MJH v MWH[2010] QDC 469

[2010] QDC 469

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3421 of 2009

and

EJH Litigation Guardian

BRISBANE 

DATE 16/09/2010

ORDER

HIS HONOUR:  This is an application for criminal compensation to be assessed pursuant to the provisions of the Criminal Offence Victims Act 1995.  That Act was repealed by the Victims of Crime Assistance Act 2000 which commenced on 1 December 2009.

The application in this matter was filed on 27 November 2009.  Hence, it was filed before the commencement of the Victims of Crime Assistance Act 2009.  The effect of this is that pursuant to section 167 of the Victims of Crime Assistance Act 2009 the application is to proceed pursuant to the repeal provisions, the repealed Act, namely the Criminal Offence Victims Act, and under subsection 2 the Court must hear or continue to hear and decide the application under the repeal provision.  Therefore, the application is within time. 

Further, with respect to the three year limitation period provided by the Act, the applicant is a minor having been born on 25 June 1998.  Therefore, the applicant has three years from the time of turning 18 within which to apply for compensation, that is until the 25th of June 2019.  Again, the application is within time.

The respondent was born on 19 September 1954.  He offended against the applicant by indecently dealing with her.  She was under 12 years of age and was his granddaughter.  The respondent was sentenced on 6 December 2007 to a term of imprisonment.  There were six counts.  What the respondent did to the applicant is that his activities included rubbing his penis against the applicant's vagina whilst they were both close, rubbing ejaculate on her vagina on two occasions and rubbing his hand on her vagina on another occasion, and also on another occasion allowing her to handle his penis.

The applicant was aged between six and seven at the time of these personal offences and the respondent was aged between 50 and 51 years of age.  As her grandfather he held a position of trust which he abused.  There were no physical injuries, however, it is not surprising, and I accept there have been emotional injuries.  The applicant has been examined by Dr McGuire, a psychiatrist, who has concluded that the applicant exhibits post-traumatic stress disorder as shown by her experiencing of nightmares, flashbacks, avoidant behaviour, hyper-vigilance and lack of trust. 

Dr McGuire considers that at this stage the applicant experiences the post-traumatic stress disorder to a moderate degree.  The applicant reported to Dr McGuire that she felt angry all the time and she experienced a lot of stress following the offences.  Her heart was popping, which the doctors have attributed to the stress.  The applicant has felt said, angry and scared.  I have mentioned she has had nightmares.

The respondent made a threat to her that he would come after her and recently the applicant saw the respondent's sister, which made her feel frightened.  Her schoolwork also suffered.  She had flashbacks, and although her grades deteriorated, thankfully they were getting better.

She attended counselling in another State.  On one occasion a teacher had touched her on the shoulder and this distressed her and made her have a flashback.  She started crying and would not go back to school.  She had other problems at school such as fighting with a teacher and being sent to the principal's office.

She and her grandmother have returned to this State.  Dr McGuire considers that she would benefit by counselling.  Private counselling costs approximately $150 to $200 per session.  Dr McGuire believes that she would probably need an indefinite period of counselling.

The applicant's litigation guardian has sworn an affidavit.  She refers to the breach of trust.  She feels the respondent's behaviour has affected the applicant's understanding of good and safe sexual boundaries and she worries about how the applicant will be when she becomes an adolescent and how she will deal with her sexuality at that time.  She also confirms that the applicant has flashbacks and how she doesn't want to be touched.  She avoids things that remind her of the respondent.  She confirms the nightmares, but they have improved.  She states the applicant has been frightened that the respondent would come and get her on his release from prison.  She confirms the applicant is confused. 

I am mindful that on an application of this kind the compensation ordered by the Court is not meant to reflect the amount of compensation the applicant would be entitled to under common law.  Further, the maximum amount of compensation is reserved for the most serious cases.  (See subsections 3 and 4 of section 22.)

I am satisfied the applicant has suffered mental and nervous shock as a result of the offences committed by the respondent upon her.  She was very young and it has been about six years since these offences were committed upon her.  There is medical evidence to support these offences have affected her and caused her post-traumatic stress disorder to a moderate degree.

In all the circumstances I assess her compensation for mental and nervous shock at 20 percent, which is the sum of $15,000.  The applicant is also entitled to compensation for adverse impacts of the sexual offences.  That is provided for by Regulation 1A of the Criminal Offence Victims Amendment Regulations.  She is entitled to compensation for the totality of the adverse impacts suffered by her to the extent to which the impacts are not otherwise an injury under section 20.  This was confirmed by Jullie v. Atwell, [2001] Queensland Court of Appeal 510.

Clearly a number of adverse impacts are attributable to the post-traumatic stress disorder and they cannot therefore be doubly compensated.  However, the evidence satisfies me the applicant has suffered adverse impacts over and above those that can be attributed to post-traumatic stress disorder.  Her schooling has been interfered with, as has her relationships with other persons.  I have mentioned the incident when the teacher touched her at school and the effect it had on her.

As a young child she made a mistake in telling a friend at school about the sexual abuse and this friend told others.  She has therefore been bullied and picked on by the other children.  She has also complained of a sickness in her stomach.  Investigations were carried out but nothing was found to cause this upset, however the litigation guardian states the applicant is an anxious child and when stressed she breaks out in hives.

The litigation guardian is concerned that the offending has affected the applicant's self-esteem and self-confidence and will affect her ability to make safe judgments about people.  Clearly counselling is required.

In all the circumstances I assess the applicant's compensation for the adverse impacts and the totality of the impact of the sexual offences upon her in an amount of 20 percent, which is the sum of $15,000.  That, therefore, is a total of $30,000.  In my opinion there are no contributory factors.  That is, the applicant did nothing to directly or indirectly contribute to her personal injury.  The age difference between the applicant and the respondent is sufficient for that finding.  The age of the applicant also is sufficient for that finding.

I am satisfied the personal offences have caused the applicant's personal injury and that there is no case for deduction or discounting for pre-existing conditions or other factors. (See SAY v. AZ, ex-parte, Attorney-General Queensland [2006] Queensland Court of Appeal 462). 

In all the circumstances I order the respondent to pay the applicant the sum of $30,000.  There will therefore be an order as per the draft, initialled by me and left with the papers.