APUL v FTUL[2010] QDC 261

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   APUL (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act’) for alleged injury she sustained arising out of the criminal conduct of FTUL (“the respondent”) who was convicted by the District Court at Bundaberg on 11 November 2008 of four offences with respect to the applicant namely two counts of incest and two counts of indecent treatment of a child under 16 years of age. The relationship between the applicant and defendant was that of brother and sister with the age difference being less than three years.

2. [2]
   The application is made on the basis of a “mental or nervous shock” disorder together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 (“the Regulation”) that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the Regulation arising out of the sexual offences committed against her.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

2. a)
   The applicant’s affidavit with exhibits sworn 13 July 2009 and filed in this court on 22 July 2009;

2. b)
   The affidavit of Zoe Alexandra Craven, solicitor, sworn and filed in this court on 20 July 2009;

2. c)
   The affidavit of service of Dianne Margaret McGregor sworn 1 August 2009 and filed in this court on 5 August 2009;

2. d)
   The further affidavit with exhibits of Zoe Alexandra Craven sworn 11 September 2009 and filed in this court on 14 September 2009.

4. [4]
   The respondent was served personally with the application and supporting documents and indicated in correspondence through his solicitors^[1] that he would “not be participating in the proceedings” but wished to bring to the “attention” of the court that the applicant’s statement “… in this matter should be read in conjunction with the transcript of the applicant’s cross-examination at the committal proceedings as it is our submission that the interpretation of events as outlined in the applicant’s statement runs the risk of the court proceeding on a possible unbalanced view of the facts if the applicant’s statement is not read in conjunction with the committal cross-examination”.

Background Facts:

5. [5]
   On 11 November 2008 the respondent pleaded guilty to two counts of incest and two counts of wilful exposure against the applicant with the offences occurring between the “12 November 2000 and 7 February 2005”.

6. [6]
   The applicant was born on 30 November 1988 and the respondent was born on 29 August 1985. At the time of offending so far as the charges before the court were concerned the applicant was between the ages of 13 years and 16 years and the respondent between the ages of 15 years and 19 years.

7. [7]
   In her affidavit sworn 13 July 2009 to which is attached her statement of complaint to police dated 21 July 2005^[2], the applicant states among other things the following:

• that she “moved out of home on 12 April 2005 ….. because of my brother and what he had been doing to me since I was about 2-3 years old”;
• that her home environment was dysfunctional;
• “that the abuse started sometime after I stopped wearing nappies and this would have been around the age of two or three. This abuse has consisted of F kissing me passionately, pinching my bottom, groping me by grabbing my chest, sucking on my nipples, performing oral sex on me, making me perform oral sex on him, making me suck his earlobes, making me masturbate him, F masturbating himself in front of me, inserting his fingers into my vagina and anus, inserting his penis into my vagina and anus”;
• “F would regularly have sex with me mostly at night”;
• the sexual abuse was continual until she left the family home in mid 2005;
• her parents would regularly smoke marijuana “in the shed” located in the backyard of the premises;
• that she did not consent to the respondent’s behaviour towards her.

8. [8]
   Despite the applicant’s complaints of persistent sexual abuse over a lengthy period of time specific particulars were given only in respect of the four offences before the court over a period of approximately four years and in respect of which the respondent was convicted.

Injury:

9. [9]
   The applicant describes her alleged injuries the subject of the application in the following terms:^[3]

• “My memories of my childhood are all tainted by what the respondent did to me”;
• “I never felt normal or safe. I never felt like I could have close friends or a boyfriend because I was scared about people finding out what was happening to me at home”;
• “I felt different to everyone and found it difficult to trust people or let anyone in”;
• “I was often depressed and after I finished Year 12 I started drinking more heavily. I would drink to dull the pain and to forget about what the Respondent had done to me”;
• “I would also cut myself. I would have nightmares all the time and take painkillers to stop myself from waking up”;
• “After I told the Police about what the Respondent had done to me my mother and father did not want to know me. I never felt like they believed me. They took the Respondent’s side and I was alienated from them and from my extended family as a result”;
• “I would also get panic attacks”;
• “I still have trouble sleeping and with nightmares”;
• “I have real problems with intimacy and with my current partner. I do not enjoy sex because it makes me think of what the Respondent did to me”;
• “My family is no support to me and I feel as though both my youth and innocence have been taken from me. I feel my life has been ruined and that I will never be normal”.

10. [10]
    The applicant was examined by Dr Flanagan, psychiatrist on 15 June 2009, whose report of 19 June 2009 is exhibit C to the applicant’s affidavit.^[4]

11. [11]
    Dr Flanagan’s report includes the following:

• “She said that her parents spent most of their time down in the shed smoking marijuana morning to night”;
• “Why bother talking to a junkie - it wouldn’t have done any good to tell them. She tried to tell her mother after she had watched an episode of Law and Order that dealt with incest but her mother just ignored her. It wasn’t the easiest thing to tell anyone”;
• “She believed her parents knew about the abuse but were too busy with their dope”;
• As the applicant “grew up” her mother “chose the drugs over her. She didn’t care about anything else”;
• “Her father seemed to have been even less of a parental entity”;
• “She said that she was verbally abused by both of them but there was no “physical abuse”;
• “Growing up in this background she felt like she couldn’t be a normal child. She had to fake everything. She had to fake being happy. She felt different from everyone else. She would think as a child how could she ever get a boyfriend?  How could she ever be a normal teenager and hang out, go out and see friends. Everyone else had a boyfriend and she never did. She felt like she never could have one;”
• “She got into heavy drinking and also started to cut herself”;
• Ultimately “she met her finance and she decided to turn her life around”;

12. [12]
    Dr Flanagan’s “diagnosis” is described in the following terms:

“8.0 Diagnosis

8.1  Axis I Complex PTSD or

Disorder of Extreme Stress NOS.

    Axis II Past history of alcohol and substance abuse in remission

8.2 Axis III Nil.

8.3 Axis IV Repeated sexual abuse in childhood and parental neglect.

Stress from legal process.

8.4 Axis V Moderate.

9.0 Comment

9.1  Complex PTSD represents a mixture of Axis I and Axis II pathology resulting from severe or repeated abuse or neglect in the developmental period.

9.2 She is functioning well in regard to the mothering of her infant except for over-protectiveness. Parenting will become more problematic with the child’s growth and as its need for autonomy as opposed to nurturing develops. She has a number of phobic phenomena including a sexual one. She uses active avoidance to maintain her fragile equilibrium. As is not uncommon, there are also resilience factors and she is in a supportive relationship.”

13. [13]
    Dr Flanagan sets out under the heading “Causation” the following:

1. “11.1
   The cause of her disorder is the experience of repeated sexual abuse by a brother throughout her childhood, combined with parental neglect and parental drug abuse.

1. 11.2
   The neglect was to some extent an enabling factor for the brother’s activities.

1. 11.3
   The actual offences of which her brother was convicted were typical examples of a long standing course of conduct with numerous incidents. Had the only incidents been those of which the brother was convicted, the damage would have been less severe and perhaps more able to be successfully integrated. She may also have been more able to resist his attention in the absence of a history of habitual submission.

1. 11.4
   In terms of proportional causation, between parental neglect and fraternal abuse, the former is also a risk factor for serious personality and emotional damage. However, her particular syndrome is very specific for severe sexual abuse. Parental neglect alone would have caused a different clinical picture but may have contributed by virtue of its enablement. It contribution would be 10-20%.”

14. [14]
    Dr Flanagan further states that the applicant “is averse to treatment of any kind” but “treatment could be very helpful to her in the long term. Her condition is a chronic one but is subject to possible improvement with maturation if she is fortunate enough to be able to maintain a supportive relationship.”

Transcript of Applicant’s Cross-Examination at Committal Proceedings:

15. [15]
    The transcript of the committal proceedings which took place on the 2^nd and 3^rd May 2007 comprises 324 pages and is exhibit 1 to the affidavit of Zoe Alexandra Craven filed 14 September 2009. The applicant’s examination-in-chief comprises 45 pages and her cross-examination extends for 139 pages of prolonged and intensive cross-examination of all aspects of the applicant’s allegations. Her answers to an experienced cross-examiner were in the main, straightforward, sometimes to the point of being argumentative, even provocative and generally she did not appear to be intimidated or over-awed by the questions asked of her. The tenor of the cross-examination confirmed Dr Flanagan’s notation at paragraph 5.4 of his report that the applicant had stated to him “She was a very strong willed person”. Similarly parts of the cross-examination also confirmed the “evident bitterness” referred to in paragraph 3.8 of Dr Flanagan’s report which she continues to hold for the respondent and her parents whom she feels continuously neglected her in preference to the respondent.

16. [16]
    Some of her answers under cross-examination would seem to indicate that she was uninhibited in the answers she gave describing her mother’s feelings towards her when she informed her mother that she was “moving out” of the family home, in terms of “no she didn’t really give two fucks” and that she would have responded to her mother in the course of an argument with words such as “you don’t give a fuck”.^[5]

17. [17]
    A further illustration of the applicant’s somewhat flippant responses in cross-examination is revealed by the following exchange:

“Yes. So, when you say you were cutting yourself, by that you mean you were self-mutilating? - - Yes. Cutting my wrists. Would you like to see some scars?

Just answer the questions I’m asking you and we’ll get through this quicker? - - I did. I said - -

Okay? - - “Yes, I was cutting my wrists. Do you want to see scars?”

Okay. In relation to that, when did you start cutting your wrists? - - It was May - - -

Before you left home or after? - - I’d done it while I lived at the home, but I’m able to hide it and no-one knew about it. I did it while I was at home.

How many times did you cut your wrists while you were at home? - - I don’t know. I don’t like to keep a personal count.

Well, there’s no need to be difficult in your answers? - - I wasn’t trying to be difficult. I - -

What I’m asking you is this, if you say you started to cut your wrists at home, how long before the 12^th of April ’05, how many times before the 12^th of April ’05, did you cut your wrists at home? - - I wouldn’t know. I wouldn’t – sit there and go, “Oh, I cut my wrists today. That’s number one for me” and then a week later or whenever I’d do it again, “Oh, I did it again.”^[6]

18. [18]
    In general terms, I find that the Applicant’s cross-examination in May 2007 two years after she moved out of the family home is indicative of a resilient personality who, despite the trauma to which she has been subjected by the sexual abuse at the

hands of the respondent, demonstrates that she been able to overcome, to some extent at the very least, the adverse consequences to her of such sexual abuse. This does not ameliorate the respondent’s conduct to her but tends to confirm Dr Flannigan’s assessment some 2 years later, in describing her “mental state” as, “she was very controlled, showing no emotion at all, though discussing verbally strong emotions.”^[7]

Applicant’s Submissions:

Categories of Injuries:

19. [19]
    It is submitted on behalf of the applicant that “given the applicant’s PTSD is further complicated by her stress disorder she is entitled to the highest amount payable for moderate nervous shock namely twenty percent (20%) of the scheme maximum or $15,000.00”.^[8]

20. [20]
    The applicant also claims compensation for “adverse impacts” under s 1A(1) of the regulation and in this respect it is submitted that “The Applicant has suffered significant adverse impacts on her family relationships as a result of the actions of the Respondent.” It is further submitted that the “adverse consequences” suffered by the applicant “from the time of the offences committed by the respondent” include the following:

• Becoming sexually active at a very early age;
• Heavy use of alcohol and prescription drugs at a very early age;
• A sense of violation and reduced self worth;
• Increased fear and feelings of insecurity;
• Severe difficulties with relationships and trusting men;
• Severe adverse impacts on sexual relations which have in turn caused a temporary or permanent incapacity to have children;
• Feelings of abandonment;
• Social isolation;
• Feelings of loss in respect t her youth; and
• Complete breakdown in family relationships following disclosure.^[9]

21. [21]
    Ultimately it is submitted on behalf of the applicant that she “should be awarded the maximum that could be awarded for adverse impacts under Reg 1A(2)(k) of the Regulations, namely $60,000.00”.^[10]

Causation and Contribution:

22. [22]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending.’

23. [23]
    Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made particularly where her Honour states:

“[23] 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. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. 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 necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.”

Adverse Impacts:

24. [24]
    An applicant’s claim for further compensation under s 1A of the Regulation is comprehensively discussed in the matter of Re JI v AV [2001] QCA 510 and in particular in the reasons of Chesterman J as he then was at paragraph [20] when discussing the phrase “to the extent to which the impacts are not otherwise an injury under s 20” as contained in Reg 1A(1) of the Regulation:

“There can be no doubt about its meaning. Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the Regulation unless they amount to an injury under s 20, in which case they fall outside the scope of the Regulation and are to be assessed under the Act. This follows from the phrase. Impacts are an injury for the purposes of the Regulation to the extent that the impacts are not an injury under s 20. They will be such an injury if they are mental or nervous shock. I cannot see any escape from this conclusion.”

25. [25]
    Further, in paragraph [22] Chesterman J said:

“This construction of the Regulation means 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. That, however, does not have the effect that the scheme for compensation found in s 1A is unworkable, or even absurd. It means only that that one impact will probably always be assessed under the Act rather than the Regulation. This consequence is not enough to give the words “to the extent to which the impacts are not otherwise an injury” a meaning other than their plain one. Section 1A will still have substantial scope to operate. It makes compensation available to victims of sexual offences for a greater variety of consequences than was available under s 20.”

26. [26]
    Again at paragraph [57] of that authority Atkinson J said:

“Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock. It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock.^[11] It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.^[12] The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20. The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, i.e., that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section. Only additional adverse effects of sexual offences fall to be compensated under s 1A of the COVA Regulation.”

27. [27]
    It is therefore necessary for an applicant who claims compensation under the regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of “Injury” under s 20 of the Act.

28. [28]
    The applicant’s entitlement to additional compensation under the category of “adverse impacts” must be assessed on all of the evidence before the court including the medical evidence and any other evidence “the court considers is an adverse impact of sexual offence”.^[13]

What is mental or nervous shock?

29. [29]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”.

Findings:

30. [30]
    On the basis of the evidence before the court and the submissions made I make the following findings in this application:

2. a)
   The applicant has suffered a “mental or nervous shock” injury within the terms of s 20 of the Act arising out of the respondent’s criminal conduct the subject of the application and is entitled to an award of compensation therefor under the Act. I make this finding on the basis of the applicant’s own evidence contained in her affidavit filed in this application together with the evidence contained in Dr Flanagan’s report of 19 June 2009 wherein he forms the “Diagnosis” that the applicant is suffering a “Complex PTSD or Disorder of extreme stress NOS” and that the condition is “Moderate”. I further rely on Dr Flanagan’s opinion that “The cause of her (applicant’s) disorder is the experience of repeated sexual abuse by a brother throughout her childhood combined with parental neglect and parental drug abuse.”^[14]

2. b)
   I find further that the category of injury under which the applicant is entitled to an assessment of compensation for her “mental or nervous shock” injury is item 32 of the compensation table under Schedule 1 of the Act that is “Mental or nervous shock (moderate) ….. 10%-20%” for the following reasons:

1. (i)
   There is no doubt on the evidence before the court that the applicant who is presently only 21 years of age, has had to endure a dysfunctional, unstable, disruptive and unhappy childhood evidenced by the following:^[15]

• Her parents were habitual drug abusers;
• She was neglected by them during her childhood;
• She “never really enjoyed her childhood”;
• “She tried to stay at friends’ houses overnight as much as she could”;
• “She would stay at the next door neighbours every weekend”;
• “She felt like she could not be a normal child”

For these reasons I find it is inescapable that notwithstanding the four incidents of sexual abuse by the respondent over the four year period approximately set out in the indictment, together with the respondent’s “continuum of offending” over a lengthy period, the applicant would have been a troubled person susceptible to much of the adverse indicia set out in Dr Flanagan’s report in any event. I assess the applicant’s compensation under this item at 20 per cent of the scheme maximum that is the sum of $15,000.00 after making allowance for those other contributing factors which have impacted upon the applicant’s overall condition in any event.

3. (c)
   I am further satisfied  that the applicant has suffered some “adverse impacts” over and above the diagnosed “post-traumatic stress disorder” on the basis of the applicant’s own evidence and Dr Flanagan’s report particularly at paragraph [5] thereof and I find that those “adverse impacts” which “are not otherwise an injury under Section 20” of the Act are as follows:

1. (i)
   becoming sexually active at a very early age;
2. (ii)
   heavy use of alcohol and prescription drugs at a very early age;
3. (iii)
   reduced self worth or perception;
4. (iv)
   increased fear or increased feelings of insecurity;
5. (v)
   adverse impact on lawful sexual relations;
6. (vi)
   fear or feelings of insecurity

In all circumstances I assess the applicant’s compensation under Section 1A(1) of the Regulation at a further 20 percent of the scheme maximum that is the sum of $15,000.00 after again making allowance for those other contributing factors which would have contributed to those ‘adverse impacts’ upon the applicant’s condition in any event together with her capacity to overcome at least some of these adverse impacts as evidenced by the matters referred to in paragraphs [15] to [18] above.

Applicant’s contribution to the injury:

31. [31]
    In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury the subject of the claim (see Section 25(7) of the Act).

32. [32]
    I am satisfied the applicant personally did not either directly or indirectly contribute to the injury or adverse impacts she has suffered arising from the respondent’s criminal conduct referred to herein.

Order:

33. [33]
    I order that the respondent FTUL pays to the applicant APUL the sum of $30,000.00 for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Bundaberg on 11 November 2008 calculated as follows:

Compensation payable under Section 25(4) of the Act $15,000.00

Compensation payable under Section 25(5) of the Act $15,000.00

Total        $30,000.00

34. [34]
    In accordance with s 31 of the Act I make no order as to costs.