S v H[2010] QDC 219

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to the provisions of section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of offences which led to the conviction of the respondent on 7 September 2006 upon indictment for two counts of indecent dealing of a child under 16 and one count of rape.

2. [2]
   In my sentencing remarks of 14 December 2006 I stated as follows:

“You have pleaded guilty to two counts of indecent treatment of a child under 16, and one count of rape.  The victim, in respect of each of the three counts, was your sister-in-law.  She was 15 at the time.

The summary of facts, placed before the Court by the Crown Prosecutor, shows that, in respect of count 1, you touched the breast on the inside of the complainant's bra for some 30 to 60 seconds, and then placed your hand on the complainant's other breast.  As far as count 2 is concerned, this, again, involved a touching of the complainant's breasts.  Count 3 is an offence of digital penetration, and, thus, falls within the current definition of the offence of rape.

The summary of facts states that you pulled the covers over the child back, placed your hand down her pants, down her underwear, and put your fingers inside her vagina, for maybe two minutes.  The complainant described your actions in this regard as penetrating and running your fingers along the vulva, but not penetrating very far, and that is the basis upon which the Crown accepts your plea of guilty to count 3 on the indictment.

Two pretext telephone conversations took place shortly after the offences had been committed, and you made statements that would be, no doubt, accepted as incriminating.

Originally, when interviewed by the police, you denied all allegations, but when the pretext telephone conversations were played to you, you admitted that you had been lying to the police.  You then made admissions in respect of counts 1 and 2, and, although you admitted to touching the complainant's vagina, you denied penetration.  However, your plea of guilty to count 3 must now be taken as an admission by you that you did penetrate the complainant during the commission of that offence.”

3. [3]
   In respect of counts 1 and 2 of the indictment it was ordered that the respondent be imprisoned for 12 months. Those sentences were ordered to be served concurrently. In respect of count 3 it was ordered that the respondent be imprisoned for two and a-half years. That sentence was ordered to be served concurrently with the other sentences. All sentences were ordered to be suspended after 8 months for an operative period of three years.

4. [4]
   In her affidavit filed on 23 September 2009 the applicant, who is currently 20 years of age, states that at the time the offences were happening she felt helpless and very distressed particularly when she was digitally penetrated. In the days and weeks following the offences she felt violated and dirty. She would wash her hair three times daily for the first two weeks after the offences because the respondent stroked her hair before committing the offences. At the time her affidavit was filed the applicant was still taking two showers daily but still did not feel clean enough.

5. [5]
   The applicant states that she was scared to see her mother and wondered how she would react when she was told about the abuse. The applicant thought it would destroy her family.

6. [6]
   The applicant reports having had bad dreams each night since the abuse occurred. This causes her to wake up during the night and her sleep pattern has, consequently, been very disturbed. She has flashbacks whenever the first name of the respondent is uttered or if she sees anyone playing computer games or anyone resembling the respondent.

7. [7]
   The applicant states that the offences have affected many aspects of her life. In highschool her grades started to drop after the offences and she lost her will and drive to do her best. She dropped out of university after only a few months at the start of 2009 because she was unable to concentrate. She was constantly thinking about the abuse and felt that it would have been a waste of time to continue with her tertiary studies.

8. [8]
   The applicant states that she has lost contact with all her school friends and has not made any friends since the offences occurred. Prior to the offences the applicant used to be very outgoing but now claims not to have a social life. She says that she only has one friend currently and that she does not go anywhere other than to visit her mother or her friend.

9. [9]
   As a result of the offences, the applicant’s security has been affected in that she double-checks all locks in the house and keeps all doors shut constantly. Whenever she goes out by herself she always takes her dog with her and feels the need to carry a pocketknife on her person for protection. She has an increased sense of fear especially at night. Her fears and insecurity continue to make the applicant feel panicky for no reason. She always feels on edge.

10. [10]
    The applicant states that the major impacts on her life are based around her family. She reports having no close family now other than her mother. The latter is said to be mentally frail and the applicant fears that when she eventually loses her she will be left with no-one. The applicant states that prior to the abuse she was very close to her sister who she would see every few weeks. Now, however, she does not trust her sister or her close family and finds it hard to confide in people generally.

11. [11]
    The applicant claims to have lost her self-esteem since the offences happened and still thinks poorly of herself. She views herself as a victim and is fearful and pessimistic about her life. She does not want to have children of her own for fear that they may fall victim to a similar crime.

12. [12]
    The applicant does have a male friend but has not had a sexual relationship with him out of concern that she would experience flashbacks of the offences.

13. [13]
    Although when necessary the applicant does attend medical appointments, she finds it hard to seek treatment and will wait until her problem becomes chronic before seeking attention. She does not like being touched by anyone whether male or female.

14. [14]
    The applicant states that she has been unable to remain at any place of employment for an extended period of time. She has no chosen career path for her long-term future. She did wish to become a veterinary surgeon but has no motivation at present.

15. [15]
    Since the offences the applicant dresses more conservatively. She states she watches to see whether people are looking anywhere inappropriate and worries that it is because of how she is dressed.

16. [16]
    The applicant states that she is concerned about her mental stability and has trouble controlling her anger since the offences. She moved out of home recently because she needed to get away from everything and everyone. However she worries about running into the respondent now that he has been released from prison. She does not feel comfortable around religious people because the respondent’s family were heavily religious and she is reminded of him when in the company of such people.

17. [17]
    The applicant claims not to like herself because of what has happened to her. She does not want to see counsellors yet because thinking about the abuse makes her angry. She has never taken any prescription medication for her psychological problems. The applicant feels run down and wonders whether her health has been affected by what the respondent did to her. She feels guilty because of what has happened to her and seeing her sister supportive of the respondent has made her feel angry.

18. [18]
    The applicant states that prior to the time of the abuse she experienced some bullying at school by a Christian girl who was trying to convert her to Christianity. As a result of that bullying she engaged in self-harm on one occasion. Bullying at school was not unusual and the applicant was feeling stressed about the bullying when the offences occurred. She believes that had the offences not occurred she would have recovered from the bullying incident and would have been virtually unaffected by it now.

19. [19]
    The applicant has confirmed that attending upon Dr Barbara McGuire, a psychiatrist, on 30 July 2008. She has read Dr McGuire’s report dated 31 July 2008 and agrees that the effect on her life of the offences are correctly detailed in that report. The applicant had a further interview by telephone with Dr McGuire on 5 December 2008 and again agrees that the effects on her life of the offences are correctly detailed in Dr McGuire’s report of the same date.

20. [20]
    In her report of 31 July 2008, Dr McGuire has detailed the psychological effects of the abuse. In particular, she notes interrupted sleep, flashbacks, effects on her personal relationship with a male friend, feelings of dirtiness, feelings of shame and guilt, effects on family relationships, security fears, effects on her education, concerns about her capacity to concentrate on her job, an exaggeration startle reflex, depression, and reluctance to undergo counseling or take antidepressant medication.

21. [21]
    Dr McGuire has diagnosed that the applicant suffers from post-traumatic stress disorder which has been present since the abuse. The applicant suffers this to a severe degree. Dr McGuire anticipates at this stage that the applicant will experience the symptoms of the disorder indefinitely though they may fluctuate in intensity.

22. [22]
    Adverse impacts of the sexual offences have been identified by Dr McGuire as including a sense of violation, reduced self-worth, increased fear and feelings of insecurity, adverse effects of the reactions of others (in this regard Dr McGuire notes that the action of the applicant’s sister in resuming her relationship with the respondent has destroyed the relationship between the applicant and her sister. She also notes that the applicant’s mother has exhibited fragile mental health as a result of the applicant’s disclosure to her of the offences), adverse impact on lawful sexual relations (the applicant fears that she will not be able to enjoy sexual activity).

23. [23]
    Dr McGuire has expressed her view that although the applicant has rejected counseling thus far she would benefit from weekly counseling sessions over a period of at least a year. These sessions are said to cost between $150 to $200 per session. In her supplementary report of 5 December 2008 Dr McGuire reports having strongly advised the applicant to undertake counseling. The doctor notes that the applicant’s general practitioner has also recommended counseling and occasionally raises the issue of the abuse with the applicant but the latter finds it impossible to discuss the subject.

24. [24]
    Dr McGuire is of the view that the sexual abuse made a material contribution to the applicant’s psychological status. Although she was experiencing some difficulties at school prior to the abuse it is Dr McGuire’s view that these difficulties were not substantial and that in the normal course of events any symptoms resulting from them would have settled had it not been for the sexual abuse by the respondent. Dr McGuire is concerned that the applicant’s symptoms appear to be worsening. The applicant remains severely disabled with symptoms of post-traumatic stress disorder.

25. [25]
    I accept the evidence of both the applicant and Dr McGuire and find that the applicant has suffered a very significant degree of psychological harm as a result of the offences committed upon her by the respondent.

26. [26]
    Before leaving the evidence of the applicant some brief reference should be made of her two more recent affidavits namely that filed 23 September 2009 and that filed by leave at the hearing of this application. In the first of these affidavits the applicant indicates that she has deferred her university studies for two years at the University of the Sunshine Coast where she was enrolled in a science degree. She further indicates that she was working approximately 30 hours per week at an hourly rate of $13.90 per hour as a sales assistant receiving approximately $417 gross per week. After tax has been deducted the applicant receives between $350 and $380 per week. She was sharing premises with another person at the time this affidavit was filed. The most recent of the applicant’s affidavits purports to re-affirm what the applicant had stated previously and indicates that the applicant still experiences all of the symptoms referred to in her first affidavit. What has changed is apparently that the applicant now works on a full-time basis (and has done so since January of 2010) doing administrative work with the same company she was employed by previously. The applicant states that she finds it really hard to concentrate at work a lot of the time and she is unsure how long she will be able to continue with full-time work.

27. [27]
    In her most recent affidavit the applicant indicates that she no longer takes St John’s wort to help with her moods and stopped taking it because it was not helping her with her symptoms. She apparently remains otherwise unmedicated for her depression and other adverse impacts to which she has deposed. The applicant indicates that she has no desire to resume any contact with her sister and that she has had no contact with her extended family since the abuse came to light.

28. [28]
    The proper construction of section 20 of the Criminal Offence Victims Act (1995) and section 1A of the Criminal Offence Victims Regulation (1995) was explained in the judgment of Holmes JA in Vlug v Carrasco [2006] QCA 561 in the following terms:

“I do not consider that s 1A of the Criminal Offence Victims Regulation was intended to introduce a new regime of compensation for “disability, consequences or effects”, as distinct from injury; rather it expands the compass of what impacts on the individual may be counted as injury. 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 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” (emphasis added)…”^[1]

29. [29]
    Reference should also be made to the case of SAY v AZ [2007] 2 Qd 363 at 369 where Holmes JA stated that “it can be accepted, therefore, that in order to render an injury compensable, it is sufficient that the offending behaviour materially contributed to it”. It is quite clear, in my respectful opinion that the adverse impacts identified by Dr McGuire in her first report encompass those symptoms experienced by the applicant as a result of the sexual abuse committed upon her by the respondent that are not included in the diagnosis of post-traumatic stress disorder and which fall for compensation purposes under the provisions of section 1A of the Criminal Offence Victims Regulation (1995). It is also in my view clear that, whatever may have been the applicant’s state of psychological health following the bullying resulting in the act of self-harm, the unlawful conduct of the respondent materially contributed to her mental or nervous shock as diagnosed by Dr McGuire.

30. [30]
    The respondent, who represented himself at the hearing of this application, made a number of sensible and relevant submissions with respect to the applicant’s claim for compensation. He pointed out that the court should bear in mind that no physical injuries were alleged to have been occasioned by the applicant as a result of the commission of the offences upon her; that there is evidence of emotional instability on the part of the applicant prior to the commission of the offences; that the applicant’s self-harm occurred prior to the offences; that the applicant was a “B” student before the offences and remained so thereafter; that the applicant’s victim impact statement contains claims that are disproportionate to the effects of the offence as identified by the medical evidence; that the applicant was not cross-examined during the hearing of this application or at the sentencing proceedings (although she was apparently cross-examined at the committal hearing); that the applicant has, contrary to medical advice, failed to mitigate the effects of the offences by refusing to undergo psychiatric or psychological counselling; that the respondent apologised for his conduct during two so-called pretext telephone conversations (after which time he was not permitted to have any contact with the applicant).

31. [31]
    Whilst some of these submissions no doubt are more relevant to sentence rather than compensation, I do accept that there was a degree of emotional instability on the part of the applicant prior to the offences committed upon her by the respondent (as evidenced by the episode of self-harm) and that the applicant has failed to mitigate the effects of the offences by declining to accept medical advice with regard to counselling. I also note that, although her school reports demonstrate some decline after the offences, there seems to have been little change in her scholastic results as a result of the offences.

32. [32]
    I should indicate that there is no suggestion by the respondent that any conduct of the applicant was at all responsible for the degree of psychological harm inflicted on her as a result of the offences.

33. [33]
    In assessing compensation with respect to the mental or nervous shock sustained by the applicant, which Dr McGuire has categorised as severe, reference should be made to injury number 33 in Schedule 1 the Compensation Table to the Criminal Offence Victims Act (1995). This permits an assessment at between 20 per cent and 34 per cent of the scheme maximum ($75,000). The assessment is complicated to some extent by the fact that the applicant’s symptoms are said to be worsening whilst at the same time the applicant continues to resist the advice of her doctors to undergo counselling. In any event, I am satisfied that the degree of mental or nervous shock is appropriately described as severe and that an award of 30 per cent of the scheme maximum is appropriate in all the circumstances which yields the sum of $22,500.

34. [34]
    In relation to compensation payable under section 1A of the Criminal Offence Victims Regulation (1995) it may be helpful to set out the provisions of that section:

“1A Prescribed injury

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—

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.

1. (3)
   In this section—

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

35. [35]
    Having regard to the evidence of Dr McGuire and to the range of adverse impacts suffered by the applicant I consider that a further assessment at 30 per cent of the scheme maximum should be made which yields the sum of $22,500.

36. [36]
    The total is therefore $45,000. I order that the respondent is to pay criminal compensation to the applicant in the sum of $45,000.00.