Hennessy v Gill[2008] QDC 246

DISTRICT COURT OF QUEENSLAND

1. [1]
   On or about 29 January 2001 on the applicant’s 16^th birthday the respondent, her father, committed offences of a sexual nature against her at Tweed Heads in New South Wales and then in Tewantin in Queensland.  The applicant is now 23 years of age.

2. [2]
   The respondent was convicted in Queensland on 7 October 2002 for the offence of having carnal knowledge of the applicant his offspring knowing she bore that relationship to him and served a term of imprisonment for that offence (the Qld offence).

3. [3]
   The respondent was convicted in New South Wales on 23 April 2004 for the offence of aggravated sexual intercourse with the applicant who at the time was under his authority (the NSW offence).

4. [4]
   The sentencing judge for the NSW offence took into account when sentencing the respondent to a jail term, a similar offence committed a few hours later and also an indecent assault at the same time.

5. [5]
   An appeal to the New South Wales Court of Appeal against the sentence imposed for the NSW offence was dismissed on 29 August 2005.

6. [6]
   The applicant has sought compensation in relation to the “sexual assault” by the respondent upon the applicant at Tweed Heads in New South Wales.  The New South Wales Victims’ Compensation Tribunal awarded the applicant for this “sexual assault” the sum of $22,000.00.

7. [7]
   This is the applicant’s application for compensation to be assessed for the Qld offence pursuant to the provisions of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence which led to the conviction of the respondent on 7 October 2002 upon indictment for one count of carnal knowledge of the applicant.

8. [8]
   The applicant’s mother states that the applicant has been very badly affected by the offences committed by the respondent. She continues to suffer mental health issues and is still fragile. She has only recently been discharged from a psychiatric unit at Bloomfield Hospital, Orange.  She has been hospitalised on at least two occasions between 2001 and 2003.  The applicant became suicidal.  The applicant was diagnosed with bi-polar affective disorder.  She was constantly depressed for a period of over four years.

9. [9]
   The applicant’s mother states in a recent affidavit the applicant continues to suffer mental health issues and is still fragile.

10. [10]
    The applicant’s mother states the applicant over the last 12 months has made some improvements. She started a relationship with a person a couple of years ago and in the last 12 months this relationship has settled down as both are no longer using drugs and alcohol. She now gets on well with her partner. Further she has been attending AA and NA and has been off drugs and alcohol for an excess of 120 days. She has worked hard to become abstinent and stay abstinent. She has also recently applied for voluntary work, one day per week, to build up her self esteem, and is hoping to enrol in a mechanics course to learn how to repair a car. Further she has recently started working in their family business, two days a week in the office. She struggles to do this as she has difficulty following instructions and particularly a series of tasks. She has great difficulty focusing and maintaining concentration. She is only able to perform very basic administrative tasks with supervision. She can answer the phone and take messages, file and copy type. Her mother does not consider she could hold down a job due to her inability to work independently and consistently.

11. [11]
    The applicant’s mother states there has been a change in the applicant and she agrees she has become sick of her life being the way it was. She agrees that the applicant really wants to have some kind of a future. The applicant is sick of being an addict and living with all the problems that brings. She would like to have a normal life. The applicant is attending her general practitioner regularly for medication. She is compliant with her medication and is determined to maintain her abstinence and continues to regularly attend her AA and NA meetings. The applicant is nonetheless emotionally fragile and she is aware that she could easily lose her resolve and start drinking and taking drugs again.

12. [12]
    A number of psychiatrists have examined and reported on the applicant.

13. [13]
    The report of Dr Blinkhorn is in the form of a victim impact statement to be tendered with respect to the NSW offence. Although an interview for this victim impact statement was conducted by telephone on 9 April 2004 by Dr Blinkhorn she states the applicant is well known to her having been referred in relation to emotional and behavioural problems in April 1998.  She has seen the applicant since that time off and on.  She was her patient at the time of the offences referred to in the victim impact statement.

14. [14]
    Dr Blinkhorn states that the applicant’s symptoms are consistent with the diagnosis of post traumatic stress disorder. In addition the applicant has a pattern of alcohol intake consistent with a diagnosis of substance abuse. Dr Blinkhorn states the essential characteristic of PTSD is development of certain symptoms following the exposure to an extreme stressor involving direct personal experience of an event that involves a threat to one’s physical and psychological integrity. It is her opinion that the nature and quality of the offences reaches the threshold of “extreme stressor”. The applicant repeatedly made comments that she was scared during the offences, “he said things that made me scared”. The applicant said that she thought she could be assaulted or even killed by her father if she tried to resist him, and that she “could put up with it or get belted as well”.

15. [15]
    Dr Blinkhorn states the characteristic symptoms resulting from the exposure to the traumatic event include persistent re-experiencing of the traumatic event; persistent avoidance of stimuli associated with the trauma and the numbing of general responsiveness, and persistent symptoms of increased arousal.

16. [16]
    The applicant described symptoms which Dr Blinkhorn states fulfil all the criteria for the diagnosis of PTSD. She states these symptoms are of such severity and persistence that there is considerable impairment for the applicant in several areas of her life. She also states that the applicant consumed alcohol rarely prior to the offences. Her father introduced her to heavy consumption of alcohol at the time of the offences. She now reports problematic consumption of alcohol and other substances. This appears to be a response to ongoing psychological distress, particularly depressed mood and avoidance of anxiety, directly related to the offences, their impact on her relationships with family, friends and colleagues. This is now a maladaptive pattern of substance use leading to impairment and qualifies for the diagnosis of substance abuse as described in the DSM 4^th edition.

17. [17]
    Finally Dr Blinkhorn states the applicant is a young woman of probable average intelligence. She experienced emotional and behavioural problems in adolescence, and had strained relationships with her mother and step-father, but by late adolescence at the time of the offences was making excellent adaptation and her outlook was very good. She had had very little contact with her father since early childhood until the time of the offences. She states her current presentation is consistent with the diagnosis of post traumatic stress disorder and substance abuse. These disorders have had a major impact on the quality of her social and vocational functioning. Having had the prospect of successfully training to become a hairdresser, she is now capable of only casual work in a supportive environment (with relatives). In her opinion the applicant would benefit from cognitive behaviour therapy which focuses on the management of her mood, and substance use. The persistence of severe mood symptoms now three years after the offences suggests that therapy will need to be sustained over a long period, probably at least two years, vocational support will be beneficial.

18. [18]
    Dr Jolly interviewed the applicant on 2 September and 5 October 2005. His report was directed to the solicitors for the applicant in relation to her application for victims’ compensation in New South Wales.  Dr Jolly states that it is not an easy matter to report in that the applicant was a victim of her father’s unlawful actions both in New South Wales and Queensland and was charged with offences on both sides of the border, and indeed has been sentenced to custodial terms in both Queensland and New South Wales.

19. [19]
    Dr Jolly states that one issue strikes him in particular and this is the very fact that the respondent inflicted vaginal sexual intercourse on his daughter which was significantly and substantially destabilising, in mental health terms, and in Dr Jolly’s view the first act of penetration should be viewed as the most violent, triggering event.

20. [20]
    When taking the personal history Dr Jolly noted that up to the age of 11 the applicant had a pretty good relationship with her mother. She then became a “rebel” and she experimented sniffing aerosols, first of all, after which her mother “freaked”. Next, the applicant evidently became “suicidal”, allegedly a form of mental illness precipitated by “sniffing”. The family was living in Queensland, in Brisbane, where the applicant saw a psychiatrist.  Dr Jolly states there was very definitely an early adolescent crisis.  The applicant was treated with medication and there were attempts at self-injury such as “jumping out of a car”.  Furthermore, “I was a cutter” i.e. inflicting wounds upon herself.  Then he notes at the age of 13 the applicant went to Spring Hill just outside Orange to live with her grandmother .  She “sometimes” went to school but she was still a rebel.  She also experienced panic attacks, tended to sleep in class, the side effect of medication.  Regarding schooling Dr Jolly notes the applicant did parts of years 7, 8 and 9 and quite a deal of hospital schooling in Brisbane, then attending school at an adolescent clinic.  She did no year 10.  She started at TAFE, age 15, and completed just about the whole of the year 2000, from March.  She was living with her grandmother, doing a hairdressing course in Orange, which was intended as a pre-apprenticeship course.  The applicant could not remember if she attended TAFE three or five days a week but said she was achieving good marks and passed “Certificate II and Certificate III”.  Further she stated “and at that stage … I was really doing well with mum …”.  Dr Jolly states there appears to have been no major adverse issues in life at that time and it would be a fair inference to draw that the time of acute adolescent turbulence was passing over, and the applicant was as secure as very many of her peer group, by the end of the year 2000.

21. [21]
    Regarding use of alcohol the applicant stated to Dr Jolly that she started using alcohol about the age of 12. Every couple of months or so she would stay over at a girl friend’s house and they would raid the parent’s “booze cupboard”. The applicant told him that these were simply acts of defiance and she was smoking tobacco. As a 12 or 13 year old she might get “drunk”, say, and clearly this was inappropriate use of alcohol, but he does not believe it would be termed dependency. He states from the age of 16, in the aftermath of the sexual assaults, the applicant was drinking virtually every day up to early 2005. Further, at the age of 18 she started injecting amphetamines and also morphine. She was quite markedly depressed from time to time. She also became somewhat promiscuous. She felt worthless, her self-esteem being appallingly low. Dr Jolly states that gradually the applicant grew towards stability.

22. [22]
    Dr Jolly also addresses the “issue of apportionment”. He points out it is utterly arbitrary as there is no way of making scientific divisions, for in traumatic terms to the individual, the victim, the incidents were simply a series of events in one continuous destructive sequence. The approach he takes is that there were two incidents in New South Wales and one in Queensland.  Therefore one approach is to apportion two thirds of the damage done to New South Wales and one third to Queensland.  However, in his opinion the first act of violence, the first episode of sexual intercourse, represented a greater emotional trauma and therefore damaging act being the symbolic betrayal of trust.  Pragmatically, he would therefore apportion New South Wales:Queensland between 70:30 and 75:25, with his preference for the latter figure.  He says ultimately, that is a matter for legal decision and it seems important that both New South Wales and Queensland agree on the same figure.

23. [23]
    Finally Dr Jolly states in his report that the applicant has sustained real nervous shock, significant psychiatric injury. There is evidence of four years of relapsing psychiatric illness, causally related to the sexual assaults, and the psychiatric diagnoses appear to be PTSD, acute then chronic type, and bi-polar disorder, with frequent depressive relapses. There is evidence of drug and alcohol misuse, and colossal amounts of emotional pain and suffering, and lost educational/trade/training opportunities. He states it is probable that the applicant was biologically pre-disposed to relapsing affective disorder: continuing treatment, both clinical psychological and psychiatric is recommended.

24. [24]
    In a further report from Dr Jolly dated 26 November 2006, this time directed to the Legal Aid Office, Queensland acting on behalf of the applicant Dr Jolly states that he is satisfied a third episode of intercourse, in Queensland, caused significant mental shock at the time it happened, and in turn directly caused an acute post-traumatic stress disorder which in due course became chronic. He also notes the applicant was admitted to a psychiatric hospital within a few months of the “assault”. In his opinion the role of the assault was to destabilise such that it can be said, in his opinion, they induced or provoked bi-polar illness as major psychiatric disturbance, and thus in medico-legal terms there is a strong causal link. He also states the applicant’s drug and alcohol problems consequent upon the sexual assaults are essentially formulated in “adverse impact” terms. These adverse impacts be identified as including a sense of violation, reduced self worth, increased feelings of insecurity, adverse impact on lawful sexual relations and a lack of trust.

25. [25]
    Dr Kossoff is the third psychiatrist to report on the applicant. She saw the applicant on 12 May 2008. The history given to Dr Kossoff by the applicant is consistent with the history referred to in the reports of Dr Blinkhorn and Dr Jolly and consistent with what the applicant’s mother has sworn to in her affidavits filed in support of this application.

26. [26]
    Dr Kossoff’s opinion is the applicant has developed post traumatic stress disorder and alcohol and substance abuse and dependence since the alleged sexual assaults. The post traumatic stress disorder is in partial remission and the alcohol and substance dependence is in early remission. Both of these disorders have been severe in that the applicant has been suicidal and has required admission to psychiatric hospitals since the assault. She states it is commendable that the applicant has been able to become abstinent from substance use over the last 90 days, but she is very vulnerable to relapse, both because of her long standing history and her post traumatic stress disorder. Dr Kossoff states only 10-20% of people achieve abstinence over the long term. However since she has become abstinent, the symptoms of post traumatic stress disorder have substantially reduced and are now only moderately severe, with appropriate medication. Whilst there is no evidence of substance abuse, it will be important for her to have close monitoring and follow-up to reduce the chance of relapse. In her opinion the applicant is likely to have ongoing features of post traumatic stress disorder for the next three-five years and if she is able to remain abstinent from substances for two-three years, she will have a better opportunity to achieve long-term remission.

27. [27]
    Dr Kossoff also states that in addition there are a range of “adverse impacts” suffered by the applicant. In particular she has a reduced sense of self-worth or perception, particularly around the area of sexuality, where she sees that her only worth is when she has intercourse. She was sexually promiscuous and even now is demanding of sexual attention from her partner, to try and make her feel worthwhile. She described increased fear and feelings of insecurity and has become overly dependent on her partner. There has been an adverse affect on the reaction of others because of her sexual and drug history. She describes an adverse impact on sexual relations wit her partner, stating if he does something that reminds her of her father’s sexual assault, she experiences flashbacks.

28. [28]
    Dr Kossoff notes the applicant had a pre-existing psychiatric illness which commenced at approximately the age of 12. This was not formally diagnosed as bi-polar affective disorder until she was 15 years of age (prior to the sexual assaults). In her opinion in a case such as the applicant’s, a sexual assault of this nature would be sufficient intensity to precipitate post-traumatic stress disorder in a person without a pre-existing psychiatric condition. She states it can be hypothesised perhaps, that the extent of substance abuse that followed the assaults, would not have been as extreme if she did not have the pre-existing vulnerable personality style.

29. [29]
    Dr Kossoff also comments on any contribution between the assaults in New South Wales and Queensland.  She states in cases such as this, it can be almost impossible to separate out the effects suffered by the applicant as a result of the offences occurring in Queensland or New South Wales, given the close temporal relationship that the offences occurred.  She states the applicant herself feels that the offence in Queensland was more significant as she was not intoxicated, had declined her father’s initial advances and felt proud of herself to have been able to do that, and subsequently was sexually assaulted against her will.  Dr Kossoff agrees with Dr Jolly in his report that the first act of penetration is considered “the most violent triggering event”.  However, in New South Wales, the applicant was intoxicated to the point that she does not have much recollection of the second assault.  To this end Dr Kossoff would conclude that the assaults in New South Wales and the one in Queensland contributed equally to the current disorders on a 50/50 proportionate basis.  She states she has come to this conclusion because, whilst the New South Wales assault was the first act, the applicant was intoxicated and did not fully comprehend the repercussions of the act until she was again assaulted in Queensland when she was not in an intoxicated state, and had originally been able to refuse her father’s advances.

30. [30]
    Dr Kossoff is also of the opinion that the effect of the offence has resulted in post traumatic disorder and substance abuse and dependence.

31. [31]
    The respondent accepts the applicant was entitled to some compensation. His representative put it this way:

“I’m not saying that he’s not guilty of giving her some sort of problems”.

32. [32]
    However, the respondent submitted that relevant considerations to the assessment of compensation included:

1. (a)
   Some of the psychiatric evidence assumed the applicant was not intoxicated when the Qld offence occurred whereas the applicant in her statement to police said she was “plastered”.  This was also relevant to the opinions formed by Dr Kossoff;
2. (b)
   The applicant had a alcohol and drug problem, psychiatric condition and poor prognosis for work before the offences were committed.
3. (c)
   The apportionment between the New South Wales offences and the Queensland offence should be on a 50:50 basis;
4. (d)
   The respondent does not have the financial means to meet an award of compensation;
5. (e)
   The applicant was at fault because she was drunk when the Queensland offence occurred.

33. [33]
    Pursuant to section 19(1)(a) of the Criminal Offence Victims Act 1995 (COVA) the applicant is entitled to compensation “for injuries suffered by the applicant caused by a personal offence committed against the applicant”.

34. [34]
    Section 20 COVA defines “injury” to include “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”.

35. [35]
    Section 21 COVA defines a “personal offence” to mean “an indictable offence committed against the person of someone”.

36. [36]
    Subsections 22(3) and (4) COVA provides:

“Compensation provided to an applicant is intended to help the applicant but is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise and the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness”.

37. [37]
    Section 24(2) COVA provides for payment of compensation “to the applicant for the injuries suffered by the applicant because of the offence”.

38. [38]
    Section 25(7) COVA provides:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”.

39. [39]
    Section 25(8) COVA provides:

“A decision on the amount that should be ordered to be paid under a compensation order:

1. (a)
   does not involve applying principles used to decide common law damages for personal injuries; and

2. (b)
   is to be decided by applying the principles mentioned in s 22 (3) and (4).”

40. [40]
    In SAY v AZ (2007) Qd R 363, 370, 371 Holmes JA with whose reasons the other members of the Court of Appeal agreed said:

“Section 25(7) as it seems to me, deals with both causation and quantification. In the first instance the court has to decide “whether an amount … should be ordered to be paid for an injury”. The issue there is whether, taking all relevant factors into account, the offence has materially contributed to the injury. Assuming that it has, there remains the quantification question: “what amount … should be ordered to be paid” for that injury. Again the court must have regard to everything relevant.  Section 25(8) makes it plain that in determining what amount should be ordered to be paid, common law principles are not applicable. Other contributing factors cannot, therefore, be treated as irrelevant. And since the Tiltman approach is excluded, no onus falls on the respondent to separate out the effects of those contributing factors. (In any case, as Thomas JA pointed out in HV v LN, the notion of a respondent teasing out the causes of injury always was implausible in the context of criminal compensation applications, which are almost invariably heard ex parte.)”

…

“Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors.  Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.”

41. [41]
    It is correct to say that the applicant told Queensland police she was “plastered” when the Qld offence occurred.  It is also correct to say that Dr Kossoff based her opinion on a view of the facts that would seem to be, in my view, incorrect.

42. [42]
    Nevertheless despite this inconsistency I am satisfied on the weight of the evidence the Qld offence materially contributed to the applicant’s post-traumatic stress disorder and alcohol and substance abuse.

43. [43]
    I accept the applicant had a pre-existing alcohol and drug problem and had the psychiatric condition namely the bi-polar disorder before the Qld offence was committed. However I am satisfied that immediately before the offences were committed the applicant had stabilised in her life and was progressing well in her hairdressing course.

44. [44]
    I am satisfied, the applicant suffers from a single state of injury. Further I am satisfied the pre-existing conditions were not significant in their contribution to the applicant’s injury compared to the contribution by the NSW offence which was much more significant.

45. [45]
    I consider the evidence in this application does not lend itself to any precision. Therefore in my opinion I must do the best I can to make allowance for the contribution to the applicant’s injury produced by these various factors.

46. [46]
    In my opinion it must be remembered that the respondent’s behaviour towards the applicant in New South Wales was similar to his behaviour towards the applicant in Queensland and his behaviour in both places occurred very close in time. These considerations lead me to conclude the NSW offence contributed equally with the Qld offence to the applicant’s state of injury.  I therefore discount the applicant’s compensation for the NSW offence by 50%.

47. [47]
    As far as other pre-existing factors are concerned contributing to the applicant’s state of injury, as the contribution of these factors was not significant compared to the contribution by the NSW offence which was much more significant and as the applicant was stable and was progressing well in her hairdressing job immediately before the offences were committed, for these factors I discount the applicant’s compensation by 10%.

48. [48]
    Therefore the total discount of the applicant’s compensation in all the circumstances is 60%.

49. [49]
    It is irrelevant on this application the respondent does not have the means to meet an award of compensation.

50. [50]
    Further, I do not accept the applicant caused or contributed to her injury by being drunk at the time.

51. [51]
    Therefore I assess the applicant’s compensation as follows:

Under Item 33 – 32%    $24,000.00

Add adverse impacts – 40%   $30,000.00

 Sub total  $54,000.00

 Less 60% $32,400.00

 Total  $21,600.00

   ‗‗‗‗‗‗‗‗‗‗‗‗‗

52. [52]
    I order the respondent to pay the applicant the sum of $21,600.00.