W v D

[2011] QDC 123

[2011] QDC 123

DISTRICT COURT

JUDGE SAMIOS

Indictment No 3647 of 2009

W	Applicant
and
D	Respondent

BRISBANE

DATE 07/06/2011

HIS HONOUR: This is an application by which the applicant seeks compensation to be determined under Section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of personal offences which led to the conviction of the respondent on 25 June 2004 upon indictment for four counts of indecent treatment of children under 16 years with circumstances of aggravation, and one count of attempted sodomy with a circumstance of aggravation under the Criminal Code of Queensland.

The applicant was born on the 29th of May 1989.  The respondent offended against her during a period between 28 May 1997 and 24 November 2002.  As I said, the respondent was sentenced for these offences on 25 June 2004.  The application was filed on 17 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The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.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, the provisions of the Victims of Crime Assistance Act 2009 provides that although the application could be filed after the repeal, the application could continue under the repealed Act if it was filed before the earlier of the following: the expiry of the period within which the person could have if this chapter had not commenced but apply for the order mentioned in Section 154(1A), or the end of two months after the commencement.

This is an application filed within two months after the commencement and therefore it is within time.

Also, of course, with respect to the three years limitation period, the applicant would have until the 29th of May 2010.  Again, the application has been filed within time for those provisions of the legislation.

Also, notice of the intention of the applicant to proceed with these proceedings has been given to the respondent and he has been served with the application.  I am satisfied that with service having been effected on him, on the respondent on 29 March 2011, the applicant can proceed with this application having given one month's notice of her intention to do so in accordance with the rules.

The facts behind the offending are that with respect to one of the counts, the applicant was aged eight and the respondent followed her into the kitchen and then came up behind her and grabbed her waist and made attempts to touch her vagina by moving his hands towards that region.

The next offence was a further incident where the applicant was looking out the window and the respondent came up behind her and stroked her vagina on the outside of her clothing.

The next offence, she estimates she was about 10 or 11 years of age and she was in the lounge room watching television.  The respondent placed his hands under the blanket and played with her vagina on the inside of her clothes.

The next offence involved an incident whereby she was passing on a message to the respondent who was seated on a lounge.  He grabbed her at the back of the head and forced her towards his penis and asked her to give him a blow job.  She moved her head away and walked away.

The final count occurred when she was aged 11.  She had gone into the kitchen.  The respondent came up behind her, unzipped his pants, pulled down her pants to below her backside and then she felt him holding her on the shoulder with one hand and pressing against her buttock cheeks with his penis at the same time.  He asked whether it was in yet.  She told him that it was not and he subsequently pulled away from her and went to the toilet.

The applicant has been examined by Doctor McGuire, a psychiatrist.  Doctor McGuire, in her report, has noted what the applicant states in her affidavits in support of the application. 

She said she is terrified of the respondent.  He has threatened to hurt her on his release.  She does not like going out alone.  She represses any thoughts of the abuse and found the interview very difficult.  She experiences flashbacks triggered by the presence of men.  She cannot accept affection from a man with the exception of her father.  She said this applies even to her own grandfather. 

She has problems with sleep.  She has difficulty getting off to sleep and then finds she wakes intermittently.  She has nightmares at least once a week.  She has security fears and has to check that everything is locked.  She has an exaggerated startle reflex.  She believes that she needs sexual relations more often than she would otherwise, otherwise she does not feel attractive if it is not forthcoming.  She said her self-esteem is low.  She experiences a feeling of dirtiness and has lots of showers, at least five a day.  She has a feeling she cannot get clean enough.

From the age of eight, her schooling was badly affected.  She had some notoriety within the school.  Although she said she was not teased, everybody knew and she felt she was being judged.  She quit school halfway through year 10.  She wanted to be a paediatric nurse. 

She started drinking alcohol at the age of 12 and also took drugs.  She drinks daily.  She finds that alcohol makes it a lot easier to deal with her problems and she also binges and has passed out.

She has not had counselling for substance abuse and does not believe that it is bad enough for her to get to that.  She notes a pattern in her moods which is consistent.  She seems to start the year feeling reasonably good, but by mid-year becomes depressed.  She is not working at present.

She is irritable.  She gets angry very quickly and upset easily.  She has paranoid feelings.  She is being treated by the Mater mental health team, with antidepressants and valium.  She said her mother stole the last dose of valium she had because her mother is addicted to various substances.

She has been suicidal.  She self harms.  Doctor McGuire noted that the Mater Hospital notes refer to two admissions, one for an attempt at suicide and another for self harming. 

The Education Department records indicate poor results and frequent truancy.

According to the applicant, the sexual abuse was more extensive than the offences for which the respondent was convicted.  The abuse occurred from the age of eight.  It involved genital touching, oral sex and attempted sodomy.  It was consistent and occurred on alternate weekends when she had contact with her sister. 

When the abuse was finally disclosed, she felt disgusted and embarrassed.  She had to testify at the Court.

According to Doctor McGuire's opinion, the applicant suffers from post-traumatic stress disorder with criteria being nightmares, flashbacks, avoiding behaviour, irritability, security fears, exaggerated startle reflex. 

This is in the context of border line personality traits.  She suffers this to a severe degree. 

Regarding the sexual abuse, Doctor McGuire does note that it was more extensive than that for which the respondent was convicted, however, in her opinion, the incidents for which he was convicted made a substantial and material contribution to her condition.

As the applicant's friend commented, once is enough.  In other words, there was an all or none effect.

Generally speaking, Doctor McGuire states, that at the time the sexual abuse took place, the applicant was confused.  Immediately afterwards, she was disgusted, felt dirty and ashamed.  She became alienated from her mother and has an ambivalent relationship with her sister.  Although she has a lot of acquaintances, she has few friends.  She hopes that her life will improve, but she, at this stage, seems pessimistic.

Doctor McGuire considers the applicant would benefit from counselling.

The applicant, I find, did not contribute directly or indirectly to her injury.  I am satisfied she has suffered mental or nervous shock to a severe degree.

There are a number of factors operating.  There is not only the fact that the sexual abuse was more extensive than the offences for which the respondent was convicted.  There is also a traumatic event where the applicant was locked up in a room in Melbourne and sexually abused over a period of ten days. 

Even so, I am satisfied the offences for which the respondent was convicted have caused a substantial and material contribution to the applicant's condition.

I allow, under item 33, for mental or nervous shock severe, 28 per cent, which is a sum of $21,000. 

However, there are also adverse impacts under Regulation 1A.  There has been the loss or reduce physical immunity.  I accept a causal link between the applicant's numerous respiratory infections which she put down to stress, has been caused by the offences.

There has also been the loss of the capacity to have children because of her accepted sexuality.  There has also been the adverse effect or the reaction of others that she does not have a good relationship with her mother.  Her mother, at one stage, did not accept the offences had occurred to the applicant.

There has also been other adverse impacts, in particular the impact on her education and occupational opportunities, the impact on her relationships, the impact on her life which has led to her frequently moving and finding other accommodation and the stress of Court proceedings and the change in dress and appearance.

For these impacts, I allow the applicant 30 per cent of the scheme maximum, which is a sum of $22,500. 

Therefore I order the respondent to pay the applicant the sum of $43,500.  There will be an order as per the draft, initialled by me and left with the papers.