JFD v ARJ[2010] QDC 478

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, ARJ, pleaded guilty before me in the Beenleigh District Court on 6 April 2009 to two counts of indecent treatment of a child under 16 under 12, in respect of the applicant JFD. The respondent was sentenced to 12 months imprisonment and three years probation (concurrent in respect of each count) and ordered to undertake a sexual offenders’ treatment programme in the community upon release.^[1]

Facts

2. [2]
   The applicant, then aged 10, was living … with the applicant’s sister and the respondent (then the partner of the applicant’s sister). Four of the applicant’s brothers also resided at the house as well as the applicant’s niece. While the other children slept in the bedrooms, the applicant slept in the lounge. The applicant recalls at about 6.00 am one morning (between 10 November 1975 and 12 November 1976) when others in the house were still asleep and she was lying face down on the couch, the respondent came out to the lounge. The applicant was wearing a nightie and underpants. The respondent sat down beside her on the couch. The respondent did not say anything as she was still half asleep. The respondent felt the applicant touch her on her underpants, then pull them to one side. The applicant rolled over and pretended she was waking up, but the respondent kept touching her. The applicant felt the respondent insert his fingers in her vagina. The respondent stopped and removed his fingers. The respondent then used his mouth to touch her also on the vagina. The respondent stopped his actions when he and the applicant heard noises coming from one of the bedrooms. The applicant opened her eyes. Her one year old niece came up to her and the respondent was still seated on the couch. The applicant reported these matters to police on 30 June 2008 when she was 42 years old.^[2]

Injuries

3. [3]
   The applicant suffered mental or nervous shock as a result of the sexual offences committed against her by the respondent.

The Law

4. [4]
   This application proceeds pursuant to chapter 65A of the Criminal Code (Qld) 1899, in particular Criminal Code s. 663B.  Chapter 65A was repealed by the Criminal Offence Victims Act 1995 (COVA) which commenced on 18 December 1995.  However, applications in respect of injuries suffered by a person because of an act done before the commencement of COVA were preserved pursuant to COVA s.  46.  In turn, COVA was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  Applications for compensation pursuant to the repealed provisions of s. 663B of the Criminal Code which were filed prior to 1 December 2009 are preserved pursuant to VOCAA s. 167(2).

5. [5]
   I refer to and adopt my exposition of the relevant law pursuant to chapter 65A of the Criminal Code as set out in paragraphs 9-11 of Thompson v Dowley [2007] QDC 132.

6. [6]
   The offences in respect of this application occurred between 10 November 1975 and 12 November 1976, and accordingly (the offences having been committed prior to the introduction of Criminal Code Amendment Act 1984), the “prescribed amount” is $5,000 per offence. The “course of conduct” provisions introduced by the Criminal Code Amendment Act are not, in my view, retrospective,^[3] and do not apply to this application. The maximum compensation applicable to this applicant is therefore $10,000.00.

Compensation

7. [7]
   Ms Fadden, who appears for the applicant, seeks compensation for mental or nervous shock suffered by the applicant. The applicant was examined by Dr Barbara McGuire, psychiatrist on 5 May 2010 and a report was provided dated 13 May 2010.^[4]  Dr McGuire diagnoses the applicant as suffering from “post traumatic stress disorder to a moderate degree and depressive disorder” with symptoms including “nightmares, flashbacks, avoidant behaviour, hyper-vigilance, irritability, low self esteem and … on occasions … suicidality.”^[5]

8. [8]
   A complicating factor is that the applicant, having been sexually abused by the respondent when she was 10, told one of her brothers, KFD what had happened and he then subsequently sexually abused her on two or three occasions when she was aged 12. Dr McGuire, however, concludes that the offences committed by the respondent materially and significantly contributed to the applicant’s condition, and that the level of post traumatic stress diagnosed would have been the same had the applicant’s only experience been that of the assault by the respondent. In these circumstances, the applicant relies on the decisions in R v Tiltman; ex-parte Dawe^[6] per Lee J and SAM v SAM.^[7]  The submission made on behalf of the applicant is that the sexual offending by the respondent against her was “a material contribution” to the applicant’s present psychological injury and accordingly that she is entitled to recover for her diagnosed condition of post traumatic stress disorder. I accept that submission, given Dr McGuire’s conclusions.

9. [9]
   It is clear that any award pursuant to ordinary common law principles of assessment would be well in excess of what I have found is the maximum applicable in these circumstances, namely $10,000. Accordingly I conclude that the applicant is entitled to an award of $10,000 pursuant to s. 663B of the Criminal Code.

Contribution

10. [10]
    The applicant has not contributed in any way, direct or indirect, to her own injury.^[8]

Order

11. [11]
    I order that the respondent ARJ pay the applicant JFD the sum of $10,000, and costs to be assessed on a standard basis.