Wilson v Ward

[2001] QDC 214

DISTRICT COURT OF QUEENSLAND

CITATION:	Wilson v Ward [2001] QDC 214
PARTIES:	CHARMAINE JOY WILSON as litigation guardian for JASMINE MARIE WILSON (Applicant) KENNETH ALFRED WARD (Respondent)
FILE NO/S:	84 of 2000
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING	Cairns
COURT:
DELIVERED ON:	18/5/01
DELIVERED AT:	Cairns
HEARING DATE:	24/11/2000
JUDGE:	White DCJ
ORDER:	That the respondent Kenneth Alfred Ward pay the applicant Jasmine Marie Wilson the sum of $30,000 by way of compensation. That any amount paid to the applicant pursuant to this order be paid to the Public Trustee whose receipt for such sum shall be sufficient discharge. That the Public Trustee pay to the solicitor for the litigation guardian of the applicant, Charmaine Joy Wilson the assessed or authorised costs out of any monies received from the respondent or any other person pursuant to this assessment and order. That the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the said sum on behalf of Jasmine Marie Wilson with powers and duties defined in the Public Trustee Act 1978 during the minority of Jasmine Marie Wilson.
CATCHWORDS:
COUNSEL:
SOLICITORS:	T. Price (Legal Aid Office) for the Applicant

The respondent, Kenneth Alfred Ward, was convicted in the District Court at Cairns on 13 March, 1998 of the following offences:-

dealt with Jasmine Marie Wilson, a child under the age of 16 years and that at the time aforesaid Jasmine Marie Wilson was a child under the age of 12 years and further at the time aforesaid Jasmine Marie Wilson was in the care of Kenneth Alfred Ward.

2.            That on a date unknown between the 1st day of September, 1997 and 21st day of September, 1997 at Tarzali in the State of Queensland he without legitimate reason took indecent photographs by means of a device namely a polaroids camera of Jasmine Marie Wilson, a child under the age of 16 years and at the time aforesaid Jasmine Marie Wilson was a child under the age of 12 years and further at the time aforesaid Jasmine Marie Wilson was in the care of Kenneth Alfred Ward.

This is an application by the said Jasmine Marie Wilson for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995.

1. The applicant was born on 10 December, 1992. She was therefore aged 4 ½ at the time of the commission of the offences. She is now aged 8. The respondent was a long standing friend of the applicant’s parents. From time to time he stayed with the applicant’s family and looked after the children including the applicant at times when the applicant’s parents were at work. On an occasion between the dates alleged in the indictment the respondent had the applicant remove her clothing and he removed his own clothing. He procured the applicant to orally and manually masturbate him to ejaculation. He also took photographs of the applicant while she was performing these acts and also close up photographs of her genital area. He touched the applicant in the area of her vagina and anus. He digitally penetrated the applicant.

2. The adverse effects of these offences on the applicant are set out in the affidavit of the child’s mother, Charmaine Joy Wilson, and the report of a clinical psychologist, Megan Bayliss. I accept the matters set out therein as accurately indicating the adverse effects of the offences upon the child. There is no need to repeat them in full, however I will summarise them from the submissions of the applicant’s solicitor. I am not satisfied that the consequences of the offences constitute “mental or nervous shock” within the meaning of that term in Item 33 of Schedule 1 to the Act. However, I am satisfied that the applicant is entitled to substantial compensation pursuant to Regulation 1A of the Act which specifically provides for the adverse impacts of a sexual offence. I accept the submissions of the solicitor for the applicant concerning these matters as follows:-

(a)

Increased fear or increased feelings of insecurity – girl who wanted to be adventurous”. As a young child it would be expected the applicant would have a black/white view of the world but according to Megan Bayliss the applicant has begun to view the world in terms of safety.

(b)

Adverse effect of the reaction of others – reacted to the applicant’s disclosure of sexual abuse by pushing her away and encouraging her not to speak about the offence to anyone. Megan Bayliss has indicated that this has further impacted on the applicant’s ability to recover from the impact of the offences.

(c)

Adverse impact on feelings – action during her interview. Megan Bayliss is of the opinion that this action may be used by the applicant to stimulate all of her other senses in an attempt to remove unpleasant thoughts.

[4] Other matters which need to be taken into account when considering the adverse
impacts of the offences are as follows:-

(i)         learning difficulties

(ii)        Isolation from peers

(iii)       Bed-wetting

(iv)       Bad dreams

(v)        Damaged sense of self

(vi)       Embarrassment and emotional harm

(vii)      Behavioural disturbances

I note that in the opinion of Megan Bayliss the applicant presented as a child traumatised by a serious incident of indecent dealing and indecent treatment. Her presenting behaviours were consistent with a child who had experienced sexual abuse. She displayed disturbed type behaviours. Based on her age, close relationship with the offender and the current coping strategies of her family, the child may be at risk of future victimisation.

1. I would allow the sum of $30,000.00 by way of compensation. I will make the usual orders requiring the Public Trustee of Queensland to manage any compensation fund until the applicant reaches the age of majority.