DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent was convicted by trial in the District Court, Beenleigh before Judge Pack on 16 January 2002 of one count of stupefying to commit an indictable offence, and one count of indecent treatment of a child under 16 with a circumstance of aggravation. Both offences occurred on 24 October 1998 at Slacks Creek. The respondent was sentenced to four years imprisonment in respect of count one (stupefying to commit an indictable offence), and two and a half years imprisonment, concurrent, in respect of count two (indecent treatment of a child under 16 with a circumstance of aggravation). An appeal was filed on 7 February 2002 but was abandoned on 3 October 2002.

Facts

2. [2]
   The applicant was 14 years old and the respondent was 54 years old at the time of the offences. The respondent was in a relationship with the applicant’s mother, although not residing with her. The applicant’s mother and the respondent had suggested that the applicant stay at the respondent’s unit in order to get to know him better.

3. [3]
   On the third visit, the respondent provided the applicant with a quantity of alcohol and administered a drug in her drinks (temazepam, a benzodiazepine derivative) which in therapeutic doses causes sedation and drowsiness, and is used for the treatment of insomnia.^[1] This had the effect of putting the applicant to sleep. The applicant woke up in the night to find the respondent lying on the lounge beside her. The respondent placed his hand under the applicant’s t-shirt, touching the applicant’s breasts, then grabbing them and pinching her nipples. The respondent then patted and stroked from side to side, with his hand, the applicant’s genital area on the outside of her boxer shorts.  The respondent asked the applicant if she was relaxed, and she grunted in reply. The applicant then got up and went to the toilet^[2].

4. [4]
   As I pointed out in Vlug v Carrasco [2006] QDC 306^[3], the trial transcript should have formed part of the material relied upon by the applicant’s counsel. An examination of the submissions of prosecution and defence counsel on the sentence,^[4] and the sentencing remarks,^[5] does not reveal the factual matrix on which the respondent was sentenced and consequently does not outline the factual basis on which the criminal compensation application is to proceed. I have taken the opportunity in these circumstances of accessing the trial transcript to ensure that the facts on which the criminal compensation application proceeds accurately reflect the evidence presented at trial^[6].

The Law

5. [5]
   This is an application under Criminal Offence Victims Act (“COVA”) s 24. COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for 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 ranges set out in the compensation table (Schedule 1) for the relevant injury. 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 for 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. Criminal Offence Victims Regulations (“COVR”) s 1A provides for a further assessment of compensation based on the adverse impacts of a sexual offence which are not otherwise an injury under COVA s 20. Pursuant to R v Attwell; ex parte Jullie [2002] 2 Qd R 367, it is necessary in a proceeding under COVA to commence by compensating the victim of the sexual offence in so far as the impacts amount to an injury pursuant to COVA s 20, and to assess compensation pursuant to COVR s 1A, only to the extent that any relevant adverse impacts of a sexual offence are not an injury under COVA s 20.^[7]

Injuries

6. [6]
   The applicant did not sustain any physical injuries as a result of the offences, but seeks compensation for mental or nervous shock arising from the offences, as well as adverse impacts.^[8]

Compensation

7. [7]
   Ms Fadden, solicitor for the applicant, seeks compensation as follows:-

1. (1)
   Item 33 – mental or nervous shock (severe) (20% - 34%)

8. [8]
   The submission of Ms Fadden is that the mental or nervous shock suffered by the applicant should be the subject of an award of 30% of the scheme maximum ($22,500). The applicant was examined by Dr Barbara McGuire, psychiatrist, who prepared a report dated 9 May 2006 and an addendum report dated 25 May 2006.^[9] At the time that the applicant was interviewed for the purpose of these reports (27 April 2006), the applicant was aged 21 (having been born on 6 September 1984). The applicant had, since the offence occurred, received counselling from a number of different organisations and counsellors. In Dr McGuire’s opinion, even some seven and a half years after the commission of the offence, the applicant was exhibiting “post traumatic stress disorder to a severe degree” which Dr McGuire considered had been “present since the incident” and further, Dr McGuire considered that it was likely that the applicant would “continue to experience symptoms for an indefinite period”. Dr McGuire did note that there had been some alleviation in the applicant’s depression since the birth her child, who was one year old at the time of the interview with Dr McGuire.^[10] Dr McGuire noted the applicant’s extensive tattoos, the applicant’s manner of dress, the applicant’s (self described) “vulgar mouth”, the applicant’s poor choice of partners, the applicant’s extensive body piercing, the applicant’s poor sleep patterns, nightmares (about the respondent), her very low libido, and large chunks of memory loss, attributable to dissociative episodes.^[11]

9. [9]
   Dr McGuire also noted that a contributing factor to the injuries suffered by the applicant was the applicant’s mother’s “lack of protectiveness and her chronically bad relationship with [the applicant]”.^[12] In respect of those matters, Dr McGuire, in an addendum report dated 25 May 2006^[13], expressed the opinion that the offences with which the respondent was charged were “sufficient to make a significant and material contribution to [the applicant’s] disorder of post traumatic stress disorder”. Applying a commonsense approach to causation in these circumstances,^[14] it does seem clear to me that the respondent’s conduct was a material contribution to the injury suffered by the applicant which is the subject of this application, and consequently compensation should be awarded in respect of the whole of the injury.^[15] In the circumstances, given the severity and chronicity of the post traumatic stress disorder diagnosed by Dr McGuire, and the prognosis (continuing indefinitely), it appears to me appropriate that an award should be made under Item 3 at 30% ($22,500).

Adverse Impacts

10. [10]
    Dr McGuire’s report^[16] identifies the applicant as having suffered a sense of violation (particularly made worse because the applicant was drugged, there was a large age disparity and the applicant felt helpless); a reduced sense of self-worth (the applicant felt that it was her fault); lost or reduced physical immunity (the applicant had symptoms of stress, notably diarrhoea and vomiting and had undergone significant weight loss); the applicant suffered increased fear and feeling of insecurity including hyper-vigilance; the applicant had experienced adverse effects from her mother’s lack of support; the applicant had become avoidant of sexual relations; and had suffered adverse impacts on feelings. Of those adverse impacts, Dr McGuire indicated in her report that the impacts of lost or reduced physical immunity, and the adverse effect of the reaction of others, were adverse impacts which were not part of the diagnosis of post traumatic stress disorder.

11. [11]
    The applicant’s solicitor also submits that the applicant has suffered adverse impacts within the ambit of COVR s 1A(k)^[17], and asserts the loss of educational and occupation opportunities,^[18] the ongoing costs of counselling,^[19] the adverse effect on appearance of body piercing, tattoos and the manner of dress,^[20] the effect on health of reluctance to accept medical treatment as prescribed (a phobia arising from the use of the stupefying drug by the respondent),^[21] and the effect of legal proceedings.^[22]

12. [12]
    As Holmes JA indicated in Vlug v Carrasco:-^[23]

“The adverse impacts described in [COVR] s 1A are of the nature of symptoms likely, to a greater or lesser extent, to impair the individual’s psychological, emotional or physical functioning. In that sense they have the quality of injury, while not necessarily amounting to mental or nervous shock. (Although the last of the categories, s 1A(2)(k) is a catchall: ‘anything the court considers is an adverse impact of a sexual offence’, it must in my view be read ejusdem generis). The difference between those impacts and injury as defined in [COVA] s 20 is not, as the applicant suggests, one of quality but merely of degree”.

13. [13]
    In that respect, I accept that the further impacts submitted as being “loss of educational and occupations opportunities”, “adverse effect on appearance of body piercing, tattoos and manner of dress”, and “effect on health of reluctance to accept medical treatment as prescribed” are all “adverse impacts” which could be considered to be ejusdem generis with those impacts set out in COVR s 1A(2)(a)-(j). I do not, however, consider “ongoing costs of counselling” and “effect of legal proceedings” to be classifiable as “adverse impacts” under COVR s 1A(2)(k). Those “impacts” are consequences of (in respect of the counselling) the mental or nervous shock suffered by the applicant, and (in respect of the legal proceedings, as traumatic and stressful as they may well have been) the role of complainant, witness and/or applicant in any criminal or civil proceedings. I do not consider such impacts could be said to be “an adverse impact of a sexual offence”.

14. [14]
    In all of the circumstances, I consider that an appropriate award for those adverse impacts which are within the purview of COVR s 1A(2) to be an amount of 20% of the scheme maximum ($15,000).

Contribution

15. [15]
    I do not consider that the applicant has contributed in any way to her own injuries.^[24]

Order

16. [16]
    I order that the respondent Raymond John Laycock pay the applicant RKL the sum of $37,500.