R v W[2009] QDC 349

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation pursuant to the Criminal Offence Victims Act 1995 (Qld), for the adverse impacts as a result of sexual offences for which the respondent was convicted on 7 May 2004.  The relevant offences were one count of maintaining an unlawful relationship of a sexual nature with a circumstance of aggravation and four counts of indecent treatment of a child under 16 years with a circumstance of aggravation, being that the applicant was under his care.

2. [2]
   The applicant was 15-16 years of age at the time of the offences. The respondent, who was then aged 34-35 years, used his membership of a fire service to attract the applicant’s interest. The indecent dealing counts involved causing the applicant to masturbate him on two occasions, masturbating the applicant (after giving him alcohol) and sucking the applicant’s penis.

3. [3]
   The applicant was significantly affected by the offending, although he did not suffer post traumatic stress disorder or any other psychiatric disorder. He claims for adverse impacts of the kind referred to in s 1A of the Criminal Offence Victims Regulation 1995 (Qld) which provides, in part, as follows:

4. [4]
   Compensation may only be awarded for adverse impacts to the extent that those impacts are not otherwise an injury under s 20^[1].  Section 20 defines “injury” by reference to the compensation table.  That table includes the injury of “mental or nervous shock”.  In this case, the applicant can only recover under s 1A of the Regulation to the extent that the impacts do not fall within the meaning of mental or nervous shock. 

5. [5]
   It is not always easy to distinguish between adverse impacts and symptoms of mental or nervous shock. Further, there is debate as to the correct meaning of the expression “mental or nervous shock”, as has been recently canvassed by Byrne SJA in RMC v NAC [2009] QSC 149.  I accept however, that the more appropriate way of treating the injury in this case is to regard it as falling under the adverse impacts provisions of the Regulation, rather than mental or nervous shock.

6. [6]
   In his affidavit, the applicant describes the impacts upon him as including:

• feelings of guilt, shame and confusion at the time the offences were occurring^[2];
• feeling worthless, dirty and violated by the offences^[3];
• avoidance of school, rebelliousness and disruptive behaviour^[4];
• feeling “out of place”^[5];
• substance abuse (tobacco, marijuana and alcohol)^[6];
• feelings of guilt and shame once the police told his parents about the offences;
• withdrawal from family members. A deterioration in his relationship with his father and a change in the relationship with his mother and other family members^[7];
• withdrawal from friends^[8];
• experiencing “flashbacks”^[9];
• feeling as though other people were looking at him^[10];
• becoming security conscious^[11];
• suicidal thoughts^[12];
• avoidance of people other than those he really knows and trusts^[13];
• withdrawal from the Rural Bush Fire Brigade^[14];
• feelings of distrust towards older men^[15];
• adverse reactions when hearing phrases which the respondent used^[16];
• feelings of violation and reduced self worth^[17];
• becoming physically and verbally abusive towards his mother and father^[18]; and
• a poor education and work history^[19].

7. [7]
   The affidavit of the applicant’s mother generally corroborates that of her son. Some of the changes which she noticed included him becoming secretive, moody, rebellious, argumentative, and withdrawn. She recalls his avoidance of school, disruptive behaviour and his suspiciousness of older men. She also recalls him becoming physically and emotionally distraught, ashamed and scared when police approached him about the abuse. I accept that, and the other matters referred to in the affidavits of the applicant and his mother.

8. [8]
   The applicant has been assessed twice by Dr McGuire. He was first assessed in 2007. At that time Dr McGuire provided a report which suggested that the applicant did not suffer from some of the adverse impacts which are now deposed to. Dr McGuire subsequently conducted an interview in 2008, with the benefit of some further material from the applicant and his mother. By that time the applicant claimed to have understated his symptoms in an earlier interview. Dr McGuire appears to have suspected as much at the time. In her first report she recorded:

“He doesn’t want to talk about it and didn’t particularly want to come today”, and that:

“At interview he was very inarticulate.  He arrived over a quarter of an hour late.  He tended to minimise his symptoms and was difficult to interview.  He appeared uneasy and may have underestimated the effect upon him”.

9. [9]
   I accept that the applicant did understate the impacts at the time of his assessment in 2007. The subsequent reports of Dr McGuire^[20] evidences the following adverse impacts of relevance under the Regulation (adopting the sub-paragraph lettering of the Regulation):

1. (a)
   a sense of violation;

2. (b)
   a perception of reduced self worth;

7. (g)
   increased fear or increased feelings of insecurity.

10. [10]
    On the evidence, he has also suffered other impacts, described in the affidavit material, and which are compensable under s 1A(2)(k) of the Regulation. These include some symptoms of PTSD (flashbacks, suppression of feelings associated with the trauma and withdrawal from friends) which he has (without suffering PTSD) and the adverse effects which have resulted in the deterioration of his relationships with family and friends and educational and occupational difficulties. Dr McGuire described his “injury” as personality problems resulting from the abuse from which he suffers. She describes the severity of his symptoms as moderate.

11. [11]
    I was referred to the decision of Rafter SC DCJ in AEK v TBU (unreported) Rafter SC DCJ, 15 July 2009, where an order for $37,500 was made by reference to an injury under the Regulation.  The facts in that case were different.  I consider that the subject case is less severe overall than AEK v TBU.  That is recognised to some extent in the submissions on behalf of the applicant, which sought an award of $30,000.  In my view a more appropriate assessment in this case is $25,000, being one third of the scheme maximum.

12. [12]
    I do not consider that the applicant directly or indirectly contributed to the injury in any way. He was the naive victim of predation by a mature aged man.

13. [13]
    I order the respondent to pay the applicant the amount of $25,000 by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld).