B v B[2005] QDC 287

DISTRICT COURT

CIVIL JURISDICTION

JUDGE BRABAZON QC

[2005] QDC 287

No D76 of 2004

B Applicant

and

BFirst Respondent

MARYBOROUGH

DATE 26/08/2005

ORDER

HIS HONOUR: This is an application for criminal compensation according to the Criminal Offence Victims Act. A young man was convicted on his own plea of guilty on the 12^th November 2003. He pleased guilty to one count of indecent dealing with a girl under the age of 16 years between 13 and 26 July 2003.

The girl was a Year 8 student at a high school. The boy was a Year 11 student at the same high school. She was 12 years old and he was 17 years old. She went to that school about two weeks before the June/July school holidays. She met the boy on her return to school, and this incident took placed after she had been at school, it seems, for about three weeks altogether.

Four students, two girls and two boys, including these two, agreed to go and smoke in the boys’ toilets. They did that and the other two left. These two then kissed, and after a little time he asked her to suck his penis. She agreed and did so for a very short time. They then left and returned to their classes.

According to her statement to police, the girl told a classmate about what had happened on the basis that the classmate would not tell anyone. A few days after the incident she wrote to the boy, telling him that she did not mind mucking around, but there was to be just kissing and not the other stuff. She also said that she would only keep mucking around with him if it were just her and not any other girls. She said that, because she believed that he was, as she put if “hitting on heaps of other girls”.

She says that he wrote her a note back, which was rather dismissive. He said that he liked her more than a friend, but did not want to go out with her because he was having too much fun with everybody else. The note then ended with an obscene suggestion.

A few days later she went back into the boys’ toilets to smoke a cigarette with the same boy. There is no suggestion that any sexual activity took place on that occasion. However, her visit there came to the attention of the teachers and she was suspended from the school for two days.

The result of the suspension was a traumatic one for her and the boy. That is, it coincided with the students at the school knowing about the sexual act that took place on her first visit. Secondly, her parents learned about the first visit and, not surprisingly, were most upset and complained to the school at length and to the police.

After a time the boy was charged by the police and expelled from the school, but there was a considerable time when they were both students there together, with their activities being public knowledge at the school.

It is clear from the evidence that she had a difficult time in joining this new school. She was bullied, to the extent that at least one of the teachers spoke to her about it.

There is no doubt on the evidence that the unpleasant attention she received from the other children greatly increased after the incident became known at the school. The result was that she was taken away by her parents and started schooling at home, using distance education.

Outwardly, as her statement would indicate, this event had no apparent impact on her, but her evidence should be accepted to the effect that she was doing her best to cover up her true feelings about the matter. It is clear that she was very distressed about the situation in which she found herself after it became known to the students, the teachers and her parents.

It is suggested here on behalf of the boy that any emotional or psychological impact upon her was due to the conduct of other children and her parents, and not because of the boy’s act in the toilets.

It is true that a convicted person is not liable for late, unconnected events or traumas which make the condition of a victim worse. However, a convicted person is liable for the direct and expected consequences of an offence.

In this case the response of the other children, the teachers, the boy and her parents were all direct and unsurprising consequences of what he did. Because they were both at school together for a time in that situation, the matter became intolerably stressful for her. It should be accepted that she be compensated for an injury to her mental health which went beyond mere upset and distress.

First of all it is necessary to turn to the provisions of the Criminal Offence Victims Act. It was suggested on behalf of the boy that there could be no recovery of compensation because she was a party to his offence – that is, a party because of the provisions of the Criminal Code (see section 19(2) of the Act).

Alternatively, it was suggested that any award should be discounted because of the provisions of section 25(7) of the Act which say this:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

In this case, she was an intelligent 12 year-old. She knew what she was doing was wrong and that she ought not to do it. That leads to the question of whether or not she can be seen as a party to his offence.

The position in Queensland is not entirely clear. However, the time has come, in my opinion, to accept that the offence of indecent dealing is for the protection of children and not their punishment. As a matter of interpretation of the Code it should be accepted that the law would not regard her as a party to the offence.

The authorities which touch on this question are Giorgianni v R (1985) 156 CLR 473, R v Maroney (2000) QCA 310, Hahn v King (2004) QCA 254, R v Sneesbury (1951) 45 QJPR 61, M v B (2004) QSC 432 and Whitehouse (1977) QB 868.

It is therefore necessary to decide if she should recover anything and what amount, having regard to her contribution to the event that happened.

The dominant facts are these: they were both students at the same school. Their ages in relative terms were quite different. She was in Year 8, he was in Year 11. The suggestion about oral sex came from him. On the other hand, she readily consented and she knew it was wrong. In her favour it might be pointed out that she stopped after a very short time. The event followed smoking and kissing in the toilets.

All things considered, it is appropriate to reduce the compensation that she would receive by one-third on account of her own conduct.

It should be explained that the girl gave evidence in Court because there was a need for proof of the matters that she told her psychologist, and in my opinion it would have been unfair to the boy to have her untested evidence remain as the basis to the compensation claim. That also gave her an opportunity to say what her present position was, bearing in mind that she had last seen the psychologist, Ms Morgan, at the end of 2003.

Ms Morgan saw then a girl suffering from considerable distress with significant symptoms of damage to her mental health. Her findings were consistent with her parents’ observations in their affidavits that their daughter was very much disturbed by these events.

The psychologist concluded her report this way:

“She] was a 12 year old girl when the sexual assault occurred. While she had attempted to block the assault, she reported a range of somatic disorders, including sleep disorder, eating disorder, labile mood, low energy levels and reduced concentration and motivation. Her description of the assault, while guarded, exposed a sense of violation, reduced self-worth, feelings of insecurity and difficulty coping with her family and friends as a direct consequence of the assault. She remained vigilant and suspicious of the motives of everyone and had an aversive reaction to sex.

Based on the evidence presented at interview and from documents tendered, she had significant symptoms consistent with an adjustment disorder with mixed mood and behaviour.”

Ms Morgan relied upon the DSM manual with respect to that diagnosis. According to the diagnostic criteria these matters are important:

1. “A.
   The development of emotional or behavioural symptoms in response to an identifiable stressor occurring within three months of the onset of the stressor.

1. B.
   These symptoms or behaviours are clinically significant as evidenced by either of the following:

1. (1)
   marked distress that is in excess of what would be expected from exposure to the stressor

1. (2)
   significant impairment in social or occupational (academic) functioning.

1. C.
   The stress-related disturbance does not meet the criteria for another specific Axis I disorder …”

Ms Morgan explained that in her view this was not a case of post-traumatic stress disorder which would have been more serious. Ms Morgan’s opinion should be accepted that this was a type of mental illness which went beyond mere distress or upset at a very unpleasant event. It was at a difficult time in her life. She can be compensated for it under the category of mental or nervous shock in the table of the Act.

Ms Morgan saw the girl give evidence in the courtroom. She explained that with respect to some of the significant matters which were affecting her at the end of 2003, she was now feeling better. She reported doing better in her academic work, having recently got an A plus for an assignment.

Ms Morgan explained that the symptoms, as might be expected, were fading, but that the underlying damage would remain, particularly in the sense that she would be more vulnerable in the future to any event of a similar kind.

The scheme maximum is $75,000. That is to say, awards under this scheme have nothing to do with damages for personal injury. Rather, they are meant to be amounts designed to help a victim of a crime. The Court has to take into account the situation of a victim compared to the worst case for which the highest award is reserved.

Awards for nervous shock are permitted to be made in the range of 2 per cent to 34 per cent of the scheme maximum. That 34 per cent, in effect, is meant to be for the worst cases of nervous shock.

Bearing in mind the impact on this young girl – and it has been a severe impact – the appropriate award is 20 per cent in her case. That is $15,000. When it is reduced by one-third the result is that compensation of $10,000 must be paid.

In the usual way there has to be an order involving the Public Trustee.

The order of the Court is that:

1. The respondent pay to the applicant the sum of $10,000 by way of criminal injuries compensation for injuries suffered by her by reason of offences resulting in his conviction on the 12^th of November 2003.

2. Any moneys paid to the applicant by way of compensation are to be paid to the Public Trustee of Queensland for and on behalf of the applicant pursuant to the Public Trustee Act 1978.

3. The Public Trustee is to hold such moneys as a separate trust fund in trust for the applicant until she attains the age of 18 years, such fund and the income thereof to be applied in such manner as the Public Trustee thinks fit for the maintenance, education or otherwise for the benefit of the applicant.

4. The Public Trustee of Queensland pay to the applicant’s solicitors out of the funds held for the applicant the costs of the application assessed on an indemnity basis, provided always that the Public Trustee of Queensland may, without requiring such assessment if it is considered reasonable to do so, agree to the payment to the solicitors for the applicant of such sums as appear to the Public Trustee to be reasonable.

5. The solicitors for the applicant are to serve a copy of this order on the Public Trustee.

6. The applicant, the respondent and the Public Trustee each have liberty to apply.