GKA v Bell[2007] QDC 91

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation which is advanced under both s 663B of the Criminal Code and the Criminal Offence Victims Act 1995. On 5 December 2005 the respondent pleaded guilty to 10 counts, one of maintaining an unlawful relationship of a sexual nature with a circumstance of aggravation between 1 August 1994 and 2 December 1997; two counts of indecent dealing with and one count of unlawfully permitting himself to be indecently dealt with by a child under 12 years and under his care, all between 1 August 1994 and 1 August 1995; one count of indecently dealing with and one of unlawfully permitting himself to be indecently dealt with by a child under 12 years, each between 15 October 1995 and 26 October 1995; one count of indecent dealing with a child under 12 under his care between 1 August 1995 and 1 August 1996; one count of rape between 1 August 1996 and 1 December 1996; one count of indecent dealing between 1 August 1997 and 31 August 1997; and one count of exposing a child under 16 to an indecent act between 1 August 1997 and 2 December 1997. All of the offences were alleged to have been committed against the applicant, who at the relevant time was aged between nine and 12. Sentences of imprisonment were imposed, nine years for each of the maintaining and the rape counts, and four years for each of the other counts, all to be served concurrently.

2. [2]
   It will be immediately apparent that the offences straddle the commencement of the Criminal Offence Victims Act 1995 (“the Act”) on 18 December 1995. By s 46 of the Act, the compensation provisions do “not apply to injury suffered by anyone because of an act done before the commencement”, and chapter 65A of the Code applies to such an injury; the compensation provisions in part 3 apply only, “for applications under s 24 – to injury suffered because of a personal offence mentioned in s 24(1) that happens after the commencement.”  Effectively if the act or acts constituting the offence were done prior to 18 December 1995, compensation for any consequent injury is available only under chapter 65A of the Criminal Code; however, if the offence “happened”, that is presumably was committed, on or after that day, any consequent injury is to be compensated under the Act.

3. [3]
   The dates given for Count 1 straddle 18 December 1995, as do the dates given for Count 7; the dates for Counts 2, 3, 4, 5, and 6 are such that the acts constituting those offences were done before the commencement so that any consequent injuries are to be compensated under the Code, and the dates for Counts 8, 9, and 10 show that those offences happened after the commencement and any consequent injuries are to be compensated under the Act.

4. [4]
   The sentencing judge noted that the first offence, an act of oral sex when the complainant was nine, followed threats with a kitchen knife held to her throat, after which her hands were tied behind her back and to a bedpost so that she could not move or resist, and she was later threatened with death if she told what had happened. The sentencing judge described the offences as involving elements of an almost sadistic domination. At the time of the sentencing, there was no victim impact statement. The Crown prosecutor informed the sentencing judge that the applicant had declined to provide a statement: “she has taken some time to consider it, and has decided not to.”^[1]  The applicant in her affidavit said that she instructed a solicitor in Adelaide to prepare an impact statement “however, he never did.”^[2]

5. [5]
   The applicant deposed in November 2006 to the offences having had a severe effect on her life. She has been in and out of refuges, tried to kill herself a number of times in order to draw attention to her situation, dropped out of school in grade 8, was angry, stressed and scared, and has been taking anti‑depressants off and on since she was 10. She cannot forget the bad memories of the offences, finds it very, very hard to get to sleep and has nightmares at least three times a week about what happened.

Expert evidence

6. [6]
   The applicant was seen by a psychologist on 25 July 2006 for the purposes of a report.^[3]  The applicant told the psychologist that she had been raped about 20 times,^[4] with the remaining sexual episodes consisting in particular of digital penetration. The abuse occurred as often as four times a week, mostly at weekends when she was at home alone with the respondent. The psychologist concluded that the applicant had been suffering post‑traumatic stress disorder since childhood, and considered that it would be of assistance for her to have some counselling, or rather additional counselling as she had spoken positively of counselling that she had had previously. He did not think that there was any question of her symptoms going away. He noted that he was not in a position to provide expert opinion as to whether the applicant had suffered any disease, or suffered an increase tendency to miscarry, as a result of the abuse.^[5]  He referred to a variety of adverse consequences of the abuse, but did not say anything about which were part of the post‑traumatic stress disorder and which were separate from it. He also said nothing which would be of any assistance in apportioning the consequences of the abuse between the period covered by the Code and the period covered by the Act.

7. [7]
   The applicant saw Dr Fama, a psychiatrist, on 20 February 2007 for the purposes of a report.^[6]  At that stage the applicant had two young children, of two and a half years and two months respectively. She still has difficulty sleeping, and still has nightmares of the sexual assaults, and recollections of the assaults sometimes during the day. She remained jumpy and nervous, and avoided anything which might remind her of sexual violence. She has subsequently found sexual contact distasteful, and now has no interest in any further relationship with a man. She referred to her last partner as being physically violent.^[7]  She now has no inclinations towards self-harm and wants to be a good mother to her children.

8. [8]
   At that time, Dr Fama did not think that the applicant showed features to suggest any major mental illness, but he agreed that her history and symptoms indicated post traumatic stress disorder “which at this stage represents a limiting disability.”  At the time of the interview she was not receiving any direct medical care. She now has a close relationship with her mother. She is currently on probation, following conviction on two counts of fraud. She remains generally insecure and mistrustful of men, has flashbacks and nightmares, but she is not currently incapacitated by anxiety, nor does she present with any symptoms of depression.

9. [9]
   Dr Fama did not think that the miscarriages could fairly be attributed to sexual abuse. He was not in a position now to form an opinion on whether a sexually transmitted disease, Chlamydia, was contracted as a result of the abuse; if so it has since been eradicated. He considered that there was some continuing impairment of her capacity for full sexual satisfaction. Overall, the applicant was suffering from a moderate degree of disability, now gradually ameliorating. The disability was not so severe as to impede the activities of everyday life. He described it as “essentially an impairment of attitudes and emotional capacity, particularly in sexual relationships.”

10. [10]
    Dr Fama then went on to express an opinion as to the level of compensation he thought appropriate in relation to the maximum possible for that type of injury, which it seems to me is not something within his expertise, given that this is essentially a matter to be determined in accordance with the relevant provisions of the Criminal Code, or the Act, as the case may be. Unfortunately, Dr Fama also provided no assistance in apportioning the consequences of the condition now suffered between the acts done during the period when the Code was applicable, and the offences committed after the commencement of the Act.

11. [11]
    With regard to the adverse impacts specified in the Criminal Offence Victims Regulation, Dr Fama supported the existence of a sense of violation and poor self esteem, as well as increased feelings of insecurity both in public and in the company of men in an unprotected situation, and impaired self regard particularly in the past, although this had improved somewhat since the birth of her children, as well as the residual impairment in the capacity for full sexual satisfaction, but did not indicate to what extent any of these things were separate from the post‑traumatic stress disorder. I would have thought myself that fear or feelings of insecurity would be something associated with post‑traumatic stress disorder.

12. [12]
    I note that the extract from the diagnostic manual provided by Dr Fama referred to typical symptoms of post‑traumatic stress disorder as including “episodes of repeated reliving of the trauma in intrusive memories (‘flashbacks’) or dreams, occurring against the persisting background of a sense of ‘numbness’ and emotional blunting, detachment from other people, unresponsiveness to surroundings, anhedonia, and avoidance of activities and situations reminiscent of the trauma. Commonly there is fear and avoidance of cues that remind the sufferer of the original trauma. Rarely, there may be dramatic, acute busts of fear, panic or aggression, triggered by stimuli arousing a sudden recollection and/or re-enactment of the trauma or of the original reaction to it. There is usually a state of autonomic hyperarousal with hypervigilance, an enhanced startle reaction, and insomnia. Anxiety and depression are commonly associated with the above symptoms and signs, and suicidal ideation is not infrequent.”

13. [13]
    In these circumstances, it seems to me that the poor self‑esteem and increased feelings of insecurity, and bad memories associated with intimate sexual contact, and the adverse impact on feelings identified by Dr Fama are all part of the post‑traumatic stress disorder identified by him. On the other hand, I am prepared to find that the applicant suffered a sense of violation and an adverse impact on lawful sexual relations, and in the past suffered an adverse impact on her relationship with her mother (which, however, has since been overcome) as a result of the respondent’s conduct.

14. [14]
    Another matter not specifically addressed by Dr Fama is the fact that the applicant left school quite early, at about year 8. She became aggressive to teachers and fellow students, as well as at home, and was ultimately expelled from school, for fighting. In view of the medical evidence, it is reasonable to conclude that her aggression, and hence her expulsion from school, were caused by the abuse. In these circumstances, I am prepared to find, for the purposes of the regulation, that another adverse impact of the offending was that her education was disrupted and shortened. This can be considered under para (k) of s 1A.

The effect of the overlap

15. [15]
    The approach to be adopted in relation to a matter of this nature was determined by the Court of Appeal in HV v LN [2002] 1 Qd R 279, which also involved a case where a respondent had been convicted of maintaining a sexual relationship with a child in respect of a period which straddled the commencement of the Act, as well as four other particular counts in the nature of indecent acts. Thomas JA with whom the other members of the court agreed said at p 283:

“In the present situation I consider that an applicant is entitled to an assessment in respect of each period and that the courts must do the best they can in ascribing appropriate compensation in respect of each period. Where there is a combined effect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the effects attributed to each period and if no better suggestion appears, the length of the respective periods over which the offending conduct occurred may be used.”

16. [16]
    He then went on to consider the possibility that medical evidence may permit a different view to be reached in a particular case, but that does not apply here where there is nothing of assistance in the medical evidence. The two periods spoken of by his Honour were of course the periods prior to and after the commencement of the Act. In that case, the judge at first instance had determined the compensation which would have been paid if the matter had been dealt with on the basis that the Code was applicable during the whole of the period, and the amount of compensation that would have been paid had the Act been applicable in respect of the whole period, determined that the Code was applicable for approximately 75% of the relevant period, and assessed compensation at 75% of the Code assessment plus 25% of the Act assessment. The Court of Appeal approved this approach and dismissed the appeal.

17. [17]
    In the present case, the period specified for Count 1 runs from 1 August 1994 to 2 December 1997, so that there was a period of just over 16 months before the commencement of the Act, and just under two years after the commencement of the Act. That suggests a rough apportionment of 40% to the period covered by the Code and 60% to the period covered by the Act. There is nothing in the medical evidence specifically to support what might be thought to be a reasonable lay assumption, that the main harm would have been suffered as a result of the earlier most severe instances of abuse, and the judgment of the Court of Appeal suggests that, in the absence of such medical evidence, such an approach should not be adopted. Further, this is not a case where there was a slow escalation in the severity of the offending over a long period of time with the more serious offending occurring only at or towards the end of the period. The evidence indicates that even the very first occasion of sexual abuse occurred in what must have been extremely emotionally traumatic circumstances, and the applicant complains of a number of instances of rape, and numerous examples of digital penetration, effectively covering the whole of the period of the maintaining offence. In these circumstances, no better approach to apportionment has appeared, so the appropriate basis of apportionment is on the basis of time, as approved by the Court of Appeal. That means 40% to the Code period and 60% to the Act period.

Assessment under the Code

18. [18]
    Under the Code compensation is assessed on common law principles, subject to the operation of the maximum prescribed under the statute: R v Jones, ex parte McClintock [1996] 1 Qd R 524. The prescribed amount for mental or nervous shock is $20,000. There is an issue in this matter as to whether the offences amounted to one or more courses of conduct, for the purposes of the determination of the maximum:  see HW v LO [2001] 2 Qd R 415. In that case, the Chief Justice noted that there was a need for an element of continuity and regularity to produce in aggregation an identifiable overall pattern. He said that even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct.

19. [19]
    One of the offences to which the respondent pleaded guilty, covering the whole of the relevant period, was the offence of maintaining an unlawful sexual relationship with a child, contrary to s 229B of the Code. The use of the term “relationship” in that section implies a continuity of contact in which both parties are involved:  R v K (No 2) [1998] 2 Qd R 510 at 511 per Macrossan CJ. Just what needs to be proved in order to show that a relationship has been maintained has never been clearly defined by the courts, but one would reasonably expect some continuity or habituality of conduct before it could be said that a relationship had been maintained.

20. [20]
    The factual basis upon which Count 1 was put before the sentencing judge, and therefore the basis on which the respondent was convicted, was set out in a document which was tendered as an exhibit, and that document is not before me. Nevertheless, the applicant has sworn that the information she provided to the psychologist in July 2006 was true.^[8]  According to his report, the abuse included being raped about 20 times, with the remaining sexual episodes consisting in particular of digital penetration, began when she was nine and continued through to age 12, occurring as often as four times a week, mostly at weekends when she was at home alone with the respondent, although on a small number of occasions it occurred despite her mother being also at home. There is also exhibited to her affidavit a statement made to police, that deals only with specific incidences of abuse that she could recall, but it is apparent from what is contained in the medical reports that the abuse was more extensive than that set out in the statement. The psychologist noted, as one of the factors contributing to the extent of her reaction, the extent of the sexual acts perpetrated on her.

21. [21]
    In these circumstances, the evidence reveals that the specific charges included in the indictment (apart from Count 1) were only a part, and indeed perhaps a small part, of all of the sexual abuse which was covered by Count 1. In my opinion on the evidence there was the necessary degree of continuity and regularity and habituality about the conduct for it to constitute one course of conduct in respect of the whole of the period covered by Count 1.

22. [22]
    It is apparent from the medical evidence that, if the assessment were made on common law principles, damages would be assessed at well above $20,000. In the circumstances, therefore, if the matter were assessable under the Code, the compensation awarded would be $20,000, the maximum for mental or nervous shock.

Assessment under the Act

23. [23]
    The effect of the medical evidence appears to be that the plaintiff’s post‑traumatic stress disorder was initially severe, but had subsequently abated to a moderate level by the time she saw Dr Fama. There are from his report prospects of some further moderation, particularly if the applicant’s life becomes more stable; it is apparent that her position as a mother to two young daughters has been a stabilising influence in her life. The medical evidence indicates, however, that the condition will not entirely resolve. In these circumstances, in my opinion the appropriate assessment is within Item 32, moderate mental or nervous shock, although towards the upper end of the range provided for that item to reflect the fact that the injury was initially severe. Accordingly, I allow 18% for the psychiatric injury.

24. [24]
    With regard to the deemed injury constituted by the adverse impacts of the offending, apart from the psychiatric injury, the consequence of sexual offences can be many and varied, and can be in some particular cases very serious, and it was no doubt with a view to reflecting that situation, and a concern that there were matters not adequately reflected in the formulation of the current schedule, that s 1A of the regulation was introduced. Without dwelling on the more serious possible adverse consequences of sexual offences, it is apparent that they can certainly be a lot more serious than those suffered by the present applicant, when considered separately from those matters which make up her psychiatric injury.

25. [25]
    The sense of violation, the interference with lawful sexual relations, and the interference in the past with the relationship with her mother are matters of some significance. The interference with her education is more difficult to assess. Dr Fama estimated the applicant’s level of intelligence as within the lower average range, and intelligence is not something which would have been affected by the offending or her reaction to it. Nevertheless, the medical evidence does suggest that the plaintiff’s education was quite severely disrupted, and I think some reasonable allowance should be made for this as an adverse impact of the offending.

26. [26]
    In view in particular of this aspect of the matter, some significant allowance should be made for adverse impacts apart from the mental or nervous shock in the present case, and I allow 20% for the deemed injury under the regulation. That produces a total of 38%, which when applied to the scheme maximum produces an amount of $28,500.

Combined assessment

27. [27]
    Apportioning the award 40% to the Code period and 60% to the Act period, and performing the calculation in the manner approved by the Court of Appeal, that produces a total award of $25,100.^[9]  There is nothing in the material to suggest that the applicant in any way contributed to any of her injuries, or to suggest that there were any other significant causes contributing to the injuries, a factor which would be relevant only for the purposes of assessment under the Act.^[10]  Accordingly, I order the respondent to pay the applicant $25,100 compensation for the injuries suffered by the applicant as a result of the offences for which the respondent was convicted on 8 November 2006.

28. [28]
    In relation to the question of costs, there is no power under the Act to order costs, but it is accepted that an order for costs can be made under the Code, and such an order is commonly made. Nothing was said HV (supra) to indicate whether an order for costs could properly be made in such circumstances, or even indeed whether an order was made in that case. So far as the application is brought under the Code, there is no good reason to deprive the applicant of her costs, and the fact that the application was also brought under the Act is not something which would have increased the costs in any real way. In the circumstances therefore I consider there is no obstacle to my making an order for the costs of the application against the respondent, and I order the respondent to pay the applicant’s costs of and incidental to the application to be assessed.