VFT v RVG[2011] QDC 315

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:

INTRODUCTION

The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (QLD) (the Act) for physical injury, mental or nervous shock and adverse impacts claimed to have been sustained by her as the result of the offences of knowingly procuring prostitution of a young person and knowingly participating in the provision of prostitution with a circumstance of aggravation of which the respondent was convicted on his pleas of guilty on 30 March 2009. On that date on each offence I sentenced the respondent to two and a-half years' imprisonment suspended after serving nine months with an operational period of two years. The sentences were to be served concurrently.

The Act was repealed by the Victims of Crime Assistance Act 2009 (QLD) (The 2009 Act) which commenced on 1 December 2009. Subject to one matter, the transitional provision in section 155(1)(a) of The 2009 Act requires the application to be determined in accordance with the Act, as it was made on 20 January 2010. This was within two months, after the commencement of the 2009 Act, it being the earlier of the dates required by section 155(2)(b).

The conviction of the respondent also happened before commencement as required by section 155(1).

WHETHER A PERSONAL OFFENCE HAD BEEN COMMITTED AGAINST THE APPLICANT

However section 155 only applies in this way if as required by section 154(1)(a) the applicant could have applied to the Court for an order requiring the payment for compensation or injury because of a personal offence committed before commencement, under section 24 of the Act.

Section 24(2) permits such an application to be made by "a person against whom a personal offence" has been committed. By virtue of section 21, a personal offence is an indictable offence committed against the person of someone. Because in this case the application extends to the totality of the adverse impacts of a sexual offence, under section 1A of the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation), I refer for completeness to section 1A(3) which defines "sexual offence" to mean a personal offence of a sexual nature.

Accordingly for the application to be determined under the Act, it is necessary that application is for compensation in respect of a conviction for an indictable offence committed against the person of the applicant including a sexual offence for the purposes of the Regulation.

The offence of knowingly procuring prostitution of a young person charged that between 17 June 2008 and 23 June 2008 at Brisbane in the State of Queensland the respondent procured the applicant to engage in prostitution and the applicant was not an adult. The offence of participating in the provision of prostitution with a circumstance of aggravation charged that between those dates, the respondent knowingly participated in the provision of prostitution by the applicant and the applicant who was not an adult was to his knowledge engaged in the provision of prostitution. The applicant was named in each case.

As I said in my sentencing remarks, the applicant was known by the respondent to be a school student who was 16 years of age and her personal circumstances were also known to him. At that time I stated these personal circumstances as being either that she had been evicted from home as has been put to me by the prosecution, or had run away from her parental home as was said by the respondent's counsel. On the information now available to me, I proceed on the latter basis.

However, importantly the respondent knew that she had no place to live except for the premises where he and his 16-year-old partner were then living. This was a unit which required a rental of approximately $1,000 a week. I also proceeded on the basis that as the respondent must have known the applicant was emotional and vulnerable and she was threatened with homelessness through eviction if she did not cooperate in a plan for her to raise some money to cover the joint expenses of accommodation in this unit by engaging in prostitution. These joint expenses were also shared by the other juvenile whom I accepted may have been the person who threatened the applicant with these consequences.

I note that on 25 January 2010 this juvenile was sentenced by another Judge on her plea of guilty to one count each of knowingly procuring prostitution of a young person and possession of tainted property. However, I said that even giving the respondent the benefit that he did not threaten the applicant with those consequences of homelessness as opposed to this being done by his juvenile partner, it was the fact that he was aware of these circumstances and was prepared to rely upon them. I also proceeded on the basis it soon became apparent to him that the applicant did not wish to go along with this arrangement. Therefore, I sentenced him on the basis that he was prepared to take advantage of a vulnerable girl for financial gain. This gain was $4,500 which came from the applicant to his juvenile partner.

As I also put it, this was a case which involved the sexual exploitation of the applicant for commercial purposes in which she was used as if she was a piece of meat. It is also relevant that the sentence proceeded on the basis that there was some injury to the applicant as a result of engaging in the sexual activity which she was procured to engage in by the respondent. This is that she bled.

Further, the respondent's credit card was used for the purpose of advertising her for prostitution. He also drove her to the premises for her to engage in acts of prostitution and provided security for her by waiting while those acts were engaged in. As a result, I sentenced him as an equal participant or partner in the exercise which resulted in his conviction for the offences against the applicant.

For the purposes of this application, I have further evidence about the circumstances of these offences from the applicant's affidavit affirmed on 16 February 2011 and filed on 8 June 2011. Her police statement of 1 December 2001 is Exhibit A to This affidavit. The affidavit included the following paragraph: "9: The offences committed by the respondent and [the juvenile] involved an ad being placed in a newspaper and Then the respondent driving me to houses of complete strangers. I was horrified when I realised what they were doing, but there seemed no way out. I had nowhere to go and no family I could rely on for support. I experienced rough sexual activity from one of the men which caused bleeding from both my anus and vagina. I was taken by the respondent and [the juvenile] to the homes of four different people and forced to provide sexual services."

Her statement provides more detail about the sexual services involved. In fact, there were five occasions where she was forced to provide these services. She engaged in prostitution with one of the customers on two occasions. One of the customers was a woman and this occasion involved reciprocal oral sex. In addition to vaginal, oral and anal sex, she had a dildo inserted into her vagina. In addition to bleeding, she suffered some pain.

It is submitted on behalf of the applicant that in these circumstances the application is for compensation in respect of a conviction of the respondent for indictable offences committed against the person of the applicant, including sexual offences for the purposes of The Regulation because the offences involved a breach of her physical integrity.

In support, reliance is placed on R v. Moors, ex parte Alex, [1994] 2 QdR 315; French v. Green [1997] QCA 464; and RZ v. PAE [2008] 1 QdR 393.

In Moors, Mackenzie J considered the scope of the somewhat differently worded previous legislation, section 663B of the Criminal Code 1899 (QLD) which provided "where a person is convicted of an indictable offence relating to the person of any person", the Court on application of a person aggrieved by the offence may order compensation be paid to the applicant.

His Honour said at 320: "The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property." In RZ v. PAE, the Court of Appeal agreed with and adopted this statement as applicable to section 21 of the Act.

Mackenzie J followed this proposition with the statement: "The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed. The relevant offence is the offence referred to in the indictment."

In French v. Green, the Court of Appeal applied this statement to resolve the issue which arose for consideration and said at page 6: "The use of the expression 'any indictable offence relating to the person of any person' is intended to define a particular category of cases in connection with which compensation is to be payable. The relevant qualifying factor is that the offence related to the person of any person...It is quite clear that the reference is to the physical person and not to a person's property. Further, it is the offence which must relate to the person, not any injury caused thereby. In order that compensation be payable the offences charged must have a relationship to the person of the applicant".

As McGill SC DCJ also observed in GKB v. Bell, [2009] QDC 304 at [14], the decision of French v. Green was referred to with apparent approval by the Court of Appeal in RZ v. PAE. Reference is made to the judgment of McMurdo P and Philippides J at 401[41]-402[42] in the latter case. Although dissenting, de Jersey CJ said at 396[11] that the analysis in that case is equally applicable to section 21 of The Act. In that case it was held that an offence of attempted indecent treatment of a child which involved a promise by the respondent to give the child money in return for the child permitting the respondent to perform an indecent act on him was an indictable offence committed against the person of someone although the child declined to do so. The majority said that it was unnecessary that such an offence involve actual contact with the body of the victim.

As I found in this case, the respondent was convicted of two offences which involved the sexual exploitation of the applicant for commercial purposes in which she was used as a piece of meat. She experienced the sexual activity described. I agree that this involved the breach of her physical integrity. They were offences having a relationship to the person of the applicant. The offence of knowingly procuring her to engage in prostitution involved procuring her to perform sexual acts in return for money in which the respondent shared. This in itself would be sufficient for the offence charged to have a relationship with her person even if the applicant did not engage in these acts so as to have physical contact with any person. In this case the applicant did engage in these acts as a result of which the second offence involved the applicant knowingly participating in this.

Therefore, the application in this case is for compensation in respect of convictions for indictable offences committed against the person of the applicant. Once this position is reached, it is clear that these are also sexual offences for the purposes of the Regulation. Accordingly, I proceed to determine the application under the Act.

SERVICE OF THE RESPONDENT

Because all attempts to locate and serve the respondent with the originating summons had proved unsuccessful, on 4 August 2011 Samios DCJ ordered that service of it and the supporting affidavits be effected by publishing an advertisement in the Courier Mail and by posting the documents to him care of a specified address.

It was further ordered that the respondent be deemed to have been served 14 days after the placing of the advertisement or the posting of the documents, whichever was later. The advertisement was to state that the application would be heard in the District Court of Queensland at Brisbane on 1 September 2011 at 10 a.m. The unchallenged evidence is that that the advertisement was placed in the Courier Mail on 6 August 2011 and the documents were posted to the respondent on 4 August 2011 in accordance with this order. Accordingly, he was deemed to have been served on 20 August 2011. In fact, this was confirmed by the respondent phoning the applicant's legal representative, Ms Muirhead, on 11 August 2011 and confirming that he had received the material sent by post.

During the conversation, Ms Muirhead strongly suggested that he obtain legal representation. This was confirmed in a letter from her to the respondent on that date. On 30 August 2011, the respondent advised her by phone that he had received legal advice from a solicitor whom he identified. He also said that he was not intending to contest the application at that stage and did not object to it proceeding on 1 September 2011. However, he said he had an appointment with the lawyer on 31 August 2011.

On that date, this lawyer advised that his firm would not be acting on the respondent's behalf and the respondent did not intend to appear at the hearing.

When the application came before the District Court the following day, the chamber judge declined to hear it on the basis that it should be determined by the sentencing judge. At that time, I was on extended leave. However, arrangements were able to be made for it to be heard by me at 9 a.m. on 4 November 2011.

Accordingly, on 6 September 2011, Ms Muirhead caused a letter to be posted to the respondent at the address at which the material relevant to the application had previously been sent. As indicated, the respondent had previously advised that he had received that earlier material. This letter advised as to when the application would now be heard.

This was also confirmed in a letter of 20 September 2011 directed to the lawyer with whom Ms Muirhead had previously spoken.

As affirmed in an affidavit of Miss Lo of the applicant's solicitors, Legal Aid Queensland, sworn on 19 October 2011 and filed by leave on 4 November 2011, she caused a further letter to be posted to the respondent at the same address. This letter confirmed when the application would be heard and enclosed another affidavit affirmed by her on 27 September 2011 annexing a report by Dr Heale which was to be relied on at the hearing. Each of the affidavits were filed by leave.

As at 19 October 2011, the applicant's legal representatives had received no further contact or response from the respondent or anyone representing him. He did not appear before the Court.

When he failed to appear before me on 4 November 2011, being satisfied that service had been effected in accordance with the order of Samios DCJ and that he was aware that the application was to proceed on that date, as well as being aware of all relevant material relied upon to support it, I proceeded to hear the application in his absence.

CIRCUMSTANCES OF THE OFFENCE

In addition to the circumstances I have already referred to, the applicant says in her affidavit that she met the respondent through the juvenile after she left home following a family disagreement. As she said in her statement, which is an exhibit to the affidavit, she was having problems at home during this time and wanted to move out. It was in these circumstances that she was offered accommodation with the respondent and the juvenile in their unit. The threatened eviction if she did not cooperate in raising money through prostitution was from this unit.

She deposes that by leaving home, she was making a point to her parents and establishing her independence. She thought she would only be gone for a week. She thought she would pay her way through a part-time job in the afternoons while still going to school. Instead, she ended up feeling like a prisoner and being forced to work as a prostitute to pay her way. This was her first experience of sex. She did not feel she could turn to her strongly-religious family and she did not want people to know what was happening to her. As a result, she felt trapped. She felt she would be better off dead.

In her statement, she said that after the last job, she felt really distressed and wanted to die. She had to be restrained by the applicant and the juvenile from jumping from a window of the upper-floor apartment. They also had to restrain her after she cut her wrists. In her affidavit, the applicant deposes to starting to cut herself at some time after the first sexual encounter. It was through cutting herself that she was able to get away from the respondent and the juvenile. The juvenile called a mutual friend about this. The applicant was allowed to leave the unit with this friend. She did not go back. The police were then informed.

INJURIES AND MEDICAL REPORTS

The applicant says that what happened has had a devastating effect upon her life. After the offences, she thought about suicide. She deposes that after she got away, she felt physically and mentally exhausted. Her attempt to return to school did not work out. She was unable to concentrate and focus on schoolwork. She was bullied and teased at school because of rumours of what happened to her. Most of her school friends did not want to associate with her. She was humiliated by the names she was called. As a result, she was unable to settle back into school. She just wanted to hide and stay inside. She started truanting and was suspended. She did not return and did not complete grade 12.

On leaving school, she signed up for a retail training course, but was again unable to concentrate and focus. As a result, she did not complete the course. She says she can't get a job because she is scared around strangers and feels frightened in big crowds of people. She also says that these ongoing fears and the lack of trust has been caused by the offences. As a result, as at 16 February 2011, she was in receipt of Centrelink benefits with a disability component.

She also feels that because of the offences, she has been unable to do further Jewish studies, which had been her expectation and that of her family. Although her father and sisters do not know exactly what happened other than she was involved with the police, this involvement has made their reaction to her worse. She did not try to contact the family for six months because of her father's anger about her involvement. Her mother, who was aware of what happened, tried to contact her. However, this was hard because of her father's attitude.

A few months before she affirmed her affidavit on 16 February 2011, there was some reconciliation with her father and her mother was allowed to see her. She was also allowed to go home and see her mother. Her sisters also started to talk to her again. According to her, it took a lot of effort to rebuild this family contact. She felt she had lost them completely. However, she still felt they would never accept her again.

According to her statement, between the third and fourth occasion she engaged in prostitution, she had her first experience with drugs. This was to make her feel happy. As she says in her affidavit, after the offences, her life just went bad. She used a lot of drugs and alcohol to try to forget the memories of what happened and to make her sleep. She went through a state of not wanting to be sober and not caring what happened to her. This was because she felt worthless. She stopped caring what she did and what happened to her. She got involved with the wrong crowd. This resulted in her letting men use her for sex because she did not think she deserved anything else. She did not know where she would sleep each night and sometimes slept on the streets, although, as at 16 February 2011, she had found a permanent place to live.

When using drugs, she experienced some unpleasant side effects and she felt her health suffered. As at 16 February 2011, she was still trying to stop using drugs. She had been reducing this and her alcohol intake over the previous year. Just as she had not used drugs before the offences were committed against her, her only previous consumption of alcohol had been a sip on a Friday night at home.

She lost her enjoyment of food after the offences and became bulimic. As a result of the eating disorder, she lost a lot of weight, although by 16 February 2011, she had overcome this and returned to a normal weight.

She experienced nightmares of a sexual nature following the offences. Initially, these were every night. As a result, at 16 February 2011, she was still experiencing them a couple of times a week. They were worse and more frequent if she had to discuss the offences and was exposed to sexual abuse on television.

The applicant feels she can't trust people any more. This makes it hard for her to make and maintain friendships. She suffers terrible mood swings, becoming angry and taking it out on herself and others. She becomes angry and distressed when she has to talk about what happened. It takes her days to settle down after this.

Because she felt dirty and indelibly marked by her experience, after she got away, she showered six or seven times a day to try to make herself clean. Even about two and a half years later, she was still showering three times a day. She also felt ruined. This lasted for about a year. By the time of her affidavit, she still felt like damaged goods at times. At that time, she still hated being touched by men. This extended to being medically examined. She was even distressed by people bumping into her in the street. It made her feel dirty, angry and uncomfortable.

She does not like looking at herself, especially without clothes. She feels that the offences have distorted her self image. She does not enjoy dressing or taking care of herself. She relies on her housemate to help her with dressing. She wants to be covered so as not to attract attention from others, particularly males. Consistently with this, she can't believe any compliments she receives.

Although she had been dating a boyfriend for 10 months before her affidavit, she feels uncomfortable with his compliments because she believes she is ugly. She also doesn't like him seeing her in the bathroom or when she is dressing.

Sexual intimacy with him is a problem because she can get no pleasure or enjoyment from it. She feels that she has been denied the opportunity to experience her own sexual development in a normal, healthy way.

She was afraid that she had caught some disease from sexual contact with the people with whom she had had sexual contact. She underwent testing for HIV, hepatitis and other sexually transmitted diseases. Although this was negative, it was a distressing and worrying time.

The applicant gets nervous if she is in the suburb where the offences took place. She also avoids going into the city and shopping centres by herself because on more than one occasion, she saw the juvenile offender. This made her fearful.

Whereas before the offences, she had faith, this has been derailed by the offences. She now finds it hard to believe in God and does not believe she is likely to.

She had been receiving psychological treatment for about a year and a-half up to the time of her affidavit. She finds this is helping her. Although the cost is covered by Medicare, she will have to pay herself for any additional sessions beyond that allowed by Medicare in any one year.

Dr McGuire is an experienced psychiatrist, having been registered as a specialist in this field since 1972. She interviewed the applicant on 13 July 2010. In addition, she perused the applicant's statement and the transcript of the sentencing proceedings. As a result, she prepared a report dated 14 July 2010 and an addendum on 1 December 2010. These are exhibited to her affidavit which was affirmed on 8 December 2010 and filed on 7 January 2011.

The applicant agrees that the effects on her life of the offences are correctly detailed in the 14 July 2010 report. It is to be noted that Dr McGuire's report details these effects approximately two years after the offences. The applicant deposes that as at 16 February 2011, about two and three-quarter years after the offences, these effects on her life are continuing.

In addition to the psychological effects of the incident, Dr McGuire refers to physical injury to the applicant which is also the subject of the application. This is a one-centimetre vaginal laceration at the vaginal introitus and a small healing laceration in the anal skin which was found when she was examined by the Sexual Assault Service at the Royal Brisbane Hospital on 27 June 2008.

As stated by the Prosecutor at the sentence, this corroborated her account that she sustained an injury which bled as a consequence of engaging in prostitution.

I note that the opinion of the medical practitioner who examined her at the time was that these injuries were caused by stretching the skin, causing it to split as a result of sexual penetration.

Dr McGuire notes that the incident has had a very big effect on her employability. The drugs the applicant became involved with after the offences were cannabis, amphetamine and cocaine. She formed a relationship with a heroin addict. On occasion, she passed out and woke to find needles around her. As a result, she believes she was given heroin, although she couldn't remember it. The applicant said she was "always off her face" and became involved in drinking and stealing. She was still drinking when Dr McGuire interviewed her. She didn't like being sober because it felt boring. Dr McGuire refers to the applicant being depressed. Reference is also made to her being suicidal after the incidents, her lack of trust in anybody, her avoidance of various streets and suburbs and her difficulty in getting to sleep.

At the time she saw Dr McGuire, her father was sometimes allowing her into the house, but her sisters were still shunning her. Her younger sister had come at her with a knife on one occasion and put a pillow over her face. Another sister threw a dinner plate at her. Her father's anger at her for not following the rules had extended to hitting her on the head, although from what I have referred to from the applicant's affidavit, there appears to have been some improvement in her relationship with her family since Dr McGuire's interview.

The applicant told Dr McGuire that while she was not very smart at school, she was good at maths. She had speech therapy for seven years and had difficulty with spelling and reading. She had been bullied at primary school and didn't have friends until grade 8.

At the time of the interview, she sat at home and smoked most of the time. She was still smoking cannabis from 6 a.m. She preferred not to talk about the incident and tries to block it out. Consistently with the applicant's description of how she now dressed, Dr McGuire saw that she was wearing somber clothes which covered her body.

Although she was physically well with no disorder of thought or perception, as indicated, she appeared depressed. Dr McGuire's diagnosis is that the offences committed by the respondent have been a substantial and significant contribution to the applicant suffering a post-traumatic stress disorder to a severe degree. This is a recognised psychiatric disorder within DSM IV. It meets the following diagnostic criteria for the condition:

• Experiencing an event which offered a threat to the physical integrity of the self;

• The response involved intense fear, helplessness or horror;

• The traumatic event is re-experienced in the form of nightmares and flashbacks;

• The avoidance of thoughts or conversation associated with the trauma;

•  The avoidance of activities, places or people that arouse recollections of the trauma;

• Exhibiting a restricted range of effect;

• Sleep problems and irritability.

Dr McGuire observes that the applicant believes that she is getting better over time, but said she doesn't let people know she is upset.

As at 14 July 2010, Dr McGuire considered that the applicant will continue to suffer symptoms into the foreseeable future. As I have indicated, she was continuing to suffer these symptoms. Dr McGuire considered that she still needed counselling, and she enjoyed counselling. She was also continuing to receive counselling seven months later.

Dr McGuire also found that she exhibited borderline personality traits.

Further, as a result of her experiences, she had been led into substance abuse. This is also a recognised psychiatric disorder under DSM IV. She does not believe it is directly attributed to the offences. In her opinion, it is likely that the offences had a reinforcing effect on pre-existing symptoms.

Dr McGuire also refers to the applicant having previously led a very restrictive way of life and being rejected by her family.

She was unable to apportion a percentage amount to the contribution of other factors to the development of the applicant's borderline personality disorder. However, she opines that not only did the offences committed by the respondent materially and significantly contribute to her condition, but that the applicant would have suffered the level of post-traumatic stress disorder had her only experience been that of the offences committed by him.

Further, in response to the question: "Is it possible to separate the effect of the offences for which the offender was convicted from the applicant's other life experiences?", she replied: "The offences are primarily responsible for her symptoms."

Dr McGuire found it very difficult to separate the effects on the applicant of the conduct by the respondent from the effects of the conduct by the juvenile offender because they appeared to be working in collusion.

Dr McGuire also addresses the issue of whether the applicant has suffered any adverse impacts of the sexual offences for the purposes of section 1A(1) of the regulation. She addresses the adverse impacts in paragraphs (a) to (k) of section 1A(2).

In her opinion, paragraphs (a), (b), (c ), (g) and (i) were either a prerequisite to or part of a diagnosis of post-traumatic stress disorder.

For the purpose of (a), Dr McGuire confirmed that the applicant experienced a sense of violation.

With reference to (b), reduced self worth involves subjecting herself to self-hatred. Her self-esteem was low and she suffered nightmares.

Dr McGuire said about (g) that she had increased fear, she was hypervigilant whenever she went out and has an exaggerated startle reflex. In addition, she could not be in the house alone.

In relation to (i) concerning adverse impact on lawful sexual relations, particular reference was made to her very bad choice of partners and to the significant problem of her promiscuity.

Paragraph (c) simply relates to the applicant suffering from the diagnosed post-traumatic stress disorder.

Dr McGuire considered paragraphs (e), (j) and (k) to be inapplicable.

Paragraphs (d) and (f) were not included in the diagnosis of post-traumatic stress disorder.

Paragraph (d) concerns disease.  Dr McGuire observed:

"She did not sustain disease; said she hadn't cared about that aspect.  She did not believe her body was of concern and she did not value herself."

Paragraph (f) concerns lost or reduced physical capacity (including the capacity to have children whether temporary or permanent). Dr McGuire says about this:

"She wants marriage and children and believes she'll be able to do this, but thinks she probably won't be good enough."

According to Dr McGuire, paragraph (h) which concerns the adverse effect of the reaction of others, is not a feature of post-traumatic stress disorder. Her observation about this is that the applicant's sisters call her names and her mother does nothing.

The applicant has also attended Dr Heale, whom I understand to be a general practitioner. As indicated, her report is exhibited to Miss Lo's recent affidavit. This report is dated on 4 March 2011, not long after the applicant's affidavit.

According to that report, the applicant first attended her on 9 December 2008, about five and a half months after the offences. On this occasion, the applicant reported difficulty in trusting anyone, feeling fearful in all public situations and having frequent nightmares in which she revisited the events which had occurred. She was extremely quiet and withdrawn in her speech and behaviour. During many subsequent consultations, she had a friend with her for reassurance and support.

At the time of the report following the applicant's regular visits to the psychologist, she was still reporting some nightmares and lack of confidence in public places or around unfamiliar people. She had still not felt able to undertake study or employment.

Dr Heale enlarged upon her experience with nightmares by reporting that some months previously the applicant reported increasing difficulty with sleeping. She began to have nightmares with content relating to the sexual abuse again. The applicant told her that she had started to use marijuana regularly and more alcohol than before. Dr Heale counselled her that this could be contributing to the sleep disturbance. She was subsequently able to cease the use of marijuana and reduce her alcohol intake. There had been a subsequent improvement in her sleep. The applicant smokes 15-20 cigarettes a day, which is a habit commencing since the offences.

Prior to commencing contraception, she had an unplanned pregnancy with her regular partner and a termination in July 2010. Dr Heale's conclusion is that since the assaults, the applicant has suffered significant harm to her life and development as a young person.

She was unable to finish her secondary schooling, was unable to undertake employment and limited in her ability to develop herself as an independent adult due to the fear and anxiety engendered by the attacks upon her. She also notes that the applicant has undertaken some behaviours which have exposed her to additional health and psychological risks due to reduced self-image and ability to protect herself.

THE APPLICABLE PRINCIPLES

The assessment of compensation is governed by Part 3 of the Act. As already stated, section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of an offence: JMR obo SRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6].

Further, a personal offence is an indictable offence committed against the person of someone; s 21 of the Act.

An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act or prescribed under a regulation: s 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: s 25(8)(a) of the Act.

It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled: s 22(3) of the Act.

A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: see s 25(2) of the Act and s 2 of the Regulation; see also Riddle v. Coffey (2002) 133 A Crim R 220; [2002] QCA 337 at [12].

An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: s 25(3)-(4) of the Act. In deciding the amount of compensation to be paid for an injury specified under the regulation, the Court is limited to make an order for the prescribed amount. If the injury does not come within those itemised in the compensation table or specified under a regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: s 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range or the percentages of the scheme maximum set out in the table: Riddle v. Coffey (2002) 133 A Crim R 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 QdR 436 at 438, 440.

It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: Ward at 440.

Section 26 of the Act read in its entirety aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v. Coffey at 224; and at [18]; JMR obo SRR v. Hornsby at [6].

However, it does not discourage a judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by s 25(3) of the Act and Ward: Riddle v. Coffey at 224; and at [18].

Accordingly, where it is practical to make separate assessments under each applicable item in the table whilst at the same time avoiding duplication, that course should be adopted: Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6].

However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item, in order to avoid duplication, it may therefore be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item: Wren at [29]; Hornsby at [6].

Ultimately, the Court should ensure that there is compliance with the use of the methodology prescribed by s 25 of the Act, which is mandatory: Wren at [22]; Hornsby at [6].

In respect to sexual offences, it is necessary to commence by compensating the victim in so far as the impact amounted to an injury pursuant to s 20 of the Act and to assess compensation pursuant to s 1A of the regulation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under s 20 of the Act: JI v AV [2002] 2 QdR 367 per Chesterman J at 372; per Atkinson J at 382-383; Hornsby at [6].

They would be such an injury if they were nervous or mental shock:  AT v. FG [2004] QCA 294 per Jerrard JA at [17].

Section 25(7) of the Act provides that in deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury.

In Zaicov and McKenna v. Jones [2001] QCA 442 Holmes J (with whom McMurdo P and Williams JA agreed) held at [33] that section 25(7) comes into operation at the time when the amounts to be paid for the respective injuries are to be assessed and not at a later stage when the total amount payable under the order is being determined; that is to say it is in determining the percentage allowed for each injury that the Court must have regard to the relevant matters, including contribution. The issues of fact on this application must be decided on the balance of probabilities: s 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS

Ms Muirhead submits that the applicant suffered the following injuries and should be compensated on the following basis:

• Item 1 - bruising/laceration etc (minor/moderate) - 3 per cent - $2,250;

• Item 33 - mental or nervous shock (severe) - 32 per cent - $24,000;

• Regulation 1A - adverse impact of a sexual offence - 30 per cent - $22,500.

Therefore, an award is sought of 65 per cent of the scheme maximum, which is $48,750.

ASSESSMENT

I am satisfied on the balance of probabilities that the applicant suffered the injuries documented in the evidence to which I have referred and that this is a result of the indictable offences of knowingly procuring prostitution of a young person and participating in the provision of prostitution with a circumstance of aggravation committed against her by the respondent between 17 June and 23 June 2008.

Item 1 - bruising/laceration, et cetera, (minor/moderate) - 3 per cent - 5 per cent.

Ms Muirhead submits that compensation for the physical injuries should be awarded at the top of the minor/moderate range for this type of injury.  This is also the bottom of the severe range.  I note that in the written submissions, this is referred to as item 2, although it is categorised as being minor/moderate within item 1.

The submission is based on the one-centimetre laceration at the vaginal introitus and the small healing laceration in the anal skin which was found when she was examined on 27 June 2008. This corroborated her account that she bled as a result of engaging in prostitution. I sentenced the respondent on this basis.

In her statement, the applicant said that this injury occurred during the vaginal and anal sex in which she engaged on the second occasion. She said this caused her to bleed from both orifices, and she was stinging quite a lot in both regions. She said that she returned to the unit in "some pain". She was still experiencing pain on the following night when the third act of prostitution occurred. She was still in a lot of pain and sore.

That client called the juvenile and told her that she should take the applicant to a doctor as the applicant was in pain and bleeding vaginally. There was blood in the condom. The applicant did not think that she did anything the next day because she was still "too sore".

In Ward at 438-439 [9] the Court stated:

"To qualify for the 5 per cent, which is the top of the 'severe' range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the 'serious cases'."

In that case, their Honours reduced an award at the top of the range to one of 2 per cent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the elbow. They could find nothing in the evidence that this swelling was long-lasting or causative of significant pain. There were no lacerations.

In this case, the applicant did suffer lacerations to intimate areas of her body. This caused her pain which was sufficiently significant to still be affecting her two days later. She continued to bleed on the following day during sexual intercourse.

In these circumstances, I assess an award, as submitted on behalf of the applicant, at 3 per cent of the scheme maximum for item 1 of the compensation table for her physical injuries, that is, $2,250.

Item 33 - mental or nervous shock (severe - 20 per cent - 34 per cent).

It is submitted that item 33 of the schedule is appropriate and that compensation for mental or nervous shock should be awarded at 32 per cent of the scheme maximum.  Reliance is placed on Dr McGuire's opinion that the offences committed by the respondent have been a substantial and significant contribution to the applicant suffering a post-traumatic stress disorder to a severe degree.

Reference was made to the fact that while the applicant believed she was getting better over time, she does not let people see she is upset. When Dr McGuire gave her opinion approximately two years after the offences, she considered that the applicant would continue to suffer those symptoms for the foreseeable future.

Dr McGuire considered that she still needed counselling, and she enjoyed counselling. The applicant was continuing to receive counselling seven months later.

In RMC v. NAC [2009] QSC 149, Byrne SJA took the view that mental or nervous shock within the Act is confined to a recognised psychiatric illness or disorder. In coming to this view, his Honour preferred the view of Lee J in Tiltman; Ex parte Dawe [1995] QSC 345 to that of Thomas JA in R v. Kazakoff; ex parte Ferguson [2001] 2 QdR 320.

In WHG v. LJC [2010] QDC 395, I applied the decision of Thomas JA in preference to that of Byrne SJA and therefore proceeded on the basis that mental or nervous shock within the Act is not confined to a recognisable psychiatric illness.

However, a determination of this issue is not necessary in the present case because I find that a post-traumatic stress disorder is a recognisable psychiatric illness or disorder in accordance with Dr McGuire's evidence that it is a recognised psychiatric disorder within DSM IV. As such, it constitutes mental or nervous shock and is compensable under the Act.

In AT v. FG [2004] QCA 293 Jerrard JA made reference to:

"Establishing the existence of post-traumatic stress disorder and therefore mental or nervous shock."

As Dr McGuire opines, that the offences committed by the respondent have been a substantial and significant contribution to her suffering this severe post-traumatic stress disorder, I am satisfied that the respondent's conduct constituting the offences against the applicant were the material cause of that disorder and therefore a proper subject for compensation.

Although Dr McGuire also found that the applicant had pre-existing symptoms of another recognised psychiatric disorder, namely, borderline personality traits, she did not believe it was directly attributed to the offence. Rather, in her opinion, the offences had a reinforcing effect on the pre-existing symptoms. Further, she is of the opinion that the applicant would have suffered the same level of post-traumatic stress disorder had her only experiences been that of the offences committed by the respondent.

In conclusion, Dr McGuire's view is the offences are primarily responsible for her symptoms. Therefore, I proceed on the basis that these pre-existing symptoms were not a contributing factor to the applicant's post-traumatic stress disorder.

I will consider this again in relation to the application of s 25(7) in deciding whether there should be any reduction of the percentage of compensation to be fixed by virtue of any of the contributing factors in accordance with Zaicov and McKenna v. Jones. I therefore proceed to assess the compensation for the applicant's mental and nervous shock.

When the applicant was first seen by Dr Heale about five and a half months after the offences, she reported difficulty in trusting anyone, feeling fearful in all public situations and experiencing frequent nightmares in which she revisited the traumatic events that had occurred.

Dr McGuire found that she was still experiencing these symptoms approximately two years after the offences. Not only was she hypervigilant in public with an exaggerated startle reflex, but she could not be alone in the house. When the applicant affirmed her affidavit about two and a-half years after the offences, she was still experiencing nightmares of a sexual nature a couple of times a week. She was also still nervous if she was in the suburb where the offences took place. She also avoided going into the city and shopping centres because this made her fearful. In addition, she felt she couldn't trust people.

According to the Dr Heale's report a further month later, despite regularly attending the psychologist, she was still reporting some nightmares and lack of confidence when in public places and around unfamiliar people. The nightmares had sexual abuse content. She also had increased difficulty sleeping. The applicant reported an improvement in her sleep after ceasing marijuana use and alcohol intake, which Dr Heale obviously thought contributed to this. However, she had not used drugs before the offences, and her prior alcohol consumption had been limited to a sip at home on a Friday night. Therefore, it was the respondent's offending against the applicant which was the substantial and significant cause of her drug and alcohol abuse. As she said, she used drugs and alcohol to forget the memories of what happened.

In these circumstances, I do not consider that by virtue of this, there should be any reduction of the percentage of compensation fixed with reference to her experiencing nightmares and sleep problems, which are symptoms of her post-traumatic stress disorder.

Dr McGuire also diagnosed an adverse impact on lawful sexual relations, particularly with reference to her very bad choice of partners and to the significant problem to her of promiscuity. As the applicant said, because she felt worthless, she stopped caring what she did and what happened to her. Consequently, she let men use her for sex because she did not think she deserved anything else.

Although she had an unplanned pregnancy with her regular partner, sexual intimacy with him is a problem because she can get no pleasure or enjoyment from it.

She also has a distorted self-image, which extends to not liking to look at herself, especially without clothes, and this extends to her partner seeing her in the bathroom or when she is dressing.

Dr Heale summarises the effect of the offending in accordance with the applicant's evidence as follows:

"I believe that [she] has suffered significant harm to her life and development as a young person since the assaults. She was unable to finish her secondary schooling, has been unable to undertake employment and has been limited in her ability to develop herself as an independent adult due to the fear and anxiety engendered by the attacks on her. In addition, she has undertaken some behaviours which have exposed her to additional health and psychological risks due to the reduced self-image and ability to protect herself."

Having regard to the fact that the post-traumatic stress disorder with its associated symptoms and consequences was continuing to a severe degree about two and three-quarter years after the respondent's offending and Dr McGuire considered at about the two-year mark that she would continue to suffer this for the foreseeable future together with the need for ongoing counselling, I assess compensation for this degree of mental or nervous shock in accordance with Ms Muirhead's submissions at 32 per cent of the scheme maximum or $24,000.

Regulation 1A - adverse impact of sexual offences - 1 per cent-100 per cent.

As I have said, a compensable injury under the Act includes an injury under a regulation.

Under section 1A(1) of the Regulation, 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 and "adverse impact" of a sexual offence is then defined by section 1A(2). "Sexual offences" are defined in section 1A(3) of the Regulation to mean a personal offence of a sexual nature.

As I have concluded, there is no doubt that the offences committed by the respondent against the applicant are sexual offences.

As stated by McMurdo P (with whom Muir and Chesterman JJA agreed) in PAJ v. AAK [2010] QCA 79 at [28]:

"The clear terms of reg 1A(1) of the regulation provide that to be compensable under the Act, the adverse impacts under reg 1A must be additional to the mental or nervous shock injury under s 20 of the Act. The onus was on the applicant to establish her claim on the balance of probabilities."

It was for this reason Jerrard JA stated in AT v. FG [2004] QCA 295 at [25]:

"Applicants for compensation who are diagnosed as suffering from post-traumatic stress disorder or from depression or anxiety will benefit from their legal representatives insisting upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts."

Dr McGuire has done this in the present case, although, as I have observed, most of the impacts to which she has referred are encompassed by the diagnosis of post-traumatic stress disorder.

As indicated, Dr McGuire did not include paragraphs (d), (e), (f) and (h) of regulation 1A(2) in this diagnosis.

Paragraph (d) involves the adverse impact of disease. However, as Dr McGuire opines, the applicant did not sustain disease.

She regarded paragraph (e) related to lost or reduced physical immunity as inapplicable.

In relation to paragraph (f) concerning the impact of lost or reduced physical capacity (including the capacity to have children) whether temporary or permanent, Dr McGuire notes that while she wants marriage and children and believes she'll be able to do this, she thinks she will probably not be good enough.

As indicated by Dr Heale's report, the applicant is capable of conceiving children. Accordingly, the applicant has not established the adverse impacts in paragraphs (d) and (e) as a consequence of the respondent's offending.

Further she has not established this in relation to paragraph (f) on the basis of the capacity to have children.

However, I am satisfied that she has suffered a loss or reduced physical capacity as a result of her use of alcohol and drugs.

As I have observed, the respondent's offending was the substantial and significant cause of this. Although I have referred to her use of alcohol and drugs in concluding that by virtue of this there should be no reduction of her percentage of compensation fixed with reference to experiencing nightmares and sleep problems which are symptoms of her post-traumatic stress disorder, I consider she is entitled to compensation for the adverse health impacts of their consumption to the extent she has lost or reduced physical capacity as a result.

This is not inconsistent with Vlug v. Carrasco [2007] 2 QdR 393 in which Holmes JA (with whom McMurdo P and Chesterman J agreed) rejected the proposition that section 1A was intended to introduce a new regime of compensation for "disability, consequences or effects" as distinct from injury.

The applicant deposes with reference to the impact of alcohol and drugs on her physical capacity that she has experienced some unpleasant side-effects. These were, "I suffered from nausea, passing out, memory loss, shaking, becoming hot and cold, weight loss and being unable to eat. My skin was dull and lifeless and my hair limp. I feel my health suffered from using the drugs and alcohol. I always felt sick and unwell." Accordingly, I take this into account as an adverse impact for the purpose of regulation 1A(2).

In addition Dr McGuire considers that the applicant has suffered an adverse impact in terms of the adverse effect of the reaction of others for the purposes of paragraph (h) of regulation 1A(2). Dr McGuire summarises this as, "Her sisters call her names and her mother does nothing. This contributes to her depression."

As indicated above, the applicant did not try to contact her family for six months because of her father's anger about her involvement with the police. Although her mother tried to contact her, this was hard because of her father's attitude. There was no reconciliation with her mother until a few months before her 16 February 2011 affidavit. This is a period of over two years. It was not until then that her mother was allowed to see her and she could return home.

It is also only after this that her sisters began to talk to her again. Before this one sister had come at her with a knife and put a pillow over her face. Another had thrown a dinner plate at her. In addition she was bullied and teased at school because of rumours of what had happened to her. Most of her school friends did not want to talk to her and she was humiliated by the names she was called.

Dr McGuire also stated that paragraphs (j) and (k) of regulation 1A(2) were inapplicable. The first of these relates to an adverse impact on her feelings. However, paragraph (k) allows an award to be made for anything the Court considers is an adverse impact of the offence. It is submitted that the following adverse impacts are not included in Dr McGuire's diagnosis of post-traumatic stress disorder:

• Impact on education and occupational opportunities

• Impact on family relationships

• Impact on ability to assess medical treatment

• Problems with accommodation

• Loss of faith

• Loss of possessions

• Disease

The impact on education and occupational opportunities is directly related to the diagnosis of post-traumatic stress disorder. I have taken it into account in arriving at the 32 per cent assessment for it and as such is not additional to the mental or nervous shock

The impact on family relationships is something which I take into account for the purposes of regulation 1A(2)(h) as part of the overall adverse effect of the reaction of others.

The impact on ability to access medical treatment which is relied upon is in my mind speculative. While she does not like to be touched by doctors including male doctors, and says she does not go unless she absolutely has to, she does go to one female doctor whom she likes.

It is speculative as to whether in these circumstances that when she gets older she will not have regular examinations and health checks. At present there is no evidence that she has lost or reduced physical immunity within paragraph (e), or lost or reduced physical capacity within paragraph (f) as a result of an inability to access medical treatment.

In any event, this dislike of being touched is the result of her fear and self-hatred and low self-esteem which relates to her reduced self-worth. These are all part of the diagnosis of post-traumatic stress disorder. I've also taken these symptoms into account in arriving at the 32 per cent assessment and as such it is not additional to the mental or nervous shock.

In Vlug v. Carrasco, Holmes JA said at [12]: "The adverse impacts prescribed in section 1A are of the nature of symptoms likely to a greater or lesser extent to impair the individual's psychological, emotional or physical functioning. In that sense, they have the quality of injury while not necessarily amounting to mental or nervous shock (although the last of the categories section 1A(2)(k) is a catchall: "Anything the Court considers is an adverse impact of a sexual offence," it must in my view be read ejusdem generis. The difference between those impacts and injuries as defined in section 20 is not, as the applicant suggests, one of quality but merely of degree."

Accordingly, an adverse impact for the purposes of paragraph (k) must be such as to impair the individual's psychological, emotional or physical functioning. I do not consider that the claims on the basis of problems with accommodation, loss of possessions and loss of faith involve such an impairment. I regard loss of faith as having a spiritual effect which would be impossible to quantify in any event.

As I have concluded, the applicant has not established that she sustained disease for the purpose of paragraph (d). This is consistent with the applicant's affidavit which describes a fear of disease from the sexual contact. As a result, she underwent testing for HIV, hepatitis and other sexually transmitted diseases. This was a distressing and worrying time. The worry was still there at the time that she affirmed her affidavit.

Fear of disease is not the same as disease for the purpose of section 1A. Where that provision identifies fear as a specific adverse impact, it is capable of expressly doing so. For example, section 1A(2)(g) includes, "Increased fear or increased feelings of insecurity" as an adverse impact. Therefore, I consider I should compensate all this fear under paragraph (k).

I consider that at this time in our history fear by a female of contracting a communicable disease as a result of sexual contact in circumstances where she was being sexually exploited by being forced to provide sexual services is a serious matter. Particularly where, as in this case, it is a fear which inevitably persists for some months until a negative result is indicated. As a matter of commonsense a fear of this nature is likely to have a profound effect on the victim's quality of life for the period it persists.

In SAN v. LJG [2010] QDC 349, I assessed the applicant's fear of acquiring such a disease as a result of a sexual attack for which the respondent had been convicted of assault with intent to rape as, in itself, warranting an assessment of 10 per cent of the scheme maximum.

Accordingly, I am satisfied that the applicant has suffered the following adverse impacts of the respondent's sexual offences involving a breach of her physical integrity:

• Loss or reduced physical capacity

• Adverse effect of the reaction of others

• Fear of acquiring disease

I assess the totality of these adverse impacts as 22 per cent of the scheme maximum.  This is $16,500.

SECTION 25(7) OF THE ACT - CONTRIBUTION

I conclude that nothing in the applicant's actions contributed either to her bodily injury, mental or nervous shock or the prescribed injuries which were suffered by her as a material result of the respondent's offending. The applicant did not in any way contribute to her injuries by running away from her parental home in circumstances where the respondent knowing that she was an emotional and vulnerable 16-year-old school girl, sexually exploited her for commercial purposes by forcing her to provide sexual services to others.

This is particularly so where she was threatened with homelessness through eviction if she did not cooperate in a plan to raise money to cover joint living expenses for the unit in which she had been offered accommodation with the respondent and the juvenile. The applicant felt trapped like a prisoner.

Dr McGuire's opinion as to contributing factors is that she led a very restrictive way of life and was rejected by her family. She also refers in this regard to her being unhappy at home. Nevertheless she believes that the offences made a substantial and significant contribution to her symptoms. Having regard to the nature of the conduct involved in the offences, these are not factors which should operate to reduce the amount which might otherwise be awarded. This is because they are factors which must have been known by the respondent and relied on by him to commit these offences.

Notably, Dr McGuire does not identify the applicant's borderline personality disorder as a contributing factor as opposed to the offences having a reinforcing effect on pre-existing symptoms. Dr McGuire is also of the opinion that the applicant would have suffered the same level of post-traumatic stress disorder if her only experiences had been that of the offences committed by the respondent.

In these circumstances, I consider that even if it is assumed that the pre-existing borderline personality disorder predisposed the applicant to develop a post-traumatic stress disorder, if it was not for the offences, the post-traumatic stress disorder would not have been triggered. She did not have such a disorder prior to this time. On the basis of Dr McGuire's evidence, the symptoms of the disorder only commenced following the conduct in which the respondent was involved.

Therefore, I find there were no other factors which contributed to the mental or nervous shock suffered by the applicant and for which some allowance must have made, or which requires a lower percentage of compensation to be fixed. There is also no evidence of other factors having this effect in relation to her bodily or prescribed injuries.

APPLICANT'S LIABILITY

As I have said the respondent engaged in this offending against the applicant in conjunction with his juvenile partner. I accepted for the purpose of sentence that his partner may have been the person who threatened the applicant with the consequences which resulted in her engaging in prostitution.

This juvenile was sentenced on 25 June 2010 by another Judge on one count each of knowingly procuring prostitution of a young person and possession of tainted property according to information provided to me in the written outline of submissions.

Because the respondent's co-offender was convicted after commencement of the 2009 Act on 1 December 2009, she could not be joined as a respondent to this application under the Act, nor could separate proceedings be commenced against her under the Act.

In Street v. Brabyn, unreported, number 137 of 2003, 17 July 2006, McLauchlan QC DCJ ordered the respondent to pay the total amount of compensation assessed in a case where he had been convicted on the basis that he was a party to assault with intention to steal which had actually been perpetrated by the person with whom he was in company. His Honour held this was sufficient to permit an applicant to be made against him under section 24 of the Act.

In Beil v. Hansen, unreported, number 1256 of 2008, 5 June 2008, Samios DCJ without further comment ordered the respondent to pay the total amount of compensation assessed in respect of his role in a home invasion in company with another person in respect of which he had also been convicted of assault occasioning bodily harm to the applicant. In that case it appears from the judgment that the respondent was the actual perpetrator of the bodily harm. The application proceeded against the respondent alone because the co-offender was the subject of extradition proceedings from another country.

This approach is consistent with the terms of section 24(3) of the Act which provides that the Court may make a compensation order for an amount to be paid by the convicted person to the applicant because of the injury. Although under section 32C(a) of the Acts Interpretation Act 1954, the word "person" includes "persons", section 26(7) of the Act gives the Court a discretion to make such an order against each of more than one convicted person who directly and materially contributed to the injury. In my view, this vests the Court with a discretion as to whether it makes an order for the total amount of compensation payable against one person in these circumstances.

An interpretation which reduced the amount of compensation because the application could only be made against one person who was a party to the offence or offences by virtue of which the applicant suffered the injury in circumstances where it is not possible to also bring the application against another party who was involved in the offence or offences would be contrary to the beneficial intent of the legislation.

As indicated, I sentenced the respondent on the basis that he was an equal partner or participant in the offending. This was despite the degree of control which it was suggested on his behalf was exercised by the juvenile who may have been the person who threatened the applicant with homelessness if she did not cooperate with the plan to raise money by engaging in prostitution, and what had been suggested as his naivety despite being 24 years of age.

As I observed in my sentencing remarks, even if the respondent did not actually threaten her, he was aware of her circumstances and was prepared to rely upon them. As his counsel conceded he knew of the threats and it soon became apparent to him that the applicant did not want to go along with the plan. As a result he was prepared to take advantage of this vulnerable girl for financial gain.

I also sentenced the respondent on the basis that there was a degree of preplanning involved at least to the extent of paying with his credit card for advertising the applicant for prostitution and that he provided security for her by driving her to premises and waiting while the acts of prostitution were engaged in.

Further, on the basis of the information in the outline of submissions, while the juvenile was convicted of knowingly procuring prostitution of a young person, the respondent was additionally convicted of knowingly participating in prostitution with a circumstance of aggravation.

In addition it is Dr McGuire's opinion that the respondent's offending materially and significantly contributed to the applicant's condition and she would have suffered the same level of post-traumatic stress disorder had her only experiences been that of the offences committed by him.

Accordingly, the respondent is liable to pay compensation to the applicant for the totality of the injuries suffered by her; that is, he is liable to pay the total amount of compensation assessed.

CONCLUSION

Accordingly I assess compensation in terms of the compensation table as follows:

• Item 1 - bruising/laceration, etc (minor/moderate) - three per cent - $2,250

• Item 33 - mental or nervous shock (severe) - 32 per cent - $34,000

• Regulation 1A - adverse impacts of sexual offences - 22 per cent - $16,500.

Therefore the total assessment is 57 per cent of the scheme maximum; that is, $42,750.