DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence (Victims) Act 1995.  On 19 July 1999 the respondent was convicted on a plea of guilty of one count of unlawful carnal knowledge of an intellectually impaired person and one count of indecently dealing with an intellectually impaired person.  He was sentenced to a term of imprisonment.  The offences occurred in January 1997.  The applicant was the complainant in respect of both charges.  It was not disputed that the offences were personal offences as provided in s 21 of the Act.

2. [2]
   The application seeking compensation was filed on 2 July 2002 and it is within time.  The respondent appeared by counsel at the hearing of the application but only for the purpose of making submissions:  no witnesses were cross-examined.  The application was brought on behalf of the applicant by her litigation guardian, her mother.  There was also material from a psychiatrist, Dr White, who examined the applicant for the purposes of a report to her solicitor in July 2004.

3. [3]
   The applicant relied on two injuries caused by these offences,

1. (a)
   mental or nervous shock, in the form of post-traumatic stress disorder; and

2. (b)
   the injury prescribed by section 1A of the Criminal Offence (Victims) Regulation 1995, namely the totality of the adverse impact of sexual offences suffered by the applicant, to the extent to which the impacts are not otherwise an injury under s 20.

4. [4]
   The evidence in support of the application includes a statement to the police, which suggests that the sexual activity was not consensual. However, the respondent has not been convicted of rape or sexual assault, and in the course of my sentencing remarks I indicated that the respondent had initiated the sexual activity but he was sentenced on the basis that it was consensual. I must proceed on the same basis for the purpose of this application.^[1]  The material also indicates that it was not the first occasion on which the applicant has been the subject of a sexual offence.  There was tendered a report of Dr Reddan, a psychiatrist, dated 22 August 1997 which refers to an incident in about 1994, while the applicant was in employment, when she was sexually assaulted by a co-worker in a carpark.  That report was prepared after the present offences were committed, but is directed to the consequences of the 1994 offence, and specifically the question of whether the applicant would be able to manage herself any compensation paid to her as a result of that offence.

5. [5]
   On the second page it records that the applicant reported she had largely recovered from the effects of the assault. Counsel for the respondent submitted that that was a reference to the assault the subject of the present application, but there is no other reference to that assault in the course of the report, and in my opinion a more likely explanation is that that was a reference to the assault referred to on page 1 of the same report, that is, the 1994 assault.

6. [6]
   The other matter that is of some significance in relation to this report is that, insofar as it reveals her then current mental state, it shows that the applicant was not at that stage significantly distressed by the events of January 1997. At that stage the applicant was living in her own unit, with her father although that was temporary following the separation of her parents. She did her own housework, shopping and cooking, although with some assistance with budgeting. At that stage her mood was normal and there was no evidence of pervasive hyper-arousal; she was optimistic about her future, although she appeared to have low self-esteem and little self-confidence. I think it likely that if there had been any significant after affects of the relevant offences at that stage, Dr Reddan would have reported them. Dr White was aware of the report of Dr Reddan.

7. [7]
   More information about the applicant’s underlying condition is available in a report from a neurologist, Dr Appleton, dated 11 July 2003.^[2]  Dr Appleton reported that the applicant was born on 13 August 1968 so she is now 36.  At eight years of age she had severe post-measles encephalitis which left her with a degree of mental impairment and an ongoing seizure disorder.  In August 2000 she was taking medication to control the epilepsy.^[3]  

8. [8]
   The affidavit from the applicant’s mother alleged that the applicant did not discuss what occurred with her until some time after the incident, something she blamed on a counsellor from a particular organisation. But the report from that counsellor^[4] stated that as soon as the details of the offence were disclosed to her there was some discussion about the applicant’s options and the applicant decided to report the matter to the police, which was done the following day when a statement was made.  That counsellor was subsequently involved over a period of almost three years in providing support, either in connection with court proceedings or in individual support sessions.  She reported the applicant found the experience confusing and painful, and she did not understand why the respondent had done what he did, and was angry towards him about the situation she was in.  She had feelings of guilt and self doubt, she did not want to see him again, and had difficulties in sleeping and in feeling safe and secure.  She had great difficulty with the legal procedures, and the counsellor thought she never really understood them.  This evidence indicates that by the latter part of 1999 the applicant was certainly having continuing difficulties.

9. [9]
   The applicant’s mother provided some record in her affidavit of observations of the applicant, but unfortunately this material does not contain any dates, and accordingly is difficult to relate to the other evidence. She said that the applicant was unable to eat or sleep and lost a significant amount of weight in the time following the offences: paragraph 8.  Because no date is given it is not possible to tell whether this can be reconciled with the report from Dr Reddan.  At some time the applicant came back to stay at the family home, where she became physically aggressive, cried easily, and was generally sad, but did not explain why.  Apparently she obtained other employment following the time when she was seen by Dr Reddan, but that work did not continue.  After about three years she obtained sheltered employment for four days per week, which involved lengthy travelling.

10. [10]
    The applicant’s mother expressed the view that the applicant now lacks confidence and easily becomes quite anxious, increasingly vague and slower in processing of information and carrying out tasks, fearful of doing the wrong thing, and quite isolated. She has become quite security conscious, and her stuttering has become worse. She is concerned that the applicant has lost the capacity to live independently.

11. [11]
    Dr White first examined the applicant in 2003, when he saw her at least three times. He provided a preliminary report dated 24 April 2003 to the applicant’s solicitor.^[5]  He believed that the applicant was then suffering from post-traumatic stress disorder.  In his further report of 7 July 2004,^[6] he records problems with sleeping, and nightmares, and a reluctance to go out on her own.  She has also become extremely sensitive to criticism, and easily upset.  A mental state examination did not reveal any abnormalities.  Nevertheless he concluded that she was still suffering from post-traumatic stress disorder, although it had been late onset and was not present in August 1997.  He described it as being of moderate severity, but likely to persist and worsen without treatment.  He did not think there were any contributing factors which could have affected the condition, particularly rejecting the pre-existing intellectual disability.  He did not explain the exclusion of other factors since August 1997 as contributing factors to the development of the condition, or why in this case the disorder took so long to develop.

The regulation injury

12. [12]
    The other matter raised in Dr White’s report was the question of overlap between the post-traumatic stress disorder and the adverse impacts under the regulation. He expressed the opinion that all of the matters in the regulation can be contained within the diagnosis of post-traumatic stress disorder. He listed various impacts suffered, and for most of these that conclusion is obvious enough. One referred to was the adverse impact on her of the reaction of others. That is not necessarily part of post-traumatic stress disorder, but it may be that what the doctor is referring to is either the reaction of others to her symptoms of post traumatic stress disorder, or that the post-traumatic stress disorder has been made worse by the reaction of others. The effect of the reaction of others can be an adverse impact independent of the post-traumatic stress disorder;^[7]  whether or not it is in the particular case depends on the facts of the case.  Unfortunately I have in relation to this only the bare conclusion of the doctor.  There is nothing in the material which identifies any particular reaction of other people which could produce an adverse impact.  In these circumstances I am left with no choice but to accept the approach of the doctor.

13. [13]
    Notwithstanding this evidence, it was submitted on behalf of the applicant that there were adverse impacts not covered by the post-traumatic stress disorder, in the form of increased fear or increased feelings of insecurity, loss of ability to care for herself and loss of employment or employment opportunities. There is evidence that the applicant did lose some employment, but there is no evidence that this was as a result of the offending, either directly or indirectly. The position may simply be that she proved to be unable to cope with the employment. For all I know the employment was lost before the post-traumatic stress disorder developed, and for reasons not associated with these offences. I am therefore not persuaded that that adverse impact is shown to have occurred as a result of these offences. The increased fear or increased feeling of insecurity is in my opinion part of the post-traumatic stress disorder. Indeed Dr White said as much.

14. [14]
    Another adverse impact relied on was the loss of the support network of the family. This is only mentioned by the applicant’s mother, related to her allegation that the counsellor who first spoke to the applicant advised the applicant not to discuss the offences with her family, or another support worker from another group. But that only kept the circumstances of the offence from those people, and the report of Dr Reddan indicates that there was no particular problem with the general relationship with the mother, or the availability of support from the mother and others, as at August 1997. If the support network has subsequently deteriorated in other respects, that is likely to be a consequence of the development of the post-traumatic stress disorder, and therefore not a separate impact. I think the same applies in relation to the breakdown in the ability to manage her own life; that is really a consequence of the development of the post-traumatic stress disorder, or at least the evidence does not show that it is not. In all the circumstances I am not persuaded that the evidence demonstrates that there has been any adverse impact to the applicant which is outside the scope of the post-traumatic stress disorder. Accordingly it is simply a matter of assessing an appropriate award for mental or nervous shock in accordance with the schedule.

Assessment

15. [15]
    Dr White referred to the condition as being of moderate severity and as likely to persist and perhaps worsen if the applicant did not receive treatment. I think it follows that the disorder would be assisted by treatment, and I should proceed on the assumption that the applicant will receive treatment which is likely to assist her and diminish the effects of the condition. Although the onset of the condition was delayed, quite some time has now passed since the time of the offending, and the applicant will be in much the same position as if the condition had arisen immediately, but had then slowly abated over a few years. For reasons I gave in LMW v Nicholls [2004] QDC 118, this suggests an award in the range of 10 percent to 15 percent. 

16. [16]
    Dr White was not very forthcoming about the detail of the consequences to the applicant of the condition, but the description in the affidavit of the applicant’s mother is quite different from the description of the applicant’s life in the report of Dr Reddan, which suggests that the applicant has become significantly more withdrawn, and is quite preoccupied with this offending, which indicates an award towards the higher end of the range. In all the circumstances I will allow 14 percent, which when applied to the scheme maximum is an amount of $10,500.  There is no basis for concluding that the applicant contributed either directly or indirectly to her injuries, or that for any other reason the compensation should be reduced under s 25(7) of the Act.

17. [17]
    I therefore order that the respondent pay the applicant $10,500 compensation for the injury suffered by her because of the offences for which the respondent was convicted in this court on 19 July 1999.