DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, CDC, pleaded guilty on 16 June 2008 at the Beenleigh District Court to two counts of maintaining a sexual relationship.  Count 1 involved a relationship with the complainant SEB (on whose behalf as litigation guardian Ms AE brings these proceedings) and Count 2 involved the applicant HSD.

2. [2]
   In respect of each count, the respondent was sentenced to nine years’ imprisonment, concurrent, without a parole eligibility date being set.^[1]

Facts

3. [3]
   The respondent, who was a neighbour of the applicant HSD and the complainant SEB for much of the period between October 1999 and June 2007, abused a “grandfather-type” relationship to commit sex offences against each of the complainants, who were then children.

4. [4]
   In respect of the applicant HSD, the respondent put his fingers inside her vagina, rubbed her vagina, and on occasions put his penis in her vagina (although he was functionally impotent). This occurred over a timeframe between 11 October 1999 and 13 October 2003,^[2]when HSD was aged between nine and 12 years.

5. [5]
   In respect of the complainant SEB, the relationship of a sexual nature between the respondent and SEB effectively commenced at the point at which, or shortly after, the relationship with the applicant HSD had stopped at her insistence, once HSD had started menstruating. The ongoing sexual offence (maintaining a sexual relationship) committed by the respondent against the complainant SEB occurred between 11 November 2004 and 20 June 2007, when she was aged between nine and 11 years.  This offence involved the respondent placing his finger in her vagina and his penis partly in her vagina some 20 times (in respect of each action).^[3]

6. [6]
   The offences against HSD and SEB each involved a degree of grooming, and escalation from touching and caressing to penetrative sex. The procedure followed by the respondent also included rewarding the children with gifts and money as part of the process.

7. [7]
   Each of the applicant HSD and the complainant SEB, prior to the abuse, had bright promising futures, were “A” students, clever, articulate, and were educationally gifted. Each suffered from extreme social, emotional, and physical problems as a result of the sexual offences committed against each of them, and each subsequently required extensive therapy and medication for depression.^[4]

Injuries

8. [8]
   Each of HSD and SEB has suffered mental or nervous shock, and adverse impacts, as a result of the offences committed against them.

The law

9. [9]
   The application by HSD was filed on 25 January 2010. The application by Ms AE on behalf of SEB was filed on 27 January 2010.  The filing dates of each of the applications was subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009.  However, each application is compliant with the relevant transitional provisions of VOCAA ss 154 and 155, and has been filed in accordance with the relevant timeframes pursuant to COVA s 40(1).

10. [10]
    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

Applicant HSD

11. [11]
    Mr Neilsen, for the applicant HSD, seeks compensation as follows:

(1) Item 33 – mental or nervous shock (severe) – 20%-34%

 The applicant HSD was diagnosed by Ms Jacqueline Yoxall, psychologist, as suffering “chronic post traumatic stress disorder, and major depressive disorder” as a result of the offending by the respondent.  In addition, Ms Yoxall considers that the respondent’s offences have been a significant factor in HSD developing borderline personality disorder.^[5]

 Mr Neilsen submits that an award of 30% should be made pursuant to Item 33, and further, that there should be no reduction despite the fact that HSD was the subject of sexual abuse by another perpetrator when aged 7.^[6]

 In respect of HSD’s prior experience of childhood sexual abuse by another perpetrator, Ms Yoxall notes that HSD “does not present as attempting to attribute all her current life stressors and difficulties to [the respondent] and acknowledges that the other perpetrator also caused significant psychological damage to her.”  Ms Yoxall goes on to note that in her opinion “it is reasonable to state that if not for the crimes committed on her by [the respondent], HSD would not have experienced the noted psychopathology and would not live with the current level of psychological impairment that she does.”  In that respect, Ms Yoxall considers that the level of nervous shock suffered by the applicant as a result of the sexual abuse committed by the respondent was “severe”.^[7]

12. [12]
    Mr Entriken, for the respondent, submits that, in addition to the prior experience of childhood sexual abuse suffered by HSD at the hands of another perpetrator, there were a range of non-sexual stressors acting on HSD.  These are identified by Mr Entriken from Ms Yoxall’s report as follows:

• HSD’s father being alcohol-dependent prior to the respondent’s offending.^[8]

• HSD’s mother suffering from severe depression prior to the respondent’s offending.^[9]

• HSD’s attention deficit hyperactivity disorder, diagnosed when she commenced school prior to the respondent’s offending.^[10]

• HSD’s physical illnesses including Type 1 diabetes (diagnosed at 11 years of age), asthma and weight problems.^[11]

• HSD’s parents separating when she was four years old prior to the respondent’s offending.^[12]

• HSD’s strained relationship with her mother and various stepfathers, exacerbated by a chaotic home crowded with siblings and foster children.^[13]

• HSD’s family’s financial struggles.^[14]

• The abuse of HSD’s brother Andrew by another perpetrator when the applicant seven years of age.^[15]

• Mr Entriken also notes other stressors including;

• HSD blaming her mother for the mother’s failure to recognise that the respondent was molesting her.^[16]

• HSD’s guilt and turmoil at her younger sister blaming her for failing to protect her and for not disclosing the sexual abuse by the respondent.^[17]

• HSD’s tumultuous relationship with her current partner who is a 41-year old sex offender.^[18]

13. [13]
    In SAY v AZ; ex parte Attorney General [2006] QCA 462, Holmes J stated:

“[22] The court must have regard to the various limitations and procedural steps in [COVA] s 25 in arriving at the amount of a compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable. …  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.

[23] 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.  Often a broadbrush approach of the kind adopted by Thomas JA in Sanderson v Kajewski [2000] QSC 270 will be necessary.  The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.  In that exercise, it is legitimate to consider the nature of the other contributing factors.”^[19]

14. [14]
    Mr Entriken submits that the assessment for mental or nervous shock should proceed under Item 32 (mental or nervous shock (moderate)), with an assessment at 18%.

15. [15]
    In my view, it is appropriate (contrary to Mr Neilsen’s submissions) that a discount (as provided for in SAY v AZ; ex parte Attorney General) should be applied, but such a discount, in the context of the catastrophic effect of the respondent’s sexual offending, should be relatively modest.

16. [16]
    Accordingly, although I would otherwise have ordered 30% of the scheme maximum, after applying a “broad brush” discount, I award 25% of the scheme maximum ($18,750) pursuant to Item 33.

(2) Criminal Offence Victims Regulation (COVR) s .1A – adverse impacts

17. [17]
    HSD is entitled to compensation for the adverse impacts of the sexual offences committed against her. Such adverse impacts are only compensable to the extent that they are not part of the assessment of a diagnosable psychiatric disorder.^[20]

18. [18]
    Ms Yoxall identifies the applicant as suffering from the following adverse impacts:

1. (a)
   a severe sense of violation;

2. (b)
   a severe reduction in self worth;

3. (c)
   a severe impact on HSD’s capacity to participate in lawful sexual relations;

4. (d)
   a severe impact upon HSD’s feelings, including a disturbed mood and living between extremes of emotional detachment and emotional distress;

5. (e)
   HSD suffering post traumatic stress disorder.^[21]

19. [19]
    Mr Neilsen on behalf of HSD seeks an award of 40% of the scheme maximum for the adverse impacts suffered by the applicant.

20. [20]
    However, as Mr Entriken submits, the only “adverse impacts” which are separately compensable (in addition to the mental or nervous shock suffered by HSD) are the sense of violation,^[22]the adverse impact on lawful sexual relations^[23], and the adverse impact on feelings.^[24]

21. [21]
    In all the circumstances, I consider that an appropriate award for adverse impacts, moderating such an award for other detrimental influences including the applicant’s inherent personality, severely dysfunctional family, physical health, unrelated sexual abuse, and subsequent lifestyle choices, is an award of 25% of the scheme maximum ($18,750).

Contribution

22. [22]
    I do not consider that HSD has contributed in any way, direct or indirect, to her own injuries.^[25]

Conclusion

23. [23]
    I order:

1. The respondent CDC pay the applicant HSD the sum of $37,500.

AE (as litigation guardian for SEB)

24. [24]
    Mr Neilsen, who appears on behalf of the applicant AE (as litigation guardian for the complainant SEB), seeks compensation as follows:

(1) Item 33 – mental or nervous shock (severe) – 20%-34%

Ms Yoxall, psychologist, examined SEB on 10 September and 4 October 2010, and provided a report dated 20 December 2010.^[26]Ms Yoxall diagnosed SEB as suffering major depressive disorder, recurrent episode (DSM-IV TR 296.32), and post traumatic stress disorder  (DSM-IV TR 309.81).

Ms Yoxall assessed SEB as having a global assessment of functioning (GAF) score of 50, indicating “serious symptoms”.  Ms Yoxall considered the impact of the respondent’s abuse had been “profound”, and described SEB’s post traumatic stress disorder as “chronic”.^[27]

Mr Neilsen submits that an order should be made at 30% of the scheme maximum under Item 33.

25. [25]
    Mr Entriken, on behalf of the respondent, submits that, taking into account other relevant events, including Ms SEB being sexually molested by a male boarder at the age of five, and other adverse influences including SEB’s chaotic home life and her health issues, that the relevant award should be reduced, although only marginally.^[28]

26. [26]
    Mr Entriken acknowledges the assessment by Ms Yoxall that SEB’s prognosis for full recovery “is very poor”, and that the traumatic experience at the hands of the respondent had produced “what is likely to prove a level of permanent psychological impairment”.^[29]

27. [27]
    I accept the submissions made by Mr Entriken and accordingly award 28% of the scheme maximum ($21,000) pursuant to Item 33.

(2) Criminal Offence Victims Regulation s 1A – adverse impacts

28. [28]
    Mr Neilsen submits that the applicant should be awarded 40% of the scheme maximum in respect of adverse impacts.

29. [29]
    Ms Yoxall, in her report,^[30]identifies the following adverse impacts suffered by SEB.  These include:

1. (a)
   a severe sense of violation;

2. (b)
   a severe reduction in self worth (including living with chronic self loathing);

3. (c)
   the fact that the complainant SEB is sexually active although under the age of consent, engaging in sexual activity with a high level of promiscuity and risk-taking behaviour;

4. (d)
   suffering a severe and adverse impact upon her feelings, including a disturbed mood on a daily basis, struggling with extreme anger as well as detachment and emotional numbness;

5. (e)
   the complainant SEB has suffered post traumatic stress disorder.^[31]

30. [30]
    Mr Entriken, on behalf of the respondent, accepts that SEB is entitled to compensation for “adverse impacts” for the sense of violation,^[32]and the adverse impact on lawful sexual relations,^[33]but submits (and I accept) that the purported “adverse impacts” of reduced self worth or perception,^[34]adverse impact on feelings,^[35]and post traumatic stress disorder,^[36]have already been compensated pursuant to the order for compensation for “mental or nervous shock”.

31. [31]
    Mr Entriken’s submission is that in those circumstances, an award should be made at 15% of the scheme maximum.  In my view, given the nature of the “adverse impacts”, in contrast to the serious degree of “mental or nervous shock” suffered by the complainant SEB for which she has been compensated above, that submission should be accepted, in part at least. In the circumstances, I award 20% of the scheme maximum ($15,000) pursuant to COVR s. 1A.

Contribution

32. [32]
    I do not consider that SEB has contributed in any way, either direct or indirect, to her own injuries.^[37]

Conclusion

33. [33]
    I order:

1. The respondent CDC pay the applicant AE (as litigation guardian for SEB) the sum of $36,000.

2. The Public Trustee of Queensland be appointed to receive, hold and manage the compensation on trust for SEB.

3. The Public Trustee of Queensland be empowered to invest the compensation and any accretions in such investments as trustees are empowered to invest under the Trust Act 1973.

4. The Public Trustee of Queensland shall apply such monies for the maintenance, benefit and support of SEB.

5. The Public Trustee of Queensland shall be entitled to its reasonable sanction and administration fees.

6. The Public Trustee of Queensland shall pay to the solicitor for the litigation guardian of SEB, the reasonable solicitor/client costs of and incidental to this application from any monies received from the respondent or otherwise pursuant to this order.