NAH v DLW[2010] QDC 505

[2010] QDC 505

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 39 of 2009

BRISBANE

DATE 16/12/2010

ORDER

HIS HONOUR:  This is an application for compensation pursuant to section 24 of the Criminal Offences Victims' Act 1995.  That Act was repealed with the introduction of the Victims of Crimes Assistance Act 2009.

Notwithstanding the introduction of that Act, under the transitional provisions of that Act, compensation is to be assessed under the former Act because the claim was filed before the commencement date of the new legislation, 1 December 2009.  This application was filed on 28 August 2009.

The scheme of the Criminal Offences Victims' Act 1995 is that the maximum amount of compensation provided for is reserved for the most serious of cases.  The maximum prescribed by regulation is $75,000.  The amounts provided for in other cases are intended to be scaled according to their level of severity. Certain percentages are to be applied depending on the level of severity.  In this case the amount claimed is $31,500, made up as follows:  Mental or nervous shock of 31 per cent - $23,250, adverse impacts at 11 per cent - $8,250.

The applicant was born on 19 March 1974.  When he was aged 14 and 15, he was subject to three incidents of sexual abuse by the respondent who, on 13 November 2008, was convicted on three counts of indecent treatment of a child under 16.  As a result of the convictions, the respondent was imprisoned in respect of each charge for 12 months imprisonment suspended after serving a period of six months, with an operational period of three years.

At the time of the offence occurring, the applicant was under the care of the Department of Family Services and had been placed with the respondent as a ward.

The factual basis upon which the respondent was sentenced was set out in the submissions of the Prosecutor appearing at the sentence hearing.  In summary it included that, in respect of the first charge, the respondent would have the applicant do exercises by gradually decreasing amounts of his clothing. He would pay the applicant money to take off items clothing.  The respondent then massaged the applicant's shoulders, arms, stomach and legs whilst completely naked.  The respondent then began to touch the applicant's penis and massaged his testicles.  At the time of this offence the applicant was 14.

In respect of the second charge, it occurred later in the evening when the respondent plied the applicant with alcohol.  The respondent placed the applicant in bed, where the respondent undressed him and then put his face into the applicant's genital area.

In respect of the third incident, the respondent straightened one of the applicant's legs and bent the other at the knee.  The respondent left the applicant, then later returned, placing a lubricant of some type on the applicant's buttocks.  The respondent squeezed the applicant's buttocks together.  The applicant passed out for a period of time and awoke in the circumstances where the respondent had placed his penis between the applicant's legs and ejaculated over them.

It is obvious that at the time the applicant was vulnerable for a number of reasons.  First, his age, and second, the position of trust and authority of the respondent.

The consequences of the abuse are extreme and disturbing.  The psychiatrist, Dr McGuire, reports that the applicant displays symptomology including, "Destructive behaviour in respect of relationships, including difficulty in undertaking relationships, continual reverting to alcohol abuse and drug abuse, general destructive behaviour., adverse responses to people in authority, regular nightmares, waking while crying or in distress, being hypervigilant, mood instability, lack of trust, anger, depression, continual thoughts of abuse, at times anxious and paranoid behaviour, trouble with sleeping, flashbacks - particularly during sexual activity, reoccurring sexual-based dreams, and exaggerated responses."

At page 2 Dr McGuire records, "As regards substance abuse, he said the respondent used to take him on camps and allowed them to have marijuana, also mushrooms.  He progressed from there to a heroin and amphetamine habit from the age of 17.  He got off drugs in prison but returned to the habit after being discharged.  He has now been abstinent for five years."

Dr McGuire then goes on to report, "He has contracted hepatitis C as a result of his drug habits and has been advised by his doctor that he should limit his alcohol.  He does not have nightmares now, but did have a recurring dream of himself crouched naked in the desert," et cetera.  "He still experiences flashbacks and panic attacks, which are triggered of any talk of homosexuality. "It was later reported that, in respect of the respondent, the applicant has murderous fantasies about him.

Under the heading "Psychiatric disorder", Dr McGuire reports, "He exhibits the criteria necessary for a diagnosis of post-traumatic stress disorder, which he experiences to a moderate degree.  I also believe he is suffering from an adjustment disorder, with depressed mood in the context of a conduct disorder which preceded the abuse.  He also describes substance abuse in the past, but has been abstinent for several years."

The overall diagnosis was one of post-traumatic stress disorder, depression and conduct disorder.  Although it would appear that the applicant had suffered or displayed symptoms of conduct disorder prior to the abuse.

According to Dr McGuire, full recovery is unlikely, and the probability is that he will continue to demonstrate permanent disability with respect of this form of injury.  And while the applicant's work has not been affected by the trauma, his lifestyle is significantly affected in that he has limited social life and limited enjoyment.

The abuse has led to a number of destructive traits on the part of the applicant including substance abuse and periods of imprisonment. One episode of imprisonment involved  the respondent.

In assessing the severity of this form of injury, as Mr George pointed out, it is of significance that these events occurred 20 years prior to the applicant being assessed by Dr McGuire.  And even 20 years later the level of post-traumatic stress disorder diagnosed by the doctor is at the moderate range and that situation is not likely to materially alter in the future.  In my view the report of Dr McGuire, which refers to this form of injury as being moderate, has to be read in that context.

Turning then to the claim for adverse impacts, pursuant to regulation 1(a) of the Criminal Offence Victims Regulations 1995, it is prescribed that, 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 to be prescribed as an injury."  Subsection (2) then goes on to identify a number of matters which are included within the meaning of "an adverse impact".

Whilst it is now well established that the scheme of the legislation is that an applicant is entitled to be compensated for both the injury of mental or nervous shock and a prescribed injury under the regulations, it is also well established, to be compensable as a prescribed injury or adverse impact, there must be something more than or in addition to the symptomology underlying the diagnosis of the injury of mental or nervous shock.

In the Queen v. Atwell ex parte Jullie [2001] QCA 510, his Honour Justice Chesterman, as he then was, at paragraph 20 said, "The difficulty appears in the phrase 'to the extent to which the impacts are not otherwise an injury under section 20'.  There can be no doubt about its meaning.  Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the regulation unless they amount to an injury under section 20, in which case the fall outside the scope of the regulation and are to be assessed under the Act."

This follows from the phrase, "Impacts are an injury for a purpose of the regulation" - in italics - "to the extent" - then in normal type - "that the impacts are not an injury under section 20.  They will be such an injury if they are mental or nervous shock.  I cannot see any escape from this conclusion."

In another decision of the Court of Appeal, PAJ v. AAK [2010] QCA 78, President McMurdo, with Justices Muir and Chesterman agreeing, said, at paragraph 28, "The clear terms of reg 1A(1) of the regulation provide that to be compensable under the Act, the adverse impacts under reg 1A must be additional to the mental or nervous shock injury under section 20 of the Act.  The onus was on the applicant to establish her claim on the balance of probabilities."

Then at paragraph 32 the President went on to say, "Mr Yoxall's evidence did not satisfy the Judge that the adverse impacts she listed were separate from, and not part of the appellant's post-traumatic stress disorder and low grade chronic depression (mental or nervous shock injury) which was compensable under section 20 and schedule 1 of the Act."

It is often difficult to identify adverse impacts which fall outside the injury of mental or nervous shock.  However, in this case I am satisfied that such impacts do exist.  Mainly, under regulation 1A(2)(d), the disease of hepatitis C, and, under (k), other adverse impacts are the effects of the assault, including alcohol and substance abuse, and other displays of self-destructive behaviour which, on occasions, have led to periods of imprisonment.  I consider an allowance of 10 per cent for adverse impacts as appropriate.

...

Returning then to the question of compensation for mental or nervous shock.  As I have already indicated, the diagnosis of Dr McGuire has to be read in the context of her having interviewed the applicant 20 years after the abuse and the future prognosis for the applicant.

Also as was pointed out by Mr George, compensation is to be awarded for mental and nervous shock, and therefore need not to be limited to compensation for post-traumatic stress disorder.  In the passage from Dr McGuire's report referred to above, it is clear that the mental or nervous injury suffered by the applicant includes post-traumatic stress disorder to a moderate degree, but also adjustment disorder and depressed mood.

Depressed mood could no doubt, to a significant extent, be consistent with or part of the symptomology of the post-traumatic stress disorder, but, that aside, there is no doubt that the injury suffered by the applicant extends beyond merely post-traumatic stress disorder.  For the reasons I have already referred to, I consider the disorder to be irrelevant in this consideration as it is tolerably clear that the applicant displayed symptoms of that disorder prior to the abuse.

When all these matters are taken into account, I accept the submissions made by Mr George to the effect that the appropriate allowance for this injury would be at the upper end of the severe level.  On balance I consider that an allowance of 30 per cent is appropriate.

...

For the reasons given, I order that the respondent pay the applicant the sum of $30,000 by way of compensation under the Criminal Offences Victims' Act 1995.