DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 16^th of July 2008 the respondent pleaded guilty in the District Court at Cairns, to a charge that on or about the 28^th of May 2005 at Gordonvale he unlawfully and indecently dealt with the applicant who was then under 12 years of age.

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 31^st of March 1997 and was 8 years of age at the time of the commission of the offence. The applicant’s mother was living in a de-facto relationship with the respondent and the applicant and her sister resided with their mother and the respondent at Gordonvale.

5. [5]
   On the 28^th of May 2005 the applicant was sitting in the lounge room watching TV with the respondent beside her. The respondent reached across and put his hand up her dress and played with her vagina under her clothing. The Court was told during the sentence proceedings that no actual penetration was alleged. Later that evening the applicant made a complaint to her mother. She, her mother and her sister left the house and police were contacted.

6. [6]
   The applicant and her sister told the police that over a period of time the respondent had subjected the applicant to repeated sexual abuse which included forcing his penis in or near her mouth; indecently touching her vagina; licking her vagina; penetrating her vagina with his fingers and attempting to penetrate her vagina with his penis. The respondent was however sentenced on the basis that the abuse consisted only of touching the applicant once on the genital area. The respondent was after a trial, convicted of attempting to rape the applicant’s sister.

7. [7]
   There are allegations in the material before me that the respondent threatened to kill the applicant, her sister and their mother if they told anyone of the abuse.

8. [8]
   In a victim impact statement dated the 10^th of July 2008 the applicant’s mother describes the applicant as still crying herself to sleep, having nightmares, leaving the light on and sneaking into her sister’s bed for security. The applicant is very wary and her trust of and confidence in adults has been shattered. She is self conscious and uncomfortable with her body.

9. [9]
   As at July 2008, the applicant was unsettled at school and required support and ongoing counselling. The applicant described herself to her mother as “scared, unhappy, angry and hating what had happened to her”.

10. [10]
    On the 4^th of December 2009 the applicant was psychologically assessed by Dr Norman Barling, a Clinical Psychologist. In his report of the 14^th of December 2009 Dr Barling refers to the sexual abuse of the applicant by the respondent as including “oral sex, digital penetration, attempted rape and forced masturbation to ejaculation” and that the abuse began when she was 5 years old and continued for 4 years. The respondent was not convicted of such extensive abuse.

11. [11]
    As a result of the psychometric test conducted by Dr Barling, he gives his opinion that the applicant meets the criteria for post traumatic stress disorder, chronic and moderate. Additionally the applicant suffers from “a high level of anxiety and also displays obsessive - compulsive traits which may resolve or develop further in the future”.

12. [12]
    In addition to compensation for mental or nervous shock pursuant to the compensation table which is Schedule 1 to the Act, the applicant is 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.

13. [13]
    In Dr Barling’s opinion the applicant has suffered a sense of violation in that she is aware that what happened to her and her sister was wrong and should not have happened to them and she feels the respondent took away the normality of her life and that it is unfair that she will have to live with the knowledge of the abuse all of her life. Dr Barling considers that the applicant has suffered reduced self worth or perception in that she feels she is not like other girls, she is anxious to finish tasks first to prove she is competent and worries what others think of her. Further she feels that she is not as good as other girls.

14. [14]
    In Dr Barling’s opinion the applicant has suffered increased fear or increased feelings of insecurity in that she is hyper-vigilant and has an exaggerated startle response; she sleeps with the night light on and often goes to her sister’s room at night. She is afraid of noises in the night and fears that her family will be killed. She feels safer at school than at home and does not like going outside at night. The applicant has suffered an adverse effect of the reaction of others in that she is frightened that others will find out what happened to her and may not like her or think that it was her fault. The applicant constantly taps her feet, whistles or sings to distract herself so that she doesn’t “blurt it out” and she worries that people will talk about her. As the applicant has an inappropriate level of sexual knowledge for her age and feels she has more sexual feelings than her peers the offending may have an adverse impact on her lawful sexual relations in the future. The applicant is somewhat unhappy, is sad at what happened to her and her sister, is anxious and hyper-vigilant, often feels scared and helpless and feels guilty. The offending has therefore had adverse impacts on her feelings.

15. [15]
    Dr Barling’s opinion is that the applicant should continue with therapy to deal with the symptoms of post traumatic stress disorder and that her behavioural and psychological symptoms should be monitored closely to ensure that any problems which occur can be dealt with promptly limiting the possibility of further emotional distress. Dr Barling is concerned that the applicant’s symptoms will persist and that in later years she may develop a Borderline Personality disorder and demonstrate the symptoms of adult survivors of sexual abuse.

16. [16]
    S 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”.

17. [17]
    In the circumstances of this case there can have been no behaviour on the part of the applicant which contributed to her injuries. 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. As held by Holmes JA in SAY v AZ; ex parte A-G (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.

18. [18]
    In this case it is appropriate to consider as relevant other behaviour which contributed to the injury suffered by the applicant. However as the other behaviour is alleged to have been committed by the respondent himself and the behaviour is of a similar, if more serious kind, to that to which he pleaded guilty, it is appropriate that he be ordered to pay compensation for the whole of the injury. 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.

19. [19]
    It is not appropriate to discount the award for compensation to take into account other behaviour on the part of the respondent. I assess compensation as follows:

 Mental or Nervous Shock (severe)  25% $18,750

 Adverse Impacts   25% $18,750

 Total      $37,500

I order that the respondent pay to the applicant the sum of $37,500 by way of criminal compensation. 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 funds 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 sum on trust for the maintenance, welfare and advancement of the applicant until she attains her majority.