DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, ARB, seeks compensation in respect of injuries suffered by her arising out of the offence of indecent dealing committed against her by the respondent, WJC, on 5 July 2003 at Normanton. The respondent pleaded guilty before me in the Mt Isa District Court on 6 June 2005. The respondent was sentenced to imprisonment for a period of two years and six months, suspended after serving 10 months, with an operational period of two years and six months.

Facts

2. [2]
   The applicant was born on 12 April 1988. At the time of the offence (5 July 2003) the applicant was a 15 year old school girl attending Normanton State High School in Year Nine. The respondent was the applicant’s uncle whom the applicant had known all of her life.

3. [3]
   On Friday 4 July 2003, the applicant and a number of friends were drinking together. The applicant and her friends ended up in a house at Palmer Street, Normanton where the respondent was also present.  In the early hours of Saturday 5 July 2003 the applicant, who was quite intoxicated, fell asleep on a sofa bed.  When she went to sleep, she was fully clothed.  The applicant woke up some time later and discovered that her shorts and underpants had been removed.  A number of witnesses stated that they saw the respondent naked from the waist down, on top of the complainant, apparently engaging in sexual intercourse with her.  There was no allegation in the submissions by the prosecution on sentence that penetration had actually occurred.  The respondent was interrupted by the persons who arrived (they being friends of the applicant) and the respondent’s activity ceased at that point.  The respondent’s plea of guilty was to a count of indecent dealing^[1].

Injuries

4. [4]
   The applicant’s counsel, Mr Kimmins, submits that the following compensable injuries occurred as a result of the offence:-

3. (1)
   Post traumatic stress disorder and

3. (2)
   Adverse impacts.^[2]

The Law

5. [5]
   This is an application under s 24 the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of personal offence or injuries suffered by an applicant because of that offence.  R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the range as set out in the compensation payable (Schedule 1) for the relevant injuries.  In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1.  Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority to the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.  In respect of sexual offences, the Court of Appeal in JI v. AV [2002] 2 Qd R 367 determined that it was necessary in a proceeding under COVA to commence by compensating the victim of a sexual offence insofar as the impacts amounted to an injury pursuant to COVA s 20, and to assess compensation pursuant to the provisions of Criminal Offence Victim Regulation (“COVR”) s 1A only to the extent that any relevant adverse impacts of a sexual offence were not an injury under COVA s 20.^[3]

Compensation

6. [6]
   Mr Kimmins on behalf of the applicant seeks compensation as follows:

(1) Item 32 – mental or nervous shock (moderate) – 10%-20%

7. [7]
   Mr Kimmins submits that an assessment of 20% ($15,000) should be made, taking into account the diagnosis of post-traumatic stress disorder and the need for future counselling.

8. [8]
   The applicant was examined at the Normanton Hospital at 3.25am on 5 July 2003 (shortly after the commission of the offence).  Dr Chris Guildford, who examined the applicant, notes that the applicant “appeared withdrawn and subdued”, but he “did not find any evidence of injury.”^[4]

9. [9]
   Mr Peter Stoker, clinical psychologist, interviewed the applicant on 14 December 2003 and provided a report dated 24 April 2006.^[5]  Mr Stoker noted that the applicant presented to him as “a 15 year old female of anxious and depressed mood”.^[6]  Mr Stoker concludes that the applicant “has developed a post traumatic stress disorder (DSM – IV)”, and, as at the date of the interview, was continuing “to have flashbacks of waking up and seeing the offender with his pants down”^[7].  Mr Stoker considered that at the time of his assessment of the applicant, “she appeared in the denial phase in regards to the impact of the abuse had had on her emotionally” but he noted that his interview with the applicant was “some six months post abuse”.  Unfortunately, Mr Stoker does not appear to have had any opportunity to update his assessment of the progress of the applicant since his interview with her on 14 December 2003, almost three years ago.  Mr Stoker cautioned in his report that “it is very difficult to predict the impact the abuse will have on [the applicant] in regards to forming healthy intimate relationships, as well as sexual contact in the future and her general perception of men.”  Mr Stoker noted that the applicant “had a fragile personality structure prior to the index assault.  Furthermore, she had exhibited oppositional behaviour at school, which is a sign of poor self esteem.”^[8]

10. [10]
    In the circumstances, based on the material placed before the court, I consider that an appropriate award under Item 32 would be 15% of the scheme maximum ($11,250).

Adverse Impacts

11. [11]
    It is clear from the decision in JI v. AV^[9] that assessment of compensation under COVR s 1A can only proceed to the extent that any relevant adverse impacts for a sexual offence are not a compensable injury under COVA s 20. 

12. [12]
    Mr Stoker states that “it is also my opinion the sexual abuse had:

• An adverse impact on [the applicant’s] relationships with men (mild range)
• An adverse impact on [the applicant’s] self esteem (mild range)
• An adverse impact on [the applicant’s] relationship with her mother (mild range)”^[10]. 

13. [13]
    In those circumstances Mr Kimmins submits that an appropriate assessment for the adverse impact of a sexual assault (for which the applicable range is 1%-100% of the scheme maximum) would be 20% ($15,000)^[11].  The adverse impacts outlined by Mr Stoker, appear (on the basis of the limited information made available to the court) to be impacts which do not form part of the relevant psychiatric diagnosis of Post Traumatic Stress Disorder.  In the circumstances, I consider an appropriate assessment to be 10% ($7,500). 

Contribution

14. [14]
    Although this event which led to the charge occurred because of the applicant’s intoxication (of which the respondent took advantage), I do not consider that the applicant has in any way contributed to her own injury.^[12]

Order

15. [15]
    Accordingly I order that the respondent WJC pay the applicant ARB the sum of $18,750.