ALH v GBM[2010] QDC 112

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: This is an application pursuant to section 24 of the Criminal Offence Victims Act 1995.  It is for compensation for injuries suffered by the applicant at the hands of the respondent who was convicted, on his own pleas of guilty, of two counts of raping her and one count of indecent dealing with her when she was under 12 years of age and under his care.  The respondent was her stepfather.  She was only nine years of age at the time. 

There is no need for me to go into the details of the offences, save to say that they were very troubling offences committed against a young girl who was extremely vulnerable and it is hardly surprising that the offences have had an important and damaging effect upon her.  Compensation is sought under item 33 of the schedule for mental or nervous shock.  Compensation is also sought under the regulation for the adverse impacts which the offending has had upon the applicant. 

In assessing the amount of compensation to be awarded for mental or nervous shock on the one hand and adverse impact on the other, the Court must be careful not to allow for double recovery.  So those matters which go towards the mental or nervous shock are not separately also compensated under adverse impacts.  Nevertheless, I am satisfied, in this case, that the applicant suffered adverse impacts beyond the symptoms of a mental or nervous shock. 

To assist my assessment of compensation, I have the benefit of affidavits from the applicant, from the applicant's mother and from a Ms Burscough, a psychologist.  The applicant's affidavit attests amongst other things, to the following:

1. (i)
   she has attempted to take her life on two occasions;

2. (ii)
   she suffers depression;

3. (iii)
   she suffers from drug dependency;

4. (iv)
   she has been admitted to the Bundaberg Mental Health Unit on two previous occasions;

5. (v)
   she has difficulty in maintaining relationships;

6. (vi)
   she suffers from poor social skills and has difficulty interacting with others;

7. (vii)
   she suffers from an eating disorder;

8. (viii)
   she has previously engaged in self-harm.

The affidavit by the applicant's mother corroborates the serious effects which the offences had upon the applicant.  The affidavit also attests to the fact that prior to the offending, the applicant was a normal young girl who was going fairly well at school.  Her mother naturally ascribes her daughter's serious difficulties later in life to the offences which occurred.  That is a conclusion which is supported by the psychologist, Ms Burscough. 

Ms Burscough's reports are, I must say, extremely well composed and helpfully set out not only the applicant's difficulties and the conditions from which she suffers, but also sets out, in detail, the respects in which the applicant has suffered adverse impacts of the kind referred to in the regulation.  Insofar as psychiatric disorder is concerned, Ms Burscough says that the applicant suffers from the following:

3. (1)
   major depressive disorder;

3. (2)
   post-traumatic stress disorder;

3. (3)
   generalised anxiety disorder;

3. (4)
   substance dependence.

Ms Burscough also says that the applicant has many features of other disorders which would need further investigation before a formal diagnosis could be made.  These are in particular an eating disorder and a personality disorder. 

In Ms Burscough's opinion which I accept, the diagnosed mental health disorders are a direct result of the sexual abuse that she suffered as a child. The disorders are in the severe range and are unlikely to change unless she receives appropriate and professional support. 

Insofar as the diagnosed disorders are concerned, I note from Ms Burscough's report that she assessed the applicant on the anxiety and stress scale as within the 99.5 fifth percentile for depression and as within the same percentile for anxiety.  Those results put the applicant in the "extremely severe range".  She was within the 97th percentile for stress which is within the severe range. 

Insofar as the adverse impacts are concerned, one of those impacts, being post-traumatic stress disorder, is included within the mental or nervous shock component and therefore I have excluded it from the adverse impacts.  Two other adverse impacts are worthy of note.  One is the adverse effect of the reaction of others and the other is the loss or reduced physical capacity.  Both of those matters are referred to in Ms Burscough's report.

The applicant is not physically incapacitated nor does it appear that she is affected by the reaction of others to the offences at hand.  Whilst I understand that she has poor coping skills and has an aversion towards breast feeding, I do not consider there should be any significant assessment of compensation for those two particular adverse impacts. 

It goes without saying that I do not regard the applicant as in any way responsible for or having contributed to her injuries. 

In carrying out the assessment of quantum I was assisted by the submissions on behalf of the applicant.  Those submissions drew attention to three other decisions, namely J v Bennett [2003] QDC 296; VAH & Anor v KGH [2007] QDC 338; and P v Spokes [2007] QDC 308.  I would accept the submission on behalf of the applicant that the nature and extent of the injuries and adverse impacts in this case are, taken together, more severe and extensive than in those three cases. 

The solicitor for the applicant contended for an assessment in relation to adverse impact of 25 per cent of the scheme maximum or $18,750 and I agree with that assessment.  The solicitor for the applicant sought the same amount in respect of mental or nervous shock.  I am satisfied that the mental or nervous shock in this case falls in the severe category and indeed, in my view, towards the higher end of that category.  Whilst the solicitor for the applicant contended for an assessment of 25 per cent of the scheme maximum in that regard, I am inclined to allow a higher amount, being 30 per cent of the scheme maximum. 

Accordingly, the total compensation which I assess is in the equivalent of 55 per cent of the scheme maximum or $41,250. I order that the respondent pay the applicant compensation in the amount of $41,250.