DISTRICT COURT OF QUEENSLAND

1. [1]
   CLE, the applicant, has applied for compensation for the personal injuries she has alleged she sustained arising out of the criminal conduct of the respondent Trevor Allen Losch.

The Offences

2. [2]
   Losch was convicted on 28 July 2000 and sentenced on 24 August 2000 with respect to seven offences relating to the applicant, namely:

1. (a)
   Count 1 – Maintaining a sexual relationship with a child with circumstance of aggravation / Between 28^th day of October 1991 and 19^th day of February 1998 at Brisbane and elsewhere;

2. (b)
   Count 2 – Indecent treatment of child under 16 with circumstance of aggravation / Between 28th day of October 1991 and 2nd day of November 1992 at Brisbane;

3. (c)
   Count 3 – Indecent treatment of child under 16 with circumstance of aggravation / Between 1st day of February 1994 and 1st day of May 1997 at Bribie Island;

4. (d)
   Count 5 – Indecent treatment of child under 16 with circumstance of aggravation / Between 1st day of February 1994 and 1st day of May 1997 at Bribie Island;

5. (e)
   Count 6 – Indecent treatment of child under 16 / On 18th day of February 1998 at Brisbane;

6. (f)
   Count 7 – Attempted carnal knowledge of girl under 16 / On 18th day of February 1998 at Brisbane;

7. (g)
   Count 8 – Unlawful sodomy / On 18th day of February 1998 at Brisbane.

3. [3]
   As can be seen from the above, the offences occurred between 28 October 1991 and 19 February 1998 so that the applicant’s claim for criminal compensation is made under both Chapter LXVA of the Criminal Code (“the Code”) and s. 24 of the Criminal Offence Victims Act 1995 (“COVA”).

4. [4]
   It will be noted from the offences that one (Count 2) occurred prior to the commencement of COVA; three (Counts 6, 7 and 8) occurred after the commencement of COVA and three (Counts 1, 3 and 5) occurred during periods which spanned both the Code and COVA for the purposes of the assessment of criminal compensation.

5. [5]
   The offences were of a particularly heinous and abhorrent nature; Count 1 (Maintaining a Sexual Relationship with a Child with Circumstances of Aggravation) attracting a head sentence of 11 years imprisonment, with the other offences attracting terms of imprisonment from 18 months to six years. I note that those counts for which compensation is to be considered under COVA only (Counts 6, 7 and 8) attracted terms of imprisonment between two and six years.

6. [6]
   The applicant’s date of birth is 26 July 1985 and at the time of the commencement of these offences in October 1991 was only 6 years of age. The circumstances of her degradation at the hands of the respondent are set out in her statement dated 5 June 1999 to police and being Exhibit CLE1 to her affidavit dated 27 November 2003.

7. [7]
   The circumstances of the indecent treatment offences are as repulsive as they are criminal and involved the respondent either urinating or defecating on the applicant or requiring her to do the same to him.

8. [8]
   Similarly, the circumstances of the offences representing Counts 6, 7 and 8 of the indictment are equally as odious.

9. [9]
   The respondent’s mistreatment of the complainant continued over a period of six years and four months until the applicant was approximately 12 years and 7 months of age.

Applicant’s Injuries

10. [10]
    The applicant’s claim for compensation for the alleged personal injuries she sustained is essentially based upon the report of a consultant psychologist, Dr. Sue McCulloch^[1]who assessed the applicant on 20 October 2003 at which time the applicant was 18 years and 3 months. In addition to this the applicant herself swore in her affidavit of 27 November 2003 that she continues “… to suffer from the psychological effects of the experiences”.

11. [11]
    Dr McCulloch confirms in her report that she took into consideration the following matters in the preparation of her report, namely:

• information supplied by CLE at the interview on 20 October 2003;
• the Schonell Reading Test;
• the results of the Minnesota Multiphasic Personality Inventory 2 (MMPI 2);
• the results of the Posttraumatic Stress Diagnostic Scale (PDS) (used as a screening instrument only)

12. [12]
    Dr. McCulloch made the following observations and/or comments in the course of her report:

13. [13]
    Dr McCulloch then set out her opinion in the following terms:

“From all of the above, I am of the opinion that [CLE] continues to experience psychological effects from the sexual molestation that she experienced between the ages of 6 and 12 years.

Based on her personal report, and the objective assessment results, she appears to be experiencing some psychological symptoms that have escalated over time, as she has matured.  This has resulted in distress and restriction upon her regular life.

From the combined information documented above, I am of the view that [CLE] is displaying mild symptoms associated with a chronic Adjustment Disorder Unspecified (309.9) (American Psychiatric Association, 1994. p. 623).

All of the symptoms and difficulties are consistent with the type and circumstances of the experiences suffered by the client.”^[2]

14. [14]
    Dr McCulloch further stated:

“From all of the above I am of the opinion that the client has sustained problems and difficulties as a result of the number and repetition of the sexual and therefore emotional assaults upon her. 

In terms of the immediate effects at the time of the assaults I am of the view that as a child, the client would have been initially terrified but conforming to the adult directions. Over time, she is likely to have habituated to her stepfather’s expectations, but prior to an access visit, and whilst at his residence, she is likely to have felt significant fear and anxiety.

Her ability to have satisfying intimate relationships with specific others, and her ability to engage in interpersonal relationships with generalised others has been severely damaged. Further, her self-esteem has been significantly affected.

In terms of the ongoing effects upon her life, as noted above, I am of the view that [CLE] displays some symptoms of an Adjustment Disorder which, I consider, have arisen out of the protracted period of time that the experiences continued without any intervention.

Thus I am of the view that she has experienced 50% impairment in terms of her ability to conduct intimate relationships. In terms of her overall life, I estimate that she has suffered 15 to 20% impairment to her overall life potential.”^[3]

15. [15]
    Dr McCullough further stated that:

• The events have had a highly negative effect upon all aspects of the client’s life;
• She has friends but has difficulty permitting people to become too close to her;
• Part of this problem involves her having difficulties in trusting people;
• These issues together are likely to cause her to feel somewhat isolated and withdrawn into the future, and therefore affect all aspects of her future life;
• CLE requires psychological intervention;
• She would benefit from 12 sessions of counselling on a regular basis over 12 (months).

16. [16]
    Dr McCulloch’s prognosis is that while the applicant:

“… will always be affected to some degree by her experiences … nevertheless with therapy I would expect her condition to significantly improve and so the quality of her life to a relatively normal status.”^[4]

17. [17]
    Dr McCulloch’s conclusions are described as follows:

“From all of the above, I am of the opinion that [CLE] has sustained a psychological injury as a result of the alleged sexual and emotional assaults upon her (sic) by her stepfather. The trauma has seen her develop symptoms associated with an Adjustment Disorder, and thus she has thus suffered a reduction in her anticipated ability to get on with her life.”^[5]

The Submissions by Counsel

18. [18]
    Counsel for the applicant and respondent respectively tendered submissions to the court accompanied by a compendium of case law and other relevant material.

19. [19]
    The applicant contends that the adjustment disorder should be treated as mental or nervous shock and to the extent that it falls under COVA it should properly be treated as falling at the lower end of the severe range, with Item 33 (not 32) of the Schedule giving a range of “20%-34%”. I should therefore adopt a figure of 20% of the Scheme maximum, resulting in an award of $15,000 under this item.

20. [20]
    The applicant further contends that she is entitled to a further allowance under Regulations 1A and 2A of the Criminal Offences Victims Regulations 1995 (“the Regulations”), notwithstanding that the offences span both pieces of legislation.  The categories of “adverse impacts” applicable to the applicant under Regulation 1A(2) being:

• (a) a sense of violation;
• (b) reduced self worth or perception;
• (g) increased fear or increased feelings of insecurity;
• (i) adverse impact on lawful sexual relations;
• (j) adverse impact on feelings;
• (k) anything the court considers an adverse impact of a sexual offence.

21. [21]
    It is then submitted that I should adopt a figure which represents 20% under this head of damage, again reaching a figure of a further $15,000 in compensation.

22. [22]
    The other injury I am asked to assess refers to one of the indecent treatment charges, the date of which cannot be precisely identified and refers to the occasion when the respondent put one of his fingers into the complainant’s vagina, hurting her and causing some bleeding. It is suggested that I should make an award for this injury between $500-$750, whether it be under the Code (the lesser figure) or COVA (the higher figure).

23. [23]
    The respondent’s submissions are comprehensive and refer me to a number of relevant decisions, including the following:

• KAB v. DJB (2000) QSC 498;
• HV v. LN (2002) 1 Qd.R. 279; and
• LMW v. Nicholls (2004) QDC 118.

24. [24]
    The respondent submits that the “simplest and preferred method” I should apply in assessing the relevant amount of compensation where both the Code and COVA must be considered is to make an apportionment based on “time span”.

25. [25]
    In view of the nature of the offences, particularly the major offence contained in Count 1, I am of the view that this method of apportionment is appropriate and I note that Atkinson J adopted this method in making her assessment in the matter of KAB v. DJB (which has similarities to the instant case) referred to above.

26. [26]
    I therefore propose to apportion the compensation payable in this claim so that ⅔ thereof is assessed when the Code was the applicable legislation and ⅓ is assessed when COVA is the applicable legislation.

27. [27]
    It was further submitted to me on behalf of the respondent that I must consider the following two legal questions prior to assessing the compensation payable in this matter, namely:

1. What was the relevant statutory limit for compensation which applies to the applicant’s nervous shock claim? And

2. Was the respondent’s conduct one course of conduct such that the applicant is limited to one award of compensation, or was there more than one course of conduct which might allow the court to make more than one award?

28. [28]
    I was referred to a number of decisions of this Court including:

• Osborne v Bennett (Unreported, District Court of Queensland, Hoath DCJ, No 4606 of 1999, 11 February 2000);
• Barber v Gould (Unreported, District Court of Queensland, Samios DCJ, No D1466 of 2000); and
• Leigh v Griffiths (Unreported, District Court of Queensland, McLauchlan QC, DCJ, No 475 of 2000, 5 May 2000);

And also to the following Court of Appeal decisions, namely:

• HW v. LO (2001) 2 Qd.R. 415 and
• MAJ v. KM (2000) QCA 410.

29. [29]
    It was further submitted on behalf of the respondent that there is no evidence of physical injury but only psychological injury. I do not accept this submission as the evidence is that the applicant suffered a physical injury albeit that it was not major (see paragraph [22] above).

30. [30]
    I am further asked to adopt a “stepped approach” in my assessment and to examine the position under both Acts and reach my conclusions by applying the $20,000 limit under the Code and the approach adopted by McGill SC, DCJ and later approved by the Court of Appeal in the matter of JI v AV (2001) QCA 510.

31. [31]
    It is urged on behalf of the respondent that I should make no assessment under reg. 1A of the Regulations as the applicant has not established any “adverse impacts” which are not contained in the mental or nervous shock injury either under the Code or COVA.

32. [32]
    Ultimately, it is submitted on behalf of the respondent that I should make an award of compensation in the aggregate sum of $28,400 by assessing the applicant’s compensation under the Code in the sum of $13,400, being 67% of the maximum compensation allowed for nervous shock and $15,000 under COVA, being 33% of Item 33 of the Schedule, assessed at 20% of the maximum payable of $75,000, with no allowance to be made for any “adverse impacts” under reg. 1A(2) of the Regulations.

33. [33]
    Counsel’s calculations in paragraph 8.1 of his submissions do not take into account the apportionment I must make in any assessment under COVA or the Regulations, which in view of my conclusion under paragraph [26] hereof, would reduce his figure from $15,000 to $5,000 making his suggested total award calculation $18,400 not $28,400.

34. [34]
    The question then is under what categories do the applicant’s injuries fall?

35. [35]
    Apart from the physical injury referred to previously, the applicant’s injuries are either mental or nervous shock and/or the extent of any prescribed injury defined in reg.1A of the Regulations.

36. [36]
    With respect to the physical injury I assess the applicant’s compensation in the sum of $500 bearing in mind that it is impossible for me to say under which piece of legislation I make such an assessment as there is no specific evidence as to whether the offence occurred before or after 18 December 1995. However, doing the best I can by reference to both pieces of legislation I am of the opinion that $500 is reasonable compensation for this physical injury including any apportionment.

37. [37]
    My next task is to determine whether the applicant has suffered mental or nervous shock and if so the extent of that injury.

38. [38]
    As I have set out in some detail above, the applicant’s evidence of injury is essentially that contained in the medical report of Dr Sue McCulloch, apart from the applicant’s own sworn evidence.

39. [39]
    What amounts to mental or nervous shock has been the subject of much judicial discussion. See R v. Kazakoff ex parte Ferguson (2001) 2 Qd.R. 320 and the various decisions of this Court referred to therein.

40. [40]
    As Thomas JA held in Ferguson v. Kazakoff:

“Compensation for mental or nervous shock is not limited to cases where there is a diagnosable mental disorder or psychiatric illness resulting from the criminal offence, although it must be more than fear, fright, unpleasant memories or anger or other adverse impact on feelings.”

41. [41]
    As Atkinson J stated in JI v AV’s case, the courts have interpreted mental or nervous shock in the compensation table broadly.  It does not require a diagnosed psychiatric illness.  This statement echoes that of Wilson J in M.R. v. Webb [2001] QCA 113, who said in discussing the question of whether compensation should have been awarded under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence”^[6]:

“The principal submission on appeal was that the judge erred in awarding compensation under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence.” I have set out the ranges within which he could have made an award under either head. I am not persuaded that the appellant was denied compensation for elements of her emotional condition because the primary judge adopted the mental or nervous shock rubric. It is often the case that an applicant’s injury could be categorised under more than one head in the compensation table. Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim. Professor Nurcombe identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric illness. However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness; indeed in the days before the introduction of the Criminal Offence Victims Amendment Regulation (No 1) 1997 (Qld), awards were regularly made under that head for emotional disturbance falling short of such a diagnosis.”

42. [42]
    In this matter Dr McCulloch has opined that:

“From the combined information documented above I am of the view that CLE is displaying mild symptoms associated with a chronic adjustment disorder unspecified (309.9) (American Psychiatric Association 1994 p. 623).”

43. [43]
    She further stated that the applicant:

“… has experienced 50% impairment in terms of her ability to conduct intimate relationships.  In terms of her overall life I estimate that she has suffered 15%-20% impairment to her overall life potential.” [see paragraph 13 above].

44. [44]
    In all the circumstances I find that the applicant has suffered mental or nervous shock as a result of the respondent’s criminal behaviour to her over a period in excess of six years between October 1991 and February 1998.

45. [45]
    With respect to the applicant’s claim under the Code, the court must determine whether the applicant should be compensated for individual offences, a course of conduct or courses of conduct. Factors relevant to the question of whether the offences arose out of one course of conduct or closely related courses of the respondent were enunciated by the Court of Appeal in MAJ v. KM (2000) QCA 410.  They include the similar but escalating nature of the respondent’s conduct and the fact that the offences occurred in similar circumstances and formed part of a pattern of similar offences occurring on a regular basis.

46. [46]
    The Chief Justice in HW v. LO found in that case that although the offences arose out of the same relationship effected by “guilty passion” on the part of the respondent it was not enough to establish a “course of conduct” because the offences were too far distant and separated in time and place.  As His Honour held, the appropriate test was as follows:

“In determining whether courses of conduct are ‘closely related’ those Code provisions invite analysis of the relationship between pieces of conduct by reference to their nature and the periods of time separating them.”^[7]

47. [47]
    In this case I find that in respect of those offences for which compensation is claimed under the Code, they are so closely related that they form a single course of conduct or closely related courses of conduct of the respondent so that the maximum sum available upon which compensation is to be assessed is $20,000 in total.

Assessment under Criminal Code

48. [48]
    With respect to the quantum of the applicant’s compensation under the Code I have been referred to a number of decided cases namely,

• R v. H; ex parte I, (as noted in Criminal Compensation Notes, p. 7-34);
• R v. N; ex parte NA, (ibid, p. 7-74);
• R v. R; ex parte RA, (ibid, p. 7-76);
• R v. J; ex parte JA, (ibid, p. 7-79);
• R v. D; ex parte B & Q, (ibid, p. 7-85);
• R v. John Frederick Crowther; ex parte X, (ibid, p. 7-89);
• R v. Frank Tibor Demeter; ex parte A, (ibid, p. 7-61);
• R v. ZC; ex parte ZD, (ibid, p. 7-31);
• R v Frederick George Dufficy; ex parte B, (ibid, p. 7-64); and
• R v HA; ex parte A, (ibid, p. 7-40);

I note from these cases that the maximum amount of $20,000 has been awarded for mental or nervous shock in many instances but in the main where the residual effects on the victims at or about the same age of this applicant have been greater.

49. [49]
    If I were assessing this applicant’s quantum wholly under the Code, I would assess it in the sum of $15,000 as despite the nature of the trauma to which the applicant was subjected by the respondent, her residual disability does not appear to be as devastating as it might have been.

50. [50]
    In the circumstances, I assess her compensation under the Code in the sum of $10,000 after taking into account the apportionment factor.

Assessment under COVA and the Regulations

51. [51]
    With respect to my assessment under COVA I accept the submission made on behalf of the respondent that I need to adopt a two stage approach which was the approach adopted by McGill SC, DCJ in the matter of JI v AV and later approved by the Court of Appeal. 

52. [52]
    His Honour’s approach was firstly to identify whether there were any conditions compensable under s.20 and secondly, to determine if there were any other adverse impacts compensable under Regulation 1A which did not constitute an injury under s. 20.

53. [53]
    His Honour has more recently repeated this method of a “stepped” approach in LMW v. Adam John Nicholls (2004) QDC 118.

54. [54]
    I have already set out in some length the applicant’s mental or nervous shock injury contained in Dr McCulloch’s report and I have had the advantage of reading the judgment of McGill SC, DCJ in LMW v. Nicholls above which I have found very useful and informative as there are similarities between that case and the instant case. 

55. [55]
    It is unnecessary for me to repeat McGill SC DCJ’s summary at paras. [42] to [46] inclusive of his judgment, wherein he refers to a number of judgments of this court where assessments for mental or nervous shock have been made under one or other of Items 31 to 33 of Schedule 1 of COVA, but after considering the evidence in this case, and a number of the decisions referred to by McGill SC DCJ I am of the opinion that the applicant’s mental or nervous shock injury should be classified under Item 32 on the basis that it is within the moderate range, though at the upper end of that range, and I make the assessment at 20% which equates to the sum of $15,000.

56. [56]
    I therefore assess the applicant’s compensation under COVA in the sum of $5,000 after taking into account the apportionment factor.

57. [57]
    With respect to the “adverse impacts” element of this claim, I have again found the comments by McGill SC DCJ at paras [47] to [49] of his judgment very useful and confirm that it is not without difficulty to come to a conclusion in a matter such as this as to whether the applicant has sustained an injury under Regulation 1A in addition to the injury under s. 20 of COVA.

58. [58]
    Notwithstanding the submissions made on behalf of the respondent, I am of the opinion that the applicant has also suffered an injury under Regulation 1A and in this respect I rely upon that part of Dr McCulloch’s report on p. 8 which refers to the effect the various “problems” have had on the complainant relative to her:

“ (a) relationships with friends;

2. (b)
   schoolwork;
3. (c)
   fun and leisure activities
4. (d)
   relationships with her family
5. (e)
   sex life
6. (f)
   general satisfaction with life
7. (g)
   overall functioning in all areas of her life.”

59. [59]
    I would equate the above matters as falling within sub-paragraphs 2(h) to 2(k) inclusive of Regulation 1A.

60. [60]
    In respect of this injury I assess the applicant’s compensation on the basis of 10% of the Scheme maximum pursuant to s. 25(5) of the Act, which equates to a sum of $7,500 before the apportionment.

61. [61]
    I therefore assess the applicant’s compensation under the Regulations in the sum of $2,500 after taking into account the apportionment factor.

62. [62]
    On the basis of an apportionment of one third of the applicant’s compensation to be assessed under COVA and the Regulations, her total compensation under this legislation amounts to the sum of $7,500.

Conclusion

63. [63]
    I therefore order the respondent to make compensation to the applicant in the total sum of $18,000, calculated as follows:

64. [64]
    As the applicant is entitled to her costs in respect of her claim under the Code, I further order that she be entitled to recover two thirds of her total costs of this application to be assessed or agreed under the District Court Scale where the amount recovered is less than $50,000.