DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent PCD pleaded guilty (relevantly) in the Kingaroy District Court on 27 October 2008, to two counts of indecent dealing with the applicant RKD. The respondent also pleaded guilty at the same time to one count of rape and two counts of indecent dealing in respect of the applicant’s sister.

2. [2]
   The respondent was sentenced by Acting Judge Collins (relevantly) to imprisonment for a period of three years suspended after serving 15 months imprisonment with an operational period of five years in respect of each of the two counts relating to the applicant. The respondent was sentenced to concurrent sentences of five years for rape, and three years in respect of each of two further counts of indecent dealing in respect of the applicant’s sister.

Facts

3. [3]
   The applicant (who was the respondent’s stepdaughter) recalls the offences occurring at two different addresses in Mackay between the period December 1997 and January 2003, when she was aged 11 (in respect of the first offence) and 12 (in respect of the second offence). On each of these occasions, while the applicant was sleeping, the respondent came into her bedroom and touched her by placing his hand inside her pyjamas and running his hands on and around her vagina for about 10 minutes or so.^[1]

Injuries

4. [4]
   The applicant suffered mental or nervous shock, and adverse impacts, as a result of the offences committed by the respondent on her.

The law

5. [5]
   This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009.  The application in these proceedings was filed on 15 September 2009, and satisfies the transitional provisions of VOCAA s. 167.  In these circumstances, the application proceeds pursuant to the repealed provisions of COVA s. 24. 

6. [6]
   I refer to and adopt my exposition of the relevant application law under COVA as set out in paragraph [6] of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

7. [7]
   Ms Williams who appears for the applicant seeks compensation as follows:

(1)Item 33 – Mental or Nervous Shock (Severe) – 20%-34%

The applicant was examined by Dr Rebecca Ray, psychologist on 14 May 2009 and Dr Ray prepared a report also dated 14 May 2009.^[2]

8. [8]
   In addition (although not referred to in the body of Dr Rebecca Ray’s affidavit of 8 September 2009), a further supplementary report dated 8 September 2009 is attached to that affidavit. Dr Ray provided an addendum report dated 24 September 2010.^[3]A further report was provided by Ms Sandra Lundbergs, consulting psychologist dated 16 July 2010.^[4] 

9. [9]
   Dr Ray diagnoses the applicant as suffering from post traumatic stress disorder (PTSD), chronic (lasting longer than three months) but with delayed onset (beginning more than six months after the traumatic event occurred), with symptom severity rated as moderate to severe, and level of impairment functioning rated as severe.^[5]

10. [10]
    There are some significant difficulties in respect of the report from Dr Ray dated 14 May 2009. The applicant informed Dr Ray that between 1994 and 2002, she was “sexually abused on multiple occasions by her then stepfather” [the respondent]. Dr Ray was provided with a victim impact statement of the applicant dated 20 October 2008^[6]even though that document was not in fact tendered at the respondent’s sentence.  An examination of the sentencing submissions indicates that it was not tendered at the sentence because it contained information which was not relevant to the sentence proceedings, but certain sections of the victim impact statement were quoted to the sentencing judge by the prosecutor.^[7]

11. [11]
    In the applicant’s affidavit sworn 11 September 2009 she describes the respondent’s convictions in the District Court at Kingaroy as being for “inter alia for rape of myself”^[8]although, the applicant subsequently explained in an affidavit sworn 16 September 2010 that this was “technically incorrect because the respondent was in fact convicted and sentenced for ‘unlawful and indecent dealings’ as a child under 16 years”.  The applicant stated further that “in my mind I have always taken the assault as ‘rape’ myself despite the technical incorrectness”.^[9]

12. [12]
    The report of Dr Ray dated 14 May 2009 also notes that before the applicant’s mother married the respondent she (the mother) “abused drugs and alcohol and routinely took [the applicant] with her to parties where [the applicant] was exposed to drug use and also witnessed her mother being raped (when she was approximately 3 years of age). [The applicant] stated that her mother also was violent with her at times. After the marriage [the applicant] stated that her mother ceased the drug use but continued to abuse alcohol. [The applicant] reported that her mother was emotionally abusive towards her, and, at times, physically abusive.” The applicant also reported that she attempted to tell her mother about her fears and nightmares about someone being in her room and hurting her, but her mother dismissed those fears and didn’t believe her.^[10]

13. [13]
    Dr Ray, in her addendum report dated 24 September 2010,^[11] clarifies the range of dates over which the offences occurred (31 December 1997 and 1 January 2003), and also seeks to distinguish between the psychological injuries suffered by the applicant as a result of the sexual assaults committed on her, and those psychological effects relating to the impacts of events prior to the respondent marrying the applicant’s mother.  Dr Ray concludes that the pre-existing psychological maladjustment to the applicant’s present psychological dysfunction was 15%, with the sexual assaults committed by the respondent causing the remaining 85% of psychological dysfunction. 

14. [14]
    The report of Sandra Lundbergs, dated 16 July 2010, notes that the applicant was “extremely severely anxious, stressed and depressed” and presented with history and symptoms consistent with the diagnosis of post traumatic stress disorder (PTSD). Ms Lundbergs undertook six sessions of treatment focused on cognitive and behavioural strategies, and mindfulness/relaxation training to assist the applicant to stabilise her mood and bingeing, but the applicant then discontinued attendance. Ms Lundbergs considered that the applicant had made only limited progress and would likely require counselling on and off for many years.^[12]

15. [15]
    The task of this court then is to seek to assess the degree of mental or nervous shock suffered by the applicant as a result of the offences (and only those offences) for which the respondent was convicted, having regard to the other factors which have contributed to the applicant’s injury.^[13]

16. [16]
    It is submitted on behalf of the applicant that the appropriate starting point, given the moderate to severe PTSD suffered by the applicant, is to nominally assess the applicant’s injury at 25 percent of the scheme maximum, and then reduce that to 85% in the light of Dr Rebecca Ray’s addendum report which addresses the relative contributions of the pre-existing psychological issues and the sexual offending committed by the respondent.

17. [17]
    I accept these submissions, and accordingly I award the applicant 21% of the scheme maximum ($15, 750) pursuant to item 33.

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

18. [18]
    Dr Ray notes that the adverse impacts suffered by the applicant, distinct and separate from those relevant to the mental or nervous shock suffered by the applicant, include a sense of personal violation, leading to a very limited capacity for emotional and physical intimacy in relationships with males; a reduced self worth and perception with low self esteem and negative self concept; increased fear and increased feelings of insecurity (fearfulness and suspiciousness of males in general) and a fearfulness for the safety of children impacting on the applicant’s decision on whether or not to have children; adverse impact on sexual relations (the applicant has never been able to have sexual intercourse); and an adverse impact on feelings (mood instability suffered by the applicant since the assaults).

19. [19]
    It is submitted on behalf of the applicant that in these circumstances an award should be made for adverse impacts at 25% of the scheme maximum. In my view, taking into account the nature and the extent of the adverse impacts, it would be appropriate to award 20% of the scheme maximum ($15,000) in respect of the adverse impacts suffered by the applicant.

Contribution

20. [20]
    I do not consider that the applicant has contributed in any way, either directly or indirectly, to her own injuries.^[14]

Order

21. [21]
    I order that the respondent PCD pay the applicant RKD the sum of $30,750.