DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, by his litigation guardian NM, seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for emotional injuries and adverse impacts suffered as a result of an offence committed on him between 1 August 2002 and 1 August 2003.

2. [2]
   On 13 July 2004 the respondent pleaded guilty to one count of indecent treatment of a child under 12 years and under his care and was sentenced by his Honour Judge White in the District Court at Cairns. He was sentenced to imprisonment for a period of two and a half years.

3. [3]
   The application for compensation and supporting documentation was served upon the respondent on 3 September 2011.

Legislation

4. [4]
   The Criminal Offence Victims Act 1995 (Qld) was repealed by the Victims of Crime Assistance Act 2009 (Qld) which commenced on 1 December 2009.  Division 6 of the Victims of Crime Assistance Act 2009 (Qld) deals with repealed and transitional provisions.

5. [5]
   In circumstances where the application has been filed in the court before the commencement of that Act, s 167 of that Act applies.

6. [6]
   This application was filed on 20 October 2009.

7. [7]
   Section 167 of the Victims of Crime Assistance Act 2009 (Qld) provides that if a person has applied to a court for an order requiring the payment of compensation under s 24 of the repealed Act and the application has not been finally decided before the commencement of the new Act, the court must hear or continue to hear and decide the application under the repealed provision.

Time Limit

8. [8]
   The applicant was seven or eight years of age at the time of the commission of the offence.

9. [9]
   Section 40(1) of the Criminal Offence Victims Act 1995 (Qld) provides that an application to a court for a compensation order against a convicted person must relevantly be made before the end of three years after the child becomes an adult if the applicant was a child at the time of the trial.

10. [10]
    The applicant was born on 31 March 1995. He therefore had until 31 March 2016 to apply for compensation and accordingly his application has been filed within time.

Continuation of Proceedings after a period of delay

11. [11]
    Rule 389 of the Uniform Civil Procedure Rules 1999 (Qld) 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 or without notice.

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

12. [12]
    As the application was filed on 20 October 2009 and service was not effected upon the respondent until 3 September 2011 the applicant needed to provide one month’s notice in accordance with r 389. That procedure has been complied with.

Circumstances of the Offence

13. [13]
    His Honour Judge White described the offence as follows:-

“The prisoner has pleaded guilty to nine counts of indecent treatment of a child under 12 years and under his care …

… In each case what was involved was the prisoner sending the boy into his bedroom, pulling down his pants and striking him across the buttocks with a large wooden spoon and/or his hand.  In some instances the force used was significant.

…

As well as the sexual flavour to the offences, there was also a flavour of violence involved in the manner in which the prisoner dealt with the boys.”

14. [14]
    The respondent was 38 or 39 years of age at the time of the commission of this offence. As is obvious from the above passage, the respondent also pleaded guilty to offences against a number of other children. Those offences were unrelated to the offence against the applicant for the purposes of this application. The respondent also held a position of trust in relation to the applicant which he abused in order to commit the offence.

Damages

15. [15]
    The applicant seeks compensation for mental and nervous shock and for adverse impacts he suffered as a consequence of the offending behaviour.

Mental and Nervous Shock

16. [16]
    The term mental or nervous shock is not defined in the Criminal Offence Victims Act 1995 (Qld).  In Ferguson v Kazakoff [2001] 2 Qd R 320; [2000] QSC 156, Thomas J said in relation to the meaning of that term at paragraph 17:

“Clearly, the ordinary usage of the term has been to describe situations of injury to health, illness, or some abnormal constitution of mind or body over and above that of normal human reaction or emotion following a stressful event.”

He went on to state at paragraph 19 that:

“It would in my view unduly limit the term if it were confined to conditions that are recognised as psychiatric disorders.  Conversely it over stretches the term to use it as a source of additional compensation for natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives.”

17. [17]
    In R v Horne; ex-parte Hill (unreported), Supreme Court of Queensland No. 8829 of 1999 Thomas J said:

“… I am unable to find anything in the reasoning in Morrison that required such a conclusion.  Morrison was concerned with a converse argument, namely whether a clearly proven severe psychiatric illness should be regarded as having produced mental shock or nervous shock and accordingly as limiting the claimant to the compensation allowable for mental or nervous shock.  Not surprisingly the Court held that diagnosable psychiatric illnesses are included within those words and stated that a broad meaning should be attributed to them.”

18. [18]
    In this matter a psychiatric report from Dr Michael Beech was placed before the court. Dr Beech examined the applicant and his mother, the litigation guardian on 14 July 2010. In his report, Dr Beech states that there is no evidence of the applicant experiencing a continuing psychiatric illness. He does say however that there is evidence that the applicant is suffering from an ongoing conduct disorder although with some evidence of amelioration of the symptoms.

19. [19]
    Dr Beech was of the opinion that the applicant had a pre-existing condition of Childhood Oppositional Defiant Disorder which was exacerbated by the offending behaviour. He said:

“Ultimately it is my opinion that prior to the incidents with (EHVD), (AJS) was suffering from a psychological condition.  The effect of the offending is likely to have exacerbated that condition which was probably in some form of partial remission.  Subsequently there have been other factors come into play to further aggravate his difficulties.”

20. [20]
    Those “other factors” to which Dr Beech referred were such things as prejudicial living circumstances, exposure to domestic violence, delinquent peers, substances and a promiscuous parenting style.

21. [21]
    The court also received a psychologist report from Mr Peter Brown, clinical psychologist. Mr Brown saw the applicant for the purposes of psychological counselling and intervention on 17 occasions between 3 August 2005 and 23 May 2006. Mr Brown also diagnosed oppositional defiant disorder. Additionally, he identified other factors in the applicant’s life as contributing to his psychological problems. He said:

“While (AJS) displayed features of oppositional and conduct disorders, his dispositional anxiety when combined with an often unstable environment which was stressful for his whole family, and frequent exposure to and threats of aggression or violence combined to make him somewhat reactive and hyper-vigilant to any perceived threat or at times any indication of potential conflict with peers, adults or teachers.  The earlier indecent dealing experience may also have eroded his trust of others, particularly adult males.”

22. [22]
    The applicant has submitted that the evidence discloses that he has suffered mental and nervous shock as a consequence of the offending behaviour. He further submits that the court should adopt a broad brush approach to the assessment of this part of the application consistent with the principle as laid down in SAY v AZ; Ex parte Attorney General (Qld) [2007] 2 Qd R 363; [2006] QCA 462.  In that matter Holmes JA said at paragraph 23:

“Often a broad brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski 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.  Given that the Act’s schemes do require an offender to compensate his or her victim, it would be reasonable to suppose the contributing cause is entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending … The basis on which any reduction in compensation is made must, of course, be clearly identified.”

23. [23]
    In Dr Beech’s opinion the applicant had a significant history of disruptive childhood behaviours that occurred in the context of a chronic IgA Deficiency Syndrome, Attention Deficit Hyperactivity Disorder, and a prejudicial family environment. He is of the view that the applicant suffered from the childhood disruptive behaviour condition, Oppositional Defiant Disorder.

24. [24]
    Dr Beech noted that over the years that disorder escalated (in the context of further prejudicial conditions, association with older delinquent peers, and unstable living conditions with a lack of supervision) to Conduct Disorder that has included delinquency. He noted that those problems occurred simultaneously with the introduction of substance use including alcohol and cannabis.

25. [25]
    Dr Beech formed the view that the Conduct Disorder is severe although it has significantly improved in more recent times.

26. [26]
    The applicant himself claimed to have no recollection of the offending behaviour the subject of this application.

27. [27]
    Given Dr Beech’s opinion that the offending was likely to have exacerbated the condition, I am satisfied that the applicant has suffered mental and nervous shock given that his reaction to the offending behaviour went beyond what might be considered natural human emotions for such circumstances.  Given that the term is not confined to conditions that are recognised as psychiatric disorders I am satisfied that the applicant is entitled to claim under this head of damage.

28. [28]
    The applicant has submitted that in relation to the mental and nervous shock the relevant item in Schedule 1 to the Act is Item 33 – mental or nervous shock (severe). The applicant submits that a fair assessment would commence at the 25% of the scheme maximum as an appropriate starting point with a reduction to 10% of the scheme maximum to take into account the other contributory factors.

29. [29]
    In my opinion the evidence does not support a starting point of 25% of the scheme maximum. In my opinion Item 32 to the Schedule would be the appropriate starting point category with a fair starting point being 20% of the scheme maximum. I agree however that a reduction of that percentage in the order suggested by the applicant is appropriate in the circumstances of this case which would result in an award of 5%, that is an amount of $3,750.

Adverse Impacts

30. [30]
    The Criminal Offence Victims Act 1995 (Qld) was amended by the Criminal Offence Victims Amendment Regulation (No. 1) 1997 (Qld) which came into force on 19 December 1997.  Regulation 1A states that the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury.

31. [31]
    Regulation 2A states that for an injury mentioned in reg 1A an amount of up to 100% of the scheme maximum may be awarded.

32. [32]
    In the case of JI v AV [2001] QCA 510, the Court of Appeal made a distinction between “mental or nervous shock” and “adverse impacts of a sexual offence”.  The effect of that decision was that where an injury suffered by a person can be classified as mental or nervous shock, it cannot then also be classified as an adverse impact as that would allow a doubling up in the assessment of compensation under the Act.

33. [33]
    Only those impacts as listed in reg 1A which do not go to the assessment of a diagnosable psychiatric disorder can be claimed as “adverse impacts” under the regulations.

34. [34]
    As mentioned above, Dr Beech recognised that the applicant suffered adverse impacts as a consequence of the offending behaviour that were both direct and indirect. He noted that the indirect component arose from the sequela of the disclosure of the offences and the community’s reaction.

35. [35]
    The applicant has further submitted that the following adverse impacts are relevant:

1. (a)
   Adverse effect of reaction of others

The litigation guardian stated in her affidavit that the applicant suffered problems in the community as he was not believed and people in the community supported the respondent.  She said that as a result the applicant and his family members were shunned and harassed by people at the school and around the neighbourhood.  She further attested that her sister refused to accept that the applicant was telling the truth and in fact accused him of lying on one occasion causing the applicant distress.

2. (b)
   Need to move

The litigation guardian attested that as a consequence of community reaction and the applicant’s response to both the offending and that reaction she decided that it may well be best for him if she moved the family from the country location in which they were living to Brisbane.  She stated that that move was unsuccessful and after five months they moved back to that same country location.

3. (c)
   Impact on education

The litigation guardian stated in her affidavit that Grade 7 was in effect her son’s last year of school.  She said that he refused to attend high school on an ongoing basis although he has at times attended school for very short periods.

4. (d)
   Impact on mother and her capacity to parent

The litigation guardian has listed in her affidavit a number of problems that she has experienced with her son and his behaviour over the years.  There is no necessity for me to repeat those problems in this decision.

Whilst one can sympathise with the applicant’s mother, the problems that she identifies upon her capacity to parent cannot be in my opinion attributed to the offending behaviour given the other contributing factors that have been present in this family unit for many years.

36. [36]
    The applicant has conceded that in relation to adverse effects account must be given to the other prejudicial factors in his life. It is further submitted on his behalf that the broad brush approach as identified in SAY v AZ; Ex parte Attorney General (Qld) is an appropriate approach to be adopted in relation to this issue and that there should be an exercise of discounting or fixing on a lower percentage on the compensation scale to allow for the role of other factors as opposed to adopting a strict process of apportionment.  With that approach in mind it has been submitted on behalf of the applicant that an award of 10% of the scheme maximum would be appropriate under this heading.  That is an amount of $7,500.

37. [37]
    I do not necessarily agree with the broad brush approach in relation to this head of damage. The adverse impacts relied upon have been specifically identified on behalf of the applicant and are capable of being the subject of specific assessment. I consider the appropriate assessment should be 5% of the scheme maximum, that is $3,750.

Contribution

38. [38]
    I do not consider that the applicant contributed to his own injuries in any way either direct or indirect.

Order

39. [39]
    I order that the respondent EHVD pay the applicant AJS the sum of $7,500.