DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant LMB claims compensation for injury sustained by her as a result of 12 criminal offences of a sexual nature committed against her by the respondent to the application PWB.

2. [2]
   The respondent was convicted by this court at Beenleigh on 26 April 2005 of 12 counts of unlawfully and indecently dealing with the applicant, who was a child under 14 years of age, “between 10/03/1980 and 02/07/1983 at Marsden in the State of Queensland”, when the applicant was aged between two and five years.

3. [3]
   This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Allan White, psychiatrist, in his report of 28 March 2007 which is Exhibit “A” to his affidavit filed 8 October 2007. There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

4. [4]
   In addition to the affidavit of the said Allan White, this application is supported by the following material:

1. (a)
   the affidavit with exhibit of the applicant LMB sworn 29 August 2007 and filed in this court on 8 October 2007;

2. (b)
   the affidavit with exhibits of Lorraine Penshorn, litigation support officer, sworn 1 August 2007 and filed in this court on 8 October 2007;

3. (c)
   the affidavit of service of Ian Sidney De Landre sworn 10 October 2007 and filed in this court on 17 October 2007.

5. [5]
   The respondent, although served with the application and supporting documents, made no appearance at the hearing and the hearing proceeded in his absence.

Relevant legislation - when did the injury occur?:

6. [6]
   Legislation enabling persons to claim compensation for injury suffered by them as a result of the criminal conduct of others was introduced by the insertion in our Criminal Code of Chapter 65A which contained a number of provisions regulating the basis on which an application for compensation could be made; the manner by which it could be made and the amount of compensation which a court may assess could be awarded to “the person aggrieved by the offence”.

7. [7]
   There have been amendments to that legislation from time to time in 1975, 1984, and finally in 1995 by the enactment of the Criminal Offence Victims Act 1995 (“COVA”) which commenced on 18 December 1995.

8. [8]
   Section 46 of COVA provides that an application for compensation under COVA “… does not apply to injury suffered by anyone because of an act done before the commencement” and under thereof s 46(2):

“If the Criminal Code (Chapter 65A) would have applied to an injury mentioned in subsection (1) if the chapter had not been omitted, the chapter applies to the injury as if the chapter had not been omitted”.

9. [9]
   It is therefore crucial when considering applications for compensation arising out of the criminal conduct of others for a court to consider two threshold issues, namely:

(a)when the offence occurred giving rise to a potential claim; and

(b)when the injury occurred arising out of that offence.

10. [10]
    In respect of physical injuries, those two dates will in most instances be the same but in respect of a “mental or nervous shock” disorder the respective dates may be different, in that the condition may arise some time after the date of the offence giving rise to the condition or “injury”.

11. [11]
    Firstly, because the applicant’s “injury” was suffered “because of an act done” between 1980 and 1983, this application for compensation is correctly made pursuant to s 663B(1) of the Code and it is then a question of determining precisely under which legislation the application falls to be considered, that is, whether it is the amending legislation which commenced on 1 July 1975 or the further amending legislation which commenced on 1 July 1984.

12. [12]
    It is necessary to determine this issue as increases were made to the amount of compensation payable to “a person aggrieved by the offence” referred to as the “prescribed amount under the legislation” to such a person and in particular to the “prescribed amount” payable “in a case of mental shock or nervous shock”. In the latter instance, under s 663AA of the Code as amended, the maximum “prescribed amount” payable for this category of injury after 1 July 1984 and before COVA became effective in 1995 is $20,000.00.

13. [13]
    Post July 1984 s 663B(1) of the Code also introduced the “one course of conduct or closely related courses of conduct” concept, that is:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person of any person (whether in respect of 1 indictment or more than 1 indictment) arsing out of one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted.”

14. [14]
    Further in s 663B(1A):

“For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.”

Evidence of offences:

15. [15]
    The applicant’s evidence is that the respondent committed the sexual assaults on her “between 10 March 1980 and 2 July 1983” at a time when she would have been between two years and five years respectively. The circumstances of the applicant’s sexual molestation is set out in Exhibit “A” to her affidavit which is her statement of complaint dated 23 October 2003 to the Queensland Police Service.

16. [16]
    It would appear, that despite the consistency of the respondent’s misconduct of her in the three year period to 1983, she does not appear to have manifested any symptoms of depression until her late teens and was “just 17 in Grade 11”^[1]when she confided in a friend as to what had occurred to her as a young child. She states further that she told her mother “about what happened to me when I was about 19 or 20” but received little support.^[2]

17. [17]
    The applicant further states that it was at about this time that “I just lost control and I moved interstate and got involved in drugs. I used drugs as I no longer cared about anything. I used speed every day for three years and also took ecstasy on a regular basis … this was a very dark period of my life. It was a horrible time and I wasted years of my life. I was constantly depressed and unable to move forward.”^[3]The applicant further states that she stopped taking drugs when she was about 25 but continues “to have difficulties coping with the abuse I suffered as a child and I see my GP regularly”^[4]and “…to experience feelings of panic and anxiety.”^[5]

18. [18]
    Dr White confirms his diagnosis of the applicant in the following terms:^[6]

“Ms B describes being subjected to predatory sexual abuse by a trusted adult family member when she was very young. This predatory sexual activity was complicated by her parents’ awareness but they continued to expose her to this activity for their own needs causing her to feel angry with them. She was able to prevent the activity through her own tantrums but it is indeed unfortunate when a child so young is not protected.

When she was 18, she attempted to do something about it but, once again, the system failed her as she saw it. She quit a good job but she relapsed into a life of drugs. It is more probable than not that an episode of Major Depression precipitated this unfortunate event and she was at the time keeping company with a man whom she described as an idiot and who encouraged this lifestyle.

…

In my view, the tantrums, the distress, the helplessness, and the anger in childhood would have represented some form of childhood psychopathology such as Major Depression but a retrospective diagnosis to that time is extremely difficult to confirm. However, the quitting a good job, the directionless Substance Abuse, and the suboptimal employment all point to a period of Major Depression which is a severe psychiatric state.”

19. [19]
    Dr White’s final opinion is expressed in the following terms:^[7]

“As noted above, it is my view that Ms B suffered an episode of Major Depression which was precipitated by the failure of the legal system and perhaps society including her father to support her. One could argue that but for the failure of the system, she may not have developed this episode of Major Depression but now that it has occurred, the chances of relapse without long‑term medications is extremely high so long‑term treatment is required.

From the point of view of damages, she was severely impaired from 1996 until about 2004 when Mr B was imprisoned with more chronic residual effects persisting until 2007. The longer term effects will be mild but long‑term antidepressants appear to be necessary. It may well be that this treatment would not have been necessary if she had not been subjected to the sexual abuse in her childhood.”

Findings:

20. [20]
    On a review of all of the evidence in this application, I make the following findings on the balance of probabilities:-

1. (a)
   the applicant suffered an injury namely, “an episode of major depression” in or about 1996 when she was 18 years of age as a result of her being sexually molested by the respondent between March 1980 and July 1983 for which the respondent was convicted of 12 criminal offences on 26 April 2005;

2. (b)
   that as such, the relevant law applicable to the assessment of the applicant’s compensation in this application is that which applies subsequent to 1 July 1984 where the maximum prescribed amount “in the case of mental or nervous shock is $20,000”;^[8]and

3. (c)
   that the offending conduct by the respondent against the Applicant constitutes one course of conduct in that the conduct justifies the description as having “……occurred in similar circumstances……[and] formed part of a pattern of similar offences……” to use the words of Davies J.A in MAJ v KM [2001] QCA 410 at paragraph [14] and which occurred over a period of 3 years 4 months as set out in the indictment.

Assessment:

21. [21]
    Assessment of compensation under the Code is carried out in accordance with the approach in McClintock v Jones^[9]at p 242 namely:

“…compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed.”

22. [22]
    I have referred to the effects suffered by the applicant as a result of the respondent’s sexual abuse of her in paragraph [19] above, and that in Dr White’s opinion such sexual abuse has “… caused her to suffer a severe mental illness form which she has largely recovered but which will have lingering less severe consequences and which will require treatment for the rest of her life”.^[10]On this basis, I find that if the applicant’s compensation were being assessed in accordance with the ordinary principles of assessment of damages for personal injury in a civil case, applicable at the relevant time, the compensation to which the applicant would be entitled would exceed the prescribed maximum sum of $20,000.00 and I therefore assess that the applicant is entitled to the prescribed maximum sum of $20,000.00 by way of compensation for the injury she has suffered arising out of the respondent’s offending conduct.

Orders:

23. [23]
    I make the following orders:

3. (1)
   The respondent pay the applicant the sum of $20,000.00 by way of compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 26 April 2005;

3. (2)
   The respondent pay the applicant’s costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.00.