DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, JPS, was found guilty after a jury trial in the Beenleigh District Court which concluded on 31 October 2007, of four counts of indecent dealing with a child under 16, under 12 and two counts of rape. The respondent was sentenced by me to two years’ imprisonment (concurrent) in respect of each of the rape charges, and 18 months’ imprisonment (concurrent) in respect of the four indecent dealing charges. That sentence was ordered to be suspended upon the respondent serving 12 months’ imprisonment, with an operational period of three years.

2. [2]
   These proceedings are brought by the applicant LIM, as litigation guardian for the complainant who is a child. The complainant child was born on 15 May 1995.^[1]

Facts

3. [3]
   The offences occurred when the respondent drove a number of children, including the complainant AJMC, twice around a suburban block. The complainant child, then aged 10, was sitting on the respondent’s lap while he drove. Two of the counts of indecent dealing involved the respondent rubbing the 10 year old complainant’s breasts under her top. The remaining two counts of indecent dealing involved the respondent touching the top of the complainant child’s vagina and the counts of rape involved the penetration of the complainant child’s vagina with two fingers on each occasion. The sequence of a touching of the child’s breasts, followed by the touching of the child’s vagina, then a rape involving penetration of the respondent’s fingers in the child complainant’s vagina, is alleged to have occurred on each of the first and second laps around the block in the respondent’s car while the child complainant was sitting on the respondent’s lap and was steering the motor vehicle. Although it was not directly relevant to the charged offences, on the evidence, the respondent had consumed a reasonably significant amount of alcohol prior to the driving, then had the complainant child in the cabin on his lap and three other children in the tray-back of the motor vehicle as it drove at some uncertain speed, with the children unrestrained and the steering being conducted by the 10 year old complainant child.^[2]

Injuries

4. [4]
   The complainant child has been diagnosed as suffering from an adjustment disorder, with anxiety and depressed mood,^[3] and adverse impacts arising from sexual offences.^[4]

The Law

5. [5]
   This is an application for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (COVA) which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The application was filed on 10 September 2009, and as a consequence, the applicant’s rights to proceed pursuant to COVA are preserved pursuant to VOCAA s 167(2) which provides that the court must hear the application under the repealed provisions of COVA.^[5]

6. [6]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of JMR obo  SRR v Hornsby [2009] QDC 147.

Compensation

7. [7]
   Mr Maher who appears for the applicant seeks compensation as follows:-

(1)Item 33 – mental or nervous shock (severe) – 20%-34%

Dr Steve Morgan, psychologist, examined the complainant child on 20 January 2009 and produced a report, which noted that although the complainant child “may have previously met the criteria for Post Traumatic Stress Disorder, [she did not meet the criteria] at this time [20 January 2009]”. Dr Morgan expressed the view that the complainant child’s continuing symptoms were, however, sufficient to meet the criteria for an adjustment disorder, with anxiety and depressed mood (DSM–IV TR 309.28). In particular, Dr Morgan noted that the complainant child “reported intrusive experiences, rumination, anxiety, loss of self-confidence, vigilance, carries a weapon, sexual concerns, anxiety in respect of a sexualised-self image and avoidance behaviours.”  He noted further that “these experiences persisted over the intervening period [the offence occurred on 17 June 2005] and continued to exert negative influence on her social and relationship functioning. Her developing sense of sexual identity also seems compromised.”^[6]

Mr Maher submits that the diagnoses of “adjustment disorder” is a recognised psychiatric illness^[7] and submits that an appropriate award for the mental or nervous shock would be 25% of the scheme maximum ($18,750). While not seeking to minimise the consequence to the complainant child arising out of these sex offences committed against her by the respondent, the report of Dr Steve Morgan does not, in my view, justify an assessment at the middle of the severe range of mental or nervous shock (Item 33). In my view, the psychiatric disorder diagnosed by Dr Morgan (adjustment disorder with anxiety and depressed mood) and the specific symptoms noted by him^[8] more appropriately should bring an assessment at the mid-range of the moderate range of mental or nervous shock (Item 32), namely, 15% of the scheme maximum ($11,250).

(2)Adverse impacts (Criminal Offence Victims Regulation (COVR) s 1A)

Dr Morgan’s report notes that the complainant child had previously experienced a sense of violation and remains fearful of future violation;^[9] that the complainant child’s sense of self worth and self perception have been undermined;^[10] that the complainant child has increased fear or feelings of insecurity, carries a wrench for protection and has previously carried a pen knife;^[11] that the complainant child’s mother is concerned about the complainant child’s choice of tomboy manner (ie the adverse affect of the reaction of others);^[12] that the complainant child suffers anxiety and stress related to the sexual assault which is an adverse impact on her feelings;^[13] and the complainant child is reserved with males and has lost trust in others.^[14]

The submission by Mr Maher is that the adverse impacts pursuant to COVR s 1A(2)(b), (g), (h), (k) can be considered separate to the primary diagnosis of adjustment disorder and accordingly, should be compensated as a further injury.^[15]  Mr Maher submits that an appropriate award for adverse impacts would be 10% of the scheme maximum ie $7,500. I accept that submission and accordingly award $7,500 pursuant to COVR s 1A for adverse impacts.

Contribution

8. [8]
   The applicant has not contributed in any way, direct or indirect, to her own injuries.^[16]

Orders

9. [9]
   1. That the respondent JPS pay the applicant LIM on behalf of AJMC the sum of $18,750.

2. That the monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of AJMC until she attains the age of 18 years.

3. That the Public Trustee of Queensland is further authorised to advance such monies from time to time as may be necessary for the maintenance, education or treatment (including counselling) of AJMC.

4. That the Public Trustee of Queensland is further authorised to pay out of such monies received the reasonable costs of the present application to the applicant’s legal representatives.