LMM v DPG[2010] QDC 59

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   By Originating Application filed on 29 October 2009 the Applicant applies for compensation under the Criminal Offence Victims Act 1995.  When this matter came on for hearing on 1 March 2010 the Respondent was represented. 

2. [2]
   Both the Applicant and the Respondent presented written submissions and made further submissions orally. The Applicant is rising 19 years of age.

Legislation

3. [3]
   Although repealed by the Victims of Crime Assistance Act 2009, the Criminal Offence Victims Act 1995 continues to be applicable to claims such as this by reason of the transitional provisions of the later Act; in particular s 154 and s 155.

4. [4]
   Under the Act s 24(2) permits a person against whom the personal offence is committed to apply to the court before which the person was convicted for an order that the convicted person pay compensation to the applicant for the injuries suffered by the applicant because of the offence. Under s 24(3) the court may then make a compensation order for an amount to be paid by the convicted person to the applicant because of the injury.

5. [5]
   In turn, a “personal offence” is defined to be an indictable offence committed against the person of someone: see s 21 of the Act. Section 20 of the Act then defines “injury” to be bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.

Personal offence

6. [6]
   There is no doubt that the offence in question in this case was an indictable offence committed against the person of the Applicant. As the Certificate of Indictment Detail states, the Respondent pleaded guilty to 11 counts of indecent treatment of a child under 16, with circumstances of aggravation, before the District Court.

Injury

7. [7]
   In this particular case the injury which has been diagnosed by Dr Barbara McGuire, psychiatrist, in her report of 20 October 2009, is post traumatic stress disorder (“PTSD”). Following, as I do, the decision in RMC v NAC [2009] QSC 149, since what has been diagnosed is a recognisable psychiatric illness or disorder, it falls within the meaning of “nervous shock” in the Act: at [38].

Judge’s remarks

8. [8]
   Compliant with the decision in Chong v Chong [2001] Qd R 301, it is necessary for the purposes of dealing with an application of this nature to proceed on the basis on which the offender was sentenced. 

9. [9]
   Therefore, paying due attention to the sentencing remarks of Trafford-Walker DCJ made 5 December 1997, the most relevant remark is that the Respondent was in charge of the child, that he had duties towards her, yet on the last of the counts on the indictment the most serious incident occurred where the Respondent removed the Applicant’s clothes while making contact with her private parts.

Interplay between s 20 and regulation 1A

10. [10]
    In the Criminal Offence Victims Regulation 1995 there is prescribed by regulation 1A a requirement, for the purposes of s 20 of the Act, that the totality of the adverse impacts of a sexual offence suffered by the person, to the extent to which the impacts are not otherwise an injury under s 20, are an “injury”.  The list of “adverse impacts” in regulation 1A(2) includes such aspects as: a sense of violation; a reduced self-worth or perception; increased fear or increased feelings of insecurity; adverse effect of the reactions of others; adverse impact on lawful sexual relations; adverse impact on feelings; and anything the court considers is an adverse impact of a sexual nature.  For completeness, regulation 1A(3) defines a “sexual offence” to mean a personal offence of a sexual nature.

11. [11]
    As recognised in the Court of Appeal in AT v FG [2004] QCA 295, following JI v AV [2001] QCA 510, adverse impacts which are an injury for the purposes of regulation 1A can only be so to the extent that they are “not” an injury under s 20 of the Act: at [17].  What that raises in this case is that when Dr McGuire made the diagnosis of PTSD she characterised it with reference to “nightmares, flashbacks, avoidant material, disassociative phenomena (and) low self esteem”.  During oral argument it was conceded on behalf of the Applicant that most, if not all, of the adverse impacts relied upon were ones covered by the s 20 diagnosis.

12. [12]
    This means that, although a few of those adverse impacts can be brought into account, most cannot.

Other factors

13. [13]
    As demanded by AY v AZ [2007] 2 Qd R 363, only those injuries to which the relevant offence has materially contributed will be compensable, with the consequence that, in deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded:  at 370 [22].  The judgment of Holmes JA went on to determine, where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision, such that the exercise may be one of discounting, or fixing on a lower percentage under compensation scale, to allow for the role of other factors, rather necessarily a strict process of apportionment: at 370 [23].

14. [14]
    It was urged on behalf of the Respondent that the Applicant had experienced problems as a result of parental rejection, physical abuse and neglect, as well as the result of the sexual abuse for which the respondent is responsible. While there is some truth in that contention arising from a close reading of the report from Dr McGuire, it is also important that Dr McGuire concluded that the offences committed “materially and significantly contributed” to the Applicant’s condition and that the Applicant would have suffered the level of post traumatic stress diagnosed for the Applicant if the only experience had been that of the offences. Lastly, it was concluded by Dr McGuire that it was not possible to separate the effects of the offences for which the offender was convicted from the Applicant’s other life experiences.

15. [15]
    While necessarily the report of an expert is there to assist the court to understand areas of expertise that it is not otherwise able to appropriately comprehend, even though there are other matters which happened in the Applicant’s life, such as neglect issues, there is no sound basis upon which this Court can depart in any significant way from the conclusions reached by Dr McGuire.

Contributing factors

16. [16]
    Section 25(7) of the Act requires account to be taken of everything relevant, including, for example, any behaviour of the Applicant that directly or indirectly contributed to the injury.

17. [17]
    Despite the sentencing judge remarking that the Applicant may have been “a little precocious”, the Respondent’s submissions, quite rightly in my opinion, studiously avoided any suggestion that any behaviour of the Applicant, who was a child at the relevant time, had contributed to the injuries sustained. That not only is proper, but would be totally in line with ordinary community expectations.

Compensation Table and Regulation

18. [18]
    Given that the only relevant “injury” under s 20 of the Act is the PTSD, it is necessary simply to look at those Items in Schedule 1 which deals with mental or nervous shock.

19. [19]
    The relevant Items are Item 32 and Item 33. It is clear that since Dr McGuire has opined that the PTSD is to a “severe degree”, the only relevant Item is Item 33. That contains a range of 20 per cent to 34 per cent.

20. [20]
    Section 22(4) of the Act states that the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.

21. [21]
    Since the legislation requires me to undertake a defined statutory exercise, I take the view that it is not appropriate to refer to what might be termed “comparable decisions”. Bearing in mind all the matters that I have mentioned, I assess the appropriate percentage under Item 33 of Schedule 1 as 28 per cent.

22. [22]
    With respect to regulation 1A, since by regulation 2A the scale is from 1 per cent to 100 per cent, given the limitations on those factors which qualify as adverse impacts, I determine that the appropriate percentage is 3 per cent.

23. [23]
    Adding both percentages together and noting that the relevant amount per per cent is 750.00 by force of regulation 2, the award is in the sum of $23,250.00.

Order

24. [24]
    I therefore order:

3. (1)
   That the Respondent pay to the Applicant, by way of compensation for injuries sustained as a result of the offences which led to the conviction of the respondent on 5 December 1997 upon indictment, the sum of $23,250.00.