Re an application by CLP[2009] QDC 227

[2009] QDC 227

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 1328 of 2009

IN THE MATTER OF SECTION 24 OF THE CRIMINAL OFFENCE VICTIMS ACT 1995

and

IN THE MATTER OF AN APPLICATION BY C.L.P THAT D.M.P PAY HER CRIMINAL COMPENSATION

BRISBANE

DATE 03/06/2009

ORDER

HIS HONOUR:  This is an application by which the applicant seeks compensation under section 663B subsection 1 of the Criminal Code and section 24 of the Criminal Offence Victims Act 1995.  The Criminal Offence Victims Act commenced on 18 December 1995.

The applicant was born on the 18th September 1982 and is now 26 years of age.  The respondent was born on the 22nd January 1956 and is now 53 years of age.  The period of the offending took place between the 1st January 1990 and the 18th September 1998.  On the 3rd August 2006 the respondent pleaded guilty in the District Court at Brisbane to the following six charges. 

Count 1, maintaining an unlawful relationship with a child with a circumstance of aggravation between the 1st day of January 1990 and the 18th day of September 1998 at Brisbane in the State of Queensland.  Counts 2 and 3, indecent treatment of a child under 16, under 12, under care on a date unknown between the 1st day of January 1990 and the 31st day of December 1993 at Brisbane in the State of Queensland.

Count 4, indecent treatment of a child under 16, under 12, under care on or about the 6th day of April 1992 at Brisbane in the State of Queensland.  Count 5, indecent treatment of a child under 16, under 12, under care on or about 29th day of June 1992 at Brisbane in the State of Queensland.  Count 6, indecent treatment of a child under 16, under 12, under care on or about 15th day of February 1994 at Brisbane in the State of Queensland.

The facts upon which the charges were based were that the respondent married the applicant's mother on the 10th January 1987.  She was, at that time, about 4 years and 4 months old.  The offending took place against the complainant from when she was about 3 years of age through to her 16th birthday, almost a 9 year period.

The offending included taking the applicant to bushland.  This relates to count 2.  She saw him looking at her vagina because he had her pull her underpants to one side and he masturbated himself.  Other occasions occurred at secluded spots.  On these occasions he would have her suck his penis with her mouth and also rub his penis with her hand.  Count 3 occurred near an oval.

On occasions the applicant's mother would be staying at a hospital where one of the children of the marriage was being attended to for longstanding illness.  Her mother would stay overnight on these occasions and on these occasions the respondent would call the applicant into his bedroom where he was naked and have her become naked and then he would kiss her on the mouth and neck and play and fondle with her breasts with his hands.

There were also occasions when he put his tongue in his vagina.  Other occasions he would lie on top of her and have his penis at the entrance of her vagina.  This would cause her pain.  She also recalls him starting to rub his penis on or near her vagina until he ejaculated on to tissues he had beside the bed.  Counts 4 to 6 are specific instances of that.

Therefore, it can be seen that counts 2 to 6 were events that occurred between the 1st of January 1990 and the 15th February 1994 before the legislation changed to the Criminal Offence Victims Act on the 18th December 1995.  Count 1 is a maintaining charge and it spans both periods of legislation, that is from the period 1 January 1990 to 18 September 1998.

The applicant remembers the respondent stopping touching her when she was in Grade 11.  The report of Dr McGuire, psychiatrist, notes that there have been a number of psychological effects of the offences on the applicant.  She started to behave in a manner where she would only socialise if she was drunk.  She became constantly angry and did not trust anyone.  Her fiancé left her two years ago because of difficulty with the sexual relationship.  Her grades at school suffered.  She had trouble with employment.  She had flashbacks during sexual activity.

She found she did not like sex and she did not like to be hugged and touched.  That was why her boyfriend left her after a 4 and a half year relationship.  She had nightmares, sleep difficulties.  Engaged in self-harming activities.  She would cut herself with a knife or scissors and scratches until she drew blood.

She had an eating disorder.  Baths, or being in the bathroom precipitated flashbacks because the offending behaviour took place in these places.  She had suicidal thoughts which were constant.  Once or twice she had tried to drown herself.  She also cut her wrists with suicidal intent but was not hospitalised.

She has not seen a psychiatrist and has not had counselling. She does not feel that she can tell anyone about the abuse.  She found it difficult to come for the assessment with Dr McGuire and could not sleep the night before and had to have a couple of drinks before she could see Dr McGuire in the morning.  She has memory difficulties.

She feels guilty about the relationship.  She feels that she must have done something to start it and that it was her fault.  She had been threatened that if she told anyone it would break up the family so she did not tell her mother until her mother actually separated from the respondent.  She dislikes being alone and feels scared.

Dr McGuire concludes, in her opinion, the applicant has suffered a post-traumatic stress disorder to a severe degree.  She also has a borderline persona disorder.  It is Dr McGuire's opinion that the abuse has had an effect which will be lifelong, although her symptoms may lessen over time.  The post-traumatic stress disorder is diagnosed as a result of her flashbacks, nightmares, avoidant behaviour, disassociation, hypervigilance.

The borderline personality disorder is characterised by self-harm, suicidalitiy and difficulty with interpersonal relationships.  Compensation is to be assessed in this case under both pieces of legislation and then an apportionment made in order to arrive at the appropriate award of compensation.  This is so as to avoid double compensation.  See Hollywood v. Levack [2000] QCA 472.

I agree with the submission made on this application that in broad terms it can be seen the offence in the present case spans a period of about 8 years and 9 months.  That about 5 years and 11 months, or 68 per cent of this period, was before 18 December 1995 when the Criminal Offence Victims Act commenced and about 2 years, 10 months, or 32 per cent was after that date.

In these circumstances, I accept the submission that it would be appropriate for the Court to assess compensation for the injury under both the old and the new legislation and to order that the respondent pay compensation calculated as 68 per cent under the Criminal Code plus 32 per cent under the Criminal Offence Victims Act.

As far as contribution by the applicant, directly or indirectly, for her injury, I am satisfied on the evidence that the applicant did nothing to directly or indirectly contribute to her personal injury.

Regarding causation, this again is relevant here because there are a number of occasions the respondent offended against the applicant which were not charged except under count 1, the maintaining charge.  As was said by Justice of Appeal Holmes in S A Y v. A Z, ex parte Attorney-General of Queensland [2006] QCA 462 at paragraph 22:  "Only those injuries to which the relevant offence has materially contributed will be compensable."

Further on, it is said at paragraph 23 and in paragraph 26:  "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."

"While having regard to the fact that earlier events are likely to have contributed to the applicant's psychological injuries (although to a much lesser extent than the rape), two factors lead me to conclude that no alteration should be made to the percentages allowed.  Firstly, the uncharged acts were part of a course of continuing course of similar and reprehensible conduct by the respondent of which the rape was the culmination and, secondly, 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 earlier acts."

I accept the submission made on this application that there should be no discounting of any award made on the basis of causation.  The uncharged acts here were a continuing course of similar and reprehensible conduct by the respondent.  Also, the applicant was a child and was powerless to act against the respondent.  Therefore, she is entitled to be awarded compensation for the whole of her injury.

Under section 663B of the Criminal Code, this allows for the prescribed amount for an injury to be assessed up to $20,000 for mental shock or nervous shock.  The principles of assessment of compensation under the Code are, according to the ordinary principles of assessment of damages for personal injuries in civil actions, subject to the prescribed amount. See R v. Jones ex parte McClintock [1996] 1 Queensland Report 524.

It is relevant under the Code to bear in mind that the Code provides "That where a person is convicted on one or more offences arising out of the one course of conduct, or closely related courses of conduct, the Court may order a sum not exceeding the prescribed amount by way of compensation for the injury suffered by reason of the offence or offences."  See section 663B subsection 1A.

The interpretation and the application of the terms, "one course of conduct" and "closely related courses of conduct", was considered in Hendry v. Llorente [2000] QCA 377.  This decision was applied also in Marsten v. Kello [2000] QCA 410.  In this case I agree with the submission made that there can be seen to be three courses of conduct on the evidence.

The first course of conduct occurred with respect to count 2 in the shed at the back of the residence at Carole Park.  The second course of conduct occurred in the respondent's motor vehicle and is the incident referred to in paragraph 18 of the applicant's statement to police.  And the third course of conduct covers counts 4, 5 and 6 because of the similarity in nature and the location where these offences were committed. That is notwithstanding counts 4, 5 and 6 were committed on separate occasions.

Consequently, I conclude that the offences have caused the applicant a significant level of interference with her enjoyment of life.  The offences have impacted on her social relationships and have prevented her from engaging in work as freely as she might have wished.  She now does data entry so she can be away from people rather than be in work that requires her to engage with people.

Significantly, she's tried to take her life and according to Dr McGuire the effect upon her has been to a severe degree and will affect her lifelong although her symptoms may lessen over time.

Under the Criminal Code I assess compensation for the first course of conduct, count 2, at $10,000.  Under the second course of conduct, count 3, $20,000.  Under the third course of conduct, counts 4, 5 and 6, $20,000, a total of $50,000.

Under the Criminal Offence Victims Act I assess the applicant's compensation for mental or nervous shock at 30 per cent, which is the sum of $22,500.  However, there have been adverse impacts of a sexual offence and the applicant is entitled to compensation under the regulation.

It is fair to say that Dr McGuire has identified a number of impacts upon the applicant which come under the heading of post-traumatic stress disorder, which are already compensated by me under the item of 30 per cent or $22,500 under the schedule.

However, there are additional impacts.  The applicant contracted a disease.  The applicant also believes that she is not stable enough to have children.  The applicant has been estranged from the family.  She felt her mother failed to adequately protect her following the disclosure that the respondent was abusing her when she was a young child.  There has also been the impact on her educational opportunities and loss of occupational opportunity.  She has had a fear of the bush and she has excessively consumed alcohol.

For these additional impacts I assess the applicant's compensation at 15 per cent, or $11,250.  The overall assessment under the Criminal Offence Victims Act, therefore, is 45 per cent or $33,750.

The overall compensation, therefore, is 68 per cent of $50,000, which is $34,000.  That is under the Code.  And 32 per cent of $33,750, which is under the Criminal Offence Victims Act, a sum of $10,800.

The total, therefore, is $44,800.  I order the respondent to pay the applicant the sum of $44,800.  I also order the respondent to pay the applicant's costs of the application under section 663B subsection 1 of the Criminal Code to be assessed.  Ms Fadden, anything else?

MS FADDEN:  I have a draft order which I hand up.

HIS HONOUR:  Yes.  With these reasons if there's some mathematical errors that I've made or I've omitted something I'll fix it up.

MS FADDEN:  Yes, it seemed fine to me, your Honour.

HIS HONOUR:  Yes, there might be a couple of places but thank you for your submissions.

MS FADDEN:  Thank you.

HIS HONOUR:  Yes.  There'll be an order as per the draft initialled by me and left with the papers.

MS FADDEN:  Thank you, your Honour.

HIS HONOUR:  Thank you, Ms Fadden.