DISTRICT COURT OF QUEENSLAND

1. [1]
   On 8 April 2005 the respondent pleaded guilty before another judge to one count of maintaining a sexual relationship with a child, three counts of indecent dealing with a child under 16, five counts of unlawful carnal knowledge and one count of attempted unlawful carnal knowledge.  The Crown accepted pleas to these ten counts in discharge of the 28 count indictment.  All the counts to which he pleaded guilty involved the applicant GEL (the first applicant),^[1] except for Count 5, one count of indecent dealing with a child under 16 years, where the complainant was the applicant GLA (the second applicant). 

2. [2]
   The sentencing remarks indicate that the respondent commenced a sexual relationship with the first applicant in April 2003, when she was 15 years of age, which continued until August 2003; the relationship involved regular intercourse with her.  During this period on one occasion the respondent indecently dealt with the second applicant by kissing her and touching her on the breasts on the outside of her clothing.  His Honour  said that it was apparent from the evidence that the first applicant at the time was a willing participant in the relationship.  He noted that the first applicant had taken time off school which had had some effect on her education, she was concerned during the relationship that she could become pregnant or have contracted herpes, and after the relationship ceased she no doubt had been left with feelings of having been violated and exploited as a result of the respondent’s seduction of her.  The offences were described by the sentencing judge as involving exploitation of young girls by an older man which had to be regarded as serious even when the complainant was a willing participant.

3. [3]
   It is not clear that the matter proceeded on the basis that the second applicant was also a willing participant. Unfortunately the transcript of part of the sentencing proceedings where the Crown prosecutor outlined the basis on which the Crown proceeded in relation to the second complainant was not included in the transcript exhibited in these proceedings, and almost nothing was said about the second complainant by defence counsel. However, a police statement by the second complainant suggests that the position was that there were a number of incidents where this occurred,^[2] initially she was not a willing or indeed responsive participant, but later she was starting to kiss him back a bit; it does not appear from the statement that she expressly rejected what the respondent was doing at the time.

The first applicant

4. [4]
   There are two affidavits by the first applicant but they do not refer to the details or circumstances surrounding the offending. The first applicant said that since then she has received medical treatment and counselling at the Mater Children’s Hospital, and that she had difficulties in school and her results declined. She achieved an OP of 19, sufficient to pursue tertiary studies but not in the field she preferred. Her affidavit of 8 May 2009 referred to an earlier affidavit which was not read^[3] and said she moved to the Gold Coast in 2007 to avoid seeing the respondent in Brisbane, because of the deteriorating relationship with her mother, which she attributed to the offending, and with a desire to make a fresh start.  She said her relationship with her parents had improved but not substantially, she was still indecisive and she still had difficulties with sleeping, she did not go out much, had a sense of insecurity, will not attend public places in Brisbane for fear of seeing the respondent, and will only travel to Brisbane to attend family functions.

Medical evidence

5. [5]
   The first applicant was examined by a psychiatrist, Dr Curtis, on 17 July 2006 for the purposes of a report.^[4]  Although Dr Curtis provided two subsequent reports,^[5] it does not appear that he has examined the first applicant again.  The report records complaints of sleep problems including nightmares, flashbacks, and difficulty with schoolwork.  She became uncomfortable with older men, including her grandfather.  She was sexually active but had difficulty in dealing with her boyfriend and did not enjoy the physical side of relationships.  At one time after the offending she took an overdose of sleeping tablets.  She reported difficulty in trusting people.

6. [6]
   Dr Curtis said there were the usual symptoms of anxiety and depression and that the first applicant was suffering post traumatic stress disorder.  There were also complaints of loss of interest in things such as social life, food, and a lack of motivation generally.  She was worried about her physical status and general health.  Dr Curtis was of the opinion that the post traumatic stress disorder was in a chronic residual form with persistent anxious and depressive discomfort and problems with intrusive memories and interference with sleep.  He did not consider that she would ever recover completely and would not achieve her full potential in her career or social life.  He said there were now inherent anxieties, timidities and distortions in personality function due to the effects of the post traumatic stress disorder.

7. [7]
   Dr Curtis provided a further report dated 28 February 2007 after he had seen a copy of the Criminal Offence Victims Regulation.  This report addressed the presence or otherwise of a number of adverse impacts of a sexual offence referred to in the regulation, but did not identify whether or not these were part of, or consequence upon, the post traumatic stress disorder, or for that matter any other psychiatric injury suffered by the applicant.  In these circumstances it is of little assistance.  In a further report dated 18 April 2009 he does seem to have attempted to address this issue.  Ultimately, however, it seems to me that there is nothing which departs from the basic proposition set out in the second sentence of the report:

“It is accepted within the science base that post traumatic stress disorder is the full expression of the post traumatic syndrome.”

8. [8]
   The various points made by Dr Curtis in this report are summarised by the doctor in the last paragraph, in the proposition that “survivors of sexual abuse are condemned to relatively impoverished lives which are more probably than not less successful and less nourished and less loving than those lives could have been.”  I accept that evidence, but it really does not provide any evidentiary support for the proposition that there have been adverse affects suffered by the applicant which are separate from the post traumatic stress disorder diagnosed by Dr Curtis.  His overall view appears to be that the post traumatic stress disorder covers all of the adverse consequences of the offending identified by him.

9. [9]
   Much of the material in the reports of Dr Curtis appears to address the issue that the applicant has actually suffered a psychiatric condition, namely post traumatic stress disorder, notwithstanding that the applicant was, as was found by the sentencing judge, a willing participant in the conduct which constituted the offending.  I accept Dr Curtis’s evidence that the applicant has suffered the psychiatric condition he has identified, and that the applicant suffered this because of the conduct constituting the offending.  There is no suggestion that there were any other events or matters which were relevant to the development of this condition in the first applicant, so the question of causation need not be further addressed.  Plainly, the offence of maintaining a sexual relationship covers all of the sexual conduct identified in the description of the offending for the purposes of sentence.

10. [10]
    In the light of the medical evidence I find that the first applicant has suffered post traumatic stress disorder which is suffered to a moderate degree and which is chronic and is likely to persist in the long term, probably throughout her life. There is a prospect of some improvement over time, but also the risk of relapsing. Clearly post traumatic stress disorder is a recognised psychiatric condition and amounts to mental or nervous shock for the purposes of the Act. The contrary was not argued on behalf of the first applicant.

11. [11]
    In LMW v Nicholls [2004] QDC 118 I summarised a number of assessments made in respect of mental or nervous shock involving post traumatic stress disorder up to that time, which suggested that where there was a moderate disorder of that kind suffered which was slowly abating with some persistence of symptoms an award in the range of 10%-15% was commonly made but that if the condition did not and would not abate an award in the range of 15%-20% was justified.  Awards which I have seen since then do not suggest that the situation has significantly changed since that assessment was made, and indeed that proposition was relied on on behalf of the first applicant.  There is some prospect of temporary improvement at some time in the future, but Dr Curtis’s assessment emphasises the risk of relapse and the persistence of at least some of the symptoms of the condition in the long term, and in those circumstances I think it is reasonable to assess the mental or nervous shock in the upper part of the range for Item 32.  I allow 16% in respect of this injury.

Adverse impacts

12. [12]
    Counsel for the first applicant submitted that there had been a deemed injury under the regulation in respect of adverse impacts outside mental or nervous shock. It is only adverse effects which are not part of or attributable to the mental or nervous shock suffered which are compensable on this basis.^[6]  I accept that the applicant suffered a sense of violation, reduced self worth, increased fear and insecurity, adverse effect from the reaction of others, and an adverse effect on feelings, in the light of the evidence before me.  In relation to the impact of the reaction of others, the evidence suggests that the relationship with her mother deteriorated for a time, and that this was a consequence of the offending.  The psychiatrist’s report indicated that the first applicant’s mother had become very protective of the first applicant, and was constantly checking up on her.

13. [13]
    It is certainly possible to have a situation where there is an adverse effect from the reaction of others which is independent of any post traumatic stress disorder. In the present case, the offending occurred in circumstances where there was not only no complaint to the mother, but the first applicant deliberately kept the existence of the relationship a secret from the mother, denying the relationship and taking steps to keep it concealed from her.^[7]  In these circumstances it would be unsurprising if there was a reaction from the mother which would produce adverse effects for the applicant quite independently of any psychiatric consequences of the offending.

14. [14]
    On the other hand, Dr Curtis in his first report at page 8 said that the first applicant developed anger management problems which caused strain between mother and daughter where there had been a good relationship before.  This would presumably fall within the distortions in personality functioning due to the effects of post traumatic stress disorder referred to by Dr Curtis in paragraph 9.2 of the report.  I think it likely, however, that to some extent problems with the relationship between the first applicant and her mother are attributable at least in part to factors other than consequences of the development of her post traumatic stress disorder, and therefore to this extent allowance should be made for this as an adverse impact independent of the mental or nervous shock.  Otherwise the matters listed earlier were not shown to have been separate from the mental or nervous shock injury.

15. [15]
    The submissions listed a number of matters which it was submitted I should find fell within paragraph (k) of Regulation 1A, as matters considered to be adverse impacts by the court.  These were anhedonia (an inability to enjoy things previously found enjoyable), continuing passive ideas of suicide, becoming indecisive, not enjoying food, becoming negative towards school and family, abnormal fatigue, fear of contracting herpes, fear that she was pregnant, impaired capacity to partner in life and consequent impaired capacity to have children, the risk of involvement in the future with predatory males, and her relocation away from the area where the offending occurred.  There is evidence of the existence of all these in the material, but most of them are listed as anxious and depressive symptoms in paragraph 4.1 of the first report of Dr Curtis, and it is clear particularly from paragraphs 8.3 and 9.2 that these are part of the post traumatic stress disorder or caused by it.

16. [16]
    Another matter which I should address is the fear of contracting herpes or becoming pregnant. If either of these consequences had followed they would have been injuries for the purposes of the Act, but she did not in fact contract a disease,^[8] or become pregnant, as a result of the offending.  I think that some fear of such matters could be seen as an adverse consequence independent of any psychiatric injury, although obviously the concern about pregnancy should not have persisted for very long, and the same should have been the case with the concern about contracting a disease.  There is some evidence that this concern persisted inappropriately, but that could be one of the aspects of the obsessive worries about her physical status and general health identified by Dr Curtis as a residual feature of post traumatic stress disorder in paragraph 8.1 of his first report.^[9]  That persistence is not something I can take into account under the regulation, but some modest allowance should be made in respect of the concern until the point when it ought to have been dispelled.

17. [17]
    On behalf of the first applicant I was referred to a number of other decisions involving adverse impacts. The amounts allowed for adverse impacts vary considerably, and often there is little detailed explanation of the basis for any such assessments. I have also noticed that the reasons for decisions not infrequently fail to address expressly the question of whether the adverse impacts are independent of any injury in the form of mental or nervous shock. If that issue has not in fact been addressed, in my opinion the decision is of no value.

18. [18]
    In all the circumstances therefore the only adverse impacts which I find are separate from the mental or nervous shock are the adverse impact of the reaction others, particularly the mother, and the fear of becoming pregnant or contracting a disease in the short period after the offending. In all the circumstances I think an allowance of 4% is sufficient for that deemed injury. That produces a total of 20%.

Contribution

19. [19]
    It was then submitted that the applicant did not contribute either directly or indirectly to the injuries. I note, however, that the sentencing judge proceeded on the basis that the applicant was a willing participant in the conduct constituting the offending, and that there was nothing in the material before me to suggest to the contrary. The applicant did not complain to her mother or other family members of the respondent’s behaviour, and indeed was actively involved in concealing the offending conduct from the mother.^[10]  I accept that the first applicant was groomed and seduced by the respondent,^[11] and I take the point made^[12] by Dr Curtis in paragraph 10.2 of his first report, in particular as follows:

“A combination of perversion and the illicit excitement particularly in an organism too young to handle it is a powerful destructive force.  The deviants like [the respondent] utilise secrecy and disaffiliation in order to control the young person.  The human values and the attitudinal stance of the young person progressively become skewed towards those of the predator.  The person being predated upon is under control in a way analogous to the abused and battered spouse who is quite deliberately excluded from family supports and contacts by the controlling obsessive, brute power of a deviant spouse.”

20. [20]
    Nevertheless, the complainant was 15 at the time the offending occurred. She was still living in her own home, and the respondent was not living there. This was not a case where her submission was secured by violence or intimidation or threats, or by the exploitation of any power relationship. Often the child is too young to appreciate the significance of what is occurring, or may simply not be in a position to do anything except submit. Hence it is rare for contribution to be allowed in respect of matters of this nature.

21. [21]
    On the other hand, the first applicant did not have to go along with the respondent, she could have rejected his advances, or told her mother. According to the first applicant’s statement to the police, the first offence occurred when she deliberately went to the respondent’s house the day after he had been kissing and cuddling her during such a visit. Thereafter sexual activity occurred generally when she went deliberately to his house, sometimes skipping school for the purpose, or she let him into her house at night when her mother was at work and the others were asleep.^[13]  She did not complain to her mother any stage, but concealed the relationship from the mother.  This was significant cooperation on her part, and I consider that it would be unrealistic not to regard that as a factor contributing to the offending and hence to the psychiatric consequences to her of the offending.  In those circumstances some contribution should be allowed on this basis, although I accept that responsibility still rests principally upon the respondent.  I will reduce the allowance for each of the injuries on this basis by 25%.  That produces a final total of 15% which when applied to the scheme maximum means an award of $11,250.

Second applicant

22. [22]
    The respondent was convicted of one offence of indecent treatment of the second applicant, who was 13 at the time of the offending. The offence was particularised as kissing her and touching her breasts on the outside of her clothing. The applicant’s material indicates that this was under the shirt but on the outside of her bra. Because of the greater significance of the offences involving the first applicant, there was little said at the sentencing hearing in relation to the offence involving the second applicant and it is not clear whether the matter proceeded on this or some other basis, but I will assume that that was the basis on which the sentencing proceeded. It is clear that there was only one count, so that the charge was brought in respect of only one occasion, although the second applicant’s material is to the effect that this happened more than once.

23. [23]
    There was read an affidavit of the second applicant sworn 10 May 2009, which confirms that she has turned 18, and that she received medical treatment and counselling at the Mater Children’s Hospital and attended Dr Ian Curtis.  She also stated that she had recently attended a general practitioner who had diagnosed her with major depression and prescribed anti-depressant medication, and she is attending counselling with a psychologist.^[14]  She said her schooling suffered after the abuse and impacted on her performance at school that resulted in poor marks at school.  She had not been able to obtain employment since she finished grade 12, she did not feel happy and had nothing to look forward to, and had no motivation or energy to do anything.  She did not trust people, she mostly kept to herself and did not go out much, and became nervous, for example at a shopping centre.  She was fearful of further contact with the respondent.  Finally, she said that “since the incident occurred with [the respondent], and from grades 8 to 12, I was suicidal, and cut myself every day or so.”

24. [24]
    The applicant saw the psychiatrist Dr Curtis on 17 July 2006 for the purposes of a report.^[15]  She was then 16, and in grade 11 at school.  Dr Curtis diagnosed the second applicant as suffering from generalised anxiety disorder and dysthymic depressive disorder.  He said at paragraph 9.1 that the second applicant “manifests general anxiety, social phobia, interpersonal problems, [and] general trust, depressive and motivational deficits as a result of the sexual abuse.”

25. [25]
    The report recorded that the applicant developed a nervous rash called psoriasis which Dr Curtis attributed to nervous tension, and he attributed this to the abuse:  para 4.3.^[16]  He noted that there had been some counselling but considered that the second applicant needed more counselling.  Her own estimation was that the after effects of the abuse amounted to a mild ongoing problem and she denied having any specific social avoidance mechanisms troubling her, though Dr Curtis thought that the second applicant was in psychological denial so that her assessment of the significance of her condition was unreliable.

26. [26]
    Dr Curtis reported that in general terms the second respondent considered she was subject to ongoing anxiety and an accompanying depressive feeling that she would never get her life back to normal.  He noted that she felt uncomfortable and untrusting around males, and found it difficult to be alone with males, though she thought she was making some improvements.  At one time she was having nightmares about the sexual abuse but these had either stopped (paragraph 8.1) or lessened (paragraph 3.3).  It is apparent that she had been concerned about the prospect of having to go to court; the respondent’s plea was a relatively late one.

27. [27]
    Dr Curtis referred to the complaints of symptoms from the second applicant in paragraph 8.1 of the report under the heading “Mental state examination”.  He said that she reported she had developed troublesome trust issues consequent upon the abuse and did not feel comfortable around males or being alone with males.  She said she also had nightmares but these have now stopped, and that she seemed to be getting over the worst effects of the abuse.  She had been frightened about the thought of what would happen to her in court, because it was expected for a long time that the matter would go to trial.  Dr Curtis said that she reported being less trusting of people, and awkward around men, and had developed significant anxieties, so that she felt abnormally fearful, although her fears were slowly subsiding.  She was depressed in mood but considered the mood was slowly improving.  Significantly Dr Curtis reported that the second applicant:

“denied ever being suicidal in her thinking or her actions.  She told me on questioning that she had never done any deliberate self harm to herself.”

28. [28]
    Apart from this, Dr Curtis saw the second applicant’s mother, who provided a good deal of information recorded in paragraph 5.1, but there was no mention of suicidal behaviour or self-harm.  A victim impact statement prepared by the mother at about the time of sentence in April 2005 made no mention of any suicidal behaviour or self-harm on the part of the second applicant.  Even allowing for the possibility of “psychological denial” it is impossible to believe that an experienced psychiatrist like Dr Curtis could have been interviewing someone who was suicidal and had cut herself every day or so from grade 8 (ie for three years) without detecting this.  In these circumstances it seems to me that the medical evidence is plainly inconsistent with the statement in paragraph 10 of the affidavit of the second applicant, and I therefore reject that statement as untruthful.

29. [29]
    There are other aspects of the affidavit which are inconsistent with the account given to Dr Curtis.  Paragraph 4 referred to the schooling suffering so that she received poor marks at school.  Dr Curtis at paragraph 4.3 of the first report said:

“I examined the school reports and these may have to be reviewed by a school teacher expert in the student reviews as I could not see a great deal of difference other than the increased absenteeism at the time of the sexual abuse.”

On the whole I believe if there was any significant deterioration in school performance, Dr Curtis would have noticed this.  The inference is that the school reports provided to Dr Curtis did not bear out the assertion in paragraph 4 of the affidavit.  More generally, the overall effect of what was said in the affidavit is quite different from the overall effect of what was said to Dr Curtis.  There is also a significant omission from the affidavit.

30. [30]
    The affidavit implied that she has absolutely no social life, but the report makes it clear that at that time at least she had a boyfriend although she was not sexually active: para 6.9.  That was confirmed by the mother, who also told Dr Curtis that she “thought” the second applicant was taking risks with boys as a result of what happened, and that she had been subject to a “date rape”.^[17]  There is no mention of this in the second applicant’s affidavit, although this is an important consideration because it raises an issue as to the extent to which her current problems are attributable to matters other than the offending by the respondent.^[18]  I would have thought that if she had been subsequently raped by someone else, that would have had some adverse impact on her mental state; it might at least be contributing towards her feeling of not being comfortable around males or being alone with males, referred to in paragraph 8.1.  This was not a matter addressed by Dr Curtis, who also did not consider what effect the very protective behaviour of the applicant’s mother referred to in her victim impact statement might have had on the second applicant if she was wanting to have a social life with boys at the time, which would not have been surprising for a secondary school girl, and this was being opposed by the mother as risk taking behaviour.

31. [31]
    I note that Dr Curtis referred at paragraph 8.1 to the second applicant’s being inconsistent and unreliable in judging the significance of the effect of the abuse upon her.  Dr Curtis attributed this, apparently at the prompting of the applicant’s mother, to psychological denial, but an alternative explanation of course is simply that the second applicant was being untruthful when speaking to Dr Curtis.

32. [32]
    This is the difficulty for the applicant. In the light of the contents of Dr Curtis’s report I cannot accept paragraph 10 of her affidavit as truthful, and in the circumstances I am not prepared to accept what she says in her affidavit as reliable, so it is evidence upon which I am not prepared to place any weight.  There is also the difficulty that the opinion evidence of Dr Curtis depends at least in part on what he was told by the applicant, and therefore is dependent on the reliability of what the applicant told him.^[19]  Strictly speaking to make Dr Curtis’s evidence admissible there should have been evidence from the second applicant to verify the factual basis for Dr Curtis’s opinions, that is to say, to verify that what Dr Curtis said he was told by the applicant was true.^[20]  Indeed, without that the expert evidence is technically inadmissible.  In any case, I could not in the circumstances place any weight on Dr Curtis’s opinions because I could not find that he was informed reliably of actual symptoms of the second applicant, so that there is no reliable evidence as to the consequences of the respondent’s offending on the second applicant.

33. [33]
    In that situation the second application must be dismissed. It is not I think sufficient to say that one would expect that there would be some adverse psychological consequences from any form of sexual abuse of a 13 year old, even the relatively limited abuse that occurred on this occasion in respect of the one count of which the respondent was convicted. That is not in my opinion sufficient to provide a proper basis for a finding that the applicant has suffered mental or nervous shock, even if that finding alone would have justified an award at the bottom of the range for Item 31.  It also means that there is no reliable evidence of any adverse impacts apart from any mental or nervous shock suffered.  Even the psoriasis referred to in paragraph 4.3 appears to be based on what was reported to the doctor; he does not say that he saw the rash himself, or that he determined himself by looking at it that that was what it was, and see paragraph 7.1.  There is no reference to the rash in the affidavit, although in the circumstances I cannot really attributed much significance to that.  The second report of Dr Curtis also mentioned this condition, but again not in a way which clearly identified it as something which was continuing.

34. [34]
    I order that the respondent pay the first applicant $11,250 compensation for the injuries suffered by her because of the offending for which the respondent was before this court on 8 April 2005.  The application by the second applicant is dismissed.