Vos v Swanton[2008] QDC 326

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application to assess criminal compensation for injury suffered by the applicant as a result of a personal offence committed by the respondent against the applicant.

2. [2]
   The offence committed by the respondent was that on a date unknown between 29 November 1996 and 30 November 1999 he unlawfully and indecently dealt with the applicant a child under 12 years of age. The respondent pleaded guilty to this offence on 9 November 2005.

3. [3]
   The applicant was born on 30 November 1987 and was therefore between the age of 8 and 12 when the offence was committed. The respondent was born on 1 January 1966 and was therefore between 30 and 33 years of age when the offence was committed.

4. [4]
   The basis on which the respondent was sentenced was that he touched the applicant on the bottom. She was standing on a chair in the kitchen and he pulled down her pants exposing her bottom. He rubbed her bottom for between a few seconds and less than a minute. The applicant had no recollection of the offence except for some vague recollection of inappropriate touching which had not been charged.

5. [5]
   However, the evidence on this application shows the applicant can now recollect the offence and says this offence has been very detrimental to her emotional and psychological wellbeing. The evidence also shows that the applicant had been subjected to sexual assaults by the respondent on many occasions during the period of the offence. The applicant states the first incident of assault was very significant to her because after that day she was always afraid. The applicant states the first of these offences was the beginning of her life going down hill.

6. [6]
   The issues on the application is what injury was caused by the offence to which the respondent pleaded guilty and what compensation is to be assessed by reason of the offence bearing in mind the other offending.

7. [7]
   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”.

8. [8]
   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”.

9. [9]
   Section 21 COVA defines a “personal offence” to mean “an indictable offence committed against the person of someone”.

10. [10]
    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”.

11. [11]
    Section 24(2) COVA provides for payment of compensation “to the applicant for the injuries suffered by the applicant because of the offence”.

12. [12]
    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”.

13. [13]
    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).”

14. [14]
    In SAY v AZ (2007) 2 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.”

15. [15]
    The respondent was a family friend. He went to the same church as her family did. He was trusted by the applicant’s parents. The respondent looked after the applicant and her sister. He often visited the house. He frequently touched the applicant and kissed her.

16. [16]
    The applicant has suffered from sleep disturbance, a variable appetite, anger, suicidal thoughts (and has self harmed) and anxiety.

17. [17]
    The applicant has been examined by a psychiatrist. Dr Arnold is of the opinion the applicant suffers from Post Traumatic Stress Disorder – Chronic and a mood disorder / Chronic Dysthymia and inter-current major depression. Regarding her memory Dr Arnold is of the opinion the applicant has been able to give a good account of the important aspects of the abuse. The applicant’s statement to police recalls many instances of inappropriate touching of the applicant by the respondent.

18. [18]
    Apart from what the applicant told Dr Arnold the applicant provided a victim impact statement on sentencing that shows the many offences committed by the respondent upon the applicant has had a significant impact upon the applicant.

19. [19]
    In a further report Dr Arnold confirms the applicant suffers from a number of effects from the offences including a sense of violation of her body, a reduced sense of self-worth, increased fear or increased feelings of insecurity, adverse effect of the reaction of others, adverse effect of lawful sexual relations and adverse impact on feelings. However, some of these symptoms are referred to by Dr Arnold in her first report in which she concluded the applicant suffers from PTSD - chronic and a mood disorder / Chronic Dysthymia and inter-current depression. The adverse effect of the reaction of others is the one adverse impact I accept is additional to the impacts covered by the diagnoses from the first report.

20. [20]
    In my opinion the applicant suffers from a single state of injury. I am satisfied the offence for which the respondent was convicted made a material contribution to her injury. The other offences have no doubt contributed to this injury.

21. [21]
    The applicant has also suffered from substance abuse and from a personality disorder. The evidence on this application satisfies me these disorders were caused by the offences committed by the respondent upon the applicant. However, I am not prepared to discount the applicant’s compensation because of these other offences. That is because the other offences were part of continuing course of similar and reprehensible conduct by the respondent of which the offence was a significant start and the applicant as a child was powerless both in that course of events and in what seems to have been a relatively arbitrary decision not to charge the respondent in respect of the later acts (compare Holmes JA in SAY v AZ para 26).

22. [22]
    The applicant did nothing to directly or indirectly contribute to her injury.

23. [23]
    I assess the applicant’s compensation under Item 33 at 30% and under Regulation 1A at 10%, a total of 40% which is a sum of $30,000.

24. [24]
    I order the respondent to pay the applicant the sum of $30,000.