Whitehead v Crawford
[2000] QSC 422
•15 May 2000
[2000] QSC 422
IN THE SUPREME COURT
OF QUEENSLAND
CAIRNS Writ No. 64 of 1999
BETWEEN: JENNIFER MAE WHITEHEAD
Applicant
AND: JAMES FREDERICK CRAWFORD
Respondent
REASONS FOR JUDGMENT
BEFORE THE HONOURABLE JUSTICE JONES
DELIVERED THE FIFTEENTH DAY OF MAY, 2000
On 12 May 1987, the respondent pleaded guilty in the Supreme Court at Cairns to 3 counts of indecent dealing and 2 counts of carnal knowledge of a girl under the age of 12 years. The two counts relating to the applicant were:
Count 4: That between the first day of April, 1985 and the thirtieth day of January, 1987 at Millaa Millaa in the State of Queensland JAMES FREDERICK CRAWFORD unlawfully and indecently dealt with one JENNIFER MAY [sic] WHITEHEAD, a girl under the age of fourteen years.
Count 5: That between the first day of December, 1986 and the thirtieth day of January, 1987 at Millaa Millaa in the State of Queensland JAMES FREDERICK CRAWFORD unlawfully had carnal knowledge of one JENNIFER MAY [sic] WHITEHEAD, a girl under the age of twelve years.
For the charges of indecent dealing, the respondent was sentenced to imprisonment with hard labour for five years to be served concurrently with a sentence of imprisonment with hard labour for 15 years for the charges of carnal knowledge of a girl under the age of 12 years. [1]
[1] Exhibit “A” to the affidavit of Clare Crabb sworn on 17 November 1999.
The sentencing Judge, Mr. Justice Carter, made the following comments on sentence:
“James Frederick Crawford, you have pleaded guilty to five offences each of which constitutes a form of sexual abuse committed upon very young children. Any person cannot feel a large measure of repugnance when addressing the facts of this case… Jennifer was aged 8 at the time you indecently dealt with her and had unlawful carnal knowledge of her.
You stood in a position of trust in relation to those children. Their mother trusted you to properly care for them when she was unavoidably absent, yet you took the opportunity to sexually abuse them in a way which was grossly repugnant, objectionable and criminal. This episode of child abuse towards these young children is aggravated by the fact that as a result of it you infected these you girls with a form of venereal disease. Jennifer now only 8 still bears the consequences of that infection in the form of venereal warts which will have to be surgically removed.
One can only wonder at the long-term harm you have done to these children…The position is aggravated further by the fact that these children were overborne and were considerably less than willing participants. The case in substance, if not in form, is a case of rape… Although the children objected, you did not desist but persisted to sexually abuse them as the opportunity arose.” [2][2] Exhibit “B” to the affidavit of Clare Crabb sworn on 17 November 1999, pp. 1-2 of Sentence.
This is an application for criminal compensation by the said Jennifer Mae Whitehead pursuant to s.663B Criminal Code. The respondent was served with the notice of application and supporting affidavits but he did not appear, did not desire to take part in the proceedings and was not represented at the hearing of this application. [3]
[3] Affidavit of Service of Plaint of Other Process sworn by Neville Oswald on 27 November 1999 and affidavit of John Edward Bright sworn 18 January 2000.
The applicant was born on 18 July 1978. She was therefore aged between 6 and 8 on the various dates of the offences and is now aged 21. It wasn’t until attending counselling at the Tableland Rape and Incest Crisis Centre that the applicant became aware of her entitlement to seek criminal injuries compensation, hence the delay between the dates of the offences and bringing this application. [4] There appears to be no time limit to making an application of this kind, in any event.
[4] Affidavit of Jennifer Mae Whitehead sworn on 8 Novemeber 1999, para 10.
The amount of compensation in this case is to be assessed having regard to the now-repealed provisions of Chapter LXVA of the Criminal Code, instead of the Criminal Offence Victims Act 1995 which relates only to injuries which occurred subsequent to its commencement date of 18 December 1995. The applicant has suffered the requisite bodily harm, mental shock and nervous shock to constitute “injury” pursuant to s.663A and to attract the operation of the Chapter. Section 663AA(3) provides that where the injury material to the application consists of more than 1 injury, the prescribed amount for the purposes of assessing compensation is an amount specified in the now-repealed Workers’ Compensation Act 1916. The “prescribed amount” of compensation applicable here should be that in force at the time the application for compensation is made, or when the order for compensation itself is made. [5] The corresponding provision to that in the Workers’ Compensation Act 1916 is s.167 WorkCover Queensland Act 1996 and it provides for a maximum amount of compensation of $103,100.00. This amount, therefore, is the prescribed amount for the purposes of assessing compensation here.
[5] Re: Bartorelli & Hutton (1994) 15 Qld Lawyer Reps 57
In applications dealt with pursuant to the Criminal Code provisions, the Court of Appeal has held that “compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable.” [6] Counsel for the applicant has provided me with very thorough and useful written submissions and so I will proceed to assess the amount of compensation in this manner.
[6] R v Jones; ex parte McClintock [1996] 1 Qd R 524, at 527 per Fitzgerald P.
Mental and Nervous Shock
The Courts have broadly interpreted “mental shock and nervous shock” in the context of s.663A. In West v Morrison, Macrossan CJ expressed the view that a “broad meaning should be attributed to ‘mental shock and nervous shock’ in s.663A… The phrase should be construed as including the full range of psychiatric illnesses whether or not they would, in the absence of the phrase in the definition of ‘injury’, have been taken to be included within ‘bodily harm’”. [7]
[7] West v Morrison (1996) 89 A Crim R 21 at 23 per Macrossan CJ.
The mental scars left on the applicant by the respondent should not be underestimated. As the applicant was no more than a child when these offences occurred, she has had to cope with their effects for most of her life. The report compiled by Ms Deborah Aldridge, a social worker at the Tableland Rape and Incest Crisis Centre, highlights the applicant’s pain and suffering throughout this 15-year period:
“Ms Whitehead initially presented for counselling on 18th February 1999. At this point, she was experiencing nightmares, dissociation (trance states or our of body experiences) and flashbacks (re-experiencing sudden and stressful pictures in the mind of the traumatic event) on a regular and frequent basis. She also identified with feeling anxious and uncomfortable when around males.
…
Ms Whitehead stated that she found it difficult to cope at school and in her personal life following the sexual assault… Ms Whitehead contracted genital warts… This resulted in her feeling humiliated. Further complications arose which resulted in an odour… During this period Ms Whitehead did not want to attend school and found it difficult to sleep at night. She relayed:
“I felt upset cause the kids used to tease me and say pooh, you stink… I stayed in my room and wouldn’t talk to anyone. I felt horrible… When the warts burst, no-one would come near me cause I smelt like off fish. Everyone was teasing me. Kids were whispering about me all the time.”
…
During high school, flashbacks of the sexual assaults began to intrude in Ms Whitehead’s thoughts, making it difficult to concentrate on her school work… Ms Whitehead found that intruding flashbacks and nightmares continued to interfere on her ability to concentrate at school. She demonstrated this by saying:
“I’d be sitting there doing my work, then suddenly I’d find myself standing there when I was eight and he’d be raping me again.”
…
Although Ms Whitehead has had support from her mother and father, ongoing backlash from the extended family has made it difficult and unbearable at times for Ms Whitehead… Ms Whitehead expresses continual fears of safety for herself and her parents upon James Crawford’s release.
…
Ms Whitehead now finds it difficult to relate to males and feels fear and discomfort when touched by a male. This has also extended to the relationship with her father.
…
The following summation provides an overview of the likely affects that sexual assaults have had on Ms Whitehead:· Chronic depression - displays symptoms of flat affect; sensations of heaviness; difficulties in identifying emotions; lack of energy; sense of hopelessness; exhaustion and stomach complaints.
· Significant impact on interpersonal (family/social) and career prospects.
· Feelings of guilt, self blame, extreme fear and humiliation.
· Over responsibility to meet others needs at the expense of own needs.
· Low self esteem.
· Difficulties in forming long term trusting relationships.
· Difficulties in trusting self and own judgment.
· Recurring flashbacks, dissociative episodes and persistent nightmares.” [8]
I have been informed by counsel for the applicant that the respondent recently died in custody. This may help allay the applicant’s anxiety and fear of retribution, but the report of Ms Jill Doubleday, the applicant’s counsellor, foreshadows that further counselling will be required:
“It’s my opinion that Jenny will definitely need counselling in the future. Healing from extended child sexual abuse is a long term process at the best and this is further exacerbated in Jenny’s case by her young age at the time of the abuse and by the fact that the perpetrator was a loved and trusted family member. Healing does not happen in a steady progression from start to finish but more as a series of cycles of healing.” [9]
[8] Exhibit “D” to the affidavit of Clare Crabb sworn 17 November 1999.
[9] Exhibit “A” to the affidavit of Jennifer Mae Whitehead sworn 6 March 2000, at p.2.
It is difficult to imagine a more poignant case and it is hoped that recent events will begin a new cycle of healing for the applicant. In all of the circumstances, I think it appropriate to order the maximum amount [10] to be awarded in the case of mental or nervous shock of $20,000.00.
[10] see s.663AA(1) Criminal Code (now repealed).
Physical Injuries
The applicant consulted Dr Leven at the Millaa Millaa medical clinic on 30 January 1987 in respect of her injuries. From the report of the Atherton Hospital’s Medical Superintendent, [11] counsel for the applicant has conveniently summarised the injuries which she then presented, as follows:
[11] Exhibit “E” to the affidavit of Clare Crabb sworn 17 November 1999.
(i)An offensive vaginal discharge, which lasted for one month.
(ii)Episodes of bleeding from the vulva and some itching of the vulva.
(iii)Intertrigo - a superficial inflammation of two skin surfaces that are in contact, caused by friction, warmth, moisture and sweat, often aggravated by infection.
(iv)Excoriation - the destruction and removal of the surface of the skin by scraping, the application of a chemical, or other means.
(v)Vulval warts of the labia majora and minora.
The applicant was examined at the Atherton Hospital in July of that year and was found to be suffering from:
(vi)Extensive perivulval and perianal warts. These warts were removed, but the applicant still bares the scars. [12]
(vii)Vaginal discharge with warts on the clitoris and labia minora.
In 1992, the applicant developed further complications as a result of the injuries inflicted upon her by the respondent. At the Cairns Base Hospital, the applicant was again examined and she was found to be suffering from both:
(viii)Stress incontinence.
(ix)Overflow incontinence.
I accept counsel’s submission that the applicant continues to experience pain and suffering and loss of the amenities of life as a result of these conditions.
[12] Affidavit of Jennifer Mae Whitehead sworn 8 November 1999, paragraph 8.
Where the aforementioned injuries correspond with an injury that appears in Schedule 2 of the WorkCover Queensland Regulation 1997, the assessment should be calculated by reference to the maximum lump sum compensation as prescribed by that schedule. Where there is no such corresponding injury, however, I will follow the usual practice and use comparative compensation cases as a guide in assessing the amount to be awarded.
Urinary incontinence appears in the schedule [13] and allows for a maximum lump sum compensation of $61,860.00. Taking into account the discomfort, inconvenience, embarrassment and hygiene problems that this incontinence has caused the applicant from the time of the offences to the present, and that this injury will continue to cause problems into the future, I find that an amount of $30,000.00 is appropriate compensation in the circumstances.
[13] See Code 4602, Schedule 2 WorkCover Queensland Regulation 1997.
It comes as little surprise that there is no provision in the WorkCover Queensland Regulation for vulval or perianal warts. Counsel has referred me, however, to a decision of His Honour Judge Howell, where he stated that “any right-thinking member of the community would have absolutely no doubt that in addition to the contributing role of sexually transmitted disease to an award for nervous and mental shock there should otherwise be an award for the injury per se, namely the sexually transmitted disease itself.” [14] In the circumstances of that case, where the applicant was 19 at the time of the offence, an award of $12,500.00 compensation was made by His Honour for the bodily harm constituted by the effects of the venereal disease contracted from the respondent. In this case, given the applicant’s young age, the resulting surgery and the ongoing symptoms, I believe that an amount of $15,000.00 should be awarded.
[14] Harrigan v Hunter (unreported), Howell DCJ, No. 3525 of 1997, Brisbane, 5 September 1997, p. 9.
Related to this item is an assessment of compensation for the scarring which resulted from the removal of the warts. There is provision in the Schedule [15] for “moderate linear scarring following surgery or trauma crossing lines of election to any part(s) of the body with minimal discolouration, normal texture and elevation”, with a maximum amount of $1,035.00 that may be awarded. As the only evidence before me relating to the scarring is that deposed to in the applicant’s affidavit - “I still have the physical scars where the warts were taken off” [16] - I think that it would be appropriate to award an amount of $1,000.00 for these scars.
[15] See Code 5102, Schedule 2 WorkCover Queensland Regulation 1997.
[16] Affidavit of Jennifer Mae Whitehead sworn 8 November 1999, paragraph 8.
Counsel for the applicant has submitted that the applicant’s difficulties in maintaining any sexual relationship could be equated with an award for “impotence” under the WorkCover Queensland Regulation. [17] I do believe that, in the proper circumstances, an award for “impotence” could be made to a female, although this is not such a case. The grounds submitted for making such an award here - the applicant’s difficulties in maintaining any sexual relationship and the applicant’s fear of being infertile - were already taken into account when assessing the amount of $20,000.00 for mental or nervous shock. There is no need then for me to make a further assessment for these items.
[17] See Code 4605, Schedule 2 WorkCover Queensland Regulation 1997.
Therefore, the total amount awarded for mental and nervous shock and physical injuries is $66,000.00. Interest on this amount, at a rate of 2% for 12.75 years, is $16,830.00.
Economic Loss
The applicant deposes in one of her affidavits before me to the following:
“2.When I left school I wanted to attend TAFE and complete a child care course…
3.Since leaving school I have applied for a couple of jobs, once in Atherton at the IGA Foodstore and once in Malanda at Supervalue. I did no hear from either supermarket as to whether they wanted to employ me or not. If I was successful I am not aware of the wages I would have been paid.” [18]
[18] Affidavit of Jennifer Mae Whitehead sworn 6 March 2000.
I have already referred to the problems with concentration and teasing and feelings of alienation that the applicant was subject to while at school. Ms Doubleday, the applicant’s counsellor, has the following comments to make on the applicant’s present and future employment prospects:
“At the present it would be very difficult for Jenny to be employed. She left school at end of Grade 11, which in itself was an achievement. After confidentiality was broken the inability of her fellow schoolmates to understand or come to terms with what happened to Jenny led to both avoidance of her as well as cruel teasing, stigmatisation and gossip about her and her family. School was a difficult and uncomfortable place as a result of this (both primary and secondary) and Jenny struggled to cope.
…At this point in time lack of sleep, flashbacks and other anxiety symptoms she is experiencing on an almost daily basis make work impossible. However she is keen to get on with her life and workers at the Tableland Rape and Incest Crisis Centre have been assisting her to explore options for further training.” [19][19] Exhibit “A” to the affidavit of Jennifer Mae Whitehead sworn 6 March 2000, at p.4.
It would be difficult to assess any amount for economic loss suffered in this case on the usual basis. However, the effect the sad event has had on the applicant’s capacity to learn in her secondary school years has clearly disadvantaged her in the labour market. These effects are likely to continue for some time whilst the healing process continues. I have therefore made a global allowance [20] a little higher than what was argued for. I assess this component at $15,000.00.
[20] see Re: Draper; ex parte Draper (unreported), McGuire DCJ, District Court, Brisbane, 31 July 1996, p.8.
Orders
In summary, I would make the following assessments for compensation:
Mental and nervous shock $20,000.00
Stress and overflow incontinence $30,000.00
Vulval and perianal warts $15,000.00
Scarring $ 1,000.00
Interest on pain and suffering $16,830.00
Economic loss $15,000.00
TOTAL $97,830.00
Having regard to all of the circumstances of this case, I am satisfied that the applicant in no way contributed to any of the injuries she has suffered. There is, therefore, no need for me to reduce the amount of compensation the applicant is to be awarded, as would otherwise be the case pursuant to s.663B(2) Criminal Code.
As already mentioned, I have been informed by counsel for the applicant that the respondent died in custody sometime during the week commencing 8 May 2000. In those circumstances I propose to order that the amount of compensation awarded to the applicant be paid from his estate. It will, of course, be necessary for notice of the respondent’s death to be filed in this Court before this can occur.
I, therefore, propose to make the following orders:
(1)Conditional upon the applicant evidencing that the respondent is now deceased, I order that the respondent’s estate pay the applicant $97,830.00 by way of compensation.
(2)The respondent’s estate pay the applicant’s costs of and incidental to this application to be taxed.
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