PN v JBM[2010] QDC 540

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent JBM was convicted on 11 March 2004, after a trial, of three counts of permitting himself to be indecently dealt with and four counts of indecent treatment of a child under 12 under care, each count being in relation to the complainant PN represented in these proceedings by his litigation guardian, JM. The respondent was sentenced at the District Court at Beenleigh on 11 March 2004 by his Honour Judge Nase to a sentence of three years imprisonment, concurrent, in respect of each count.^[1]

Facts

2. [2]
   The complainant was, at the relevant time, the stepson of the respondent, who had the complainant in his care. The offences occurred during three incidents which occurred over a relatively short period of time, a week or two. The incidents involved acts of oral sex by the complainant on the respondent and by the respondent on the complainant, with the exception of Count 1, which appears to have been an incident in which the respondent’s penis was directed towards (but did not penetrate) the anus of the complainant.^[2] 

The Law

3. [3]
   This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009.  Pursuant to VOCAA s. 155(1), where a conviction has occurred before the commencement of the VOCAA, a person may apply to the court for orders for criminal compensation if s. 154(1)(a)(i) is satisfied.  In the present proceedings, the applicant had a right (prior to the commencement of VOCAA) to apply for compensation pursuant to COVA s. 24, and consequently, having brought proceedings in accordance with the time limits applicable in VOCAA s. 155(2), is entitled to an order pursuant to the repealed provisions of COVA.  The application was filed within the relevant time limit pursuant to COVA s. 40(1) i.e. before the end of the three years after the applicant became an adult.

4. [4]
   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

5. [5]
   Ms Fadden, who appears for the applicant, seeks compensation either pursuant to Item 32 (Mental or Nervous Shock (Moderate)) and “adverse impacts” pursuant to COVA s. 1A, or in the alternative compensation in “adverse impacts” only under COVA s. 1A.

6. [6]
   The difficulty for the applicant, frankly acknowledged by Ms Fadden, is that the report of Dr Barbara McGuire, psychiatrist concludes^[3] that the complainant “does exhibit psychiatric disorder (sic) the most prominent being attention deficit hyperactivity disorder [but] he doesn’t exhibit post traumatic stress disorder but has some symptoms of the condition, in particular nightmares, flashbacks and bad memories which come into his head.  [The complainant] has problems with anger management, chronically low self esteem, some intellectual difficulties, behavioural problems including inappropriate sexual behaviour and has in the past exhibited soiling and difficulties with anger management.  Some of these symptoms were present prior to the offences and it appears that [the complainant’s] mother has had parenting difficulties which are exemplified by her return to the perpetrator [i.e. the respondent] despite notification of the abuse and also her method of dealing with [the complainant’s] substance abuse.”  Doctor McGuire also notes that the complainant’s “attention deficit hyperactivity disorder is not attributable to the abuse.”  Doctor McGuire concludes by stating “I don’t believe that [the complainant] does exhibit post traumatic stress disorder and I consider that his symptoms attributable to the offence are exhibited to a moderate degree”^[4].

Meaning of Mental or Nervous Shock

7. [7]
   Differing views have been expressed both in single judge decisions of the Supreme Court and in Court of Appeal decisions. In R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320, Thomas JA stated:

“Clearly, the ordinary usage of the term [mental or nervous shock] has been to describe situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event.”^[5]  Thomas JA then concluded “to limit compensation to cases where a diagnosable mental disorder or psychiatric illness results would give the term “mental or nervous shock” two limited meanings.^[6]

8. [8]
   More recently, in RMC v NAC [2009] QSC 109, Byrne J expressly rejected the approach of Thomas JA, and stated^[7]:

“The meaning that Thomas JA attributed to ‘nervous shock’ in the Act is founded on a misapprehension about the reach of the phrase in civil claims.”

9. [9]
   As Ms Fadden submits, there is to date no definitive decision of the Court of Appeal on the issue, although the Thomas JA approach appears to have received approval in the decisions in Beardsley v Loogatha [2001] QCA 438 per Holmes J at [11], and in JI v AV [2001] QCA 510 per Atkinson J at [59].

10. [10]
    In the case before me, without needing to decide between the conflicting views of Thomas JA in Kazakoff and Byrne J in RMC v NAC, I consider the approach adopted by Rackemann DCJ in the decision of Wallace and Wallace v Graveur^[8] to provide an appropriate way to deal with this particular matter. 

11. [11]
    It is clear in these proceedings before me (as it was before Judge Rackemann) that adverse impacts not amounting to “mental or nervous shock” can be adequately compensated pursuant to COVA s. 1A.

12. [12]
    In my view the moderate sub-clinical symptoms of nightmares, flashbacks and bad memories, taken together with the applicant’s sense of violation, reduced self worth and increased fear or increased feelings of insecurity (worries about seeing his stepfather) can be appropriately compensated by an award of 15 per cent of the scheme maximum ($11,250). Accordingly I award that sum pursuant to COVA s. 1A.

Contribution

13. [13]
    I do not consider that the applicant has contributed in any way, directly or indirectly, to his own injuries^[9].

Order

14. [14]
    I order that the respondent JBM pay the applicant JM the sum of $11,250 on behalf of PN.