DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for emotional injuries caused by sexual offences committed by the respondent in the period 7 April 2004 to 14 July 2004. 

2. [2]
   On 13 October 2005 in the District Court at Brisbane the respondent was convicted by a jury of one count of maintaining an unlawful relationship of a sexual nature with a child under 16 years with a circumstance of aggravation and two counts of indecent treatment of a child under 16 with a circumstance of aggravation. He was sentenced to three years imprisonment.

3. [3]
   The applicant was 14 years old at the time of the offences. She was 15 years old at the time of the respondent’s trial. The applicant was 19 years of age at the time of filing of the application on 16 September 2009. The application has therefore been made within the time limit provided by s 40(1)(b) Criminal Offence Victims Act 1995. 

4. [4]
   The application and supporting affidavit material was served on the respondent on 5 October 2009.^[1]  There has been no appearance by or for the respondent. 

Circumstances of the offences

5. [5]
   As I have mentioned the applicant was 14 years old at the time of the offences. The respondent was her 51 year old Godfather.

6. [6]
   In her police interview on 29 August 2004 admitted at the respondent’s trial pursuant to s 93A Evidence Act 1977, the applicant said that the respondent had been touching her inappropriately for 5 months.^[2]  The learned trial judge said in his sentencing remarks that it was clear that the unlawful sexual relationship persisted for a period of about 3 months.^[3]

7. [7]
   The two charges of indecent dealing involved the respondent touching the applicant on her stomach and breast and in the area of her vagina.

Injuries and medical reports

8. [8]
   The applicant’s victim impact statement dated 12 October 2005 which was tendered at sentence sets out the considerable impact of the offences upon her.^[4]  She felt unclean and dirty.  She felt guilty for not having the courage to tell the respondent to stop.  She felt embarrassed.  She experienced nightmares and flashbacks.  Her school studies were disrupted because she was not coping.

9. [9]
   The applicant’s affidavit dated 31 August 2009 shows that the applicant has continued to suffer significant difficulties. She has been an inpatient at the Barrett Adolescent Centre. She has taken drug overdoses and self-harmed. She spent 12 months in residential care at Phoenix House because her mother was unable to look after her. She has become detached from others and spends most of her time in her bedroom.^[5]  She became engaged to be married but subsequently called off the engagement because of difficulties with intimacy.^[6]  The applicant says:

“I have moved on slowly with my life and take every day as it comes but I still break down and cry sometimes when I think about what the respondent did to me.”^[7]

10. [10]
    The applicant’s mother has filed an affidavit setting out the substantial impact of the offences upon the applicant. She states:

“The once bubbly daughter I had has turned into a very angry, bitter young girl who suffers from post traumatic stress disorder, depression and anxiety disorder. (The applicant) virtually lives in her bedroom on her computer.  She does not go out much, possibly about every six months she might go to the friend’s house.  She tends to keep in touch with her friends on her mobile phone.  (The applicant) used to take everything head on and was not scared of anyone or anything but after this incident with the respondent, she is a sheltered young girl always looking over her shoulder wherever she goes.  She hardly sleeps at night and she walks the floor.”^[8]

11. [11]
    The applicant has been under the care of Dr Megan Archer, Psychiatrist. There are two reports from Dr Archer. In the first report dated 10 October 2006 Dr Archer says that the applicant suffers Post Traumatic Stress Disorder and Major Depression.^[9]  Dr Archer described the applicant’s symptoms of depression and Post Traumatic Stress Disorder as follows:

3. “(a)
   Depression

• Depressed mood with reduced energy, motivation, concentration, memory
• Social withdrawal, irritability, reduced self-esteem
• Diminished ability to function at school, at home and socially
• Initially no suicidal thoughts or self-harm behaviours.  She has acted on these since with self-harming, overdoses, and with frequent suicidal thoughts and urges.

2. (b)
   Post Traumatic Stress Disorder

• Pre-occupation with the traumatic events
• Re-experiencing the events
• Nightmares
• Intense distress to cues to the events
• Intense physical reactivity to cues of the events

Avoidance of stimuli associated with the trauma and numbing

• Avoids thoughts, feelings, conversations related to the trauma
• Avoids activities, people or places that arouse recollections of the trauma
• Markedly diminished interest, attendance and participation in significant activities, e.g. school, work and social activities
• Feelings of detachment from others.

Persistent symptoms of increased arousal

• Very disturbed sleep
• Irritability with outbursts of anger
• Difficulty concentrating
• Hyper-vigilance – very jumpy
• Panic attacks”

12. [12]
    In the second report dated 17 November 2009^[10] Dr Archer expresses the following opinion:

“Diagnoses (DSM IV-TR criteria)

Post Traumatic Stress Disorder (PTSD) – chronic with severe panic attacks and agoraphobia related to the trauma and her subsequent feelings of being unsafe – Major depressive disorder

Origin and adverse effects of the offences

The origin of these conditions appeared to be the sexual offences perpetrated by her godfather on her in 2004 when she was aged 15 years.  The nature of her symptoms appeared to revolve around the abuse trauma i.e.

nightmares, flashbacks, episodes of feeling she was reliving the trauma, being unable to go to sleep because of the high level of hypervigilence and her feeling of being vulnerable and unsafe

_

the sense of having been violated, and of insecurity and difficulties with trust and feeling to [sic] unsafe to leave the house alone or even at times with others, of not being able to take public transport in case she encountered him or his associates

_

her loss of normal relationships with her peers, her feelings of inferiority, poor self-esteem and worthlessness, compounded by bullying at school related to the nature and to the impact of the abuse trauma, and to her being unable to concentrate and to attend school, and her falling out of the normal routines and activities of teenage life

_

the avoidance of anything which might remind her of or be associated with the abuse

Other symptoms which were of a very severe nature are ones which are also attributable to PTSD (are in the DSM IV criteria)

_

severe difficulty in falling or staying asleep

_

irritability and angry outbursts

_

difficulty concentrating”

13. [13]
    Dr Archer also expressed the opinion that there are other adverse impacts of the offences committed upon the applicant by the respondent. She said that the applicant is on the Disability Support Pension as a result of the offences. She also expressed the view that the applicant continues to experience difficulties with her identity as a result of the offences. There has been a severe impact on the applicant’s relationship with her family.

The relevant principles

14. [14]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). 

15. [15]
    The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. The amount of compensation cannot exceed the scheme maximum (s 25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

16. [16]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).

17. [17]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward; ex parte Dooley^[11].  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the ‘most serious’ case, which must be compensated by an award of the maximum, 34%.  This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[12]

18. [18]
    The compensation table provides for minor, moderate and severe mental or nervous shock in Items 31, 32, and 33. The range for minor mental or nervous shock in Item 31 is 2% to 10%. The range for moderate mental or nervous shock in Item 32 is 10% to 20%. The range for severe mental or nervous shock in Item 33 is 20% to 34%.

19. [19]
    The Criminal Offence Victims Regulation 1995 provides in Regulation 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under s 20 is prescribed as an injury.  Pursuant to Regulation 2A the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum.

20. [20]
    Regulation 1A provides:

1. “(1)
   For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.

1. (2)
   An adverse impact of a sexual offence includes the following –

2. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

2. (c)
   post-traumatic stress disorder;

2. (d)
   disease;

2. (e)
   lost or reduced physical immunity;

2. (f)
   lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

2. (g)
   increased fear or increased feelings of insecurity;

2. (h)
   adverse effect of the reaction of others;

2. (i)
   adverse impact on lawful sexual relations;

2. (j)
   adverse impact on feelings;

2. (k)
   anything the court considers is an adverse impact of a sexual offence.”

21. [21]
    It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the Regulation to the extent that they are not an injury under s 20; R v Atwell; ex parte Jullie^[13].  If the injury is a bodily injury under s 20 it must be compensated under the Act.  It is only additional adverse impacts that may be compensated under the Regulation.^[14]  The effect of the Regulation is that “…post traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever, be the case.”^[15]

The applicant’s submissions

22. [22]
    The written submissions on behalf of the applicant sought an award of 40% of the scheme maximum for mental or nervous shock and a further 40% for adverse impacts of sexual offences leading to a total award of 80% of the scheme maximum. However, Mr Lynch accepted that the amount sought for mental or nervous shock exceeded the maximum of 34% provided by Item 33 in the compensation table.

Assessment

23. [23]
    The applicant has suffered significant depression and post traumatic stress disorder. The appropriate item in the compensation table is Injury 33 which provides a range of 20% to 34% for severe mental or nervous shock. Bearing in mind the requirement to scale the injury according to seriousness I would assess the applicant’s injury at 25% of the scheme maximum. This leads to an award of $18,750 for severe mental or nervous shock.

24. [24]
    The other adverse impacts of the sexual offences may only be compensated to the extent to which they do not fall within the mental or nervous shock component. Byrne SJA explained in RMC v NAC^[16]:

“So the wider the range of injurious effects comprehended by ‘mental or nervous shock’, the less the scope for compensation under Regulation 1A.  This matters here: the maximum award for nervous shock is 34% of the $75,000 scheme maximum; $75,000 is the cap for the ‘other adverse impacts’ not serious enough to constitute nervous shock.”

25. [25]
    There is no doubt that the applicant has suffered many adverse impacts as a result of the offences. Some of those adverse impacts relied upon by Mr Lynch are components of the mental or nervous shock.^[17]  The additional aspects include a sense of violation and reduced self-worth or perception. Moreover, her relationship with her family has been affected.  And there has been an adverse impact on lawful sexual relations.  In my view the appropriate award for the other adverse impacts is 30% of the scheme maximum which results in an assessment of $22,500.

26. [26]
    The total award is $41,250.

Order

27. [27]
    I order that the respondent pay to the applicant the sum of $41,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995.