DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, JDN was found guilty at the Beenleigh District Court of five counts of unlawfully and indecently dealing with a girl under 12 years (in respect of the complainant ABS). The respondent was sentenced by Judge Koppenol to three years imprisonment, concurrent in respect of each of the five counts, with a parole eligibility date of 1 October 2010 (i.e. after serving 18 months).

The Facts

2. [2]
   The complainant was the “de facto niece” of the respondent, who was aged between eight and nine years at the time of the relevant offences. The respondent was aged 44 years at the time.

3. [3]
   Judge Koppenol, in his sentencing remarks addressed to the respondent, summarised the offending as follows:-

“Between December 2006 and July 2007, at your home in Logan Central, one night, while you and others were watching a television program, you put your hand down the back of the young girl’s pants and touched her [and] pinched her on the bottom.  That was count 1. 

Count 2 was that between June and September 2007, again at your home, you put your hand up her shirt and touched her left breast….

Counts 3, 4 and 5 related to events which occurred on Christmas Day 2007 at your home.  Your young niece and her siblings and her parents and your wife and some other people were present that day.  There was to be a Christmas Day barbecue for the family.  During that afternoon, when you and the young complainant were together in the kitchen, you kissed her on the lips.  The kissing was said by the young complainant to be the sort of kiss that a husband and wife engage in.  It was an amorous, open-mouthed type of kiss.  It occurred again in the lounge room of your home on the same day.  That was count 4.  As to count 5, you carried the young girl into your bedroom and closed the door; you then kissed her in the same way again while she, at your request, wrapped her legs around your waist.”^[1]

4. [4]
   Judge Koppenol went on to state in addressing the respondent:-

“Your conduct towards this young girl, who was your de facto niece, can only be described as appalling and reprehensible.  It was a breach of trust.  On occasions, your niece stayed over at your home; on these occasions, you brazenly acted as if this young girl was there for your sexual gratification.  You have shown no remorse.”^[2]

Injuries

5. [5]
   The complainant suffered, it is submitted, mental or nervous shock, and adverse impacts^[3] as a result of the offences committed against her by the respondent. 

The Law

6. [6]
   The application in these proceedings was filed on 29 January 2010, 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.  The application is, however, compliant with the relevant transitional provision of VOCAA ss. 154 and 155, and has been brought within the relevant time limit applicable by COVA s. 40(1). 

7. [7]
   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

8. [8]
   Mr Menolotto, for the applicant, seeks compensation as follows:-

1. (1)
   Item 32 – Mental or nervous shock (moderate) – 10%-20%.

9. [9]
   Dr Prabal Kar provided a report dated 7 October 2010^[4] and a supplementary report dated 21 October 2011^[5].

10. [10]
    Dr Kar concludes that the complainant “has had PTSD-like trauma symptoms but not full blown PTSD, with avoidance of reminders which cause her distress.” Dr Kar indicates that he would make a diagnosis of “an adjustment disorder of moderate severity. [The complainant] has had behavioural and mood symptoms.” Dr Kar notes that the complainant “also had post traumatic stress disorder-like symptoms”, but [as noted above] Dr Kar would not make the diagnosis of PTSD. Dr Kar further stated that he believed that the complainant “does have a DSM-IV psychiatric condition” which amounts to a “mental or nervous shock of moderate severity”.

11. [11]
    Mr Menolotto submits that an order should be made in the range of 10-20%. In the circumstances, I consider that an order of 15% of the scheme maximum ($11,250) is an appropriate order pursuant to Item 32.

3. (2)
   Criminal Offence Victims Regulation s. 1A – Adverse impacts

12. [12]
    Dr Kar, in his supplementary report,^[6] identifies 22 items which he describes as “adverse impacts” experienced by the complainant as a result of the sexual assaults on her.  These are as follows:-

1. “1.
   The distressed family had wanted to leave and they returned to Caboolture. 

2. The victim had behavioural problems.

3. Frequently she was angry and moody.

4. She fought more with her siblings.

5. Wouldn’t listen to her parents.

6. She did not like school.  Previously she used to love school.

7. Her school grades had dropped.

8. She was once found with a cigarette and a lighter.

9. She frequently expressed hatred for everyone, especially men.

10. She would not attend a male doctor or psychologist.

11. Her parents became overprotective, and strictly controlled the children. They did not allow any sleepovers if the family had a male member, the children were not allowed to do many things that other children did, and had to report back frequently. Such behaviour of the parents of victims is not uncommon.

12. A loss of trust in adults, especially males.

13. It affected her capacity to relate to men and males.

14. It has impacted on her education. It has reduced her social performance and her functioning and enjoyment of life. Her educational performance has suffered. She did not apply herself to her studies.

15. She was embarrassed and upset.

16. Her parents were secondary victims and felt guilty.

17. She has called the Childrens Helpline in distress.

18. She saw a school counsellor.

19. She was truant from school.

20. She had a preoccupation with sexual matters.

21. She fought with her younger half-sister.

22. She has asked the meaning of, sexual words, precocious sexual behaviour or preoccupation.”^[7]

13. [13]
    Mr Menolotto submits that the itemised list above extracted from the report of Dr Kar relates to the following “adverse impacts” contained in COVR s. 1A, namely:-

14. [14]
    It might also be considered that the negative impact on the complainant’s education is another “adverse impact” covered by the “catch-all” provision of COVR s.1A(2)(k).^[8]

15. [15]
    In all the circumstances, I consider an appropriate award for the adverse impacts suffered by the complainant in these proceedings is 15% of the scheme maximum ($11,250).

Contribution

16. [16]
    I do not consider that the applicant has contributed in any way, either direct or indirect, to her own injuries.^[9]

Conclusion

17. [17]
    I order as follows:

1. The respondent JDN pay the applicant JB on behalf of ABS the sum of $22,500.
2. The monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies on behalf of ABS until she attains the age of 18 years.
3. The Public Trustee of Queensland is further authorised to advance such monies from time to time as may be necessary for the maintenance, education or treatment (including counselling) of ABS.
4. The Public Trustee of Queensland is further authorised to pay out of such monies received the reasonable costs of the present application to the applicant’s legal representatives.