks due to
reduced self-image and ability to protect herself.
THE APPLICABLE PRINCIPLES
The assessment of compensation is governed by Part 3 of the
Act. As already stated, section 24 of the Act provides for
compensation in respect of convictions on indictment of a
personal offence for injuries suffered by an applicant because
of an offence: JMR obo SRR v. Hornsby [2009] QDC 147 per
Dearden DCJ at [6].
Further, a personal offence is an indictable offence committed
against the person of someone; s 21 of the Act.
An injury is bodily injury, mental or nervous shock, pregnancy
or an injury specified in the compensation table in Schedule 1
of the Act or prescribed under a regulation: s 20 of the Act.
An award of criminal compensation under the Act does not
invoke the principles applicable to common law damages:
s 25(8)(a) of the Act.
It is intended to help the applicant, not to reflect the
compensation to which the applicant is otherwise entitled:
s 22(3) of the Act.
A compensation order cannot be made for an amount more than
the prescribed scheme maximum, presently $75,000: see s 25(2)
of the Act and s 2 of the Regulation; see also Riddle v.
Coffey (2002) 133 A Crim R 220; [2002] QCA 337 at [12].
An award for compensation must be made by reference to the
compensation table which lists 36 different types of injury,
giving each a percentage or range of percentages of the scheme
maximum: s 25(3)-(4) of the Act.
In deciding the amount of compensation to be paid for an
injury specified under the regulation, the Court is limited to
make an order for the prescribed amount. If the injury does
not come within those itemised in the compensation table or
specified under a regulation, then the Court must decide the
amount of compensation by reference to the amounts paid for
comparable items in the compensation table: s 25(6) of the
Act.
Section 22(4) of the Act requires compensation under the
section to be calculated by assessing the injury as or similar
to an item in the compensation table and placing it
appropriately within the relevant range or the percentages of
the scheme maximum set out in the table: Riddle v. Coffey
(2002) 133 A Crim R 220 at 223; [2002] QCA 337 at [15]
applying R v. Ward; ex parte Dooley [2001] 2 QdR 436 at 438,
440.
It follows that in such cases the amounts of compensation
ordered are to be scaled within the ranges set out in the
table on the basis that the maximum amount of compensation
allowed in respect of each type of injury listed in the table
is reserved for the most serious cases: Ward at 440.
Section 26 of the Act read in its entirety aims to encourage
only one criminal compensation order for one episode of injury
without duplication: Riddle v. Coffey at 224; and at [18];
JMR obo SRR v. Hornsby at [6].
However, it does not discourage a judge making a criminal
compensation order from calculating and adding together the
appropriate amount of compensation for a number of injuries
arising from one episode by reference to the relevant items in
the compensation table in the manner required by s 25(3) of
the Act and Ward: Riddle v. Coffey at 224; and at [18].
Accordingly, where it is practical to make separate
assessments under each applicable item in the table whilst at
the same time avoiding duplication, that course should be
adopted: Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at
[6].
However, if an injury that is best described in one item of
the compensation table is instead assessed together with
another injury under another item, in order to avoid
duplication, it may therefore be necessary to make an
adjustment to cater for the differences between the ranges or
maximum for each item: Wren at [29]; Hornsby at [6].
Ultimately, the Court should ensure that there is compliance
with the use of the methodology prescribed by s 25 of the Act,
which is mandatory: Wren at [22]; Hornsby at [6].
In respect to sexual offences, it is necessary to commence by
compensating the victim in so far as the impact amounted to an
injury pursuant to s 20 of the Act and to assess compensation
pursuant to s 1A of the regulation only to the extent that any
relevant adverse impacts of a sexual offence were not an
injury under s 20 of the Act: JI v AV [2002] 2 QdR 367 per Chesterman J at 372; per Atkinson J at
382-383; Hornsby at [6].
They would be such an injury if they were nervous or mental
shock: AT v. FG [2004] QCA 294 per Jerrard JA at [17].
Section 25(7) of the Act provides that in deciding whether an
amount or what amount should be ordered to be paid for an
injury, the Court must have regard to everything relevant,
including, for example, any behaviour by the applicant that
directly or indirectly contributed to the injury.
In Zaicov and McKenna v. Jones [2001] QCA 442 Holmes J (with
whom McMurdo P and Williams JA agreed) held at [33] that section 25(7) comes into operation at the time when the
amounts to be paid for the respective injuries are to be
assessed and not at a later stage when the total amount payable under the order is being determined; that is to say it is in determining the percentage allowed for each injury that the Court must have regard to the relevant matters, including contribution. The issues of fact on this application must be decided on the balance of probabilities: s 30(2) of the Act.
THE APPLICANT'S SUBMISSIONS
Ms Muirhead submits that the applicant suffered the
following injuries and should be compensated on the following
basis:
Item 1 - bruising/laceration etc (minor/moderate) - 3 per cent - $2,250;
Item 33 - mental or nervous shock (severe) - 32 per cent - $24,000;
Regulation 1A - adverse impact of a sexual offence - 30 per cent - $22,500.
Therefore, an award is sought of 65 per cent of the scheme
maximum, which is $48,750.
ASSESSMENT
I am satisfied on the balance of probabilities that the
applicant suffered the injuries documented in the evidence to
which I have referred and that this is a result of the
indictable offences of knowingly procuring prostitution of a
young person and participating in the provision of
prostitution with a circumstance of aggravation committed
against her by the respondent between 17 June and 23 June
2008.
Item 1 - bruising/laceration, et cetera, (minor/moderate) -
3 per cent - 5 per cent.
Ms Muirhead submits that compensation for the physical injuries should be awarded at the top of the minor/moderate range for this type of injury. This is also the bottom of the severe range. I note that in the written submissions, this is referred to as item 2, although it is categorised as being minor/moderate within item 1.
The submission is based on the one-centimetre laceration at
the vaginal introitus and the small healing laceration in the
anal skin which was found when she was examined on 27 June
2008. This corroborated her account that she bled as a result
of engaging in prostitution. I sentenced the respondent on
this basis.
In her statement, the applicant said that this injury occurred
during the vaginal and anal sex in which she engaged on the
second occasion. She said this caused her to bleed from both
orifices, and she was stinging quite a lot in both regions.
She said that she returned to the unit in "some pain". She
was still experiencing pain on the following night when the
third act of prostitution occurred. She was still in a lot of
pain and sore.
That client called the juvenile and told her that she should
take the applicant to a doctor as the applicant was in pain
and bleeding vaginally. There was blood in the condom. The
applicant did not think that she did anything the next day
because she was still "too sore".
In Ward at 438-439 [9] the Court stated:
"To qualify for the 5 per cent, which is the top of the
'severe' range, one would not have to be beaten black and blue
from head to toe; but the bruising and laceration must have
some claim to be one of the 'serious cases'."
In that case, their Honours reduced an award at the top of the
range to one of 2 per cent for moderate areas of swelling to
the upper lip, right side of the mouth, three fingers and the
elbow. They could find nothing in the evidence that this
swelling was long-lasting or causative of significant pain.
There were no lacerations.
In this case, the applicant did suffer lacerations to intimate
areas of her body. This caused her pain which was
sufficiently significant to still be affecting her two days
later. She continued to bleed on the following day during
sexual intercourse.
In these circumstances, I assess an award, as submitted on
behalf of the applicant, at 3 per cent of the scheme maximum
for item 1 of the compensation table for her physical
injuries, that is, $2,250.
Item 33 - mental or nervous shock (severe - 20 per cent - 34
per cent).
It is submitted that item 33 of the schedule is appropriate and that compensation for mental or nervous shock should be awarded at 32 per cent of the scheme maximum. Reliance is placed on Dr McGuire's opinion that the offences committed by the respondent have been a substantial and significant contribution to the applicant suffering a post-traumatic stress disorder to a severe degree.
Reference was made to the fact that while the applicant
believed she was getting better over time, she does not let
people see she is upset. When Dr McGuire gave her opinion
approximately two years after the offences, she considered
that the applicant would continue to suffer those symptoms for
the foreseeable future.
Dr McGuire considered that she still needed counselling, and
she enjoyed counselling. The applicant was continuing to
receive counselling seven months later.
In RMC v. NAC [2009] QSC 149, Byrne SJA took the view that
mental or nervous shock within the Act is confined to a
recognised psychiatric illness or disorder. In coming to this
view, his Honour preferred the view of Lee J in Tiltman;
Ex parte Dawe [1995] QSC 345 to that of Thomas JA in R v.
Kazakoff; ex parte Ferguson [2001] 2 QdR 320.
In WHG v. LJC [2010] QDC 395, I applied the decision of
Thomas JA in preference to that of Byrne SJA and therefore
proceeded on the basis that mental or nervous shock within the
Act is not confined to a recognisable psychiatric illness.
However, a determination of this issue is not necessary in the
present case because I find that a post-traumatic stress
disorder is a recognisable psychiatric illness or disorder in
accordance with Dr McGuire's evidence that it is a recognised
psychiatric disorder within DSM IV. As such, it constitutes
mental or nervous shock and is compensable under the Act.
In AT v. FG [2004] QCA 293 Jerrard JA made reference to:
"Establishing the existence of post-traumatic stress disorder
and therefore mental or nervous shock."
As Dr McGuire opines, that the offences committed by the
respondent have been a substantial and significant
contribution to her suffering this severe post-traumatic
stress disorder, I am satisfied that the respondent's conduct
constituting the offences against the applicant were the
material cause of that disorder and therefore a proper subject
for compensation.
Although Dr McGuire also found that the applicant had
pre-existing symptoms of another recognised psychiatric
disorder, namely, borderline personality traits, she did not
believe it was directly attributed to the offence. Rather, in
her opinion, the offences had a reinforcing effect on the
pre-existing symptoms. Further, she is of the opinion that
the applicant would have suffered the same level of
post-traumatic stress disorder had her only experiences been
that of the offences committed by the respondent.
In conclusion, Dr McGuire's view is the offences are primarily
responsible for her symptoms. Therefore, I proceed on the
basis that these pre-existing symptoms were not a contributing
factor to the applicant's post-traumatic stress disorder.
I will consider this again in relation to the application of
s 25(7) in deciding whether there should be any reduction of
the percentage of compensation to be fixed by virtue of any of
the contributing factors in accordance with Zaicov and McKenna
v. Jones. I therefore proceed to assess the compensation for
the applicant's mental and nervous shock.
When the applicant was first seen by Dr Heale about five and a
half months after the offences, she reported difficulty in
trusting anyone, feeling fearful in all public situations and
experiencing frequent nightmares in which she revisited the
traumatic events that had occurred.
Dr McGuire found that she was still experiencing these
symptoms approximately two years after the offences. Not only
was she hypervigilant in public with an exaggerated startle
reflex, but she could not be alone in the house. When the
applicant affirmed her affidavit about two and a-half years
after the offences, she was still experiencing nightmares of a
sexual nature a couple of times a week. She was also still
nervous if she was in the suburb where the offences took
place. She also avoided going into the city and shopping
centres because this made her fearful. In addition, she felt
she couldn't trust people.
According to the Dr Heale's report a further month later,
despite regularly attending the psychologist, she was still
reporting some nightmares and lack of confidence when in
public places and around unfamiliar people. The nightmares
had sexual abuse content. She also had increased difficulty
sleeping. The applicant reported an improvement in her sleep
after ceasing marijuana use and alcohol intake, which Dr Heale
obviously thought contributed to this. However, she had not
used drugs before the offences, and her prior alcohol
consumption had been limited to a sip at home on a Friday
night. Therefore, it was the respondent's offending against
the applicant which was the substantial and significant cause
of her drug and alcohol abuse. As she said, she used drugs
and alcohol to forget the memories of what happened.
In these circumstances, I do not consider that by virtue of
this, there should be any reduction of the percentage of
compensation fixed with reference to her experiencing
nightmares and sleep problems, which are symptoms of her
post-traumatic stress disorder.
Dr McGuire also diagnosed an adverse impact on lawful sexual
relations, particularly with reference to her very bad choice
of partners and to the significant problem to her of
promiscuity. As the applicant said, because she felt
worthless, she stopped caring what she did and what happened
to her. Consequently, she let men use her for sex because she
did not think she deserved anything else.
Although she had an unplanned pregnancy with her regular
partner, sexual intimacy with him is a problem because she can
get no pleasure or enjoyment from it.
She also has a distorted self-image, which extends to not
liking to look at herself, especially without clothes, and
this extends to her partner seeing her in the bathroom or when
she is dressing.
Dr Heale summarises the effect of the offending in accordance
with the applicant's evidence as follows:
"I believe that [she] has suffered significant harm to her
life and development as a young person since the assaults.
She was unable to finish her secondary schooling, has been
unable to undertake employment and has been limited in her
ability to develop herself as an independent adult due to the
fear and anxiety engendered by the attacks on her. In
addition, she has undertaken some behaviours which have
exposed her to additional health and psychological risks due
to the reduced self-image and ability to protect herself."
Having regard to the fact that the post-traumatic stress
disorder with its associated symptoms and consequences was
continuing to a severe degree about two and three-quarter
years after the respondent's offending and Dr McGuire
considered at about the two-year mark that she would continue
to suffer this for the foreseeable future together with the
need for ongoing counselling, I assess compensation for this
degree of mental or nervous shock in accordance with
Ms Muirhead's submissions at 32 per cent of the scheme
maximum or $24,000.
Regulation 1A - adverse impact of sexual offences - 1 per
cent-100 per cent.
As I have said, a compensable injury under the Act includes an injury under a regulation.
Under section 1A(1) of the Regulation, 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 s 20, is prescribed as an injury and "adverse impact" of a sexual offence is then defined by section 1A(2). "Sexual
offences" are defined in section 1A(3) of the Regulation to
mean a personal offence of a sexual nature.
As I have concluded, there is no doubt that the offences
committed by the respondent against the applicant are sexual
offences.
As stated by McMurdo P (with whom Muir and Chesterman JJA
agreed) in PAJ v. AAK [2010] QCA 79 at [28]:
"The clear terms of reg 1A(1) of the regulation provide
that to be compensable under the Act, the adverse impacts
under reg 1A must be additional to the mental or nervous shock
injury under s 20 of the Act. The onus was on the applicant
to establish her claim on the balance of probabilities."
It was for this reason Jerrard JA stated in AT v. FG [2004]
QCA 295 at [25]:
"Applicants for compensation who are diagnosed as suffering
from post-traumatic stress disorder or from depression or
anxiety will benefit from their legal representatives
insisting upon the diagnosing practitioner specifically
describing the matters experienced by the applicant which are
not relied on in support of the diagnosis; those matters may
then be capable of being adverse impacts."
Dr McGuire has done this in the present case, although, as I
have observed, most of the impacts to which she has referred
are encompassed by the diagnosis of post-traumatic stress
disorder.
As indicated, Dr McGuire did not include paragraphs (d), (e),
(f) and (h) of regulation 1A(2) in this diagnosis.
Paragraph (d) involves the adverse impact of disease.
However, as Dr McGuire opines, the applicant did not sustain
disease.
She regarded paragraph (e) related to lost or reduced physical
immunity as inapplicable.
In relation to paragraph (f) concerning the impact of lost or
reduced physical capacity (including the capacity to have
children) whether temporary or permanent, Dr McGuire notes
that while she wants marriage and children and believes she'll
be able to do this, she thinks she will probably not be good
enough.
As indicated by Dr Heale's report, the applicant is capable of
conceiving children. Accordingly, the applicant has not
established the adverse impacts in paragraphs (d) and (e) as a
consequence of the respondent's offending.
Further she has not established this in relation to paragraph
(f) on the basis of the capacity to have children.
However, I am satisfied that she has suffered a loss or
reduced physical capacity as a result of her use of alcohol
and drugs.
As I have observed, the respondent's offending was the
substantial and significant cause of this. Although I have
referred to her use of alcohol and drugs in concluding that by
virtue of this there should be no reduction of her percentage
of compensation fixed with reference to experiencing
nightmares and sleep problems which are symptoms of her
post-traumatic stress disorder, I consider she is entitled to
compensation for the adverse health impacts of their
consumption to the extent she has lost or reduced physical
capacity as a result.
This is not inconsistent with Vlug v. Carrasco [2007] 2 QdR
393 in which Holmes JA (with whom McMurdo P and Chesterman J
agreed) rejected the proposition that section 1A was intended
to introduce a new regime of compensation for "disability,
consequences or effects" as distinct from injury.
The applicant deposes with reference to the impact of alcohol
and drugs on her physical capacity that she has experienced
some unpleasant side-effects. These were, "I suffered from
nausea, passing out, memory loss, shaking, becoming hot and
cold, weight loss and being unable to eat. My skin was dull
and lifeless and my hair limp. I feel my health suffered from
using the drugs and alcohol. I always felt sick and unwell."
Accordingly, I take this into account as an adverse impact for
the purpose of regulation 1A(2).
In addition Dr McGuire considers that the applicant has
suffered an adverse impact in terms of the adverse effect of
the reaction of others for the purposes of paragraph (h) of
regulation 1A(2). Dr McGuire summarises this as, "Her sisters
call her names and her mother does nothing. This contributes
to her depression."
As indicated above, the applicant did not try to contact her
family for six months because of her father's anger about her
involvement with the police. Although her mother tried to
contact her, this was hard because of her father's attitude.
There was no reconciliation with her mother until a few months
before her 16 February 2011 affidavit. This is a period of
over two years. It was not until then that her mother was
allowed to see her and she could return home.
It is also only after this that her sisters began to talk to
her again. Before this one sister had come at her with a
knife and put a pillow over her face. Another had thrown a
dinner plate at her. In addition she was bullied and teased
at school because of rumours of what had happened to her.
Most of her school friends did not want to talk to her and she
was humiliated by the names she was called.
Dr McGuire also stated that paragraphs (j) and (k) of
regulation 1A(2) were inapplicable. The first of these
relates to an adverse impact on her feelings. However,
paragraph (k) allows an award to be made for anything the
Court considers is an adverse impact of the offence. It is
submitted that the following adverse impacts are not included
in Dr McGuire's diagnosis of post-traumatic stress disorder:
Impact on education and occupational opportunities
Impact on family relationships
Impact on ability to assess medical treatment
Problems with accommodation
Loss of faith
Loss of possessions
Disease
The impact on education and occupational opportunities is
directly related to the diagnosis of post-traumatic stress
disorder. I have taken it into account in arriving at the
32 per cent assessment for it and as such is not additional to
the mental or nervous shock
The impact on family relationships is something which I take
into account for the purposes of regulation 1A(2)(h) as part
of the overall adverse effect of the reaction of others.
The impact on ability to access medical treatment which is
relied upon is in my mind speculative. While she does not
like to be touched by doctors including male doctors, and says
she does not go unless she absolutely has to, she does go to
one female doctor whom she likes.
It is speculative as to whether in these circumstances that
when she gets older she will not have regular examinations and
health checks. At present there is no evidence that she has
lost or reduced physical immunity within paragraph (e), or
lost or reduced physical capacity within paragraph (f) as a
result of an inability to access medical treatment.
In any event, this dislike of being touched is the result of
her fear and self-hatred and low self-esteem which relates to
her reduced self-worth. These are all part of the diagnosis
of post-traumatic stress disorder. I've also taken these
symptoms into account in arriving at the 32 per cent
assessment and as such it is not additional to the mental or
nervous shock.
In Vlug v. Carrasco, Holmes JA said at [12]: "The adverse
impacts prescribed in section 1A are of the nature of symptoms
likely to a greater or lesser extent to impair the
individual's psychological, emotional or physical functioning.
In that sense, they have the quality of injury while not
necessarily amounting to mental or nervous shock (although the
last of the categories section 1A(2)(k) is a catchall:
"Anything the Court considers is an adverse impact of a sexual
offence," it must in my view be read ejusdem generis. The
difference between those impacts and injuries as defined in
section 20 is not, as the applicant suggests, one of quality
but merely of degree."
Accordingly, an adverse impact for the purposes of paragraph
(k) must be such as to impair the individual's psychological,
emotional or physical functioning. I do not consider that the
claims on the basis of problems with accommodation, loss of
possessions and loss of faith involve such an impairment. I
regard loss of faith as having a spiritual effect which would
be impossible to quantify in any event.
As I have concluded, the applicant has not established that
she sustained disease for the purpose of paragraph (d). This
is consistent with the applicant's affidavit which describes a
fear of disease from the sexual contact. As a result, she
underwent testing for HIV, hepatitis and other sexually
transmitted diseases. This was a distressing and worrying
time. The worry was still there at the time that she affirmed
her affidavit.
Fear of disease is not the same as disease for the purpose of
section 1A. Where that provision identifies fear as a
specific adverse impact, it is capable of expressly doing so.
For example, section 1A(2)(g) includes, "Increased fear or
increased feelings of insecurity" as an adverse impact.
Therefore, I consider I should compensate all this fear under
paragraph (k).
I consider that at this time in our history fear by a female
of contracting a communicable disease as a result of sexual
contact in circumstances where she was being sexually
exploited by being forced to provide sexual services is a
serious matter. Particularly where, as in this case, it is a
fear which inevitably persists for some months until a
negative result is indicated. As a matter of commonsense a
fear of this nature is likely to have a profound effect on the
victim's quality of life for the period it persists.
In SAN v. LJG [2010] QDC 349, I assessed the applicant's fear
of acquiring such a disease as a result of a sexual attack for
which the respondent had been convicted of assault with intent
to rape as, in itself, warranting an assessment of 10 per cent
of the scheme maximum.
Accordingly, I am satisfied that the applicant has suffered
the following adverse impacts of the respondent's sexual
offences involving a breach of her physical integrity:
Loss or reduced physical capacity
Adverse effect of the reaction of others
Fear of acquiring disease
I assess the totality of these adverse impacts as 22 per cent
of the scheme maximum. This is $16,500.
SECTION 25(7) OF THE ACT - CONTRIBUTION
I conclude that nothing in the applicant's actions contributed
either to her bodily injury, mental or nervous shock or the
prescribed injuries which were suffered by her as a material
result of the respondent's offending. The applicant did not
in any way contribute to her injuries by running away from her
parental home in circumstances where the respondent knowing
that she was an emotional and vulnerable 16-year-old school
girl, sexually exploited her for commercial purposes by
forcing her to provide sexual services to others.
This is particularly so where she was threatened with
homelessness through eviction if she did not cooperate in a
plan to raise money to cover joint living expenses for the
unit in which she had been offered accommodation with the
respondent and the juvenile. The applicant felt trapped like
a prisoner.
Dr McGuire's opinion as to contributing factors is that she
led a very restrictive way of life and was rejected by her
family. She also refers in this regard to her being unhappy
at home. Nevertheless she believes that the offences made a
substantial and significant contribution to her symptoms.
Having regard to the nature of the conduct involved in the
offences, these are not factors which should operate to reduce
the amount which might otherwise be awarded. This is because
they are factors which must have been known by the respondent
and relied on by him to commit these offences.
Notably, Dr McGuire does not identify the applicant's
borderline personality disorder as a contributing factor as
opposed to the offences having a reinforcing effect on
pre-existing symptoms. Dr McGuire is also of the opinion that
the applicant would have suffered the same level of
post-traumatic stress disorder if her only experiences had
been that of the offences committed by the respondent.
In these circumstances, I consider that even if it is assumed
that the pre-existing borderline personality disorder
predisposed the applicant to develop a post-traumatic stress
disorder, if it was not for the offences, the post-traumatic
stress disorder would not have been triggered. She did not
have such a disorder prior to this time. On the basis of
Dr McGuire's evidence, the symptoms of the disorder only
commenced following the conduct in which the respondent was
involved.
Therefore, I find there were no other factors which
contributed to the mental or nervous shock suffered by the
applicant and for which some allowance must have made, or
which requires a lower percentage of compensation to be fixed.
There is also no evidence of other factors having this effect
in relation to her bodily or prescribed injuries.
APPLICANT'S LIABILITY
As I have said the respondent engaged in this offending
against the applicant in conjunction with his juvenile
partner. I accepted for the purpose of sentence that his
partner may have been the person who threatened the applicant
with the consequences which resulted in her engaging in
prostitution.
This juvenile was sentenced on 25 June 2010 by another Judge
on one count each of knowingly procuring prostitution of a
young person and possession of tainted property according to
information provided to me in the written outline of
submissions.
Because the respondent's co-offender was convicted after
commencement of the 2009 Act on 1 December 2009, she could not
be joined as a respondent to this application under the Act,
nor could separate proceedings be commenced against her under
the Act.
In Street v. Brabyn, unreported, number 137 of 2003, 17 July
2006, McLauchlan QC DCJ ordered the respondent to pay the
total amount of compensation assessed in a case where he had
been convicted on the basis that he was a party to assault
with intention to steal which had actually been perpetrated by
the person with whom he was in company. His Honour held this
was sufficient to permit an applicant to be made against him
under section 24 of the Act.
In Beil v. Hansen, unreported, number 1256 of 2008, 5 June
2008, Samios DCJ without further comment ordered the
respondent to pay the total amount of compensation assessed in
respect of his role in a home invasion in company with another
person in respect of which he had also been convicted of
assault occasioning bodily harm to the applicant. In that
case it appears from the judgment that the respondent was the
actual perpetrator of the bodily harm. The application
proceeded against the respondent alone because the co-offender
was the subject of extradition proceedings from another
country.
This approach is consistent with the terms of section 24(3) of
the Act which provides that the Court may make a compensation
order for an amount to be paid by the convicted person to the
applicant because of the injury. Although under section
32C(a) of the Acts Interpretation Act 1954, the word "person"
includes "persons", section 26(7) of the Act gives the Court a
discretion to make such an order against each of more than one
convicted person who directly and materially contributed to
the injury. In my view, this vests the Court with a
discretion as to whether it makes an order for the total
amount of compensation payable against one person in these
circumstances.
An interpretation which reduced the amount of compensation
because the application could only be made against one person
who was a party to the offence or offences by virtue of which
the applicant suffered the injury in circumstances where it is
not possible to also bring the application against another
party who was involved in the offence or offences would be
contrary to the beneficial intent of the legislation.
As indicated, I sentenced the respondent on the basis that he
was an equal partner or participant in the offending. This
was despite the degree of control which it was suggested
on his behalf was exercised by the juvenile who may have been
the person who threatened the applicant with homelessness if
she did not cooperate with the plan to raise money by engaging
in prostitution, and what had been suggested as his naivety
despite being 24 years of age.
As I observed in my sentencing remarks, even if the respondent
did not actually threaten her, he was aware of her
circumstances and was prepared to rely upon them. As his
counsel conceded he knew of the threats and it soon became
apparent to him that the applicant did not want to go along
with the plan. As a result he was prepared to take advantage
of this vulnerable girl for financial gain.
I also sentenced the respondent on the basis that there was a
degree of preplanning involved at least to the extent of
paying with his credit card for advertising the applicant for
prostitution and that he provided security for her by driving
her to premises and waiting while the acts of prostitution
were engaged in.
Further, on the basis of the information in the outline of
submissions, while the juvenile was convicted of knowingly
procuring prostitution of a young person, the respondent was
additionally convicted of knowingly participating in
prostitution with a circumstance of aggravation.
In addition it is Dr McGuire's opinion that the respondent's
offending materially and significantly contributed to the
applicant's condition and she would have suffered the same
level of post-traumatic stress disorder had her only
experiences been that of the offences committed by him.
Accordingly, the respondent is liable to pay compensation to
the applicant for the totality of the injuries suffered by
her; that is, he is liable to pay the total amount of
compensation assessed.
CONCLUSION
Accordingly I assess compensation in terms of the compensation
table as follows:
Item 1 - bruising/laceration, etc (minor/moderate) - three per cent - $2,250
Item 33 - mental or nervous shock (severe) - 32 per cent - $34,000
Regulation 1A - adverse impacts of sexual offences - 22 per cent - $16,500.
Therefore the total assessment is 57 per cent of the scheme
maximum; that is, $42,750.
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