H v S[2010] QDC 416

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  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.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 16 September 2004 in the District Court at Brisbane, the respondent was convicted of, inter alia, 1 count of maintaining a sexual relationship with a child under 12 years and 7 counts of indecent treatment of a child under 16 with a circumstance of aggravation.  He was sentenced to 7 years imprisonment in respect of the charge of maintaining a sexual relationship with a child and 5 years imprisonment in respect of each of the charges of indecent treatment of a child.  Pre-sentence custody of 743 days was declared to be imprisonment already served under the sentence.^[1]

3. [3]
   The application and supporting affidavit material were served on the respondent at the Long Bay Correctional Centre on 20 July 2010.^[2]  The Court file contains a letter from the respondent in which he requests that the matter be deferred until August 2011 when he is applying for parole to the New South Wales Parole Board.  In my view it would be inappropriate to adjourn the hearing for such a lengthy period.

4. [4]
   The Court sent written notification of the hearing date to the respondent at the Long Bay Correctional Centre. There was no appearance by or for the respondent at the hearing on 1 November 2010.

Circumstances of the offences

5. [5]
   The applicant was 5 years of age when the offences took place. The respondent was a friend of the applicant’s father.

6. [6]
   When sentencing the respondent, Trafford-Walker SJDC said:^[3]

“Your overall conduct in this case is reprehensible. You interfered with (the applicant) over a period of time. Not only that, you obtained material for distribution and you obtained material which you sent to others showing obscene photographs involving (the applicant).”

Injuries and medical reports

7. [7]
   In her affidavit filed 8 June 2010,^[4] the applicant’s mother, who is her litigation guardian, states that the applicant has little recollection of the events and does not wish to discuss the matter.  She states that the applicant has attempted suicide and has self-harmed.  She states that the applicant has no hope for the future and considers her life to not be worthwhile, and that she blames herself for the assault upon her and the imprisonment of the respondent.  She states that the applicant has undergone psychiatric treatment in the past, however has since become resistant to any further form of treatment.

8. [8]
   The applicant was examined by psychologist Rachelle Hampson on 27 January 2010. She has provided 2 reports, dated 9 February 2010 and an addendum report dated 19 September 2010.^[5]  Ms Hampson states that the applicant suffers from chronic posstraumatic stress disorder and major depression.  She considers the applicant will possibly suffer from borderline personality disorder in the future. 

9. [9]
   In addition, Ms Hampson considers the applicant to suffer from the following adverse impacts:^[6]

-a sense of violation, arising from suffering abuse committed by a trusted adult, as well as having significant feelings of shame and embarrassment regarding the offences.

-a reduced sense of self-worth, as indicated by her attempted suicide and self-harming.

-fear and feelings of insecurity, as the applicant does not trust others and is convinced she will be further injured, assaulted or punished for the offences committed upon her.

-a particular sensitivity to the reactions of others, in particular perceived disapproval, anger and sadness, leading to behaviours to ensure others are not angry or disapproving of the applicant.

10. [10]
    Despite acknowledging the applicant’s refusal to engage in further counselling, Ms Hampson strongly recommends that the applicant be encouraged to undergo counselling in the future.^[7]

    The applicable principles

    4. [11]
       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)).

    4. [12]
       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)).

    4. [13]
       The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.^[8] The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:^[9]

    “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.”

    4. [14]
       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.

    4. [15]
       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.”

    4. [16]
       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.^[10] “Nervous shock” within the Criminal Offence Victims Act 1995 is confined to a recognisable psychiatric illness or disorder: RMC v NAC.^[11] It is only additional adverse impacts that may be compensated under the Regulation: JI v AV.^[12] 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.”^[13]

    The applicant’s submissions

    4. [17]
       In written submissions, Mr Parry for the applicant submits that the following injuries are applicable:

    Item	Injury	Percentage of Scheme Maximum	Amount
    32	Mental or nervous shock (moderate)	15%	$11,250
    Reg 1A	Adverse impacts of sexual offences	20%	$15,000

    4. [18]
       Mr Parry therefore sought an award of 35% of the scheme maximum, which is $26,250.

    Assessment

    4. [19]
       Ms Hampson is of the view that the applicant suffers from mental or nervous shock at the high end of the moderate range, on the order of approximately 15%. She has made specific reference to the Compensation Table scheduled to the Criminal Offence Victims Act 1995 in expressing that view. Clearly, this opinion forms the basis of Mr Parry’s submission for an award of 15% of the scheme maximum under item 32, which has a range of 10%-20% of the scheme maximum. I am of the view that this is reasonable, and would award compensation of $11,250.

    4. [20]
       The applicant has also suffered adverse impacts of sexual offences that do not form part of her diagnoses of posttraumatic stress disorder and major depression. I consider Mr Parry’s submission for an award of 20% of the scheme maximum to be reasonable, leading to an award of $15,000.

    4. [21]
       The total assessment therefore comes to $26,250.

    4. [22]
       There is no behaviour of the applicant that contributed directly or indirectly to her injuries.

    Protection Order

    4. [23]
       Mr Parry accepted that a protection order pursuant to s 67 Public Trustee Act 1978 was appropriate.

    Order

    4. [24]
       I make the following orders:

    1. I order the respondent pay to the applicant the sum of $26,250 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of maintaining a sexual relationship with a child under 12 years and indecent treatment of a child under 16 with a circumstance of aggravation which led to the conviction of the respondent in the District Court at Brisbane on 16 September 2004.

    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.

    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.

    Footnotes

    [1]  Exhibit KP-2 to the affidavit of Ken Parry filed 28 January 2010.

    [2]  Exhibit KP-2 to the affidavit of Kenneth Parry filed 13 August 2010.

    [3]  Exhibit KP-1 to the affidavit of Ken Parry filed 28 January 2010 at p 2.

    [4]  Affidavit of the litigation guardian filed 8 June 2010 at pp 1-2.

    [5]  Exhibit RH-1 to the affidavit of Rachelle Hampson filed 28 October 2010.

    [6]  Exhibit RH-1 to the affidavit of Rachelle Hampson filed 28 October 2010 at pp 11-12.

    [7]

    [8] [2001] 2 QdR 436.

    [9]  [2001] 2 QdR 436 at 438 para [5].

    [10] [2002] 2 QdR 367 at para [20] per Chesterman J.

    [11] [2009] QSC 149 at [38] per Byrne SJA.

    [12] [2002] 2 QdR 367 at [57] per Atkinson J.

    [13]JI v AV [2002] 2 QdR 367 at 372 para [22] per Chesterman J.