T v S[2008] QDC 84

DISTRICT COURT OF QUEENSLAND

This is an application for compensation pursuant to Section 24 of the Criminal Offence Victims Act 1995 (“COVA”). It is brought by the mother of the victim as her litigation guardian.

The injuries giving rise to the application were suffered as a result of the offence for which the respondent was convicted on indictment on 17^th March 2006, namely maintaining a sexual relationship with a child with a circumstance of aggravation between 1st January 2001 and 28^th February 2005.

Facts

The victim was born on 28^th October 1992. She was aged between 8 and 12 during the period particularised above.

The respondent was born on 30^th December 1966 and was accordingly aged between 34 and 38 during the period nominated in the indictment. He was at this time the de facto husband of the victim’s mother. The victim was under his care and called him “Dad.”

The single count for which the respondent was convicted encompassed a series of particularised offences involving penile and anal rape as well as indecent treatment. The offending was regular and consistent throughout the entire period encapsulated by the charge. The ongoing sexual relationship involved sexual intercourse occurring at every available opportunity. It included the respondent requiring the victim to perform fellatio upon him and forcing her to swallow his semen. It also included the respondent requiring the victim to wear a G-string and insert vibrators into her vagina. He also took photographs of her in sexually explicit positions, naked, during and after sexual intercourse.^[1] The unlawful sexual violence committed by the respondent against the victim resulted in her bleeding from her vagina on several occasions and sometimes her anus.^[2]

Throughout this period the victim was extremely frightened of the respondent and was also frightened about what would happen to her family id she told anyone.^[3] He regularly threatened her in various ways. He was also a violent man and the victim knew that he kept a firearm in the house. Eventually, the sexual abuse of the victim by the respondent ended when the victim, her mother and sister, fled the family home and went into hiding.^[4]

The Relevant Law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences for injury as defined in section 20 as “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”.

Pursuant to section 25 of COVA a compensation order may only be made up to the scheme maximum of $75000 specified in the Criminal Offence Victims Regulation 1995 (“COVR”)^[5]; using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov^[6] Holmes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the just step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

Relevantly the Compensation Table prescribes”

Section 1A of COVR is also relevant to this application. It is in the following terms:

The effect of section 1A was considered in R v Atwell ex parte Julie^[7] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:^[8]

“the Regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “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.…”

The Assessment

In her report^[9]  Dr Chittenden records the decline in the victim’s psychological state from “a fairly normal, open, friendly, active girl”^[10] to someone who “lost interest in her friendships and peer group and felt quite cut off and detached from those she loved”^[11]. The victim has been diagnosed as fulfilling “all the criteria of a Post Traumatic Stress Disorder which was directly as a result of the sexual assaults upon her person…”^[12]Dr Chittenden notes that the victim does not appear to be making progress with her current counsellor^[13].

On behalf of the victim it is submitted that the assessment in respect of Item 33 of the Compensation Table for mental or nervous shock should be 32% or $24 000. Having regard to the diagnosis of a Post Traumatic Stress Disorder by Dr Chittenden and the lack of progress being made by he victim in addressing the symptomatology associated with it I am of the view that it is appropriate to assess compensation pursuant to Item 33 in the sum of $24 000.

I must also consider whether additional compensation should be ordered pursuant to Section 1A of COVR for adverse impacts not the subject of compensation pursuant to Item 33.

In this regard Dr Chittenden notes:^[14]

“Apart from the symptoms of Post Traumatic Stress Disorder, which have been identified previously [the victim] had an extreme lack of self esteem and self confidence and strong feelings of worthlessness, helplessness and, at the time, hopelessness in her situation. Now she feels she is having to live with the after effects of this situation, which have not been conducive to her maturing in a proper way for an adolescent”.

Dr Chittenden proceeds to document the following adverse impacts which are expressly relevant to an assessment pursuant to section 1A of COVR:

1. (a)
   a constant sense of violation;^[15]
2. (b)
   strong feelings of worthlessness^[16]
3. (c)
   extremely high levels of anxiety, almost amounting to panic attack when she thinks of the respondent being released from prison^[17]
4. (d)
   difficulties relating to males
5. (e)
   ongoing feelings of extreme sadness and depression such that she is at risk of a recurrent Depressive Mood Disorder which may require psychiatric treatment^[18] and a future risk of resorting to alcohol and drugs to self medicate^[19]

In addition the victim’s mother deposes to the fact the victim feels she “has to be a lesbian” because she fears and despises all men and “cannot deal with the concept of having a relationship with a boy.” Her mother also details the victim’s distress at developing secondary sex characteristics and aversion for feminine clothing since the period of the sexual assaults the subject of this application.

Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum. It is submitted on behalf of the victim that an award of 40% or $30 000 is appropriate in the circumstances. I am of the view that it is appropriate to assess compensation pursuant to section 1A of COVR in the sum of  $30 000.

Having regard to the repeated bleeding experienced by the victim from her vagina and her anus as a consequence of the sexual assaults the subject of this application, I am of the view that it is also appropriate to assess compensation pursuant to Item 1 of the Compensation Table at 2% or $1500.

Order

I order the respondent to pay the applicant as litigation guardian for the victim the sum of $55 500.

I order that any amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

I order that the Public Trustee of Queensland be appointed  manager of and take possession of and control and manage the said sum on behalf of the victim in accordance with powers and duties defined in the Public Trustee Act 1978 during the minority of the victim.