DISTRICT COURT OF QUEENSLAND

1. [1]
   This application for criminal compensation is made pursuant to section 663B(1) of the Criminal Code and section 24 of the Criminal Offence Victims Act 1995.

2. [2]
   The respondent to the application, R L B, was convicted on 29 September 2006 in the Southport District Court upon his pleas of guilty to one offence of maintaining an unlawful sexual relationship and eight offences of incest. The complainant in all counts was the applicant, L A B.

3. [3]
   All relevant material has been served upon the respondent who has indicated that he does not desire to take any part in these proceedings.

4. [4]
   The applicant was born on 24 December 1982. At the age of two years and ten months she was adopted by the respondent and his wife.

5. [5]
   During the period 1 January 1991 to 31 October 1998 the respondent indecently dealt with and had sexual intercourse with the applicant. From the time she started primary school the applicant was kissed on the mouth by the respondent who used his tongue in the kissing. From the time the applicant was in Year 11 the respondent touched her breasts and masturbated himself in her presence whilst kissing and touching her. The respondent had sexual intercourse with the applicant whilst she was still under the age of 16. Acts of incest took place from when the applicant was 14 years until 2004 (when she was 21). The offences were committed over a 14 year period. The applicant was described by the prosecutor as a “special needs child”. At the time of her adoption the applicant had been diagnosed with Attention Deficit Hyperactivity Disorder and later, with Asperger’s Syndrome. She had been born with a cleft palate and had suffered from dietary, behavioural and eye problems.

6. [6]
   The sentencing judge described the respondent’s conduct towards his adopted daughter as relentless, cruel and exploitative. The sentence reflected the very serious nature of the offences (which included anal penetration). The respondent was sentenced to imprisonment for ten years and a declaration was made that he had been convicted of committing a serious violent offence, thus not becoming eligible for parole until he had served 80 percent or eight years of the sentence.

7. [7]
   As a result of the offences committed upon her by the respondent, the applicant formally changed her name by deed poll on 12 December 2007. She is currently 26 years of age.

8. [8]
   A report dated 1 May 2007 from Dr Judith M Chittenden (a specialist psychiatrist) has been placed before me. The report is very detailed and of considerable assistance to the Court. I accept its contents. Dr Chittenden’s diagnosis is that the applicant, as a result of the respondent’s offending behaviour, has suffered Post Traumatic Stress Disorder – DSM IV 309.81. This is said to be chronic and moderately severe in degree. There have also been clear signs of a Depressive Mood Disorder with extreme anxiety in the past. Dr Chittenden notes that there were many occasions in childhood and adolescence when the applicant felt that life was not worth living. This accounted for a severe disruption in her family dynamics, education and social relationships during her childhood and adolescence.

9. [9]
   Dr Chittenden has also identified adverse impacts of the prolonged sexual abuse and incest which are over and above her diagnosis of Post Traumatic Stress Disorder. In this regard Dr Chittenden notes ongoing feelings of degradation and violation which will probably never completely leave her. Also identified are the following:

1. extreme lack of self-esteem and self confidence;
2. extreme feelings of worthlessness, helplessness and hopelessness in her situation;
3. extreme feelings of guilt;
4. major feelings of insecurity and lack of confidence outside her home and in social situations, which marked her entire childhood and adolescence;
5. difficulty in making decisions and procrastinating, which is tied in with her feelings of insecurity, low esteem and self confidence;
6. extreme care with respect to where she goes and with whom she associates;
7. heightened fear of any outside sexual offences against her;
8. ongoing fear of the dark;
9. extreme ongoing feelings of sadness and depression when she thinks about her childhood;
10. extreme ongoing feelings of apprehension and anxiety, together with fear in certain situations, often triggered by cues which remind her of past situations. 

10. [10]
    Following the applicant’s declaration of sexual abuse, her emotional symptoms became considerably worse for a period of time. During this time she was extremely fearful and more anxious and she began to drink in order to cope with her anxiety. Counselling assisted the applicant to begin to obtain some sense of control of her life. In her present relationship with a person who is of mature age and very supportive, the applicant’s feelings of enjoyment and rewards within her sexual relationship are improving and giving her greater satisfaction, but she retains some anxieties which will remain with her for life.

11. [11]
    The applicant was so devastated by the prolonged sexual abuse and incestuous relationship that it was not revealed until she was at a stage in maturity, 23 years of age, when she at last had someone outside the family with whom she could speak and in whom could trust. Fortunately, this person (her partner) was patient and a good listener, and proved to be a good adviser to her. This allowed her eventually to speak up and tell her mother what had occurred.

12. [12]
    Dr Chittenden is of the view that the applicant is unlikely to totally recover from her experiences which have continued for so long and have been so pervasive and persistent throughout her childhood and adolescence. The applicant will require support in the future to help her cope and will be liable to experience exacerbations of her emotional disorder as a result of the respondent’s conduct towards her.

13. [13]
    A report dated 15 May 2007 (with additional information dated 28 September 2007) from Ms Katie Boast, a counselling psychologist, has also been placed in evidence before me. Ms Boast states that it is evident that the applicant has suffered from Chronic Post Traumatic Stress Disorder. These impacts include feelings of ongoing fear and guilt, reduction of self-esteem and adverse impacts on the applicant’s relationships and finances.

14. [14]
    Ms Boast considers that the applicant will require many more sessions of counselling to deal with her fear, guilt and self-esteem. Although the applicant has worked hard to deal with the emotional damage suffered as a result of the respondent’s conduct, Ms Boast believes that she will continue to feel the impacts caused by it on some areas of her life, for the rest of her life.

15. [15]
    In her affidavit filed on 30 January 2008 the applicant has confirmed the accuracy of the reports of Dr Chittenden and Ms Boast with respect to their recounting of what the applicant told them about the effects upon her life of the respondent’s conduct.

16. [16]
    I am satisfied that the applicant has suffered from a Post Traumatic Stress Disorder, as identified by Dr Chittenden and Ms Boast. I further accept Dr Chittenden’s evidence that the applicant experienced past symptoms of a Depressive Mood Disorder and extreme anxiety as a result of the sexual abuse by the respondent. An assessment of the mental or nervous shock in terms of the Compensation Table in Schedule 1 of the Criminal Offences Victims Act 1995 indicates that the injury is appropriately categorised as severe and therefore falls within item 33 of the table. This calls for an award in the range of 20% to 34% of the scheme maximum (which remains fixed at $75,000.00).  Having regard to the severity and duration of the symptoms it is appropriate in my view, to assess the injury at the upper limit of this range which yields an amount of $25,500.00.

17. [17]
    Regulation 1A of the Criminal Offences Victims Regulation 1995 provides for an award of compensation for the totality of the adverse impacts of a sexual offence suffered by a person to the extent to which the impacts are not otherwise an injury under section 20 of the Criminal Offences Victims Act 1995.  A list of examples of adverse impacts is provided in regulation 1A (2).

18. [18]
    The description of the adverse impacts of the respondent’s sexual abuse upon the applicant in the reports of Dr Chittenden and Ms Boast demonstrate the severe and chronic effects of such conduct over a long period of time. Dr Chittenden describes how the applicant experienced difficulties throughout her entire school because of the offending behaviour, with problems in concentrating and lack of success in her schooling generally. Of relevance in this regard are the diagnoses of ADHD and Asperger’s Syndrome by medical practitioners who were then unaware of the sexual abuse being perpetrated against the applicant by her adoptive father. Dr Chittenden in her report states:

“Although diagnosed with ADHD and Asperger’s Syndrome it would appear from the reports sighted by me that these diagnoses were not perhaps as firmly made as they are with some children, and this perhaps would be indicative that instead of ADHD and possibly Asperger’s Syndrome, [the applicant] was in fact suffering from the well recognised symptoms and signs of chronic child abuse”. 

19. [19]
    It may well be then, that the applicant was misdiagnosed and medicated for the wrong reasons. However, even discounting the possible misdiagnoses and inappropriate medication of the applicant, I accept that the totality of the adverse impacts suffered by the applicant are severe and continuing. In these circumstances I conclude that for the totality of the adverse impacts upon her resulting from the respondent’s conduct an award of 60% of the scheme maximum, or $45,000.00, should be appropriate.

20. [20]
    The total assessment under the provisions of the Criminal Offences Victims Act 1995 is therefore 34% of the scheme maximum for mental or nervous shock (or $25,500.00), together with 60% of the scheme maximum (or $45,000.00) for adverse impacts over and above those covered by the diagnosis of Post Traumatic Stress Disorder.  This assessment, therefore, comprises a total of 94% of the scheme maximum, or $70,500.00.

21. [21]
    The Criminal Offences Victims Act 1995 received assent on 22 November 1995.  Sections 1 and 2 (Short title and Commencement) commenced on assent.  The remaining sections commenced on 18 December 1995.  The Criminal Offences Victims Regulation 1995 commenced on 14 December 1995.  Applications for criminal compensation in relation to offences committed before the commencement dates referred to above are governed by the provisions of section 663B(1) of the Criminal Code. 

22. [22]
    Because the acts of the respondent in relation to the charge of maintaining an unlawful relationship of a sexual nature constitute a continuing course of conduct spanning the periods covered by the Criminal Code and the Criminal Offences Victims Act 1995, any award of compensation must be apportioned under both pieces of legislation.

23. [23]
    In this case the period of the respondent’s offending behaviour was from 1 January 1991 and 15 August 2003, some 12½ years. The Criminal Offence Victims Act 1995 commenced approximately half way through the offending period.  Dr Chittenden, at p14 of her report, states that:

“There is obviously no chance of suggesting ‘before and after’ changes in personality and psychological progress, together with lifestyle activities, as these were constantly affected by the sexual abuse she suffered at such an early age”.

24. [24]
    I accept that the effects upon the applicant cannot be attributed to each period covered by the two legislative schemes. Accordingly, in the absence of any more suitable approach, effects upon the applicant should be apportioned according to the periods of time over which the offending conduct occurred in terms of each legislative scheme.

25. [25]
    Although the effects upon the applicant during the period covered by the Criminal Code undoubtedly would have been substantial, the more serious acts of incest were committed after the commencement of the Criminal Offence Victims Act 1995 when the applicant was older and had more understanding of the seriousness of the respondent’s conduct.  As Dr Chittenden observed:

“As she grew older she realised the behaviour was wrong but had no way of changing it, as her father said that her family would suffer in various ways if she told them what was happening”.

26. [26]
    It should be noted that all eight incest counts as well as the final year relating to the maintaining charge occurred during the period covered by the Criminal Offence Victims Act 1995.

27. [27]
    The maximum amount that could be awarded by way of criminal compensation for the maintaining under section 663B(1) of the Criminal Code is $20,000.00 – that amount being the prescribed amount in the case of mental or nervous shock (section 663AA(1)).  I accept that an award of the maximum available is appropriate in the circumstances of this case having regard to the psychiatric and psychological reports.

28. [28]
    By apportioning the awards according to the time period of the respondent’s offending behaviour a result is reached whereby 50% of the effects occurred under each of the two legislative schemes. Thus, accepting that an appropriate assessment under the Criminal Code would be $20,000.00 and an assessment under the Criminal Offence Victims Act 1995 would be 94% of the scheme maximum or $70,500.00, then an apportionment of 50% of each assessment would result in sums of $10,000.00 and $35,250.00.  This yields a total award of $45,250.00.

29. [29]
    There is nothing in the behaviour of the applicant which would call for any reduction in the award.

30. [30]
    I order that the respondent is to pay criminal compensation to the applicant in the amount of $45,250.00.