Gaffney v Buckley[2001] QDC 207

CITATION: Gaffney M. W. v. Buckley [2001] QDC 207

PARTIES:

v.

FILE NO/S: 3336 of 2001

DIVISION:

PROCEEDING: Application

ORIGINATING COURT: District Court Brisbane

DELIVERED ON: 14 September 2001

DELIVERED AT: Brisbane

HEARING DATE: 7 September 2001

JUDGE: Shanahan DCJ

ORDER: Respondent pay the applicant by his next friend the sum of $20,000 by way of criminal compensation.

CATCHWORDS:

CRIMINAL LAW - compensation - compensation for sexual offence - claim under Criminal Offence Victims Act 1995

R v. Jones, ex parte McClintock [1996] 1 Qd.R. 524

Chong v. Chong, Appeal 11658/98, Court of Appeal, Queensland, 13 August 1999

2. [1]
   The applicant applies for an order for compensation pursuant to the Criminal Offence Victims Act 1995 for injuries suffered as a result of a sexual offence committed upon him by the respondent. The offence alleged in the indictment spanned the period 31 January 1997-9 August 1998. The applicant was born on 8 August 1991. He was aged between 5-7 years at the time of the offence. He is currently aged 10 years. The respondent was the step-father of the applicant.

2. [2]
   The respondent pleaded guilty before me in the District Court Toowoomba on 20 October 2000 to an offence of maintaining an unlawful sexual relationship with a child under 16, and that in the course of that relationship he unlawfully and indecently dealt with the child, and that the child was under 12, and that the child was in the respondent's care at the time. I sentenced him to 7 years imprisonment with a recommendation for parole after three years. In sentencing the respondent I noted that the offence had had a major impact on the applicant's family life as revealed in a victim impact statement. The respondent was sentenced to the same penalty in relation to a further sexual offence against another child. That sentence was ordered to be served concurrently.

2. [3]
   The offence involved instances of simulated anal intercourse upon the applicant and the touching of the applicant's genitals. The applicant did not complain to the police about the sexual behaviour. The respondent admitted the offence to the police and pleaded to the offence on the basis of his admissions.

2. [4]
   The applicant was assessed by a psychiatrist, Dr. Venugopalan. He was examined on 15 May 2001 and Dr. Venugopalan provided a report dated 28 June 2001. The applicant denied any recollection of the abuse to the psychiatrist. Dr. Venugopalan was of the view that it was difficult to determine the extent of psychological damage done to the applicant as a result of the sexual abuse over the 18 month period as the applicant had denied any recollection of the events. It was most most unlikely that the applicant would have forgotten all of the sexual abuse events on the basis of brain maturity appropriate to his age. However, it was possible that the applicant may have had selective memory loss of the events for emotional reasons. In the doctor's opinion the applicant's selective memory loss suggested the existence of mental or nervous shock within the legal definition as a result of the applicant's experience of sexual abuse. His behavioural difficulties as reported by his mother might be related to that. Another possible psychological consequence of the abuse was the development of anger, distress and depression when the applicant reached the emotional maturity level to understand the moral or social value issues involved in the abuse. Most children start to think in terms of values between the ages of 10 and 13. The doctor's view was that the extent of the mental shock would be classified as moderate. Psychological treatment might prevent the development of overt psychological problems at a later time.

2. [5]
   The applicant's mother, in affidavit material, attested to effects that she saw as related to the sexual abuse. The child had refused to talk about the abuse to his mother even though by the respondent's confession, the activity had occurred. The mother attested to incidents of bed wetting which had persisted until shortly after the jailing of the respondent and also to behavioural problems of the applicant at school. She was of the view that those aspects were referrable to the sexual abuse.

2. [6]
   This application for compensation is pursuant to the Criminal Offence Victims Act 1995. That Act was proclaimed on 18 December 1995. Part 3 of the Act establishes the scheme for compensation of victims of indictable offences. Section 24 of the Act allows the court to make an order for compensation where a person suffers injury as a result of a personal offence for which the offender is convicted on indictment. Section 20 of the Act defines “injury” as bodily injury, mental or nervous shock, pregnancy or any injuries specified in the compensation table or prescribed under regulation. The Criminal Offence Victims Regulation 1995 commenced operation on 19 December 1997. Regulation 1A states for the purposes of s.20 of the Act, 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. Up to 100% of the scheme maximum of $75,000 may be awarded in relation to the adverse impact of a sexual offence. The regulation applies to this application even though the offence spans the operational date of the regulation (Chong v. Chong, Appeal 11658/98, Court of Appeal, Queensland, 13 August 1999). In assessing the amount of compensation, the court must have regard to the principles contained in s.22(3) and (4), with the maximum compensation to be reserved for the most serious cases. Regulation 1A(2) provides that an “adverse impact” of a sexual offence includes such things as a sense of violation, reduced self worth or perception, post traumatic stress disorder, disease, lost or reduced physical immunity, lost or reduced physical capacity, increased fear or increased feeling of insecurity, adverse affect of the reaction of others, adverse impact on lawful sexual relationships, adverse impact on feelings or anything the court considers is an adverse impact of a sexual offence.

2. [7]
   Whilst it is difficult to assess the full impact of the sexual offence committed upon the applicant because of his reluctance to talk about the matter, it is my view that the applicant has suffered adverse consequences as contemplated by Regulation 1A. The applicant's present age may well explain his reluctance to talk about the matters. I am of the view that he has suffered injury as described by the regulation as the result of a sexual offence committed on him. The inability to speak of the matter is, in my view, one such consequence. No behaviour of the applicant directly or indirectly contributed to that injury.

2. [8]
   The respondent was served with notice of the application and did not appear to argue on it.

2. [9]
   Considering the evidence of the applicant's mother and the opinion of the psychiatrist, I am of the view that it would be appropriate to assess compensation pursuant to Regulation 1A at an amount of $20,000. In my view that is an appropriate amount when one considers the tender age of the applicant at the time of the commission of the offence and the duration of the various sexual contacts by the respondent upon him.

2. [10]
   I order that the respondent pay to the applicant by his next friend by way of criminal compensation the sum of $20,000. There is no power under the Act to award costs.