DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 18^th of April 2008 in the District Court at Cairns the respondent was found guilty of attempting to rape the applicant. The offence was committed on or about the 27^th of May 2005 at Gordonvale. The respondent was found not guilty of maintaining an unlawful relationship of a sexual nature with the applicant and two counts of unlawfully and indecently dealing with the applicant who was then a child under 12 years and under his care.

2. [2]
   The applicant (by her mother, her litigation guardian) now seeks an order for compensation for the injuries suffered by her because of the offence pursuant to s. 24 of the Criminal Offence Victims Act 1995 (“the Act”).

3. [3]
   As the respondent is currently serving a lengthy term of imprisonment, service has been effected upon him by way of service upon the Public Trustee of Queensland. The material discloses that the respondent has been made aware of the application however there was no appearance by him or on his behalf at the hearing of this application.

4. [4]
   The applicant was born on the 5^th of January 1996 and was 9 years old at the time of the commission of the offence.

5. [5]
   When sentencing the respondent Judge White noted that as there had been evidence of other uncharged sexual conduct on the part of the respondent towards the applicant, it would be “unrealistic to take the view that this was an isolated incident in mitigation of the sentence”.

6. [6]
   His Honour went on to say “I am satisfied that there was an ongoing course of conduct involving sexual molestation”.

7. [7]
   The applicant’s mother was living in a de-facto relationship with the respondent and the applicant and her younger sister resided with their mother and the respondent at Gordonvale. The respondent pleaded guilty on 16 July 2008 to unlawfully and indecently dealing with the applicant’s younger sister.

8. [8]
   I did not preside over the respondent’s trial and it is difficult from the material before me to determine what the facts were which constituted the offence against the applicant. However it does appear that the respondent attempted to penetrate her vagina with his penis and that he committed other acts of a sexual nature against her. The respondent threatened to kill the applicant and her sister if they told their mother what he was doing to them.

9. [9]
   In a victim impact statement dated the 18^th of September 2006 the applicant’s mother describes the applicant at that time as having constant nightmares featuring the respondent and always wanting to lock the doors in case the respondent “comes to get us”. The offending has stopped the applicant having a normal and loving relationship with friends or family because she is afraid they will touch her in inappropriate places. The applicant found it hard to trust others and had trouble with her breathing, telling her mother that she felt like she is being smothered. As at the date of the statement the applicant was “very solemn and cranky”.

10. [10]
    In a further victim impact statement dated the 10^th of July 2008 the applicant’s mother states that the applicant is still crying herself to sleep and having nightmares. The applicant is very self conscious and seems to be uncomfortable with her body. She is generally insecure. The applicant told her mother at the time of the statement that she was “scared, unhappy, angry and hates what has happened to [her]”.

11. [11]
    On the 4^th of December 2009 the applicant was interviewed and assessed by Dr Norman Barling and in his report of the 14^th of December 2009 Dr Barling refers to the abuse perpetrated upon the applicant by the respondent as including “oral sex, digital penetration, attempted rape and forced masturbation to ejaculation. This abuse began when she was 6 years old and continued for 4 years”. Dr Barling notes that the applicant has undergone extensive counselling.

12. [12]
    In Dr Barling’s opinion the applicant currently meets the criteria for Post Traumatic Stress Disorder, chronic and severe and Major Depressive Disorder, moderate without psychotic features. Dr Barling believes the psychological problems experienced by the applicant are “chronic and pervasive”.

13. [13]

In addition to compensation for mental or nervous shock pursuant to the compensation table which is Schedule 1 to the Act the applicant is also entitled to compensation for the adverse impacts of the sexual offence pursuant to s. 1A of the Criminal Offence Victims Regulation [1995]. Regulation 1A provides relevantly as follows:

1APrescribed injury

(1)For section 20 of the Act, the totality of the adverse impacts ofa sexual offence suffered by a person, to the extent to whichthe impacts are not otherwise an injury under section 20, isprescribed as an injury

(2)An adverse impact of a sexual offence includes the

following—

(a)a sense of violation;

(b)reduced self worth or perception;

(c)post-traumatic stress disorder;

(d)disease;

(e)lost or reduced physical immunity;

(f)lost or reduced physical capacity (including the capacity

to have children), whether temporary or permanent;

(g)increased fear or increased feelings of insecurity;

(h)adverse effect of the reaction of others;

(i)adverse impact on lawful sexual relations;

(j)adverse impact on feelings;

(k)anything the court considers is an adverse impact of a

sexual offence.

14. [14]
    In Dr Barling’s opinion the applicant has suffered a sense of violation as she worries about the reactions of others and is angry and sad that this has happened to her and her sister. The applicant continues to feel vulnerable and memories intrude and her trust in others, particularly men, has been irrevocably breached.

15. [15]
    Further Dr Barling says that the applicant has suffered reduced self worth or perception in that she displays a loss of confidence and self esteem and has feelings of shame and guilt and believes people would feel differently about her if they knew what had happened.

16. [16]
    It is Dr Barling’s opinion the applicant has suffered increased fear or increased feelings of insecurity in that she is frightened of being followed or found on the internet, she is mistrustful, particularly of men and boys, and she speaks of and is frightened of the respondent and of his finding her when he is released from gaol. The applicant checks doors and window locks obsessively and is afraid of the dark. She sleeps poorly, has nightmares and an exaggerated startle response, she is highly anxious and avoidant and is possessive of her mother.

17. [17]
    Further Dr Barling states that the applicant feels that others won’t like her if they know what has happened and she is socially avoidant and feels that she has caused trouble for her family. The applicant does not like to think about sex and is frightened by the idea of sex in the future. She feels that sex is “dirty”. She sometimes thinks about sex when she doesn’t want to and is upset by this and believes that she has more sexual feelings than her friends.

18. [18]
    The applicant is generally unhappy, she is anxious and hyper-vigilant, cries a lot and is discouraged about her future. The applicant has therefore suffered a number of adverse impacts of the offending over and above the mental and nervous shock diagnosed by Dr Barling.

19. [19]
    In conclusion Dr Barling’s opinion is that the applicant is most definitely suffering from Post Traumatic Stress Disorder and therapy should continue to deal with the symptoms of the disorder. The applicant is also moderately depressed. Dr Barling is concerned that the applicant’s symptoms will persist and that she may develop a Borderline Personality disorder and demonstrate the symptoms of adult survivors of sexual abuse.

20. [20]
    Section 25(7) of the Act provides:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”.

21. [21]
    In the circumstances of this case there can have been no behaviour on the part of the applicant which contributed to her injuries.

22. [22]
    Although the respondent has been convicted of only one offence it is clear that the sexual abuse for which he was convicted has substantially contributed to the applicant’s current psychological condition and the adverse impacts outlined above.

23. [23]
    As held by Holmes JA in SAY v AZ; Ex parte AG (Qld)^[1] in order to render an injury compensable, it is sufficient to show that the offending behaviour materially contributed to it. Only those injuries to which the relevant offence has materially contributed will be compensable.

24. [24]
    Although the respondent was convicted of only the one offence of attempted rape it is clear from the sentencing remarks of Judge White that he was sentenced on the basis that he had perpetrated other uncharged acts of sexual abuse upon the applicant it is therefore appropriate to consider as relevant other behaviour which contributed to the injuries suffered by the applicant. As that behaviour was committed by the respondent himself and is of a similar kind to that of which he was convicted it is appropriate that he be ordered to pay compensation for the whole of the injury suffered by the applicant. In any event, it would be an impossible exercise in this particular case to attempt to apportion compensation between the behaviour for which the respondent was convicted and that for which he was not.

25. [25]
    It is not appropriate to discount the award of compensation to take into account other behaviour on the part of the respondent for which he was not convicted.

26. [26]
    I assess compensation as follows:

 Mental or Nervous Shock (severe)  30% $22,500

 Adverse Impacts   30% $22,500

 Total      $45,000

 I order that the respondent pay to the applicant the sum of $45,000 by way of criminal compensation.

27. [27]
    I direct that the sum be paid to the Public Trustee of Queensland whose receipt therefore shall be sufficient discharge to the respondent. I direct that from such finds the Public Trustee pay to the solicitors for the applicant the costs and outlays incurred in the making of this application to be assessed on an indemnity basis. I further direct that the Public Trustee of Queensland hold the balance on trust for the maintenance, welfare and advancement of the applicant until she attains her majority.