RSB v RAR[2009] QDC 195

DISTRICT COURT OF QUEENSLAND

HER HONOUR: This is an application by BB as litigation guardian for RSB, for an order that RAR pay compensation to her for injuries she sustained as a result of his offences against her.

The application stated that she proceeded pursuant to a provision of the Criminal Code, but it is clear from the submissions by her counsel that it is intended to proceed pursuant to the Criminal Offence Victims Act 1995, section 24, and to the extent that it is necessary, I grant leave to amend the application.

The application was served personally on RAR. He has not appeared. On 1 May 2008, before me, RAR pleaded guilty to four counts of indecent treatment of a child under16 under his care, and one count of carnal knowledge. Is entenced him to a number of concurrent terms of imprisonment,the longest being two years, and I suspended those terms after Mr RAR had served 18 months.

All five charges arose out of incidents that occurred on the night of the 30th of September 2007 while the complainant, then not yet 15, was staying at RAR’s house, at the invitation of one of his sons. There were acts of digital penetration, oral sex, procuring RSB to masturbate him, and sexual intercourse. As a result, RSB has suffered mental and nervous shock and other adverse impacts of the offences.

She has produced a report by Ms Boast, psychologist, who diagnosed her as still suffering from post-traumatic stress disorder. Given the period over which the symptoms have been manifest, she diagnosed it as a chronic condition.

This is evident from the traumatic event being persistently re-experienced through recurrent, intrusive recollections,recurrent nightmares, flashbacks, and intense distress when touched by others.

All these were frequent shortly after the incident. They have receded recently, but not completely, and some impacts are still routinely experienced.

RSB can no longer bear anyone talking about sexual assault matters. She avoids areas where she feels she may en counter RAR, who lives in the same locality. She is no longer physically active, and as a result has put on a large amount of weight. She has not pursued her earlier plans to study to become a teacher, although she is now completing secondary schooling part-time at TAFE and is in the process of re-establishing a smaller group of friends. She feels detached and estranged from others, including family, and has little optimism about her future. She still has difficulty sleeping, managing her anger, concentrating, and has an exaggerated startled response.

I accept the condition is chronic, given the period over which it has persisted. I did initially query whether the condition should be considered to be severe. In the end I have decided to calculate an award under the item for mental or nervous shock severe, for a number of reasons. Firstly, the length of time over which many of these effects or manifestations of post-traumatic stress disorder have been experienced. Secondly, as well as the post-traumatic stress disorder, I am satisfied that there is a second compensable injury under that head. That is, depression. Both the applicant and her parents informed Ms Boast that she has suffered since these incidents from periods of depression and suicidal ideation, and has contemplated killing herself on a number of occasions. On one occasion, she went so far as to almost carry out the act. Mr Boast has diagnosed depression, but not as a symptom of post traumatic stress disorder.

Taking into account both the depression and the post-traumatic stress disorder, I do think it is appropriate to make an award under the item mental or nervous shock severe. The sum that I award will equate to 25 per cent of the scheme maximum, $18,750.

I also consider RSB is entitled to a further award for other adverse impacts as a result of the sexual offences. Her victim impact statement, which I received at the sentencing hearing, spoke both of the abuse that she suffered by the defendant's wife after she disclosed his offences, and her isolation at school from her peer group, and the bullying thatshe experienced. It's clear that since then she has not been able to return to school and has had to continue her education in another forum, and that, on a part-time basis.

She has also become less physically active as a result of these offences. That has resulted in a very large weight gain for a person of her age, and the result of that is a lower ingof her self-esteem. I suspect that in the future she may well suffer health impacts if she is not able to deal with the excess weight that she has gained as a result of these offences.

Taking those matters into account, and the other aspects that Ms Boast identified, that of ongoing fear and lack of trust, I award a further 15 per cent under regulation 1A for other adverse impacts of the sexual offences.

The total award, then, is 40 per cent of the scheme maximum. That equates to the sum of $30,000. I will order in terms of the draft that's been handed up by Mr Bagley, inserting the sum of $30,000 as the amount that RAR must pay pursuant to this order.