DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant MJN by his litigation guardian claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for injury the applicant sustained arising out of the criminal conduct of the respondent JAB who was convicted by the District Court at Beenleigh on 11 February 2005 of 4 offences of unlawfully and indecently dealing with a child under 16 years then under 12 years.

2. [2]
   The application is made on the basis of a “mental or nervous shock disorder” together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 (“the Regulation”) on the basis that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the Regulation arising out of the sexual offences.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   the affidavit with exhibits of the litigation guardian MN sworn 15 March 2008 and filed in this court on 23 July 2008;

2. (b)
   the affidavit with the exhibits of Dr Barbara McGuire, Psychiatrist (“Dr McGuire”), sworn 25 March 2008 and filed in this Court on 23 July 2008;

3. (c)
   the affidavit with the exhibits of Mandy Albert, Litigation Support Officer, sworn 18 July 2008 and filed in this Court on 23 July 2008;

4. (d)
   the affidavit of service of Andrew Michael William Ward, Licensed Commercial Agent, sworn 2 August 2008 and filed in this Court on 5 August 2008.

Facts:

4. [4]
   The circumstances of the respondent’s criminal conduct are summarised in the submissions of the Crown prosecutor at the sentence hearing being Exhibit “B” to the affidavit of the said Mandy Albert and confirm that the respondent pleaded guilty to the offences referred to in paragraph [1] above.

Injury:

5. [5]
   The applicant’s injury is set out in the report dated 21 May 2007 from Dr McGuire, which is Exhibit “A” to her affidavit aforesaid. It is to be noted that the offending occurred over a two year period and the applicant was 10 years of age when the offending began. There is no medical evidence that the applicant suffered any physical injuries per se arising out of the respondent’s conduct.

6. [6]
   In her report, Dr McGuire confirms that she interviewed the applicant and his litigation guardian^[1] on 14 May 2007 (4 years post incident) and provides the following psychiatric diagnosis:

“Mathew is suffering from posttraumatic stress disorder to a mild degree. Whilst it has improved since his initial disclosure he still has residual symptoms.”^[2]

7. [7]
   Dr McGuire reported that the applicant has described “The Effects Of The Abuse” on him in the following terms:^[3]

• “He strongly wishes that the abuse had not happened;

• …he feels ashamed;

• He tried not to think about it;

• He feels stigmatised and set apart;

• He has not told any of his school friends or indeed anybody.

• He has nightmares about the abuse about once a month.

• He also experiences flashbacks which occur spontaneously and also if he hears anything about sexual abuse.

• He experienced fears relating to homosexuality.”

8. [8]
   Dr McGuire further states under “General Matters” that “…as the incidents occurred [the applicant] thought they were wrong and felt guilty and ashamed” and the impact of the incidents upon the social aspects of the clients life is that “He has become a loner at school”. However it is further stated that:

“d) The effect of the incidents in respect of client’s outlook on life in general: He at this stage feels fairly confident. His mother thinks he has improved. He is popular. He is going to attempt an apprenticeship as a carpenter.”^[4]

9. [9]
   As stated in paragraph [2] above, the applicant also claims compensation under s 1A of the Regulation in respect of his claim as having suffered “Adverse Impacts” arising out of the subject offences and which is not otherwise an injury for which the applicant can be adequately compensated under s 20 of the Act. Dr McGuire further states under the heading “Adverse Impacts” that in respect of the applicant:^[5]

(a) He stated “…at the time of the incidents he didn’t experience a sense of violation but did after the disclosure had been made”;

(b) “…had significantly reduced self esteem”;

(c) “…did have posttraumatic stress disorder”;

…

(f) “…had been encopretic at the time of disclosure. This has now ceased”;

…

(h) there has been “…a family rift which has been distressing to everyone in the family”;

(i) “…admits to having some concerns about the homosexual nature of the assaults”.^[6]

10. [10]
    Of the above “Adverse Impacts” those which are not part of the “posttraumatic stress disorder” diagnosis are items (f) and (h) only.

Categories of Injuries:

11. [11]
    It is submitted on behalf of the applicant that his injuries fall under the following categories of injury contained in Schedule 1 of the Act and s 1A to the Regulation respectively, namely:

1. (a)
   Item 31 – mental or nervous shock (minor)…… 2%-10% of the scheme maximum – the applicant claims and assessment of 8% of this item;

2. (b)
   Assessment under s 1A of the Regulation on the basis of the totality of the adverse impacts he has suffered as a result of the sexual offences committed upon him – amount claimed on an assessment of 15% of the scheme maximum.

12. [12]
    It is submitted therefore on the applicant’s behalf that he should receive an award of compensation in the following terms:

Mental and nervous shock:

13. [13]
    It is now well accepted that to establish a “ mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “[an] injury to health, illness or some abnormal condition of mind or body over and above that of a normal human reaction or emotion following a stressful event” as distinct from “…fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff (2000) QSC 156 at [15], [17] and [21] respectively.

14. [14]
    Further, as Atkinson J stated in Re JI v AV [2001] QCA 510 (“Re JI v AV”) at [59]: “The courts have interpreted mental or nervous shock in the compensation table broadly. It does not require a diagnosed psychiatric illness.” This statement echoes that of Wilson J in MR v Webb [2001] QCA 113, who said in discussing the question of whether compensation should have been awarded under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence”:^[7]

“The principal submission on appeal was that the judge erred in awarding compensation under the heading “mental or nervous shock” rather than the heading “totality of adverse impacts of sexual offence.”  I have set out the ranges within which he could have made an award under either head.  I am not persuaded that the appellant was denied compensation for elements of her emotional condition because the primary judge adopted the mental or nervous shock rubric.  It is often the case that an applicant’s injury could be categorised under more than one head in the compensation table.  Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so over compensating the victim.  Professor Nurcombe identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric illness.  However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness; indeed in the days before the introduction of the Criminal Offence Victims Amendment Regulation (No 1) 1997 (Qld), awards were regularly made under that head for emotional disturbance falling short of such a diagnosis.”

Adverse impacts:

15. [15]
    An applicant’s claim for further compensation under s 1A of the Regulation is also comprehensibly discussed in Re JI v AV above and in particular in the reasons of Atkinson J at paragraph [57] when she said:

“Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock. It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock: (MAJ v KM [2000] QCA 410, CA No 6042 of 2000, 6 October 2000, at [13]; Whyte v Robinson (supra); R v Tiltman; ex parte Dawe [1995] QSC, SC No 324 of 1995, 22 June 1995, Lee J).  It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A: (The divergence of opinion on how to compensate victims of sexual offences for post-traumatic stress disorder can be seen in a number of District Court decisions: R v Hagaen; ex parte Townsend (supra); R v Daniel; ex parte Raymond (supra); R v Gilchrist; ex parte Hall (supra); R v Di Fiori; ex parte Anthony (supra); R v Peacock; ex parte Homer (supra); Newby v Mullins (supra); Hoy v Dunbar (supra); Lester v Ahmed (supra); Codd v Codd (supra); Jones v Thompson (supra); Morris v Soper (supra); Steven v Atwell [2001] QDC, DC No 2710 of 2001, 20 June 2001, McGill DCJ).  The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20.  The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, ie that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section.  Only additional adverse effects of sexual offences fall to be compensated under s 1A of the COVA Regulation.”

16. [16]
    Chesterman J also stated at paragraph [20] in Re JI v AV when discussing the effect of s 1A(2) of the Regulation:

"There can be no doubt about it’s meaning. Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the Regulation unless they amount to an injury under s 20, in which case they fall outside the scope of the Regulation and are to be assessed under the Act.”

His Honour further said at paragraph [22]:

“This construction of the Regulation means that post traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock which will rarely, if ever, be the case.”

17. [17]
    It is therefore necessary for an applicant who claims compensation under the Regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of injury under s 20 of the Act.

18. [18]
    In the light of Dr McGuire’s evidence as stated in paragraph [9] above the applicant’s entitlement to additional compensation under “Adverse Impacts” is restricted to those which he has suffered under items (f) and (h) of the Regulation.

Findings:

19. [19]
    On a review of all of the evidence in this application I make the following findings:

1. (a)
   The applicant has suffered a “mental or nervous shock” injury arising out of the respondent’s criminal conduct the subject of this application and is entitled to an award of compensation under s 24 of the Act.

2. (b)
   The category of injury under which the applicant is entitled to an assessment of compensation is Item 31 of the Compensation Table under Schedule 1 of the Act, that is “mental or nervous shock (minor)” and I assess the applicant’s compensation under this category of injury at 6% of the scheme maximum, that is the sum of $4,500.00.

3. (c)
   I am further satisfied that the Applicant has suffered some “adverse impacts” over and above the diagnosed “post traumatic stress disorder” but such “adverse impacts” are, in a relative sense, at the lower end of the scale and I assess the applicant’s compensation for such “adverse impacts” at 5% of the scheme maximum, that is the sum of $3750.00.

Applicant’s contribution to the injury (if any):

20. [20]
    In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

21. [21]
    I am satisfied that the applicant in no way either directly or indirectly contributed to the injury or adverse impacts he suffered arising from the respondent’s criminal conduct and is entitled to the full award of compensation assessed herein.

Orders:

22. [22]
    I make the following orders:

1. (a)
   That the respondent JAB pay the sum of $8,250.00 to the applicant MJN for injury suffered by him including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 11 February 2005; and 

2. (b)
   In accordance with s 31 of the Act I make no order as to costs of the application against the respondent.