JJM v AWD[2010] QDC 232

DISTRICT COURT OF QUEENSLAND

Introduction 

1. [1]
   This is an application for criminal compensation arising out of the respondents’ convictions from maintaining a sexual relationship with the applicant over the period from 1/12/2002 to 22/4/2004. The applicant is now 18, having been born on the 13th of December 1981. He was therefore not quite 11 when the relationships commenced and was 13 when they ceased in April 2004. Both respondents were convicted on their own pleas before His Honour Judge Wylie on the 5th of August 2005.

2. [2]
   They were each sentenced to lengthy periods of imprisonment. Because of the applicant's age the period under section 40(1)(b) of the Criminal Offence Victims Acts for bringing proceedings has not yet expired.

The Facts

3. [3]
   The plaintiff's childhood was characterised by a physically abusive father but a loving mother who was not however able to prevent her husband from physically abusing the applicant. As a result he was placed in care from when he was six for a period five years. After he then turned to his parents these offences occurred.

4. [4]
   A report of Dr Klugg says that when he was 11 and visiting a local library, he was approached by the defendants who invited him home on a pretext. Thus began over two years of regular sexual abuse by two men aged then in their late twenties and early forties. They effectively treated the applicant, who was only a child, as a male prostitute. It's unnecessary to go into the abuse in detail. The sentencing Judge said;

"You have ruined his life and you have warped his thinking. His story is the worst that I have heard or read."

5. [5]
   The applicant in his affidavit and his victim impact statement tells of the effect of the abuse on him. I shall refer to the consequences of his psychiatric de-compensation later when referring to a report of Dr Klugg which has been obtained. I wish however to highlight some particular aspects of the effect of the abuse on the applicant:

1. In 2004 when the applicant was 12 he was charged with the rape of a 12 year old girl at his school.  He was sentenced to 18 months imprisonment.  This involved of course significant loss of freedom and the abhorrent experience of imprisonment at a very young age.  It is impossible to conclude other than that the abuse he suffered was the major contributor to his committing this offence.  His imprisonment meant he lost the daily love of his family and his contact with friends.
2. As a result of his committing the rape he was banned from attending any Queensland Government school.  He did some School of Distance Education. He is only now doing year 10 at the Brisbane Youth and Education Training Centre though he is 18 years of age.  No doubt the effect of his truncated education will live with him forever and will most probably have significant adverse financial consequences. 
3. As a result of his being banned from school, and going to goal, he lost all of his previous friends.  In his affidavit at paragraph 15 he says people he now has contact with are mainly those who he met in detention, and says that they are themselves continually in and out of detention.  This destruction of his peer group relationship is also a significant and probably permanent ongoing effect of the abuse.
4. He has difficulty relating to men.  Although he is heterosexual he describes being promiscuous and sexually confused as a result of his abuse and engaged, he says, in a number of unlawful acts such as shoplifting and breaking and entering.  These too are in my mind significant adverse affects of his abuse which must be considered.

6. [6]
   Dr Klugg, psychiatrist, has provided a helpful report of the 18th of February 2010. He diagnoses the applicant as suffering Post Traumatic Stress Disorder in partial remission. He says the impact of the abuse has lessened in severity over time and with treatment but says that it is unlikely to decrease further to any significant degree. He assesses a 20 percent permanent disability which he described as a moderate disability. He says the psychiatric diagnosis is the result of the respondent's abuse.

7. [7]
   In his affidavit the applicant lists numerous consequences of the abuse. In addition to the matters that I have already set out I think it fair to say most can be said to be symptoms of the Post Traumatic Stress Disorder diagnosed by Dr Klugg. For example, nightmares, flashbacks, feelings of depression, inability to concentrate, alcohol abuse, a sense of violation and reduced self esteem, feelings of insecurity and of shame. These are all understandable.

The Law

8. [8]
   In a judgment I delivered yesterday in SLM v SKF  [2010] QDC 229, I referred to the apparent conflicts in the scheme of compensation in relation to offences of sexual abuse.  I will not repeat them here but refer to those reasons.

9. [9]
   Suffice it to say that in this case I would assess the applicant as suffering a moderate mental or nervous shock and assess his injury at 20 percent of the scheme maximum. Under Item 32, "Mental or nervous shock - moderate", the range is from 10 to 20 percent of the scheme maximum and I assess it at the top end of this item.

10. [10]
    In addition in this case I have concluded that each of the four matters I have earlier set out constitute adverse impacts of the abuse to be considered under the appropriate regulations.

11. [11]
    The applicant says he has difficulty maintaining intimate sexual relationships. I had some difficulty in determining whether this was appropriately categorised as a symptom of Post Traumatic Stress Disorder. Certainly in my experience such difficulties are not uncommon with people who suffer such a condition. In circumstances where however his condition is currently in partial remission and in view of the particular circumstances of the offence, especially it's duration and his age, I accept on the balance of probabilities that this too is an adverse impact of his abuse. I think even if his Post Traumatic Stress Disorder were to entirely remit he would continue to have difficulties with intimate relationships.

THE APPLICANT'S BEHAVIOUR

12. [12]
    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."

13. [13]
    Because some of the adverse impacts of the abuse arise from his rape of a 12 year old school girl, I had some concerns as to whether this willed act by the applicant should be taken into account in reduction of the amount to be paid to him as compensation by the respondents. I have determined in this case not to reduce the allowance for the adverse impacts of the abuse by reason of the applicant's own conduct.

14. [14]
    There is, in my view, no doubt that as between the applicant and the victim of his rape his conduct was a deliberate willed act. In considering the issue between the applicant and his abusers however I also have no doubt that if they had not abused him so consistently and over such a prolonged period he would not at the age of about 12 have raped a girl of the same age.

15. [15]
    Whilst it was a willed act for which he bore criminal responsibility as between himself and the respondents it is, in my view, appropriately viewed as a direct result of their abuse and I do not believe his actions as a 12 year old should result in any reduction of their responsibility to pay compensation to him.

16. [16]
    In the circumstances I assess the adverse impact of the abuse as constituting a further 40 percent of the scheme maximum which is a significantly greater sum than allowed for the most severe mental or nervous shock. Nevertheless the losses I have referred to, being loss of education and of friends and an ability to develop sexual intimacy and a significant period of incarceration are appalling consequences of his profound abuse. The amount is also consistent with that awarded by his Honour Justice Byrne SJA in RMC v NAC 2009 QSC 149 which I thought bore some similarities to this case. 

Orders

17. [17]
    In all I assess the applicant as being entitled to 60 percent of the scheme maximum amounting to $45,000 and I order that the respondents pay this to the applicant by way of compensation under the Act.