DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995, the applicant having suffered an injury^[1] as a result of a personal offence^[2] and Regulation 1A of the Criminal Offence Victims Regulations 1995 for the adverse impacts of a sexual offence.

2. [2]
   The Criminal Offence Victims Act 1995 (‘COVA’) was repealed by the Victims of Crime Assistance Act 2009 (‘VCAA’) which commenced on 1 December 2009. The respondent was convicted on three counts of indecent treatment of a child under sixteen with, in each case, a circumstance of aggravation, namely that the child at the time was under his care. He was sentenced on 13 March 2008 having been convicted on 25 January 2008. The Originating Application was filed on 30 November 2009 prior to the commencement of the VCAA. Under the repealed legislation (COVA) the time limit for filing the Originating Application would have expired on 13 March 2011.

3. [3]
   Division 6 of VCAA deals with Repealed and Transitional Provisions. Section 155(1) of VCAA provides that where a conviction happens before commencement, a person may apply to the court for orders for criminal injuries compensation if section 154(1)(a)(i) applies to the person. Had the VCAA not commenced, the applicant could have applied to the court for compensation pursuant to section 24 of COVA.

4. [4]
   Section 155(2) and (3) of VCAA provides:

“(2)The application must be made before the earlier of the following –

1. (a)
   the expiry of the period within which the person could have, if this chapter had not commenced, applied for the order mentioned in section 154(1)(a);

2. (b)
   the end of two months after the commencement.

(3)The court to which the application is made must hear and decide the application under the relevant provision.

Section 167 of Chapter 6, of VCAA provides:

“167 Existing application for compensation order of court

3. (1)
   This section applies if –

1. (a)
   a person has applied to a court for an order requiring the payment of compensation under either of the following (each the repealed provision)-

1. (i)
   section 24 of the repealed Act (including an application made under section 42 of that Act);

2. (ii)
   section 663B of the repealed Criminal Code chapter; and

2. (b)
   the application has not been finally decided before the commencement.

3. (2)
   The court must hear, or continue to hear, and decide the application under the repealed provision.

3. (3)
   For subsection (2), the repealed provision, and any other provisions of the repealed legislation that are necessary or convenient to be used in relation to the application, continue to apply as if this chapter had not commenced.

3. (4)
   Without limiting subsection (3), section 28(1) of the repealed Act continues to apply in relation to the making of an order under section 24 of the repealed Act.

5. [5]
   In this case, I accept that the Originating Application was filed prior to the commencement of the VCAA and that this Court can hear and determine the matter under the repealed legislation (COVA).

6. [6]
   The three offences committed against the applicant occurred on dates unknown between 1 January 1998 and 31 December 2000. Accordingly, the application for criminal injuries compensation is properly commenced under the COVA. Section 40(1) of the COVA provides that an application to a court for a compensation order against a convicted person must be made:

“(a)within three years after the end of the convicted person’s trial; or

(b)if the applicant is a child at the time of the trial – before the end of three years after the child becomes an adult; or

(c)with the court’s order under section 41 – at any other time.”

7. [7]
   Schedule 3 to the COVA provides a Dictionary of Terms. “Trial” is defined as including a proceeding in which a person is sentenced. The time limit for the filing of this application is therefore three years from the date of sentence, which is 13 March 2011. The application having been filed on 30 November 2009, has been filed within time under the COVA.

8. [8]
   Rule 389 of the Uniform Civil Procedure Rules 1999 states:

“(1) If no step has been taken in a proceeding for one year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.

(2)If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

(3)For this rule, an application in which no order has been made is not taken to be a step.”

The application was filed on 30 November 2009 and service was affected upon the respondent on 13 August 2011. The applicant proceeded with her application in this Court on 24 October 2011. By letter from Legal Aid Queensland to the respondent dated 9 August 2011, which was served personally upon the respondent on 13 August 2011, the respondent was provided with notice that the applicant would be proceeding with her Originating Application claiming criminal compensation on 24 October 2011 at the District Court at Southport. I accept that the respondent has been provided with one month’s notice of the applicant’s intention to proceed with her application in accordance with the rules.

9. [9]
   The respondent pleaded guilty on 25 January 2008 at the District Court at Brisbane to the following counts:

• Indecent dealing with a child under sixteen under care on a date unknown between 1 January 1998 and 31 December 1998.
• Indecent dealing with a child under sixteen under care on a date unknown between 1 January 1999 and 31 December 1999.
• Indecent dealing with a child under sixteen under care on a date unknown between 1 January 1998 and 31 December 2000.

The respondent was sentenced on 13 March 2008 on each count to imprisonment for two and a half years. The sentences were ordered to be served concurrently and each was ordered to be suspended after a period of 10 months with an operative period of three years. Convictions were recorded.

10. [10]
    The applicant’s date of birth is 23 September 1986. At the time of the offences, she was aged approximately 12 to 14 years. She is now aged 25 years. The respondent was the applicant’s stepfather. The respondent met the applicant’s mother in September 1993 and lived in the same house with the applicant for approximately six months before he married the applicant’s mother on 1 July 1995. The respondent continued to live with the applicant throughout the period of the offending. The respondent also offended against the applicant’s sister, HJR.^[3] By the time the respondent commenced offending against the applicant, her sister, HJR, had moved out of home.

11. [11]
    The first particularised incident occurred while the applicant was in the bath. The respondent entered the room and put his hand in the water between the applicant’s legs touching her vagina and “opening her with his fingers”^[4] for a brief time. The remaining two counts occurred while the applicant was in a bedroom that was shared by her mother and the respondent. The respondent had the applicant remove her clothing and had her lie on top of him. He licked her nipple area and digitally penetrated her vagina on both occasions.

12. [12]
    In her victim impact statement dated 10 March 2008, the applicant stated as follows:

“As a result of this crime my life has been affected in a lot of different ways.

I left home at an early age as I wasn’t comfortable staying in the same house as him. I always felt like my mother was choosing him over me and it never felt like a home environment for me.

This meant that I had to grow up a lot quicker and learn to live on my own. I moved out when I was 16 and stayed with friends. This made life difficult as I had to adjust to supporting myself and being on my own.

I also ended up in an abusive relationship and also had a child from this relationship. I felt that I could not do any better and this was all I deserved, and it took me a long time to get out of this volatile relationship.

I didn’t do very well in school and because of this I struggled to finish. I was to [sic] far behind in my school work due to everything that was going on in my life at the time. I will now have to attempt to go back and do some study so that I can begin working and continuing with my life.

I have been attending counselling for approximately the last 2 years. It has been a trialing [sic] time and I found that I really needed the counselling sessions to help me get through all the emotional affects of this incident.

Due to the incidents I have had some problems being intimate sexually. I feel uncomfortable and ill when certain things are happening. This has been very difficult for me and is something that I still have to overcome.

I have had a very strained relationship with my mother. For a long time it felt like she was choosing him over me and that this incident wasn’t a big deal, she tried to sweep it under the carpet for a very long time. This has made me have insecurity problems and rejection problems.”

13. [13]
    In an affidavit sworn by the applicant on 27 May 2011 and filed 8 August 2011, the applicant states that she felt confused to begin with when the offences occurred and then felt ashamed. She experienced a sense of violation as a result of the offences but, when first questioned as to whether she had been abused by the respondent, she denied it. She was scared and embarrassed about what had occurred. The respondent told the applicant not to tell anyone about the abuse and that no one would believe her anyway. The applicant has low self-esteem and feels guilt and shame as a result of the offences. She felt uncomfortable and awkward in relation to both her boyfriend and her mother after the offences occurred, “because it felt like I was cheating on my mother and then boyfriend”.

14. [14]
    When the applicant first told her mother about the abuse, her mother believed her initially, but was angry with the applicant and stayed with the respondent. The applicant was very upset with her mother for doing this and felt rejected and unsupported. She left home about a month after her disclosure to live with her sister, HJR, for approximately six months. The applicant still fails to understand how her mother stayed with the respondent and supported him after the abuse came out in the open.

15. [15]
    The applicant believes that she would not have left home at an early age if the offences had not occurred. She was forced to grow up quickly and ended up living with friends. She found it difficult to adjust to supporting herself and to living on her own. The applicant states that she self-harmed when a teenager, but has not done so since moving out and living with her sister, HJR. She states that she has also felt suicidal in the past, but has not felt this way since her teenage years.

16. [16]
    The applicant states that she has very few friends and finds it hard to trust people. She does not sleep well and wakes frequently during the night. She has suffered from nightmares as a result of the offences, but these have decreased in frequency over time. However, if the applicant sees the respondent in the local area, she may well experience a nightmare that night. She also has flashbacks in relation to the offences should she see the respondent at the local shopping centre. The applicant states that when she does see the respondent, she feels both sad and angry.

17. [17]
    The applicant fears that her parenting has been impaired and that she will become an abuser and turn out just like the respondent. She considers herself to be a bad mother. She sometimes experiences flashbacks during sexual activity. The applicant states that she has had some problems being intimate with partners. She feels uncomfortable at times when engaging in certain sexual activities. She states that she has experienced increased fear and insecurity as a result of the offences. She keeps all doors and windows locked at her home and describes herself as being “jumpy at times”.

18. [18]
    According to the applicant, she did not do well at school and believes that the abuse affected her concentration. She failed Year 10 and was told she would be better off leaving school. The applicant already had learning difficulties prior to the offences, but found learning that much more difficult after the offences had occurred. When she left school, the applicant started a course at TAFE and got a job at McDonald’s. She attempted to complete Year 10 at TAFE but did not complete the course because she could not afford the costs. She now states that she has limited employment opportunities because of her lack of education. When she was younger, the applicant thought she would become a hairdresser or a nurse. She is unable to see herself doing any study at the present time because it would be too hard juggling study with raising her child.

19. [19]
    The applicant accepts that her choice of partner has been very poor in the past. She states that she ended up in an abusive relationship and had a child from the relationship because she felt she could not do better and did not deserve happiness. The applicant left this volatile relationship after approximately three years. At one stage, the child’s father took the child without the applicant’s consent and she did not see her child for some six months. She instituted Family Court proceedings and was granted custody of her child in 2009.

20. [20]
    The applicant states that she suffers from depression for which she takes 300mg Efexor daily.^[5] She also takes Dexamphetamine for Attention Deficit Hyper-activity Disorder. She complains of having limited energy and feeling generally tired. The applicant sees a psychiatrist every six to eight weeks who monitors her medication. She intends to continue seeing the psychiatrist for a further six months. She has also received counselling regularly in 2010 and at the beginning of 2011. This was discontinued in March 2011 because the applicant was unable to afford the $25.00 cost per session.

21. [21]
    On 3 December 2010, the applicant attended upon Dr Barbara McGuire, psychiatrist, and explained to Dr McGuire how the incidents have affected her. She has read the report that Dr McGuire provided to her solicitors for the purposes of this application. The applicant agrees that the effects on her life of the incidents are correctly detailed in that report and are continuing.

22. [22]
    In her report of 3 December 2010, Dr McGuire has recorded that the applicant found it very difficult to come for the appointment and indicated that she does not trust anyone. The applicant represses a lot and her brain shuts down when she tries to talk about the incidents. The applicant forced herself to come to Dr McGuire for the appointment because she anticipated that it might help her recovery.

23. [23]
    Dr McGuire notes that the applicant does not sleep well and wakes frequently during the night and experiences nightmares. She also experiences flashbacks particularly when she sees the respondent at the shopping centre. The applicant has had problems with relationships and her ex-partner, the father of her son, was verbally and physically abusive of her. They were together for two or three years and separated in 2006. The applicant followed this with another relationship which lasted eight months. This was described as having been better than the first relationship, but nevertheless, she ended it by leaving. The applicant stated to Dr McGuire that her ex-partner, the father of her son, had removed the child from her and she did not see the child for six months. At that stage, she ended the relationship with the second partner, went to the Family Court and obtained custody of her son. This occurred in 2009.

24. [24]
    The applicant denied any aversion to sex but did confirm that she experience flashbacks during sexual activity. The applicant stated to Dr McGuire that she was hyper-vigilant but that counselling has reduced this symptom somewhat. She experiences security fears, locking everything at home. She has an exaggerated startle reflex. Although the applicant has had counselling once a week for more than a year, she ceased it because she thought she was doing well. Counselling resumed some six months prior to the date of Dr McGuire’s report.

25. [25]
    Dr McGuire notes that the applicant has a considerable fear that she herself will become an abuser like her stepfather, and sees this as her biggest problem. She does not believe this fear affects her parenting. Dr McGuire notes that the applicant’s capacity for choosing partners is impaired. The applicant states that she tends to go with “guys who are not right”. She stated that she had had sex with her first boyfriend at the age of 16, at which stage she was drinking heavily and tended to get drunk and come home with inappropriate people. The applicant now denies having a problem with alcohol and states that she rarely goes out. At this stage, the applicant indicated that she was not self-harming, but as a teenager had been suicidal and had cut herself on her arms.

26. [26]
    At the time of Dr McGuire’s report, the applicant was not seeing a psychiatrist but had been prescribed by her general practitioner and was taking Efexor 225mg. She wanted to go back onto Ritalin which had been prescribed for her when diagnosed with Attention Deficit Hyper-activity Disorder in primary school. The applicant told Dr McGuire that she was feeling depressed, that she has no energy, and that her general practitioner had arranged a referral to a psychiatrist.

27. [27]
    Dr McGuire states that the applicant’s psychiatric diagnosis is Post-Traumatic Stress Disorder, characterised by nightmares, flashbacks, hyper-vigilance, avoidant behaviour and dissociative phenomena. This was assessed by Dr McGuire at a moderate degree. The applicant exhibited some borderline traits, namely self-harming, as an adolescent, but these have resolved.

28. [28]
    In relation to adverse impacts, Dr McGuire confirms that the applicant did experience a sense of violation; felt uncomfortable and awkward in relation to boyfriends and also to her mother. She had low self-esteem, felt ashamed and guilty, and experienced a reduction in her self-worth. The applicant fears that her parenting has been impaired, and in particular she fears becoming an abuser. She experiences increased fear and insecurity. She was distressed that her mother supported the respondent. She experiences flashbacks sometimes during sexual activities. This is an indication of the adverse impact the incidents have had on lawful sexual relations.

29. [29]
    In general, Dr McGuire reports that at the time of the offences, the applicant experienced confusion initially and then shame. The immediate after effects of the offences included the applicant experiencing ambivalence. She enjoyed the sexual activity, but felt ashamed of that. Dr McGuire notes that the impact of the incidents upon the applicant’s family and social relationships include the fact that she now has very few friends. She is now depressed but is said to be independent and close to her mother and sister. The applicant hopes that she will get better, but cannot see it happening at the moment, and remains depressed.

30. [30]
    Because the prosecution discontinued charges of maintaining a sexual relationship and sodomy, and also because there were other reported incidents of sexual abuse involving the applicant for which the respondent was not convicted, a second, brief, report was obtained from Dr McGuire. This report is dated 24 May 2011, and records Dr McGuire’s opinion that the three offences for which the respondent was convicted substantially and materially contributed to the diagnosis of Post-Traumatic Stress Disorder.

31. [31]
    I accept the evidence of the applicant and Dr McGuire. I note the absence of any claim for physical injuries. I am satisfied that the applicant has suffered Post-Traumatic Stress Disorder to a moderate degree as a result of the offences committed upon her by the respondent. I am further satisfied that the applicant has suffered from adverse impacts of a sexual offence. Because the offences in respect of which the respondent was convicted substantially and materially contributed to the applicant’s condition of Post-Traumatic Stress Disorder, there should be no reduction in compensation on the grounds of causation with respect to other acts of sexual abuse for which there was no conviction.^[6]

32. [32]
    In relation to the assessment of criminal compensation relating to mental or nervous shock, the relevant Item in Schedule 1 (Compensation Table) of the COVA is Item 32 which relates to mental or nervous shock of moderate degree. This Item permits an assessment at between 10% to 20% of the Scheme maximum which remains at $75,000.00. Having regard to the contents of Dr McGuire’s reports and to the evidence of the applicant herself, I am satisfied that an award at the upper end of the range, that is at 20% of the Scheme maximum, is appropriate in this case. This yields an amount of $15,000.00.

33. [33]
    With respect to the assessment in relation to the adverse impacts of the offences, it is necessary to refer to Regulation 1A of the Criminal Offence Victims Regulations 1995. The Court is required to take into account the totality of the adverse impacts of a sexual offence upon the applicant. Under Regulation 2A the prescribed amount that can be awarded when taking into account the effect of adverse impacts is an amount up to 100% of the Scheme maximum of $75,000.00. In this case, there is clear evidence relating to lost or reduced physical capacity, adverse effect of the reaction of others, guilt, adverse impact on relationships, adverse impact of leaving home at an early age, adverse impact on friendships, and adverse impact on education and employment. Taking into account these adverse impacts and the totality of the impact of the sexual offences upon the applicant, I am of the view that an award of 30% of the Scheme maximum would be appropriate. This yields a further sum of $22,500.00.

34. [34]
    The total amount assessed by way of criminal compensation in this matter is therefore $37,500.00. I am satisfied that no conduct on the part of the applicant caused or contributed to her injuries.

35. [35]
    I order that the respondent, KWA, pay criminal compensation to the applicant, HPM, in the amount of $37,500.00.