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 on 23 September 2008.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.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 14 August 2009 in the Childrens Court of Queensland at Brisbane the respondent pleaded guilty to 1 count of wilful exposure of a child under 12 to an indecent image, 1 count of indecent treatment of a child under 12, 1 count of unlawfully procuring a child under 12 to commit an indecent act and 1 count of attempting to unlawfully procure a child under 12 to commit an indecent act.

3. [3]
   On 6 October 2009 the respondent was sentenced to 18 months probation.^[1]

4. [4]
   At the hearing on 11 October 2010, Miss Ferrall accepted that count 1 on the indictment, namely wilful exposure of a child under 12 to an indecent image, did not fall within the definition of a ‘personal offence’ as contained in s 21 Criminal Offence Victims Act 1995.  It therefore does not form part of the basis of the applicant’s claim for compensation.

5. [5]
   The application and supporting affidavit material were served on the respondent’s litigation guardian on 7 April 2010.^[2]  At the hearing the respondent was represented by Mr Veivers of Counsel.

Jurisdiction

6. [6]
   As I have mentioned the respondent was sentenced in the Childrens Court of Queensland. Section 24(2) Criminal Offence Victims Act 1995 provides that an application may be brought in “the court before which the person is convicted.”

7. [7]
   This issue was drawn to the attention of the parties when the matter was first before the Court on 13 April 2010. It subsequently emerged that the applicant’s solicitors had endeavoured to file the application in the Childrens Court of Queensland but a staff member in the Registry directed the solicitor’s filing clerk to amend the application by deleting “Childrens” Court and inserting “District” Court.

8. [8]
   In written submissions filed 6 October 2010, the applicant contended that the application could appropriately be dealt with in the District Court, making reference to the recent decisions of the District Court in Boyd-Bush v Braden,^[3] Laning v Cherry-Kelly^[4] and Lee v Fisher & Ors.^[5]  Mr Veivers for the respondent accepted that the District Court had jurisdiction.

9. [9]
   If the District Court did not have jurisdiction I would have made an order transferring the application to the Childrens Court of Queensland having regard to the circumstances which led to the application being filed in the District Court. It was not the fault of the applicant’s solicitors that the application was filed in the District Court.

Circumstances of the offences

10. [10]
    The offences occurred on 23 September 2008. The respondent was 14 years old at the time of the offences. When sentencing the respondent on 6 October 2009, I summarised the offences as follows:^[6]

“the complainant was a six year old boy with whom you were playing football. You then accompanied him to a caravan where you showed him covers of DVDs which portrayed naked men who were touching each other inappropriately. You then removed your clothing and the complainant took off his clothes, although he left his shirt on. You then touched his penis. After that the boy touched your penis. You then asked the complainant to suck your penis, but he refused.”

Injuries and medical reports

11. [11]
    In her affidavit filed 7 April 2010, the applicant’s mother states that the applicant had a strong emotional reaction to the offences. She details what she considers to be the biggest difficulties facing the applicant, including:

• A lack of self-confidence and self-esteem;

• The lack of a feeling of security;

• Feelings of shame and embarrassment about the offences; and

• Continuing nightmares.

12. [12]
    The applicant’s mother states that the applicant missed considerable amounts of school in the last term of 2008 and throughout 2009. As a result, the applicant fell behind with his school work, although his mother states that there has been improvement this year.

13. [13]
    The applicant’s mother states that he now has no self-confidence, a marked contrast from the situation prior to the assault. She states that the applicant does not feel safe without her. The applicant suffered from nightmares following the assault and as a result refused to sleep on his own for a period of time. She states that the applicant became very aggressive following the offence however that has decreased over time.

14. [14]
    The applicant underwent psychological counselling by Anita Maartens between March and August 2009. In her report dated 16 March 2010,^[7] Ms Maartens states that the applicant exhibits posttraumatic stress disorder.  Ms Maartens states that the applicant experienced excessive anxiety, worry, fear, irritability, insecurity and a strong feeling of violation, however Ms Maartens does state that the applicant’s feeling of violation was not expressed directly to her.  Ms Maartens considered the applicant’s nightmares to reflect his feeling of violation.  Ms Maartens notes that the applicant’s general practitioner, Dr Laurinda De Wytt, initially diagnosed the applicant as suffering from a general anxiety disorder.^[8]

15. [15]
    Ms Maartens states that the applicant exhibits the following behavioural characteristics, which she notes to be typical of posttraumatic stress disorder:^[9]

• “Intrusive thoughts

• Intrusive, distressing thoughts and images that recall the traumatic event.

• Disturbing dreams and sleeping problems associated with the traumatic event.

• A sense that the event is recurring, as in illusions of flashbacks.

• Psychological reactivity when exposed to internal or external cues that symbolize the traumatic event.

• Avoidance of thoughts, feelings or conversations about the traumatic event.

• Avoidance of activities places and the people associated with the traumatic event.

• Inability to recall some important aspects of the traumatic event.

• Lack of interest and participation in formerly meaningful activities.

• Irritability and anger outbursts.

• Lack of concentration.

• Sadness and guilt affects and other signs of depression.”

16. [16]
    Ms Maartens considered the applicant to be at high risk of depression on account of his psychological diagnosis, his sadness, decreased interest in activities, low self-esteem, sensitivity to rejection and the difficulty the applicant has with relationships on account of his insecurity.^[10]

17. [17]
    In her affidavit filed 7 April 2010, the applicant’s mother indicates that the applicant would be undergoing further psychological treatment early in 2010.

The applicable principles

18. [18]
    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)).

19. [19]
    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)).

20. [20]
    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.”

21. [21]
    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.

22. [22]
    Section 1A of the Regulation provides:

“(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.

(2) An adverse impact of a sexual offence includes the following –

(a) a sense of violation;

(b) reduced self worth or perception;

(c) post-traumatic stress disorder;

(d) disease;

(e) lost or reduced physical immunity;

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

(g) increased fear or increased feelings of insecurity;

(h) adverse effect of the reaction of others;

(i) adverse impact on lawful sexual relations;

(j) adverse impact on feelings;

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

23. [23]
    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: JI v AV.^[13]  ‘Nervous shock’ within COVA 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]

The applicant’s submissions

24. [24]
    Miss Ferrall for the applicant submitted that the following injuries in the compensation table are applicable:

25. [25]
    She submitted that the following adverse impacts are relevant:^[17]

• a sense of violation

• reduced self worth or perception

• increased fear and feelings of insecurity; and

• reduced quality of life specifically with regard to the applicant’s family life and ability to concentrate and achieve at school.

26. [26]
    The applicant therefore sought an award of 70% of the scheme maximum, which is $52,500.

27. [27]
    Mr Veivers for the respondent submitted that the award sought on behalf of the applicant was too high, particularly when compared with the award in the recent case of MEB v PJB.^[18]

28. [28]
    While accepting that the appropriate assessment was within the Court’s discretion, Mr Veivers conceded that item 33 was the appropriate injury for the applicant’s psychological diagnosis. However he suggested that an award of 25% of the scheme maximum would be appropriate. Mr Veivers submitted that an award of 30% of the scheme maximum would be appropriate in respect of adverse impacts.

Assessment

29. [29]
    The applicant has been diagnosed with posttraumatic stress disorder and his treating psychologist considered him to be at high risk of depression. His general practitioner also made an initial diagnosis of anxiety disorder. The applicant has undergone psychological counselling in the past and is to undergo counselling in the future. Despite some improvement in his symptoms, the applicant clearly continues to be significantly affected by these offences.

30. [30]
    The parties agree that item 33 in the compensation table (Mental or nervous shock (severe)) is appropriate, with a range of 20%-34% of the scheme maximum. The appropriate award for any given injury must be scaled according to its seriousness. I am of the view that an award of 27% of the scheme maximum is appropriate, leading to an award of $20,250.

31. [31]
    The applicant also suffers from adverse impacts of sexual offences that do not form part of the mental or nervous shock injury. I would assess an award of 35% of the scheme maximum, namely $26,250.

32. [32]
    Therefore, the total assessment is $46,500.

Protection order

33. [33]
    Miss Ferrall accepted that a protection order pursuant to s 67 Public Trustee Act 1978 was appropriate.

Order

34. [34]
    I make the following orders:

1. I order the respondent pay to the applicant the sum of $46,500 by way of compensation 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, unlawfully procuring a child under 12 to commit an indecent act and attempting to unlawfully procure a child under 12 to commit an indecent act which led to the conviction of the respondent in the Childrens Court of Queensland at Brisbane on 14 August 2009.

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 he attains 18 years.

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.

4. The Public Trustee pay to the solicitors for the applicant’s 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.

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.