MEB v PJB[2010] QDC 368

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for emotional injuries caused by sexual offences committed by the respondent. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.

2. [2]
   On 25 October 2007 in the District Court at Maroochydore the respondent was convicted of 1 count of maintaining an unlawful relationship with a child with circumstances of aggravation, 2 counts of rape and 1 count of incest. On 17 December 2007 in the District Court at Brisbane, a sentence of 10 years imprisonment with a serious violent offence declaration was imposed in respect of the charge of maintaining an unlawful relationship with a child with circumstances of aggravation. The respondent was sentenced to 8 years imprisonment in respect of each charge of rape and 6 years imprisonment in respect of the charge of incest. The period of 53 days pre-sentence custody served by the respondent was declared to be time already served under the sentence.^[1]

3. [3]
   The application and supporting affidavit material were served on the respondent on 27 September 2010.^[2]

4. [4]
   The Public Trustee is not actively managing the affairs of the respondent.^[3]  The Public Trustee has received written acknowledgement from the respondent that he had been served with all material filed in support of the application, was aware of its return date and wished to take no part in the proceedings.^[4]

Circumstances of the offences

5. [5]
   The offences occurred over a 3 year period between December 2002 and December 2005, when the applicant was aged between 14 and 17 years. The respondent is the applicant’s father. He was aged between 43 and 46 years at the time of the offences.

6. [6]
   When sentencing the respondent on 17 December 2007, I said:^[5]

“The offence of maintaining spanned the period 1 May 2003 to 19 December 2004. … The unlawful sexual acts in the period covered by the maintaining included the counts of rape, which are counts 2 and 3, as well as a number of sexual acts that were particularised by the Crown. The first offence of rape occurred between December 2002 and December 2004. The complainant was 14 or 15 years old at that time when you inserted your penis into her vagina. The second count of rape, which is count 3, occurred about two weeks later.

The maintaining charge also encompassed many instances of you inserting your penis into the complainant’s vagina. It also included the five occasions on which you had sexual intercourse with the complainant in her bedroom when she was 15 years old. There were six or seven occasions of sexual intercourse when she was 14 years old. There was also one instance when you rubbed your penis between her breasts. That occurred when she was aged between 14 and 16. The complainant also said in evidence that she was required to perform oral sex upon you on a number of occasions. On a large number of those occasions she was required to do so when she wanted to visit a friend. There was also an instance when you ejaculated in her mouth when she was aged 15.

Count 4 is an offence of incest that occurred between December 2002 and December 2005. That involved you inserting your penis into the complainant’s anus at some stage between when she was 14 and 17.”

Injuries and medical reports

7. [7]
   The applicant’s affidavit filed 31 August 2010, along with her exhibited victim impact statement,^[6] indicates the significant impact the offences have had upon her. The applicant has difficulty sleeping, suffers from nightmares several times each week and has flashbacks when in public and during sexual activity. She worries that she will be unable to have children as a consequence of the offences. She was teased badly at school when other children found out what had happened and her grades deteriorated. Her relationships with other family members have suffered and she feels effectively excluded from her family. The applicant’s mother did not believe her and one of her brothers and her paternal grandmother refuse to talk to her.

8. [8]
   The applicant does not trust men in general. She states that she was promiscuous for a period around her 18^th birthday and that she continues to have difficulties having relationships with men because of the respondent’s conduct. She does not like working with men and does not like being around men who raise their voice. She is angry and irritable and loses her temper frequently when surrounded by males.

9. [9]
   The applicant states that she is very paranoid and worries about her security and that she moved into accommodation with security bars on the windows and doors. She worries about being abused again. She prefers to stay at home. Her social circle is extremely limited.

10. [10]
    The applicant states that she has been suicidal and made many attempts to take her own life. She states that she scratches her arms until they bleed and has cut her legs. She has low self-esteem and feels depressed. She was prescribed anti-depressant medication however began using alcohol and marijuana to make herself feel better when she did not perceive the medication was having its desired effect. Her consumption of both alcohol and marijuana has been reduced, however she continues to make use of both.

11. [11]
    The applicant was examined by Dr Barbara McGuire, psychiatrist, on 8 December 2009. In her report dated 14 December 2009,^[7] Dr McGuire states that the applicant suffers from posttraumatic stress disorder to a severe degree as exhibited by her intrusive thoughts, avoidant behaviour, feelings of stigmatisation and low self esteem. The applicant indicated to Dr McGuire that she did not want counselling. Dr McGuire states that the applicant’s sense of violation, low self esteem, increased fear and mistrust of men, past poor judgment in the choice of sexual partners and promiscuity are features of the diagnosis of posttraumatic stress disorder.^[8]

12. [12]
    Dr McGuire states that the adverse effect arising from the reaction of others does not form a part of the applicant’s diagnosis of posttraumatic stress disorder. Dr McGuire states that the applicant was teased at school and is estranged from her family and excluded, noting that the applicant’s relationships with her mother, brother, sister and paternal grandmother have been adversely affected.^[9] 

13. [13]
    In her report dated 14 December 2009, Dr McGuire states that the applicant indicated that the respondent was violent to the applicant, her mother and siblings. In her further report dated 28 January 2010,^[10] Dr McGuire states that the offences committed upon the applicant were responsible for the psychological symptoms described in her report, thereby making a substantial and material contribution to the applicant’s diagnosis.

The applicable principles

14. [14]
    The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995. 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)).

15. [15]
    The maximum amount of compensation provided under the Act 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 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)). If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

16. [16]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.^[11]  The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:^[12]

“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% to 34% 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%. 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 $25,500.00.”

17. [17]
    The Criminal Offence Victims Regulation 1995 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.

18. [18]
    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;

1. (b)
   reduced self worth or perception;

1. (c)
   post-traumatic stress disorder;

1. (d)
   disease;

1. (e)
   lost or reduced physical immunity;

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

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

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

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

1. (j)
   adverse impact on feelings;

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

19. [19]
    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: Jiv AV.^[13]  “Nervous shock” within the Criminal Offence Victims Act 1995 is confined to a recognisable psychiatric illness or disorder: RMC v NAC.^[14]  It is only additional adverse impacts that may be compensated under the Regulation: JI v AV.^[15]  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.”^[16]

Assessment

20. [20]
    Mrs James for the applicant submits that the following injuries are applicable:

21. [21]
    Mrs James therefore sought an award of 59% of the scheme maximum, which is $44,250.

22. [22]
    In her written submissions, Mrs James details additional factors deposed to by the applicant that should be taken into account in assessing the appropriate award for adverse impacts pursuant to s 1A(2)(k) of the Regulation.^[17]  These are:

• Moving away from home at age 17 with no possessions and losing contact with friends living in the area;
• Estrangement and exclusion from her family;
• Continually changing her appearance out of fear the respondent would escape from jail and try to find and kill her;
• Being fearful during the legal proceedings that the respondent would gain access to the adjoining room in which the respondent was seated and abuse her;
• Making use of marijuana and alcohol to feel better when she did not perceive medication to be having its desired effect; and
• Concern about her ability to have children because of the respondent’s conduct.

Assessment

23. [23]
    Dr McGuire is of the opinion that the applicant suffers from posttraumatic stress disorder to a severe degree. I am satisfied that item 33 in the compensation table (Mental or nervous shock (severe)), with a range of 20%-34% of the scheme maximum, is the appropriate item. In accordance with Mrs James’ submission, I am of the view that an award of 29% of the scheme maximum is reasonable. This leads to an award of $21,750.

24. [24]
    The applicant has also suffered adverse impacts of sexual offences that do not form part of the diagnosis of posttraumatic stress disorder as listed by Mrs James in her written submissions. I am of the view that an award of 30% of the scheme maximum is appropriate, leading to an award of $22,500.

25. [25]
    I assess compensation as follows:

26. [26]
    Therefore the total assessment is $44,250. 

Order

27. [27]
    I order that the respondent pay to the applicant the sum of $44,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of maintaining an unlawful relationship with a child with circumstances of aggravation, rape and incest which led to the conviction of the respondent in the District Court at Maroochydore on 25 October 2007.