DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 15 March 2005 the respondent was convicted, on his own plea of guilty, of the following offences:

• Two counts of indecent treatment of a child under 16 – on a date unknown between 1 March 2003 and 31 March 2003; and

• One count of carnal knowledge of a child under 16 – on a date unknown between 1 March 2003 and 31 March 2003; and

• A further count of carnal knowledge of a child under 16 – on a date unknown between 1 June 2003 and 30 June 2003.

The applicant was the child/victim in relation to each of those offences and now seeks compensation pursuant to the Criminal Offence Victims Act 1995.

2. [2]
   At the time of the offences the applicant was a 13-year-old virgin residing with her mother, stepfather and two younger brothers. The respondent, who was 31 years of age, was a friend of the stepfather and had come to work and stay on the family’s property. The applicant had known him for approximately four years. The offences involved a series of incidents, of increasing seriousness from the respondent touching the applicant’s upper leg to touching the applicant’s breast through her shirt and ultimately having intercourse with her on two occasions. As a result of the intercourse, the applicant fell pregnant. The pregnancy was subsequently terminated. The applicant now seeks compensation for:

● Pregnancy

● Mental or nervous shock

● Adverse impacts

Consent

3. [3]
   The relevant offences were of a kind which do not require proof of absence of consent. The applicant’s statement to the police, which is exhibited to her affidavit, records that, at one point, she felt “a little attracted” towards the respondent, that she “enjoyed having sex with him” and “at no point in time did (the respondent) force me to have sex with him. It was something that I decided to do of my own free will”.

4. [4]
   Conversely, in her affidavit, she now deposes that “I felt sickened by what was happening and afraid but also very confused as the respondent was the first person to have shown affection to me. I did not feel valued by anyone. I saw myself as a piece of meat and still do” and “…I had little knowledge or understanding of sex when I was 13. I wanted to be loved and cared for and this is what the respondent offered me. I found the sexual approaches confusing and frightening but I wanted someone to care about me.”

5. [5]
   The applicant was interviewed by Dr McGuire, a psychiatrist. Dr McGuire’s report records the applicant’s claims that her first experience with the respondent was non-consensual, but that she “eventually became habituated to the sexual activity and trusted him because she was starved of affection.”

6. [6]
   At the sentence hearing it was submitted, on behalf of the respondent, that the applicant was “quite regularly attempting to spend time with him” and it was pointed out that the applicant’s mother had described the applicant as somewhat infatuated with the respondent. It was not suggested that the applicant was actively seeking a sexual relationship, but it was submitted that the applicant “was putting herself in a position whereby unfortunately (the respondent) succumbed to the temptation.”

7. [7]
   In assessing compensation the court is required, by s 25(7), to have regard to everything which is relevant including “any behaviour of the applicant that directly or indirectly contributed to the injury”. It may well be that the applicant had, or came to have, affection and even feelings of attraction, for the respondent and that the sexual conduct became consensual, at least at some point. This was not however, a case of two infatuated teenagers taking things too far.

8. [8]
   This is a case of a mature adult taking advantage of the affection of a child who was barely a teenager and who had little knowledge or understanding of sex.^[1] The respondent was evidently the only one of the two who was in a position to make a mature decision about such matters and it was the respondent who was the instigator of sexual contact in the first instance.  At the sentence hearing it was not suggested that the applicant actively sought a sexual relationship.

9. [9]
   I note also the remarks of the learned sentencing judge who said:

“On your behalf also the court was asked to take into account the circumstances that you were drinking heavily throughout the relevant time and that the young complainant was attracted to you.  Those circumstances are put forward as extenuating circumstances.

I have some difficulty in regarding those circumstances as possessing any substantial mitigating effect on your moral responsibility for the offences.  You seem to have limited moral insight into your actions and no real remorse for what you’ve done.”

10. [10]
    The applicant’s immaturity, naivety and attentiveness to the respondent may have contributed to her vulnerability, but I do not consider that she should be seen as the author of her own misfortune. It was the respondent’s behaviour in taking advantage of the appellant’s youth and infatuation which was the operative cause of the offences, even if the applicant became habituated to the sexual conduct. I am not minded to reduce the award of compensation on account of the behaviour of the applicant.

Pregnancy

11. [11]
    Pregnancy is expressly included within the definition of “injury” in s 20 of the Act and is compensable, notwithstanding that it is not listed in schedule 1. The assessment of compensation for pregnancy is at large, but is limited by the requirement that the total for all injuries is not to exceed the statutory maximum. The approach to the assessment of compensation for pregnancy was recently considered by the Court of Appeal in MAV v ABA [2007] QCA 124.  Jones J (with whom Jerrard JA and Cullinane J agreed) said:

“41 Considerations relevant to pregnancy as a physical injury would include:-

 (i) its duration;

2. (ii)
   its manner of termination – miscarriage (spontaneous or induced), natural delivery or caesarean section;

3. (iii)
   the level of physical discomfort, inconvenience, incapacity during the term;

4. (iv)
   physical consequences directly related to the pregnancy and its termination e.g. scarring, incapacity for further pregnancies;

5. (v)
   common emotional consequences related to pregnancy e.g. mood disturbance, fear of delivery, self-image loss.

Whilst this is not intended to be an exhaustive list of the physical and emotional effects of pregnancy, other consequences which are more related to the individual’s experience ought to be characterised as adverse impacts for the particular claimant and be more appropriately dealt with pursuant to s 1A if not already encompassed in another injury such as mental or nervous shock. …

In my opinion pregnancy as an injury should be viewed narrowly for the purpose of s 20.  Such a conservative approach is in keeping with the manner in which other injuries are dealt with under that section.  Thus compensation for pregnancy would be assessed mainly in terms of its physical, and the usual anticipated emotional effects.  The adverse impacts which in an individual case flow from a pregnancy resulting from a sexual offence are more personal to the victim and thus would be more fairly, and more realistically assessed in terms of either mental or nervous shock or alternatively as a prescribed injury under s 1A to the extent to which the adverse impacts are not already included in the pregnancy injury.”

12. [12]
    In her affidavit the applicant states:

“10 I told my mother what was happening when my periods stopped.  I was terrified that I was pregnant and tests showed that I was.  I was very upset.  I did not want to keep the baby.

11 My mother took me to a doctor and I had a termination at 14  weeks.  I felt I was too young to be a mother and I was very confused about the situation I was in.  My mother and respondent wanted me to have a termination and they organised it.

12 I was very frightened at the time of termination as I was unsure of what was going to happen.  It did not help that my mother was standing over me and making me feel bad.  The service we went to gave me some counselling beforehand and explained the procedure.  I had no pain until after the procedure. I was given Panadol for the pain.  I bled for about 8 weeks after the termination.”

13. [13]
    Considerations relevant to the subject pregnancy include its 14 week duration, the manner of its termination, the lack of pain prior to the procedure, the bleeding which continued for about 8 weeks after the termination and the common emotional consequences related to pregnancy.  There is little guidance for the appropriate range for compensation for pregnancy (see L v L [2008] QDC 71 at para 17).  In this case I assess compensation at 17.5 per cent of the scheme maximum.

Mental or nervous shock

14. [14]
    Dr McGuire’s opinion, which I accept, is that the applicant suffers from severe post traumatic stress disorder. She also notes however, “it is obvious that she has had a very prejudicial history quite apart from having been the victim of sexual abuse by (the respondent)”. Indeed, prior to the offences in question, she had been admitted to the children’s psychiatric unit at the Logon Hospital after her stepfather, whom she was visiting for contact, had allegedly attempted to sexually molest her.

15. [15]
    As Holmes JA (with whom Jones and Mullins JJ agreed) said in SAY v AZ ex parte A-G (Qld) [2000] QCA 462:

“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 … 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.”

(See also L v L [2008] QDC 71).

16. [16]
    Dr McGuire’s opinion, which I accept, is that while “she had this diagnosis prior to the offences committed by (the respondent)”, the offences committed by the respondent made a “substantial and material impact” upon the applicant’s condition. It was contended, on behalf of the applicant that an appropriate way of allowing for the other factors was to adopt 22% of the scheme maximum, being towards the lower end of the range for severe mental or nervous shock and lower than the assessment would have been but for the other factors. I accept that submission.

Adverse impacts

17. [17]
    The report of Dr McGuire sets out various adverse impacts and identifies whether they are features of the post traumatic stress disorder, which is separately compensated. Dr McGuire’s report notes that a sense of violation is a pre-requisite to the diagnosis of post-traumatic stress disorder, while feelings of reduced self-worth, increased insecurity, hyper-vigilance and adverse impact on lawful sexual relations are all features of the post traumatic stress disorder in this case.  On the other hand, the adverse effect on the applicant of the reaction of her mother (who blamed her) and the applicant’s aversion to having children of her own, are adverse impacts which do not form part of the post traumatic stress disorder.

18. [18]
    Dr McGuire’s report also notes, as an adverse impact, the disease of Chlamydia. That is on the basis of the applicant’s claim that she had no sexual activity, other than with the respondent, until the time that she was diagnosed. Dr McGuire’s report records however, the applicant was only diagnosed a year after the incident and tests taken at the time were negative. I am not persuaded, on the balance of probabilities, that the contraction of Chlamydia was a result of the relevant offences.

19. [19]
    On behalf of the applicant it was submitted that I should accept, as adverse impacts, the following:

1. (a)
   The applicant’s aversion to having children;

2. (b)
   the effects on her social life;

3. (c)
   her aversion to seeing doctors, particularly male doctors;

4. (d)
   the deterioration in her relationship with her mother;

5. (e)
   the impact on her schooling.

20. [20]
    As Holmes JA pointed in Vlug v Carrasco [2006] QCA 561, that s 1A of the regulation was not intended to introduce a new regime of compensation for “disability, consequences or effects” as distinct from “injury”.  Rather, it expands the compass of what impacts on the individual may be counted as injury.  The adverse impacts prescribed in 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 an injury.  Accordingly, s 1A(2)(b), for example, does not provide for compensation merely because others have an adverse reaction, but rather for the “adverse effect” upon the applicant of that reaction.

21. [21]
    I accept that the applicant avoids going to doctors, particularly male doctors, has an aversion to having children, and has had her social life and her relationship with her mother affected. It must be borne in mind however that, to the extent those are manifestations of her reduced feelings of self worth, increased feeling of insecurity and hyper-vigilance, those underlying psychological or emotional effects are comprehended in Dr McGuire’s diagnosis of post traumatic stress disorder, which has been separately compensated.

22. [22]
    It is difficult to give much weight to the asserted loss of education and occupational opportunities (assuming they be “adverse impacts”). Following the offences, the applicant went back to school and completed year 10 before going on to do TAFE courses. The effects of the offences on her psychological and emotional health would not have helped her at school and she says she did not do well, but there does not seem to be a satisfactory basis for concluding that she would likely have done better in any event or that there was any specific educational or occupational opportunity that was adversely affected. Dr McGuire described the applicant as appearing “to be of average to below average intellectual ability”.

23. [23]
    While I accept that the applicant did suffer some adverse impact in addition to the post traumatic stress disorder compensated under the mental and nervous shock heading, the amount of 15% of the scheme maximum, as contended for, is excessive in this case. I assess compensation for the adverse impacts at $6,000 or 8% of the scheme maximum.

Conclusion

I assess compensation as follows: