MBA v JFB[2011] QDC 57

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, JFB, pleaded guilty in the Beenleigh District Court on 12 March 2008 to one count of indecent treatment of a child under 16, in respect of the applicant MBA. The respondent was sentenced to 12 months imprisonment, to be served by way of an intensive correction order.

Facts

2. [2]
   The offence occurred on 23 February 2007, when the applicant was 14 years old. The respondent, who is the applicant’s uncle, was 43 old years at the time. The applicant was staying the weekend with the respondent and his young daughters (the applicant’s cousins). When the respondent and the applicant arrived at the respondent’s residence, the applicant assisted the respondent tidying the house before sitting down to watch television. The respondent complained of a sore back and the applicant offered to give him a massage which he accepted. The respondent then offered the applicant a back massage which she accepted.

3. [3]
   The applicant and the respondent moved to the computer room where the respondent massaged the applicant’s feet and legs. The respondent then moved his hands up the applicant’s thighs towards her groin, pushed her underpants to one side with one hand and touched her vagina with the other hand. The applicant asked the respondent to stop and he desisted in his actions. The applicant jumped up and went to the bedroom where she was to sleep the night with the respondent’s children. The applicant rang her mother and step-father and told them what had occurred. A short time later the applicant’s step-father arrived and took her home.^[1]

Injuries

4. [4]
   The applicant suffered mental or nervous shock, and adverse impacts^[2]as a result of the offence committed by the respondent.

The Law

5. [5]
   The proceedings were commenced by way of an Originating Application filed 28 January 2010, purporting to be taken in the name of the applicant MBA. However, MBA’s date of birth (31 May 1992)^[3]indicates that the applicant was under the age of 18 (and therefore under a legal disability) at the time the proceedings were commenced. That irregularity has, however, been cured by the applicant (as an adult) adopting the proceedings which were irregularly commenced when she was under the age of 18 years.^[4]

6. [6]
   The Criminal Offence Victims Act 1995 (COVA) was repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The proceedings commenced in the applicant’s name (now regularised by her affidavit adopting those proceedings) was commenced in compliance with the relevant transitional provisions of VOCAA ss.154 and 155.

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]
   Ms Williams and Mr Muir (who each appeared at separate hearings on behalf of the applicant) seek compensation as follows:-

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

Dr Rebecca Ray, clinical psychologist, provided a report dated 9 February 2010 and a supplementary report also dated 9 February 2010 (dealing with the issue of “adverse impacts”).^[5]Dr Ray diagnoses the applicant as suffering from an adjustment disorder, with anxiety, moderate severity, chronic (duration longer than 6 months). Dr Ray assessed the applicant’s Global Assessment of Functioning (GAF) at 55-60 (moderate symptoms or moderate difficulty in social, occupation and/or school functioning) as at the date of assessment on 9 February 2010.^[6]Dr Ray considered that the applicant required expert psychological therapy of at least 12 sessions over a six month period at an Australian Psychological Society recommended fee of $206 per hour.

In the context of this report, it is submitted that the applicant should be awarded 10% of the scheme maximum ($7,500) in respect of item 32. Given the diagnosis, the moderate severity and the chronic duration, I accept that submission, and accordingly I award $7,500 pursuant to item 32.

(2)COVR s. 1A – Adverse Impacts

The supplementary report of Dr Rebecca Ray^[7]identifies a number of “adverse impacts” arising as a result of the indecent deal, distinct and separate from the symptoms relevant to the adjustment disorder suffered by the applicant. These adverse impacts include a sense of personal violation (persistent and rated as moderate); reduced self worth and perception (rated as moderate); increased fear and increased feelings of insecurity (rated as moderate); adverse impact on lawful sexual relations (an occasional issue, rated as mild); and adverse impact on feelings (presenting as frequent mood instability, particularly anxiety) rated by Dr Ray as moderate.

In these circumstances it is submitted that an award for adverse impact should be made at 20% of the scheme maximum. Although there are clearly a significant series of impacts arising as a result of this offence, in my view the appropriate recognition of the collation of those impacts would be an award of 15% of the scheme maximum ($11,250).

Contribution

9. [9]
   The applicant has not contributed in any way to her own injuries, either direct or indirect.^[8]

Order

10. [10]
    I order that the respondent JFB pay the applicant MBA the sum of $18, 750.