TJM v EJA[2006] QDC 390

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application for compensation under the repealed provisions of the Criminal Code and under the Criminal Offence Victims Act.

The applicant (TJM) was born on the 13th of July 1982.  She was sexually abused by her foster father from about the age of three and a-half years commencing in about 1985 until she was 16.

In the District Court at Townsville on the 19th of August 2002 the respondent (EJA) was convicted of the following offences involving the applicant:

1. Maintaining a sexual relationship with a child with a circumstance of aggravation between the 26th of July 1985 and the 12th of July 1998.

2. Indecent dealing with a child under 16 years between the 1st of January 1992 and the 23rd of March 1993.

3. Attempted rape between the 27th of July 1993 and the 31st of December 1994.

4. Rape on about the 13th of May 1997.

The Court of Appeal subsequently amended the first date in the first charge to read the 3rd of July 1989 and not the 26th of July 1985 because there was no offence of maintaining until 1989.  The period of the maintaining for compensation purposes is therefore about nine years.  The Criminal Offence Victims Act commenced on the 18th of December 1995, therefore about six and a-half years of the maintaining occurred before then commencing (for compensation purposes) when the applicant was aged about seven years and about two and a-half years occurred after then.

The second and third offences were committed before the 18th of December 1995 and the fourth offence after that date.  The facts are summarised as follows in the applicant's outline of argument:

1. "3.1
   The Applicant was born on 13th July 1982 and says that the Respondent, her foster father, would look after her from when she was about 3½ years of age (about 1986).  Almost immediately, instances of abuse commenced.  The abuse consisted at this time of the Respondent laying beside the Applicant, exposing his penis and asking the Applicant to touch it.  At first the Applicant refused to accede to the Respondent's requests.  By the time the Applicant was 4½ years of age (1987) the Respondent progressed to laying atop the Applicant and placing his erect penis between her thighs and move back and forth.  When the Applicant attempted to scream the Respondent would place his hand over her mouth and quieten her.  The Applicant was now touching the erect penis of the Respondent upon demand and to masturbate the Respondent to ejaculation.  The Respondent would simultaneously fondle the Applicant's chest and vagina on the outside of her clothes.  However, the Indictment No. DCR 365 of 2002 (Exhibit TJM 2) as amended (see Exhibit TJM3) charged only maintaining an unlawful sexual relationship from 3rd July 1989 to 12th July 1998, in the course of which the Respondent unlawfully and indecently dealt with, attempted to rape and raped the Applicant - because there was no offence of maintaining prior to 3rd July 1989.

1. 3.2
   When the Applicant was 7½ years of age (about early 1989/90) the family had moved to Bluewater.  The Respondent would take the Applicant to the local dump where he had pre-prepared a lean-to structure complete with mattress and pillow.  The Respondent would require the Applicant to remove her pants and knickers and lay upon the mattress, whereupon the Respondent would lay upon the Applicant and place his erect penis between her thighs and move it back and forth.  The Respondent would also insert his finger into the Applicant's vagina.  This action 'hurt' the Applicant and she would tell the Respondent that it hurt and tell him to get off her.

1. 3.3
   For a period of time when the family lived at Echlin Street, West End, Townville (during the period approximately 1990 - 1991) the Respondent's behaviour ceased.

1. 3.4
   The family moved to Kirwan in about 1992 when the Applicant was about 10 years of age.  The Respondent re-commenced abusing the Applicant at this time.  The conduct escalated to a point where the Respondent would attempt to insert his penis into the Applicant's vagina.  The Applicant said it 'hurt' and she yelled at the Respondent to get off her.  The Respondent also started ejaculating onto the Applicant's belly.  The Respondent continued the habit of inserting his finger into the Applicant whilst masturbating.  This type of conduct continued until the Applicant was about 13 - 14 (1995/6).

1. 3.5
   When the Applicant was about 13 - 14 (1995/6) the Respondent commenced vaginal intercourse with the Applicant.  Sometimes the Respondent would ejaculate inside the Applicant and other times on her belly.  The Applicant became pregnant when she was 14 years of age (about May 1997).  The Applicant's child, Marika was born by caesarean section on 13th February 1998.

1. 3.6
   As a result of the pregnancy the Applicant did not complete her schooling.

1. 3.7
   The Respondent initially wanted the Applicant to have the pregnancy terminated but the Applicant refused.  After the birth the Respondent gave the Applicant little or no assistance with the child.  The Respondent continued to have sex with the Applicant.  The child has a strong resemblance to the Respondent.  The Applicant began having hallucinations about the Respondent harming the baby and finally reported the abuse to authorities.

1. 3.8
   During the years of abuse the Respondent would beat the Applicant with a jug cord.  The Respondent also threatened the Applicant with removal from the family unit by authorities.  Other times the Respondent would give the Applicant extra pocket money.  The Respondent is a big man of about 6' 5"."

The facts are also referred to in the applicant's police statement dated the 29th of November 1999 and I need not repeat them here.

Clearly no behaviour of the applicant contributed directly or indirectly to her injuries.

In sentencing the Respondent I said:

"EJA, these are extremely serious offences that the jury have convicted you of.

These offences were committed from the time the complainant, TJM, was just three until she was 16.  For all of her recollected young life, commencing at the age of three, you commenced to abuse her.  You gradually, but continually, seriously and persistently, sexually interfered with her at increasing, and serious levels of offending.

You have caused irreparable, lasting, and I consider permanent mental damage and scarring to this girl.  You have deprived her of a normal childhood.  You have destroyed her childhood.  You dominated her in a sexual sense, for all of her young life until she got away from you.  Your offending consisted of serious indecent dealing, attempts at rape, rape.

The offences indicate an escalating pattern of offending.  You grossly and seriously breached and abused the trust which were reposed in you as a foster father to her as a foster daughter.  Force was used and threats were made.

The jury's verdict on counts 2, 3 and 4 supports a conclusion that the verdict on count 1 is based on multiple-like conduct over a long period of time, that is over the period of time, the subject of count 1.

The child that TJM conceived, as a result of your offending, will always remind her of your conduct towards her.

TJM has suffered significantly and considerably as a result of what you did.  And, in that respect, I refer to the following statements which are made in the pre-sentence report and the attached reports of Dr Richards, the psychiatrist, and Mr Walkley, the psychologist.

In the pre-sentence report at page 5, paragraph 6.1, the following passage appears:  'She' that is TJM, 'admitted that her daughter was removed from her because she feared she might harm her due to her inability to cope with the emotional trauma of the sexual abuse to which Marika' that is the child, 'was a constant reminder.'

Paragraph 7.3:

'Ms TJM left school at the age of 15 because of pregnancy.  She has not attended any form of education since then.'

Paragraph 12.8:

'Following the birth of Marika, Mrs Kemp, who is her aunt and closest relative, witnessed a change in Miss TJM.  This included volatile behaviour, visual hallucinations, flashbacks, hyper vigilance, emotional instability and high mobility.  Miss TJM admitted to her that she had thoughts of harming Marika as she was a constant reminder of the sexual abuse.  Marika was subsequently placed in foster care and Miss TJM sought brief intervention from Mental Health Services.'

Paragraph 12.9:

'Mrs Kemp described Miss TJM as being very confused, angry, fearful, exceedingly distrustful, afraid to be on her own, unable to sleep for fear of nightmares and tormented by her past.  Miss TJM was said to be unable to settle down, frequently moving from house to house and town to town and often living on the streets.  She likened Miss TJM to a lost soul, restless and not knowing where she belonged.  She attributed Miss TJM's development of offending to her history of sexual abuse, lack of appropriate parenting, lack of support from departmental agencies and other family members, and association with other equally troubled juveniles.'

You therefore play a part.

She has, as a result of what I have learned from sentencing her recently for a number of offences, apparently ceased moving from house to house.  She is living with her brother, in Townsville, and is no longer apparently living on the streets.

In paragraph 13.4 of the pre-sentence report there is this passage:

'With regard to the impact of sexual abuse on Miss TJM's offending, there is strong evidence to suggest that her history of sexual abuse contributed to the development of her personality disorder and her offending behaviour.'

Dr Richards, a psychiatrist, who examined Miss TJM said this at page 7 of his report:

'The young TJM was deprived of normal parental affection and was abused by her male step parent.'

That is you.

'Her sexual involvement was devoid of warmth and affection, sometimes feared and at times a means of avoiding conflict or obtaining household or monetary advantage.  Her first pregnancy terminated her education and led to banishment from family and school mates.  She has been left ambivalent towards prospective partners, hating her breastfed daughter and unable to take the responsibility and care of her wanted son.'

Mr Walkley, the psychologist, who examined her said this - page 2:

'When asked why she didn't continue and complete grade 11 or 12, Miss TJM advised 'I was pregnant.'  She had in fact started grade 11 when she discovered that she was pregnant and delivery was quite imminent.'

Page 4:

'After Miss TJM told someone as to what happened to her at the hands of Mr EJA she said 'I got my freedom. I got away from all that sex, sex, sex, sex.'  Miss TJM admits that she went heavily into booze, drugs, alcohol and offending.'

Page 9:

'Clearly Miss TJM is a young woman with a great deal of anger coursing within her, which at times turns to rage.  Unfortunately for Miss TJM, this manifests as an impotent rage.  Undoubtedly the source of this anger is her victimisation at the hands of Mr EJA, her foster father.  She was sexually abused from the age of and endured weekly sessions of sexual intercourse at the hands of Mr EJA culminating in bearing his child.'

Well, I do not take account of the statement of weekly sessions of intercourse at your hands.  I rely on the evidence which was given at the trial.

Page 10, Mr Walkley says:

'Clearly being sexually abused from age 7 through to 15'-----

In fact it started earlier.

-----'when she conceived and then bore the child of her foster father has played a most significant role in the development of the personality of Miss TJM and her present approach to both herself and her children.  On the basis of my clinical examination, Miss TJM, supported by the psycho-metric assessment which accompanied it, suffers from borderline personality disorder.  The aetiology of this disorder has, in my opinion, its roots within the family environment which should have been supportive, nurturant, loving and protective but which was in fact negative, destructive and abusive.  Given that it was a foster home and supposedly a better option than her natural home, this exacerbates the impact upon this young woman.  As a consequence of developing this disorder, Miss TJM then exhibited the cardinal characteristics including the impulsivity, substance abuse and offending which is diagnostically significant.  In my view, the impact of having a child at the hands of her foster father played a most central role in the development of Miss TJM's present offending difficulties which are personality driven.'

So you can see why, Mr EJA, that significant problems have been caused to Miss TJM."

Mr Walkley concluded in 2002 that the applicant suffered from a borderline personality disorder.  He continued:

"The aetiology of this disorder has, in my opinion, its roots within the family environment which should have been supportive, nurturant, loving and protective but which was, in fact, negative, destructive and abusive.  Given that it was a foster home and supposedly a better option than her natural home, this exacerbates the impact upon this young woman.

As a consequence of developing this disorder, Ms TJM then exhibited the cardinal characteristics including the impulsivity, substance abuse and offending which is diagnostically significant.

In my view, the impact of having a child at the hands of her foster father played a most central role in the development of Ms TJM's present offending difficulties which are personality-driven.

Her offending behaviour with regards the present charges stemmed from her substance abuse, her anger and her genuine and callous disregard for not only herself but for others and/or their property.  This is a direct manifestation of the personality disorder that she suffers from."

Dr Richards diagnosed Conduct Disorder having its psychogenesis in the sexual abuse, pregnancy and deprivation of a normal girlhood.  He also said it was likely that racial and cross-cultural issues over many generations were also involved.

In paragraphs 2 - 11 and 15 of her affidavit sworn on the 28th of September 2006, the applicant deposed as follows:

1. "2.
   I was born on 13 July 1982.  I am currently 24 years of age.

3. I cannot recall the exact date the sexual abuse at hands of my stepfather started, but I was placed n his care at the age of three and a-half (3½) years.  The first instances of abuse started almost straight away.  EJA would come into my room and lay down next to me.  He would then expose his penis to me and ask that I touch.  In these early stages of abuse I would never touch his penis;  I would just turn away and cry into my pillow.  This type of event would occur most, if not, all weekends.

4. The abuse started like this and progressively got more serious.  By the time I was in year 10 of high school EJA was raping me.

5. I have provided a statement to police outlining my recollection of events during my childhood years and the abuse I received at the hands of the Respondent.  My childhood memories are filled with various forms of abuse.

6. On 13 February 1998 I gave birth to a child in the Rockhampton Hospital.  EJA is the father of this child.

7. I left school in grade 10 as a result of becoming pregnant.  I always enjoyed school and had I not become pregnant I would have finished high school with the view of furthering my education at either Tafe College or University.

8. As I grew up I always had aspirations of becoming a nurse or a police officer.  I had a desire to help people out.  Unfortunately it seems I can no longer pursue these goals as I am now in custody.

9. I also had a great passion for sport in my schooling years and I always performed well in my school's sports carnivals.  I represented the school in swimming, athletics, hockey and netball.  I have not played any competitive sport since I fell pregnant with my daughter.

10. Whilst I grew up I always had a wish to travel around Australia.  I wanted to find my real father and re-unite our family ties.

11. I also wanted to work in some type of part-time employment.  The Respondent would not let me work and would always provide me with more money than my brothers and sisters would get.  This would put strain on our relationships.

15. I have had trouble coping with the experiences of my past.  I have resorted to alcohol and drugs in the past and have found myself in trouble with the law on many occasions."

She was assessed by Ms Suzy Dormer, a psychologist, in April and December 2005.  In her report dated the 6th of February 2006 she says:

"Administration of the Trauma Symptoms Inventory (TSI) to TJM on April 21st 2005

TJM's results are indicative of reporting distress in both the posttraumatic and self domains and indicate that she presents with sexual posttraumatic stress response.  Her post-traumatic symptoms are chronic and indicate that she may have a serious psychological disability.  This profile suggests that TJM may feel overwhelmed by trauma and often feels out of control of her internal state.  In the latter, there are indications that relatively chronic symptoms may have become more or less integrated into TJM's personality.

Administration of the Trauma and Attachment Belief Scale (TABS) to TJM on December 8th 2005

TJM's total score was extremely high indicating that there is substantial disruption to her overall ability to maintain healthy relationships.

TJM's scores are typical of a person who has sustained long term child abuse and the traumatic symptoms that occur after these events.  Some of these symptoms include:  a fear of personal safety and of safety for their loved others;  a lack of trust and suspicion of anybody that they encounter and in particular in significant relationships;  a disruption in their sense of self-worth so that they believe that what happened to them was their fault and hence shame and guilt is acute;  an intense fear or anxiety over losing control over one's emotions and behaviours.  All of these symptoms are evident in TJM.

Psychological Summary

TJM is a 23-year-old woman who presents at this time as being extremely traumatised by the long term sexual abuse perpetuated by EJA.  She is displaying numerous symptoms of complex posttraumatic stress disorder, chronic depression and anxiety.  In the interviews and documents reviewed TJM describes intense feelings of helplessness, hopelessness, fear, confusion, low self esteem and self belief, missed childhood experiences, missed education, sexual concerns and many other negative responses to this abuse.

The Trauma Symptoms Inventory administered in April 2005 indicates that her posttraumatic symptoms are chronic and indicate that she may have a serious psychological disability.  The profile suggests that TJM feels overwhelmed by trauma and often feels out of control of her internal state.  The Trauma and Attachment Belief Scale administered in December 2005 indicates there are many areas in TJM's emotional belief systems where the substantial disruption will affect her life, her well being and her ability to maintain healthy relationships.

From the clinical interviews, the previous reports and psychological assessments it appears that TJM is deeply affected and struggling with the events of her early life and that these circumstances have led to an intense response.  She presents with all the symptoms of complex posttraumatic stress disorder.  Complex Posttraumatic Stress Disorder occurs after long-term childhood sexual abuse.  A mental health diagnosis of Borderline Personality Disorder is also highly indicative of a history of trauma and is increasingly viewed as a type of Complex PTSD.  Symptoms of Complex PTSD include severe behavioural difficulties, such as alcohol/drug abuse and aggression; difficulties in controlling intense emotions (such as anger, panic or depression); and other mental difficulties such as dissociation which is characterised by 'splitting off' parts of oneself.  TJM describes several occasions where she perceives herself to be 'outside' watching herself behave in ways that she does not understand.

The questions posed by Purcell Taylor Lawyers

• Whether TJM currently suffers from a psychiatric or psychological condition as a result of the offences perpetrated against her.

TJM  has been, and still is, suffering from Complex Posttraumatic Stress Disorder (DSM-IV-TR 309.81), extremely severe.

In my opinion, it would be unlikely that a 'full'  recovery might ever occur.  While it is possible that with support TJM might lead a productive life, and the symptoms might reduce, she is also susceptible to these trauma responses given any further negative events.  It is apparent that the psychological disabilities already experienced by TJM have drastically altered her life and will continue to do so.  It is important to note that this long term sexual abuse has permeated many areas in TJM's life including her lawful sexual relations, her ability to parent, her self concept, her ability to trust, to gain employment, to her education, to her health, to her relationships generally and to many other aspects.

• Whether TJM has suffered an 'adverse impact' as a result of the offences committed against her.  Adverse impact includes any of the following:

• A sense of violation

From the clinical interviews with TJM and from the results of the psychological assessments, there is no doubt that TJM has felt extremely violated and abused by the multiple acts of sexual abuse perpetrated by EJA and that this has and will continue to severely affect her life.

• Reduce self worth or perception

TJM is at times withdrawn, depressed, scared and has had multiple social problems.  These symptoms indicate a reduction in self worth and her depression and anxiety are within the clinically significant range.

• Posttraumatic stress disorder

The essential feature of Complex Posttraumatic Stress Disorder is the development of characteristic symptoms following exposure to extreme traumatic stressors involving direct personal experience of event/s that involves actual or threatened injury to self or to a person's integrity.  The person's response to the event must involve intense fear, helplessness or horror amongst other symptoms and last for longer than one month.  TJM was certainly exposed to severe traumatic events and from the results of the clinical interviews and the psychological assessment, it appears that she is depressed, withdrawn and anxious and has clear indicators of severe complex posttraumatic  stress disorder.

Further she experiences recurrent and intrusive distressing recollections and dreams of the events and intense psychological distress when talking concerning the abuse and EJA.  She already displays real fear and anxiety at the prospect of him being released from prison.

• Lost of reduced physical capacity (including the capacity to have children whether temporary or permanent)

TJM's physical capacity has been reduced in that she feels scared and anxious and is often unable to sleep due to night terrors.  This in turn has impacted on her life and her behaviour including the use of substances to alleviate the above symptoms.  TJM presents as an intelligent person and it is to be considered that if her life had not been severely disrupted by this sexual abuse and the subsequent sequence of events, what potential she might have developed.  She states now that she would like to 'make a difference' and 'go into politics' and it is to be hoped, that with adequate support, this might occur.

• Increase fear or increase feelings of insecurity

There are numerous indicators that TJM has severely increased fear and feelings of insecurity including her fear of sleeping and of being 'haunted' by EJA.  TJM describes and displays symptoms indicating anxiety, depression, posttraumatic stress, dissociation and sexual concerns at a clinically significant level.

• Adverse impact of the reaction of others

TJM talked in her interviews of not reporting the abuse because of the fear of the adverse impact of the reaction of others.  Even when she did report the abuse it was with fear and concern that it might negatively affect her life.  I consider that this was due mostly to the threats made by EJA of the consequences of disclosure for her, her foster mother and her brothers.  Her biological mother rejected her with the child 'due to who the father was' and TJM was forced to leave her school, her home and her friends when she realised she was pregnant.

• Adverse impact of lawful sexual relations

There is widespread belief that sexual abuse frequently results in serious symptoms that may not surface for years.  It is thought that delayed sleeper effects may be triggered by later developmental changes that may not be accessible to therapy implemented during an earlier developmental stage.  While TJM already states that her lawful sexual relations have been dysfunctional at times, the full affect of the sexual abuse may not be known until later.  There is no doubt that this sexual abuse has adversely affected TJM's lawful sexual relations.

• Adverse impact on feelings

This offence has had a severe adverse impact on TJM's feelings as demonstrated in this report.  Because the abuse started at such an early age (3 years of age) and continued through TJM becoming pregnant, the multiple and complex negative effects on TJM's feelings, behaviour and thinking patterns are indisputably and far reaching.

• Anything the court considers is an adverse impact of a sexual offence

Due to TJM's age and the ongoing sexual abuse by EJA, it is difficult to gain an indication of the continuing effects of this event.  While this report summarises the psychological effects at this time it is to be expected that the effects will change as TJM continues to mature and enter different stages.  There is no doubt that the sexual abuse by EJA will continue to have a serious adverse impact on many aspects of TJM's life.

• Which of the above adverse impacts were taken into account when diagnosing any psychological conditions Ms TJM may be suffering from?

All of the above adverse impacts are relevant to TJM's diagnosis of Complex Posttraumatic Stress Disorder.  The essential diagnostic criteria of Complex Posttraumatic Stress Disorder is that the person has been exposed to an extreme traumatic stressor, that the traumatic event is persistently re-experienced, that there is persistent attempts to avoid events associated with the trauma, that there is persistent symptoms of increased arousal (difficulty sleeping) and significant impairment in social, occupational or other areas of functioning.  All of the above adverse impacts fall into these criteria.

• The date Ms TJM gave birth and the psychological effect the pregnancy, birth and the child has/is having upon her?

Marika, TJM's child, was born on February 13th 1998 when TJM was 16 years of age.  When asked her response when she realised that she was pregnant, TJM stated that she was 'scared, frightened and felt desperate'.  She continued that she realised that this would disrupt her schooling and isolate her from her family.  Because of the abuse in her life, TJM would not have been equipped with the psychological tools needed to reach out to people for help.  She states that when the police interviewed her with EJA in the room she did not know how to alert them to the abuse.  The trauma of the awareness of the pregnancy would have been followed by the trauma of the birth and as TJM stated 'not knowing how to care for my child'.  This was followed by the grief of having her child taken from her and that grief is still very evident at this time.  Her children (TJM has had a 2nd child since Marika) are the first thing that TJM raised in conversation in both interviews and she states that she's determined to 'get them back to live with me'.  The birth of Marika would have complicated and intensified TJM's trauma responses to her abuse and is still heightening her grief, despair, hopelessness and depression.  She states that she has to 'get her life in order' for her children yet those skills and support structures have yet to be put into place.  This in turn heightens her shame and guilt and leads to a destructive cycle.  I believe that TJM really intends to become more functional yet her survival strategies, learnt over years of surviving abuse, make it challenging at times.

• If possible, outline the effects the offences had upon Ms TJM before December 18th 1995, and then the effects from that date until now giving them a percentage as to how much they contributed to Ms TJM's current state?

On December 18th 1995 TJM was thirteen (13) years of age.  The sexual abuse by EJA commenced when she was three (3) years of age with intercourse first occurring when TJM was twelve (12) years of age.

From the first sexually abusive contact as a toddler TJM would have been traumatised in that her sense of trust, expectations and safety would have been violated.  As stated previously Lesley Tunnecliffe (1996) in her book Children Affected by Trauma states that events that are outside the realm of expected experiences overwhelm children.  Whereas it used to be believed that children might 'forget' and 'grow out' of the impact of traumatic events, in fact, the opposite is true.  It is now believed that at each developmental stage there will be a different response to the trauma until the child reaches maturity.  Consequently, as TJM progressed from being a toddler, to a preschooler, to a Primary School child and then into High School, the ongoing sexual abuse would have compounded and magnified the damage done by the initial instance of abuse.  Research now indicates that a child's first five (5) years of life are the most important in terms of developing emotional regulation and attachment abilities.  When a child is abused and violated in those early years, they put their energy into learning survival strategies and defence mechanisms at the cost of learning to regulate their emotions and forming secure attachments.  This disruption will often affect their entire lives until they recognise and seek to develop the appropriate means to attach to others and to emotionally regulate.  Until this happens, they use dysfunctional coping strategies such as substance abuse and outbursts of emotions such as anger.  This abuse has violated and disrupted TJM's entire life and will continue to do so until she works through the multiple issues contaminated by these events.

With this in mind and remembering that TJM's child to EJA was conceived when she was fifteen (15) years of age and thus after December 1995, the abuse prior to December 18th 1995 would contribute at least 50% to TJM's current state.  The ongoing trauma and the subsequent events have been as a result of this early intense trauma.  However the effects and grief surrounding the ongoing abuse, the isolation and the birth of TJM's child would have compounded the earlier events.

• Whether any of the offences listed in the indictment when looked at individually, could have caused clearly identifiable impact on Ms TJM?

When reviewing the offences listed in the indictment against EJA it would be difficult to state that this offence has caused this clearly identifiable impact.  Maintaining a sexual relationship with a child with a circumstance of aggravation has led to intense fear, a lack of trust, insecure attachments and a disruption to lawful sexual relationships.  However so has unlawful and indecent dealing with a child under 16 years of age, unlawful carnal knowledge and attempted rape and rape.  The very first time that EJA  forced himself on TJM intense damage was done.  The first time he touched her breasts or digitally penetrated her or forced intercourse on her, he destroyed the possibility of her enjoying lawful sexual relationships, having a functional attachment style or being able to regulate her emotions in a positive manner.  When thinking of the intense confusion and distress the child must have felt when this sexual abuse commenced, and the ongoing difficulties that TJM as an adult continues to feel, indicates that all of the offences have had a clearly identifiable impact on TJM."

It is apparent from this report that all of the adverse impacts are included in the diagnosis of Complex Post-traumatic Stress Disorder. 

On balance I do not think that Ms Dormer would have altered her estimate of 50/50 had she been told that the starting point was the 3rd of July 1989 rather than the 26th of July 1985.  The significant effects of the sexual abuse happened in the applicant's young formative years.  Likewise I doubt that her estimate would have changed had she not taken into account (as she in fact did) the one offence of unlawful carnal knowledge alleged to have been committed between the 13th of February 1998 and the 13th of July 1998 about which the Crown entered a nolle prosequi.

The applicant was continually and regularly and consistently sexually abused by the respondent.  This involved a gross breach of parental trust and responsibility on his part.  This undoubtedly affected the applicant significantly.

The applicant, in my view and I think that of the medical professionals who have been involved with her, was the victim of a systematic course of conduct consisting of a succession or series of acts which displayed an identifiable overall pattern namely ongoing, continual and persistent sexual abuse.  See HW v. LO [2000] QCA 377 at para [7].  I am unable to agree with the applicant's counsel (see also paragraph 4.3 of his outline of argument) that there were three separate and distinct acts or offences not arising out of the one course of conduct.  The three were said to be:

1. 1)
   simple touching

1. 2)
   attempted vaginal intercourse

1. 3)
   the maintaining charge

In my view, they were not separate in a relevant sense but part of the one course of conduct; indecent dealing leading to intercourse was part of the grooming process.

Because Ms Dormer has attributed half of the applicant's current mental state (according to her - extremely severe Complex Post-traumatic Stress Disorder) to the respondent's offending before the 18th of December 1995 and half to his offending after that date, it is unnecessary to carry out the apportionment exercise I undertook in Gough and Bushell, unreported, District Court Townsville, 5th of March 1998.  See also HV v. LN [2000] QCA 472 at paras [15] - [17] per Thomas JA.

It is important to also recall that Dr Richards diagnosed the applicant as also suffering from conduct disorder and Mr Walkley diagnosed her as also suffering from Borderline Personality Disorder, both caused by or predominantly by the respondent's sexual abuse of her and by having his child.  Ms Dormer had the reports of Dr Richards and Mr Walkley when she prepared her report.  I propose to also adopt Ms Dormer's apportionment in relation to these two disorders.

Any assessment of damages for the applicant in respect of the injuries suffered by her in the period from the 3rd of July 1989 to the 18th of December 1995 would have resulted in damages much exceeding (by at least the same amount again) $20,000 which is the maximum compensation available under the repealed Criminal Code provisions.

For the reasons advanced in paragraph 6.3 (ii) of Mr Honchin's outline of argument I consider the applicant should be separately compensated for her first pregnancy but not to the extent claimed.  Compensation under the Criminal Offence Victims Act generally does not include compensation for any economic consequences of the injury and that this is so is apparent from the compensation table in schedule 1 of the Act.  HW v. LO was a decision about the repealed Criminal Code provisions and under that regime economic loss, both past and future, could be included in compensation awards.

Pregnancy is defined as an "injury" for the purposes of the Criminal Offence Victims Act but it is not included in the compensation table.  Compensation for pregnancy is to be assessed in accordance with section 25(6) of the Act which requires a comparison with injuries listed in the compensation table and the amounts that may be ordered to be paid for those injuries.  Notwithstanding that it may seem unfair and even somewhat illogical, in my opinion compensation for pregnancy is limited to just that, including probably the birth of the child, and does not extend to economic costs associated with the birth of the child, costs of raising the child, the effect upon the applicant's schooling and education, employment and future capacity to earn an income.  If such matters were to be the subject of compensation, I would have expected them to be specifically mentioned in the Act.  Likewise the fact of there being a scheme maximum militates against compensation under the Act including economic loss components.

The fact of pregnancy and the birth of the child has also been taken into account in the assessment of her psychological and psychiatric conditions.

In my view the applicant's psychiatric conditions amount to severe mental or nervous shock for compensation purposes.  Even accepting only half of that condition to have been caused since the 18th of December 1995, that half would in my view amount to severe mental or nervous shock at the top end of the range.

The applicant is, I consider, entitled to compensation assessed as follows, by reference to the Criminal Code provisions and the compensation table in schedule 1 of the Act:

Criminal Code compensation$20,000

Criminal Offence Victims Act compensation

1. (a)
   item 33 - severe mental or nervous shock$25,500

1. (b)
   pregnancy$10,000

________

Total$55,500

________

I order that the respondent pay compensation to the applicant of $55,500 plus half of the costs of the application to be assessed on the standard basis.  The applicant is entitled to costs in respect of the part of the application brought under the repealed provisions of the Criminal Code but is not entitled to costs under the Criminal Offence Victims Act (see section 31).