MCT v JSM[2011] QDC 118

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, MCT, seeks compensation in respect of injuries suffered by her arising out of offences committed against her by the respondent JSM between 1 July 1996 and 1 March 1998 at Waterford West, Queensland.  The respondent pleaded guilty on 22 July 2008, and was sentenced on 11 November 2008, to three counts of indecent treatment of a child under 16, and one count of indecent treatment of a child under 16 under care.  The complainant in respect of all counts was the applicant.  In respect of count 1, the respondent was sentenced to six months imprisonment and three years probation; in respect of counts 2-4, the respondent was sentenced to 18 months imprisonment (concurrent) suspended after serving six months imprisonment, with an operational period of three years.^[1]

Facts

2. [2]
   The applicant was born in July 1984 and went to live with her father in July 1996 at a house in Waterford West, Queensland where the respondent was her father’s boarder.

3. [3]
   Count 1 (Indecent treatment of a child under 16) – 1 July 1996 – 1 March 1998

“In the early afternoon, the [respondent] was standing in the kitchen with the [applicant].  The [respondent] was standing behind her and began rubbing her chest with one of his hands.  The [respondent] then put the ice cubes down her shirt and rubbed the ice into her breast through her top.”

4. [4]
   Count 2 (Indecent treatment of a child under 16) – 1 July 1996 – March 1998

“One Saturday morning, the [respondent] was downstairs in the lounge-room, sitting on the cream ribbed lounge.  The [applicant] sat on the couch next to him and he laid her on her back.  He then lay on top of her.  He placed his lower body between her legs and began to thrust his penis into the area of her vagina.  She remembers what felt like his hard penis being rubbed against her vagina area.  They both remained fully clothed.

The [respondent] was interrupted by a knock at the front door and it was a man and his son who had arrived to view a green Holden Torana that the [respondent] was selling.  The [applicant] remembers that the [respondent] was trying to cover his genital area with both of his hands as he opened the door because he had an erection.”

5. [5]
   Count 3 (Indecent treatment of a child under 16) – 1 July 1996 – March 1998

“The [respondent] and the [applicant] had a conversation whereby they discussed the [respondent’s] son, SM who lived in Tasmania.  The [applicant] expressed a desire for SM to come and live with the [respondent].  The [respondent] then said words to the effect “things are different in Tasmania and SM is a lot more worldly and he knows a lot more about sex.  If you want SM to like you then you will need to know what to do.”

After this conversation the [applicant] says that she wanted to borrow something that belonged to SM and that she asked the [respondent] if she could borrow something.  The [respondent] said something similar to “I am sure I have something but you’ll have to try something new”.  The [applicant] agreed and [the respondent] let her into his bedroom and sat her on his bed.  The [respondent] then pulled his shorts down to his knees and his penis was erect.  He then put his penis into the [applicant’s] mouth.  The [applicant] says his penis was in her mouth for a short time, and then she stopped and said to him “Is that OK?”  The [applicant] says that the [respondent] said words to the effect of “Yeh it is alright, but you should try again.”

The [respondent] then put his penis back into the [applicant’s] mouth and stopped after a time.  The [applicant] then looked up at the [respondent] who said “That will do.”  The [respondent] did not ejaculate.

The [respondent] then went to a nearby cupboard and got a grey tracksuit jumper out and gave it to the [applicant].  She noticed that it was very small and had the name “TM” written on the white tag in black nikko.  TM is the second son of the [respondent], and younger than his son SM.  The [applicant] said to the [respondent] “but this is TM’s” and the [respondent] shrugged his shoulders and said “oh well”.”

6. [6]
   Count 4 (Indecent treatment of a child under 16 under care) – 1 July 1996 – 1998

“It was usual practice for the [applicant] to be driven to school by her father in the morning and picked up by him in the afternoon.  The [applicant] remembers that on two occasions, the [respondent] drove her to school.

On one of these occasions, the [applicant] says that the [respondent] kept trying to put his penis into her vagina and that he lifted her legs on to the rail, of her bed and that he told her it would not work with her legs down.

The [applicant] says that it hurt too much and that she asked him to stop.  She said that he stopped and that she left his room and went downstairs to the bathroom … where she was bleeding from the “vagina area”.  The [applicant] says that she told the [respondent] that she was bleeding and he asked her if she’d like him to drive her to the shop to get some tampons.  The [applicant] told him that it was not that sort of bleeding and that she knew it was not her period because she’d previously had periods for quite some time.

The [respondent] then drove the [applicant] to the school and parked at the front gates where he kissed her goodbye and she then went to school.”^[2]

Injuries

7. [7]
   The applicant suffered bleeding from the vagina in respect of count 4. The applicant suffered mental or nervous shock, and adverse impacts, in respect of all counts.

The law

8. [8]
   The application in these proceedings was filed on 18 November 2009, prior to the repeal of the Criminal Offence Victims Act 1995 (COVA) on 1 December 2009.  The applicant’s right to proceed with the application under the provisions of the COVA is preserved pursuant to s 167(2) of the Victims of Crime Assistance Act 2009, which commenced on 1 December 2009.

9. [9]
   I refer to and adopt my exposition of the relevant law in respect of COVA as set out in JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

10. [10]
    Ms Christopherson, for the applicant, seeks compensation as follows:

1. (1)
    Item 1 – bruising/laceration etc. (minor) 1 % – 3%

Ms Christopherson submits that an award should be made at 2% of the scheme maximum in respect of the bleeding that the applicant suffered from her vagina as a result of the respondent’s actions relating to count 4.  The applicant in her affidavit recalls that the respondent “kept trying to put his penis into [her] vagina but it hurt so [she] put [her] legs down.”  The applicant goes on to state that “after the respondent stopped and she was in pain, she went to the toilet and she recalls that [she] was bleeding from [her] vagina area.”^[3]

I consider this to be an appropriate submission and accordingly I award 2% of the scheme maximum ($1500) pursuant to item 1.

2. (2)
    Item 32 – mental or nervous shock (moderate) – 10%-20%

The applicant was examined by Dr Barbara McGuire, psychiatrist, on 8 February 2010.  Dr McGuire’s report dated 12 February 2010^[4]concludes that the applicant was exhibiting post traumatic stress disorder (PTSD) “by her displaying nightmares, flashbacks, sleep disturbance, avoidant behaviour, disassociation, hyper vigilance [and] exaggerated startle reflex … to a moderate degree.”  Dr McGuire notes that the marital break-up of the applicant’s parents did cause distress, but Dr McGuire considers that the sexual abuse made “a substantial material contribution” to the applicant’s symptoms as at the date of examination.^[5]Dr McGuire’s view as to the psychological effect of the sexual abuse suffered by the applicant as a result of the respondent’s actions is confirmed by the applicant’s treating psychologist, Ms Korrine Pagura, who treated the applicant between December 2004 and 13 July 2009. Ms Pagura describes “PTSD related symptoms” suffered by the applicant, at a moderate level, requiring some 20 sessions of individual counselling and 10 sessions of couple counselling (the applicant was at the time in a relationship). Ms Pagura estimates the cost of this further counselling at $6,180.^[6] 

The submission made by Ms Christopherson is that an award should be made at the top of the item 32 scale, namely 20% of the scheme maximum ($15,000).  In my view, an award at that level adequately recognises the PTSD diagnosed by Dr McGuire and confirmed by psychologist Ms Pagura.  Accordingly I award 20% of the scheme maximum ($15,000) pursuant to item 32.

3. (3)
    Criminal Offence Victims Regulation (COVR) s. 1A – Adverse Impacts

Dr McGuire’s supplementary report dated 27 October 2010^[7] identifies a series of adverse impacts, most of which are a pre-requisite to, or part of, a diagnosis of PTSD.

11. [11]
    Dr McGuire identifies the following matters as “adverse impacts” which do not form of the indicia of PTSD, namely:-

COVR s. 1A(2)(f) lost or reduced physical capacity (including the capacity to have children) whether temporary or permanent

Dr McGuire notes that the applicant has not made a firm decision at this stage whether or she’ll have children but fears that she will not be a suitable mother because of mental incapacity and anxiety.  The applicant has stopped studying at university because of the symptoms of the abuse, the applicant’s capacity for employment has been impaired, and the applicant has turned down positions as a result of lack of trust or anxiety.^[8]

COVR s. 1A(2)(h) – adverse effect of the reaction of others

The applicant reports that when she first told her father, he was hurt it had occurred in his home and she hadn’t told him earlier; their relationship was strained throughout the court proceedings but has improved since.^[9]

COVR s. 1A(2)(j) – adverse impact on feelings

The applicant’s major problem is fear – the applicant feels that this leaves her to deal ineffectually with stress at work in particular where she tends to become fearful if faced with an anxiety provoking situation.^[10]

Ms Christopherson submits that in the circumstances, an award should be made 30% of the scheme maximum for the “adverse impacts” of the sexual abuse suffered by the applicant.  Although it is difficult to arrive at an appropriate figure for such adverse impacts, it is clear that there has been a significant affect in various aspects of the applicant’s life as identified above.  In these circumstances, I consider 25% of the scheme maximum ($18,750) an appropriate award pursuant to COVR s. 1A.

Contribution

12. [12]
    I do not consider that the applicant has contributed in any way, direct or indirect to her own injuries.^[11]

Order

13. [13]
    I order that the respondent JSM pay the applicant MCT the sum of $35,250.                        .