JMR obo SRR v Hornsby[2009] QDC 147

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Paul William Hornsby, pleaded guilty in the District Court, Kingaroy before me on 22 March 2007 to two counts of rape in respect of the complainant SRR. The respondent was sentenced to two years and eight months imprisonment suspended after serving eight months, with an operational period of three years.

Facts

2. [2]
   These proceedings are brought by the applicant, JMR as litigation guardian for the complainant, who is a child. The complainant was born on 15 November 1996.

3. [3]
   The following facts relate to Count 2 on the indictment. In June 2006, the Kumbia SES Service hosted an event involving trail bike riding at Kumbia. The complainant and her parents attended that event. Both the complainant’s parents as well as the respondent were involved in the event in an official capacity.

4. [4]
   During the event, the complainant returned to a central tent to get a drink. The respondent was the only person in the tent. The respondent had the complainant sit on his knee. The respondent placed his left arm around the complainant and began stroking her on the right leg with his hand. After a short period of time, the respondent placed his right hand down the front of the complainant’s track suit paints and into her underwear. The respondent began to rub the complainant’s vaginal area with the fingers of his right hand. That rubbing included some penetration of the complainant’s outer labia. This continued for a short period of time before there was a radio call which caused the respondent to leave the complainant in the tent and to answer the call.^[1] 

5. [5]
   The complainant took part in an Evidence Act 1997 s 93A interview on 23 December 2006. In a subsequent record of interview with police, the respondent made admissions to the facts which constitute Count 2, and also advised police of another incident which occurred some time between January and May 2004 when the respondent was residing at the home of the complainant’s parents at Kumbia.  The respondent indicated that he walked in on one occasion to the complainant’s bedroom while she was lying on her bed.  The respondent lifted up the complainant’s nightie, pulled her underwear down, rubbed her on the outside of her vaginal area and then inserted a finger into the child’s vaginal cavity.  He continued to do this for “quite a while”.  The complainant just lay there and did not say or do anything.  The complainant said to the respondent “I have to go to sleep now” at which point the respondent stopped his behaviour and left the room.^[2]

The law

6. [6]
   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.^[3]  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”.^[4]  Ultimately the court should ensure that there is compliance with the use of the methodology prescribed by COVA s 25 [which] is mandatory”.^[5]  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 impacts of a sexual offence were not an injury under COVA s 20^[6].

Injuries

7. [7]
   The complainant did not sustain any physical injuries as a result of the offences, nor did she suffer mental or nervous shock, but seeks compensation for adverse impacts arising from the sexual offences.

Compensation

8. [8]
   Mr S Lynch, for the applicant, seeks compensation as follows:

(1) COVR s 1A – Adverse Impacts

The complainant was examined by Dr Kirsten Hunter, clinical psychologist on 18 November 2008.  Dr Hunter’s report dated 9 January 2009^[7] concludes that the complainant “currently presents with mild symptoms of post trauma stress.  The [complainant’s] mental state does not warrant a diagnosis of post traumatic stress disorder as her symptoms are not presently of the severity that cause clinical impairment to social, schooling or personal functioning.”^[8]

9. [9]
   In the light of this finding, Mr Lynch concedes that the diagnosis does not amount to “mental or nervous shock”^[9].  However, Mr Lynch submits that it is still open for the complainant to be compensated for the “adverse impacts of a sexual offence” pursuant to COVR s 1A, a course which has been adopted in two reported decisions of White DCJ in this court, Griven v Yeatman [2001] QDC 213 and Livingstone v Yeatman [2001] QDC 216.  In each of those cases White DCJ was not satisfied that the consequences constituted “mental or nervous shock”, but held that each of the applicants was entitled to compensation pursuant to COVR s 1A for “adverse impacts”.

10. [10]
    Mr Lynch identifies the following adverse impacts, namely:

(a) A sense of violation (COVR s 1A(2)(a))

1. (i)
   After the second incident [the complainant] understood that what occurred was “wrong and bad and she had to not let it happen again”.^[10]

2. (ii)
   Following the second assault she remembered feeling very agitated and unsettled.^[11]

3. (iii)
   “I felt weird and wanted to run away”^[12]

4. (iv)
   “I want to hide when I see him”^[13]

5. (v)
   “If we are in the car I just duck down”^[14]

6. (vi)
   “I feel weird talking about it; it makes me want to be on my own for a while and not talk to anyone”^[15]

7. (vii)
   “I don’t want people asking me about it because what he did is so dirty”^[16]

8. (viii)
   “It also makes me feel bad because I know he should not have done it”^[17]

9. (ix)
   [The complainant] tries to keep a smile on her face as the thoughts of abuse remain upsetting^[18]

10. (x)
    [The complainant] presented as avoidant with regard to talking about this distressing subject matter^[19]

(b) Reduced self worth or perception (COVR s 1A(2)(b))

1. (i)
   [The complainant] “is now very harsh on herself”.^[20]

2. (ii)
   “Some days [the complainant] does not want to get out of bed because she is so ugly”.^[21]

(c)  Increased fear or increased feelings of insecurity (COVR

s 1A(2)(g))

1. (i)
   [The complainant] “won’t go near males and seems scared of them”.^[22]

2. (ii)
   [The complainant] is “very clingy” around her parents.^[23]

3. (iii)
   [The complainant] “will not stay around males” without her parents being present.^[24]

4. (iv)
   She “now hate[s] going to Kumbia where the incidents occurred”.^[25]

5. (v)
   She “has become scared of others who might try and do it again”.^[26]

6. (vi)
   The complainant did not feel able to disclose the abuse to her support network (her parents and family).^[27]

7. (vii)
   She had an initial response of fear of telling her parents due to an assumption that she would get into trouble.^[28]

8. (viii)
   She initially would come into her parent’s bedroom “seeking a hug”.^[29]

(d) adverse effect of the reaction of others (COVR s 1A(2)(h))

1. (i)
   The complainant “seems scared” of males.^[30]

2. (ii)
   She won’t be around males without her parents being present.^[31]

3. (iii)
   She wouldn’t sit beside her maternal grandfather.^[32]

4. (iv)
   She refused to talk with her maternal grandfather by telephone.^[33]

5. (v)
   She now refuses to take part in sleepovers with female friends.^[34]

6. (vi)
   She dropped all friends from Kumbia.^[35]

7. (vii)
   She found herself “avoiding people”.^[36]

8. (viii)
   She tries “not to have anything to do with” her sole male teacher.^[37]

9. (ix)
   She displays “hypervigilance…in regard to men generally”.^[38]

10. (x)
    She has mistrust of men.^[39]

(e) adverse impact on feelings (COVR s 1A(2)(j)); and

1. (i)
   Hypervigilance towards potential threat.^[40]

2. (ii)
   Hyperarousal and fear.^[41]

3. (iii)
   [The complainant] is “now a lot quieter”.^[42]

4. (iv)
   [The complainant] has “some bad days when [she] does not want to get out of bed because [she] feels so sad”.^[43]

5. (v)
   She still feels “really bad”.^[44]

6. (f)
   anything the court considers is an adverse impact (COVR

s 1A(2)(k)).

1. (i)
   [The complainant] now will not let her mother wash her underwear.^[45]

2. (ii)
   She changes her room around fortnightly as she is unsettled.^[46]

11. [11]
    Mr Lynch submits that an award should be made in the order of 35 to 40 % of the scheme maximum ($26,500 to $30,000). He relies for support of that submission on a decision of RKL v Laycock [2007] QDC 348 where an amount of 20 per cent was awarded for adverse impacts, in addition to an award of 30 per cent for mental or nervous shock.  In addition, in the matter of Livingstone v Yeatman [2001] QDC 216 White DCJ awarded $36,000 for the adverse impact of the sexual offence which included a sense of violation, reduced self worth or perception, increased fear, feelings of insecurity, adverse impact on lawful sexual relations and adverse impact on feelings.

12. [12]
    Given the substantial range of adverse impacts suffered by the applicant, even though not amounting to ‘mental or nervous shock’, it is in my view appropriate to make an award at 35 % of the scheme maximum, namely $26,500.

Contribution

13. [13]
    The complainant has not contributed in any way to her own injuries.^[47]

Order

1. That the respondent Paul William Hornsby pay the applicant JMR on behalf of SRR the sum of $26,500.
2. That any monies that are paid in relation to the judgment awarded be paid over to JMR as trustee for SRR and that JMR pay out of such monies the legal costs of this application to the solicitors for the applicant, Kelly Frecklington, Solicitors of 44 King Street, Kingaroy, Queensland 4610, a bill in taxable form being sufficient in relation to the amount of taxed costs payable under this order for the purposes of JMR paying out such amount.
3. That JMR pay the medical expenses of the psychologist Dr Kirsten Hunter in providing her report in relation to this matter on presentation to JMR of a tax invoice.
4. That JMR be appointed manager of and to take possession of and control and manage the residue of the said judgment sum of the Applicant with powers and duties as defined in the Public Trustee Act 1978 until SRR turns 18 on 15 November 2014, and that JMR apply the same and the income in such manner as JMR thinks fit for the maintenance, education, medical treatment and counselling and otherwise for the benefit of SRR.