DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant VAH by her litigation guardian claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the applicant sustained arising out of the criminal conduct of the respondent KGH who was convicted by this court on 15 November 2006 of two offences of unlawfully and indecently dealing with a child under 16 years then under 12 years.  The respondent is currently serving a period of imprisonment and although he was served with the application and supporting affidavits, he made no appearance at the hearing and the application proceeded in his absence.

2. [2]
   The application is made on the basis of a “mental or nervous shock disorder” together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 on the basis that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the regulation arising out of the sexual offences.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   The affidavit with exhibits of the litigation guardian DAH sworn 18 October 2007 and filed in this court on 5 November 2007.

2. (b)
   The affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 23 October 2007 and filed in this court on 5 November 2007.

3. (c)
   The affidavit with exhibit of Dr Judith Isobel Maureen Chittenden, consultant psychiatrist, sworn 25 October 2007 and filed in this court on 5 November 2007.

4. (d)
   The affidavit of service of Wayne Colin Heydt sworn 19 November 2007 and filed by leave on 21 November 2007.

Facts:

4. [4]
   The circumstances of the respondent’s criminal conduct are summarised in Exhibits “A” to “D” inclusive to the affidavit of the said Lorraine Penshorn and confirm that the respondent pleaded guilty in this court on 15 November 2006 to two offences of unlawfully and indecently dealing with a child under 16 years then under 12 years on or about 11 August 2004 at Holmview, Queensland.

Injury:

5. [5]
   The applicant’s injury is set out in the report dated 29 August 2007 from Dr Judith Chittenden, psychiatrist, which is Exhibit “A” to her affidavit aforesaid.  It is to be noted that at the time of the offending the applicant was 11 years of age.  There is no medical evidence that the applicant suffered any physical injuries arising out of the respondent’s conduct.

6. [6]
   In her report, Dr Chittenden confirms that she interviewed the applicant and her litigation guardian on 18 July 2007 (almost three years post incident) and provides the following diagnosis:

“DIAGNOSIS:

Post Traumatic Stress Disorder – DSM‑IV 309.81. 

This is chronic, was severe initially, and could now be described as mild in degree.”^[1]

7. [7]
   Dr Chittenden further states that the applicant “would have had a clear psychiatric disorder after the event which was ameliorated to a certain extent by counselling and has naturally faded with time.  However, I would regard her Post Traumatic Stress Disorder as being chronic and mild in form at present and continuing.  She will not be able to forget what occurred to her and has affected her in a number of different ways.”^[2]

8. [8]
   As stated in paragraph [2] above, the applicant also claims compensation under s 1A of the regulation to the Act in respect of her claim as having also suffered “adverse impacts” arising out of the subject offences and which is not otherwise an injury for which the applicant can be adequately compensated under s 20 of the Act.

Categories of injuries:

9. [9]
   It is submitted on behalf of the applicant that her injuries fall under the following categories of injury contained in schedule 1 of the Act and s 1A of the regulation to the Act respectively namely:

1. (a)
   Item 32 – mental or nervous shock (moderate) – 10%‑20% of the scheme maximum and the applicant claims an assessment of 19% of this item;

2. (b)
   Assessment under s 1A of the Regulation on the basis of the totality of the adverse impacts she has suffered as a result of the sexual offences committed upon her – amount claimed on an assessment of 15% of the scheme maximum.

10. [10]
    It is submitted therefore on the applicant’s behalf that she should receive an award of compensation in the following terms:

Adverse impacts:

11. [11]
    In respect of this claim, the applicant relies upon Dr Chittenden’s report aforesaid where she says that the applicant suffered “Adverse Impacts of a General Nature of Sexual Incident” in that she:

• “… felt extremely devalued and degraded”;
• “… had an extreme lack of self esteem and self-confidence”;
• “… had feelings of worthlessness and helplessness”; and
• “… had a major feeling of insecurity and lack of confidence in her housing arrangements.”^[3]

Mental or nervous shock”:

12. [12]
    It is now well accepted that to establish a “ mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “[an] injury to health, illness or some abnormal condition of mind or body over and above that of a normal human reaction or emotion following a stressful event” as distinct from “…fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff (2000) QSC 156 at paras 15, 17 and 21 respectively.

13. [13]
    Further, as Atkinson J stated in Re JI v AV [2001] QCA 510 (“Re JI v AV”) at [59]: “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 MR 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”^[4]:

“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.”

14. [14]
    An applicant’s claim for further compensation under s 1A of the Regulation to the Act is also comprehensively discussed in Re JI v AV above and in particular in the reasons of Atkinson J at paragraph [57] when she said:

Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock.  It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock: (MAJ v KM [2000] QCA 410, CA No 6042 of 2000, 6 October 2000, at [13]; Whyte v Robinson (supra); R v Tiltman; ex parte Dawe [1995] QSC, SC No 324 of 1995, 22 June 1995, Lee J).  It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A: (The divergence of opinion on how to compensate victims of sexual offences for post-traumatic stress disorder can be seen in a number of District Court decisions: R v Hagaen; ex parte Townsend (supra); R v Daniel; ex parte Raymond (supra); R v Gilchrist; ex parte Hall (supra); R v Di Fiori; ex parte Anthony (supra); R v Peacock; ex parte Homer (supra); Newby v Mullins (supra); Hoy v Dunbar (supra); Lester v Ahmed (supra); Codd v Codd (supra); Jones v Thompson (supra); Morris v Soper (supra); Steven v Atwell [2001] QDC, DC No 2710 of 2001, 20 June 2001, McGill DCJ).  The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20.  The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, ie that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section.  Only additional adverse effects of sexual offences fall to be compensated under s 1A of the COVA Regulation.

15. [15]
    It is therefore necessary for an applicant who claims compensation under the Regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of injury under s 20 of the Act.

Findings:

16. [16]
    On a review of all of the evidence in this application I make the following findings:

1. (a)
   The applicant has suffered a “mental or nervous shock” injury arising out of the respondent’s criminal conduct the subject of this application and is entitled to an award of compensation under s 24 of the Act.

2. (b)
   The category of injury under which the applicant is entitled to an assessment of compensation is Item 32 under the compensation table, that is mental or nervous shock (moderate) and I assess the applicant’s compensation under this category of injury at 15% of the scheme maximum, that is the sum of $11,250.00.

3. (c)
   I am further satisfied that the applicant has suffered a number of “adverse impacts” arising out of the respondent’s criminal conduct as described in Dr Chittenden’s report referred to in paragraph [11] above and I assess the applicant’s compensation for such “adverse impacts” at 10% of the scheme maximum, that is the sum of $7,500.00.

Applicant’s contribution to the injury (if any):

17. [17]
    In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

18. [18]
    I am satisfied that the applicant in no way either directly or indirectly contributed to the injury or adverse impacts she suffered arising from the respondent’s criminal conduct and is entitled to the full award of compensation assessed herein.

Orders:

19. [19]
    I make the following orders:

1. (a)
   That the respondent KGH pay the sum of $18,750 to the applicant VAH for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 15 November 2006; and

2. (b)
   In accordance with s 31 of the Act I make no order as to costs of the application against the respondent.