CWD v TMT[2010] QDC 25

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (“COVA”) for emotional injuries caused by sexual offences committed by the respondent between 30 September 2005 and 1 April 2006. COVA was repealed by the Victims of Crime Assistance Act 2009 (“VOCAA”) which came into force on 1 December 2009. The originating application was filed on 23 November 2009. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA.

2. [2]
   On 28 March 2008, the respondent pleaded guilty to four counts of indecent treatment of a child under 12, with a circumstance of aggravation that he had the child under his care. He was sentenced to three years imprisonment with a parole eligibility date after approximately 15 months, namely on 26 June 2009.

3. [3]
   The respondent was served with the application and supporting affidavit material on 16 December 2009.^[1]

Circumstances of the offences

4. [4]
   The applicant was 10 years of age at the time of commission of the offences. The respondent, who was 31 years old at the relevant time, lived in a de facto relationship with the applicant’s mother.

5. [5]
   Two offences involved the respondent rubbing his penis against the applicant’s vagina while she was naked. On the first occasion, the applicant awoke, having fallen asleep while watching television in the respondent’s bedroom, to find herself naked and the respondent on top of her rubbing his penis against her vagina. On the second occasion, having called the applicant into his bedroom for a cuddle, the respondent asked the applicant to lie on the bed and proceeded to rub her vagina on the outside of her pyjamas. On this occasion, the respondent also removed the applicant’s underwear and touched the outside of her vagina with his penis for a couple of minutes.

6. [6]
   Upon subsequent medical examination, it was revealed that the applicant contracted the herpes simplex virus type 2 as a consequence of this contact. Medical examination following the initial complaint by the applicant revealed the respondent had the herpes simplex virus type 1 and 2. There was no evidence to suggest that the respondent was aware of his status prior to that medical examination.^[2]

7. [7]
   The remaining two offences involved the respondent rubbing his penis against the applicant’s vagina on the outside of her pyjamas.

Injuries and medical reports

8. [8]
   The applicant was examined by Dr Barbara McGuire, Psychiatrist, on 25 August 2009. In her report dated 27 August 2009, Dr McGuire assesses the applicant as suffering from a severe degree of post-traumatic stress disorder, “… as demonstrated by her sleep disturbance, low self esteem, hypervigilance, heightened arousal and avoidant behaviour.”^[3]

9. [9]
   Dr McGuire states:^[4]

“She experiences nightmares, largely of (the respondent) coming and getting her. She does not experience flashbacks. She has security fears. She feels she is not safe at school, always worries that he might be there.

…

She has sleep disturbance. … She has security fears; always checks the locks. … She is hypervigilant and she expects bad things to happen.

…

The genital herpes causes her a good deal of pain and occurs when she is under stress. She has had more than 10 episodes in the first year. She feels dirty, showers excessively and is very tidy.

She is irritable; has low self esteem and tends to blame herself for what happened.

…

ADVERSE IMPACTS

a) A sense of violation.

She did not experience a sense of violation at the time but has done so retrospectively.

b) Reduced self worth.

She has markedly low self esteem; thinks that people don’t like her and she doesn’t like herself.

c) Posttraumatic stress disorder.

She has posttraumatic stress disorder.

d) Disease.

She sustained a genital herpes.

e) Lost or reduced physical immunity.

Not applicable.

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

She feels that she will probably be overprotective of any children she may have.

g) Increased fear or increased feelings of insecurity.

She experiences increased fear and feelings of insecurity particularly at school and when she is on the streets.

h) Adverse effect of the reaction of others.

She denied any adverse effect of the reaction of others.

i) Adverse impact on lawful sexual relations.

It is too early to make a comment on adverse impact on lawful sexual relations.

j) Adverse impact on feelings.

N/A.

k) Anything the Court considers is an adverse impact of a sexual offence.

N/A.

In relation to “adverse impacts”

a) A sense of violation is a pre-requisite to a diagnosis of posttraumatic stress disorder.

b)c) These obviously are part of a diagnosis of posttraumatic stress disorder.

d)e)f) These are not included in the diagnosis of posttraumatic stress disorder.

g) Increased fear and hypervigilance is a feature of posttraumatic stress disorder.

h) The adverse effect of the reaction of others is not a feature of posttraumatic stress disorder.

i) Where sexual abuse is a precipitant of posttraumatic stress disorder adverse impact on lawful sexual relations is a feature of posttraumatic stress disorder.

j) Not applicable.

k) Not applicable.”

10. [10]
    Dr McGuire notes the applicant underwent counselling at the Mater Children’s Hospital. Further counselling had been arranged at the time of her examination of the applicant, however it had not yet commenced.^[5]

11. [11]
    In her victim impact statement tendered at sentence, the applicant’s mother states:^[6]

“(The applicant) will be 13 years old next month and most days she is a very emotional and angry little girl. (The applicant) suffers nightmares most nights and she has not had a good night’s sleep in a very long time. (The applicant) is constantly angry and lashes out at not only myself, but her two little sister (sic) (names omitted).

…

(The applicant) is very violent towards (her sisters) most days. I only hope that with a lot more counselling that maybe one day (the applicant) will see that there is more to life then resentment and anger.”

12. [12]
    In her affidavit filed on 23 November 2009, the applicant’s mother further states:

7. “7.
   (The applicant) was always a very sweet-natured, outgoing, happy and carefree girl.

8. 8.
   Since the incidences of sexual abuse, she has become a very different child; she has become withdrawn, irritable, angry, moody and fearful, and lacks trust of men. She has nightmares and displays security fears. She is not comfortable going to school.

9. 9.
   She has sustained genital herpes. It continually causes her a great deal of pain and is exacerbated when she is under stress.

10. 10.
    The abuse suffered by (the applicant) has devastated her life; indeed the whole family has been devastated.”

The applicable principles

13. [13]
    The assessment of compensation is governed by Part 3 COVA. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

14. [14]
    The maximum amount of compensation provided under the COVA is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 (“the Regulation”) is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

15. [15]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[7] The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:^[8]

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”

16. [16]
    The Regulation provides in s 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury. Pursuant to s 2A, the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum.

17. [17]
    Section 1A of the Regulation provides:

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;
9. (i)
   adverse impact on lawful sexual relations;
10. (j)
    adverse impact on feelings;
11. (k)
    anything the court considers is an adverse impact of a sexual offence.”

18. [18]
    It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the Regulation to the extent that they are not an injury under s 20: R v Atwell, ex parte Jullie.^[9] ‘Nervous shock’ within COVA is confined to a recognisable psychiatric illness or disorder: RMC v NAC.^[10] It is only additional adverse impacts that may be compensated under the Regulation: R v Atwell, ex parte Jullie.^[11] The effect of the Regulation is that “…post-traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever, be the case.”^[12]

19. [19]
    The evidence establishes that the applicant has suffered an adverse impact by way of contraction of the herpes simplex virus type 2. The remaining adverse impacts noted above are stated by Dr McGuire to be features of the diagnosis of post-traumatic stress disorder and therefore fall within the scope of an “injury” as defined in s 20 COVA. As a consequence, they are not compensable under as ‘adverse impacts’.^[13]

The applicant’s submissions

20. [20]
    Mr Sloane for the applicant submits that the following injuries in the compensation table are applicable:

33. Mental or nervous shock (severe)30%

Reg. 1AAdverse impacts of sexual offences50%

21. [21]
    Mr Sloane therefore seeks an award of 80% of the scheme maximum, which is $60,000.00.

22. [22]
    The applicant’s submissions nominated her contraction of the herpes simplex virus type 2, lost or reduced physical capacity and increased fear or feeling of insecurity as the relevant elements of adverse impacts of sexual offences.^[14] However, Dr McGuire states that increased fear and hypervigilance is a feature of post traumatic stress disorder.^[15]

Assessment

23. [23]
    The applicant was 10 years old at the time of the offences in 2005/06. She was 14 years old when assessed by Dr McGuire. She has experienced significant and prolonged post-traumatic stress disorder symptoms, for which she has required counselling. Dr McGuire is of the opinion that ongoing counselling for a period of some years may be required.

24. [24]
    Item 32 of the compensation table (‘Mental or nervous shock (moderate)’) provides a range of 10%-20% of the scheme maximum. Item 33 (‘Mental or nervous shock (severe)’) provides a range of 20%-34%. Bearing in mind the requirement to scale injuries according to their seriousness, compensation is appropriately fixed in the middle of the severe range. In my view, 25% of the scheme maximum is appropriate ($18,750.00).

25. [25]
    The applicant’s contraction of genital herpes is also of some significance. It is likely to have an enduring impact on her life. Dr McGuire notes that the applicant suffered from “more than 10 episodes in the first year.” I am of the view that 50% of the scheme maximum is appropriate ($37,500.00).

26. [26]
    I assess compensation in accordance with the items in the compensation table and Regulation 1A as follows:

33. Mental or nervous shock (severe)$18,750.00

Regulation 1A – Adverse impacts of sexual offences$37,500.00

$56,250.00

27. [27]
    The total assessment is $56,250.00.

28. [28]
    There is no behaviour of the applicant that contributed directly or indirectly to her injuries.

Protection Order

29. [29]
    Mr Sloane accepted that a protection order pursuant to s 67 of the Public Trustee Act 1978 was appropriate.

Orders

30. [30]
    I make the following orders:

1. 1.The respondent pay to the applicant the sum of $56,250.00 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care which led to the conviction of the respondent in the District Court at Brisbane on 28 March 2008.

1. 2.The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until she attains 18 years.

1. 3.The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

1. 4.The Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge), the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex gratia payment made by the State of Queensland pursuant to this assessment order.

1. 5.The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of this trust fund as may be advised.