G v K[2010] QDC 167

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

2. [2]
   The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 2 April 2008 namely incest.

Facts

3. [3]
   On or about the 17 July 2006 the applicant had sexual intercourse with the victim, his 15 year old daughter (“the incident”).

Injuries

4. [4]
   As a consequence of the incident the applicant has suffered psychological sequelae.

The relevant law

5. [5]
   COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

6. [6]
   Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov^[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

7. [7]
   Relevantly the Compensation Table prescribes:

• Item 33 Mental or nervous shock (severe)… 20% - 34%

8. [8]
   Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.^[2]

9. [9]
   Section 1A of COVR is also relevant to this application. It is in the following terms:

“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.

An adverse impact of a sexual offence includes the following –

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   post-traumatic stress disorder;

4. (d)
   disease;

5. (e)
   lost or reduced physical immunity;

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

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

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

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

10. (j)
    adverse impact on feelings;

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

In this section-

Sexual offence means a personal offence of a sexual nature.”

The effect of section 1A was considered in R v Atwell ex parte Julie^[3] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:^[4]

“the regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury the totality of 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…”

10. [10]
    Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum.

The Assessment

11. [11]
    The incident was presented at the sentencing hearing on 15 May 2008 as one which occurred in isolation. The Court was informed that the victim was brought up by her mother and in foster homes, although she had regular contact with her father, the respondent. The incident occurred when the victim was aged 15 and already sexually active with her boyfriend. She was having a difficult time with her mother and regularly stayed with the respondent and his partner. After the victim was coerced into having sexual intercourse with the respondent, the respondent’s partner discovered the condom he had used and the incident was revealed. The only possible reference to any other relevant behaviour was the submission of the prosecutor that the victim “has been abused by her family, both the prisoner and her mother”.

12. [12]
    I have before me a report of Mr Nagle a psychologist dated 17 December 2009 which paints a very different picture. He records a history of the victim being sexually assaulted on “multiple occasions” between the ages of 5 and 15 by the respondent. Some of these assaults were particularly degrading and she was raped by him at the age of 6. Significantly Mr Nagle stated at paragraph 7.1 of his report that the history provided by the victim in this regard “was congruent with the history that she reported to police and her solicitor”. Regrettably I have not been provided with any of this additional material nor with any affidavit from the victim and I cannot verify this assertion. Mr Nagle diagnosed the victim as suffering from Depression in “the extremely severe range” and Post Traumatic Stress Disorder “as a result of the multiple sexual assaults perpetrated on her”. He stated that her “symptoms and disabilities” were in the “extremely severe range of disability”.

13. [13]
    The facts before me are not dissimilar to those before the Court of Appeal in SAY v AZ ex parte A-G (Qld)^[5] although in that case the worst of the course of the offending, the offence of rape, was the personal offence giving rise to the claim for compensation.  On the history before me it would appear that the worst of the alleged offending has not resulted in a conviction.  In giving the leading judgment Holmes JA noted:-

“Only those injuries to which the relevant offence has materially contributed will be compensable…In deciding what amount is payable for a given injury, the court must consider whether there are other factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision…The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than a strict process of apportionment.”^[6]

14. [14]
    On the one hand I accept the evidence of Mr Nagle that the incident was part of a continuing course of similar reprehensible conduct on the part of the respondent but on the other hand it was not the worst of this course of conduct. The victim has severe symptomatology which has led to her attempting suicide on two occasions. Her symptomatology is consistent with adverse impacts of a sexual offence, particularised in subparagraphs (a), (b), (c), (g), (i) and (j) of s 1A of COVR, with (c) compensable pursuant to s 20 of COVA. Adopting a broad brush approach which is the only one open on the evidence before me, I assess compensation on the basis that while the incident did not represent the worst of the continuing course of similar reprehensible conduct, it was nonetheless a significant event in this course of conduct committed against a vulnerable child.

15. [15]
    Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows:

• Item 33 - 20%$15,000.00
• Section 1A COVR – 40%$30,000.00

 $45,000.00

Orders

16. [16]
    1. I order that the respondent pay the applicant as litigation guardian for the victim the sum of $45,000.00 by way of compensation.

2. I order that any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

3. I order that The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.