J v Bennett[2003] QDC 296

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, J, claims compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of indecently dealing with a girl under 16 years of age of which the respondent Mark John Bennett was convicted on 27 January 1998.

2. [2]
   The circumstances of that offence, which was committed on 31 May 1996, are that the applicant who was then 14 years of age and was a friend of the respondent’s daughter, was at the respondent’s residence after attending a barbecue elsewhere. At that barbecue the applicant had consumed some alcohol. Whilst at the respondent’s residence, the applicant, in the company of the respondent, his daughter and another young girl, consumed further alcohol and smoked marijuana. After his daughter and the other young girl had either gone to bed or passed out, the respondent, who was in his late 30’s and the applicant, commenced to play a game which involved skolling glasses of beer.

3. [3]
   As a result of the beer and marijuana she consumed, the applicant became very intoxicated and eventually passed out. The applicant recalls waking up, her trousers had been removed and the respondent was laying on top of her, dressed only in a t-shirt, with his penis touching her vaginal area through her underpants. The applicant then passed out again before waking up to find the respondent lying beside her and hugging her. At that point the applicant jumped out of bed and went home.

4. [4]
   When sentencing the respondent, I described his conduct in permitting, if indeed not encouraging, the skolling of alcohol, the smoking of marijuana and then indecently dealing with the applicant as reprehensible and disgraceful. I also stated that the offence had had a significant psychological effect on the complainant.

5. [5]
   As a result of the offence committed upon her the applicant suffered no physical injury and a claim for compensation falls to be assessed on the basis of mental or nervous shock under the Criminal Offence Victims Act 1995 and the totality of the adverse impacts of a sexual offence under the Criminal Offence Victims Regulation 1995 so far as those adverse impacts do not constitute mental and nervous shock:  see Jullie v. Atwell (2001) QCA 510. 

6. [6]
   Prior to the commission of the offence upon her, the complainant, despite her age, drank alcohol and took drugs regularly. Dr. Tucker, a specialist psychiatrist from the Child and Youth Mental Health Services at the Mater Hospital where the applicant sought treatment in June 1997 and May 1998, refers to long standing family dysfunction, with neglect and deprivation of the applicant’s emotional and social needs. There was a strong family history of depression and the applicant had been distressed by battles between her parents over custody of her.

7. [7]
   Subsequent to the offence the applicant attended the Child and Youth Mental Health Service for assessment, monitoring and counselling on a regular basis between 26 June 1997 and 6 May 1998. At that time her problems were described as:

“1.Acute stress from sexual assault by a male friend of her father (on 30.5.97) while (J) was

intoxicated (ethanol). She was experiencing depressed mood, patchy sleep, anxiety, fear, suicidal thoughts etc – in a fluctuating fashion;

2. Low self esteem, chronic – aggravated by the above mentioned assault and subsequent experiences.

3. Long standing family dysfunction with neglect and deprivation of (J’s) emotional, social, etc needs. 

4. Aggravation of the abovementioned problems by threats to her from peers at her school, some of them were friendly with the assailant. 

In addition to the other problems, (J) suffered from an acute or sub-acute PTDS (post-traumatic stress disorder) caused by the sexual assault on 30 May 1997.”

8. [8]
   According to Dr. Tucker, the applicant made good progress in therapy but still had some mild episodic post-traumatic stress disorder symptoms (including fearfulness etc) when last seen on 6 May 1998. The long term prognosis of her post stress disorder was said to be quite good, but because of the nature of the assault, reaction of some of her peers and her personal vulnerabilities caused by family dysfunction – the applicant’s symptoms were likely to persist for about five to ten years in an episodic fashion.

9. [9]
   After her discharge from the Mater Hospital Child and Youth Mental Health Service, her condition apparently relapsed and she presented for treatment at the Wynnum Adult Mental Health Service in March 1999:

“She presented with symptoms suggestive of a post-traumatic stress disorder subsequent to a rape almost two years prior.  This was characterised by tearfulness, panic attacks, disassociation and an eating disorder.  In addition, stresses related to isolation and bullying at school, unstable living arrangements and an ongoing dysfunctional relationship with her mother were persistent.  (J) responded well to therapy and problem solving strategies, and continued to actively pursue positive changes to her lifestyle.  This included reduction in alcohol and marijuana abuse, enrolment in ‘flexi school’ and finding more stable accommodation.  When last reviewed by a psychiatrist in December 1999, (J) was much improved in her mood and presentation.  Subsequently, (J) agreed follow up was no longer required and she was discharged from the Mental Health Service in February 2000.”

10. [10]
    On 6 September 2000 the applicant was seen by Dr. Barbara McGuire, a specialist psychiatrist. As a result of that consultation Dr. McGuire reported:

“I consider that she is suffering from post-traumatic stress disorder.  She has experienced flashbacks.  She demonstrated marked avoidance behaviour, being unable to go to the district where the man lives and avoiding all her peers who knew her.  She experiences sexual dysfunction and is toying with the idea of experimenting with lesbianism.  It seems highly probable that her sexual difficulties will affect her relationships with men and that this may be lifelong.  She has experienced self mutilating behaviour and an eating disorder.  I consider that these problems have been severe, but are now lessening to some extent and are at present moderate.  The disorder has persisted however from 1997 and it is only in the last two months that she has been discharged from psychiatric care. 

In my view, (J) did have problems which preceded the incident of abuse.  She appears to have had considerable problems with alcohol and marijuana, and in fact it was her dependence upon these substances which led her to the man who offended against her.  She has a strong family history of depression and was distressed by battles between her parents for custody of her.  Whilst it is difficult to separate these pre-disposing factors from the incident, her own assessment is that she would be making a good adjustment to adolescent life had it not been for the sexual abuse and that it has been responsible for her school failure and premature adulthood.  In my view, the sexual abuse is probably at this stage responsible for about 80% of her problems.”

11. [11]
    Following that report, Dr. McGuire was specifically asked to address the issue of the adverse impacts that Dr. McGuire considered the applicant suffered as a result of the offence committed upon her.

12. [12]
    Dr. McGuire expressed the opinion that:

“(J) did suffer a sense of violation and reduced perception of her self-worth.  As noted in my first report I do believe that she is suffering from post-traumatic stress disorder.  She has not contracted any disease or reduced physical immunity in capacity. She has increased feelings of security.  Her relationship with family have been adversely affected but were bad prior to the incident.  She has adversive feelings about sexual relations which have led her to think of experimenting with lesbianism.  She has had numerous adverse affects upon her feelings which have presented as psychiatric disorder characterised by self-mutilating behaviour and an eating disorder.”

13. [13]
    In cases of this nature there is almost always an overlapping between the elements of the injury constituting mental and nervous shock and the elements of the injury constituting the total adverse impacts of a sexual offence. Whilst the applicant must be compensated for all the component parts of her overall condition resulting from the offence, care must be taken to avoid compensating twice for the one symptom.

14. [14]
    In assessing compensation it must be recognised that compensation is intended to assist the applicant and is not intended to reflect the compensation to which the applicant may be entitled under a common law action. It must also be recognised that the maximum compensation provided under the Act and the Regulation is reserved for the most serious cases and the amounts provided in other cases are to be scaled down accordingly.

15. [15]
    As indicated in the medical reports all the applicant’s problems cannot be attributed to the offence committed upon her on 31 May 1996. Whilst no doubt that offence played a major part in the psychiatric and psychological problems that manifested themselves after the offence, the applicants family background and drug and alcohol consumption was a portent of the problems she later suffered.

16. [16]
    On the material before me a reasonable assessment of the applicant’s entitlement for mental and nervous shock is 20% of the scale maximum. A similar assessment of 20% of the scale maximum for the totality of the adverse affects of the sexual impact not already compensated in the assessment of her claim for mental and nervous shock would be reasonable.

17. [17]
    Accordingly, I order that the respondent pay the applicant the sum of $30,000 by way of compensation for injuries suffered by her as a result of the offence of indecent dealing of which the respondent was convicted on 27 January 1998.