JAP v Fowler[2009] QDC 104

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, JAP, as litigation guardian for the complainant, TL, seeks compensation in respect of injuries suffered by TL arising out of offences committed against her by the respondent, Kevin John Fowler, on dates unknown between 11 March and 22 April 2005 at the Gold Coast. The respondent pleaded guilty before me in the Southport District Court on 12 January 2006 to one count of rape and two counts of indecent dealing with a child under 16, under 12, under care. The respondent was sentenced to four years imprisonment in respect of count one (rape), two years and six months imprisonment with respect to count two (indecent dealing) and eighteen months imprisonment in respect of count three (indecent dealing). All sentences were ordered to be served concurrently and were subject to a recommendation for post-prison community-based release after the respondent had served sixteen months imprisonment.

Facts

2. [2]
   The complainant was aged 9 years at the time of the offences. The respondent was a friend of the complainant’s mother and father and resided at the River Gardens Caravan Park, Carrara, during the offence period (11 March – 22 April 2005). The respondent would regularly visit the home of the complainant and would offer to have care of the complainant and her siblings at the River Gardens Caravan Park.

3. [3]
   In respect of count 1 (rape), the complainant child and her older brother were staying at the respondent’s caravan, the respondent came to the bed of the complainant and began kissing her on the lips. The complainant stated that this tasted like cigarettes and that she didn’t like it. The respondent then pulled the complainant’s pants down and inserted his finger into her vagina.

4. [4]
   In respect of count 2, on a separate date between 11 March and 22 April 2005 the complainant and her older brother were staying at the caravan of the respondent. The complainant was lying on her back on a bed. The respondent then hopped on top of her and began kissing her. The respondent then pulled the complainant’s underwear down and began to lick her vagina.

5. [5]
   Count 3 occurred on another occasion between 11 March and 22 April 2005 when the respondent went shopping with the complainant’s father at the Q-Super Centre, Mermaid Waters, in the complainant’s sister’s green Toyota Camry sedan. The complainant’s father went into the store and the complainant and the respondent remained in the back seat of the vehicle. The respondent placed the complainant’s hand on his penis on the outside of his clothing and kept it there for a while.

6. [6]
   On 21 April 2005 the complainant made a complaint in respect of the sexual offences to her mother at the family home. A medical examination of the complainant confirmed digital penetration of the complainant’s vagina.^[1]

Injuries

7. [7]
   The complainant’s counsel, Mr Campbell, submits that the compensable injury arising as a result of these offences is a post-traumatic stress disorder (likely to resolve into a Borderline Personality Disorder) and amounts to mental or nervous shock.

The Law

8. [8]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[2]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[3]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by COVA s 25 [which] is mandatory”.^[4]  In respect of sexual offences, the Court of Appeal in R v Attwell; ex parte Jullie [2002] 2 Qd R 367 determined that it was necessary in a proceedings under COVA to commence by compensating the victim of a sexual offence insofar as the impact amounted to an injury pursuant to COVA s 20, and to assess compensation pursuant to COVR s 1A only to the extent that any relevant adverse impact of a sexual offence were not an injury under COVA s 20^[5].

Compensation

9. [9]
   Mr Campbell on behalf of the complainant seeks compensation under a single head as follows:-

1. (1)
   Item 33 – mental or nervous shock (severe) – 20%-34%.

Mr Campbell relies on the report of Dr Norman Barling, Clinical Psychologist, dated 1 July 2008^[6], which diagnoses the complainant as having “experienced psychological injuries as a result of sexual abuse”. Dr Barling concludes that “from the psychometric tests conducted, consultations, and my clinical experience it is my opinion that [the complainant] meets the criteria for:

  309.81 post-traumatic stress disorder, chronic, severe

 as reported in the Diagnostic and Statistical Manual of Mental Disorders (DSM) – IV – TR, 2000.”

10. [10]
    Dr Barling notes in his report that “the psychological problems experienced by [the complainant] are chronic and pervasive. [The complainant’s] current functioning considering her psychological, social and educational performance using the Global Assessment of Functioning (GAF) scale in DSM-IV-TR(2000) p. 34 would be approximately 60% of “normal” adolescent functioning.”^[7] Furthermore, Dr Barling goes on to state;

“Of concern is that [the complainant’s behavioural and psychological] symptoms will persist and in her later years she may develop a Borderline Personality Disorder and demonstrate the symptoms of adult survivors of sexual abuse. Some 40-71% of female survivors of sexual abuse develop Borderline Personality Disorder (Perry & Herman, 1993), further, the earlier the sexual abuse takes place the more damaging it can be (van der Kolk, 1994). As a result they go on to experience a difficult life, volatile relationships, restricted work opportunities and limited educational opportunities.

Many symptoms and effects on daily life consistent with adult survivors of childhood sexual abuse are:-

Poor sleeping patterns

Rapid mood swings

Low self-esteem

Hyper vigilance

Fear of intimacy

Lack of Trust

Rumination and worry

Headaches and joint pain

Intrusive memories

Inhibited sexuality

Feelings of guilt and shame

Poor diet (overeating)

Distractibility and poor concentration

Lethargy

From the psychocemetric testing, the interviews with [the complainant’s] parents, teacher and psychologist, it is evident that [the complainant] is continuing to experience the symptoms described above. Further, during adolescence her symptoms are starting to develop into an Axis 2 diagnosis of a Borderline Personality Disorder. This will result in her experience of the future, being one with lifelong difficulties with educational, social, occupational and recreational pursuits along with a tendency to develop extreme and/or adverse personality traits.

While it is difficult to estimate how a client will respond to therapy, it is likely that [the complainant] will require ongoing therapeutic interventions on a fortnightly basis, in order to improve her condition and to assist with the processing of past emotional trauma. This is likely to become cyclical and ongoing over [the complainant’s] life course and her condition needed to be monitored closely.”^[8]

11. [11]
    In the light of Dr Barling’s diagnosis and deeply concerning prognosis, Mr Campbell submits that the injuries should fall towards the upper end of Item 33 of Schedule 1 of COVA and submits for an award at 30% of the scheme maximum. In the light of the diagnosis and prognosis, I accept that an award of 30% of the scheme maximum is appropriate. Accordingly I award $22,500.00 pursuant to Item 33.

(3)COVR S 1A – Adverse Impacts

12. [12]
    Although I afforded the applicant’s solicitors the opportunity of identifying whether there were “adverse impacts” which might be compensable pursuant to COVR s 1A, I was advised by Mr Campbell at the hearing of the application that after discussions with Dr Barling, it was not intended to pursue any assessment of an award for “adverse impacts”. Consequently, there is no award of damages made under COVR s 1A.

Contribution

13. [13]
    It is clear that the complainant has not in any way contributed to her own injury.^[9]

Conclusion

14. [14]
    Accordingly, I order that the respondent Kevin John Fowler pay the applicant, JAP, the sum of Twenty-two thousand five hundred dollars ($22,500.00) to be held upon trust by the Public Trustee on behalf of TL until TL attains the age of 18 years.