DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to Section 24 of the Criminal Offence Victims Act 1995 and also pursuant to Regulation 1A of the Criminal Offence Victims Regulations for the adverse impacts of a sexual offence. The applicant’s date of birth is 28 February 1983. At the time of the relevant offences, she was aged approximately 13 years and is now aged 28 years. The respondent to this application was aged approximately 39 years at the date of the offences. He was the applicant’s stepfather.

2. [2]
   The affidavit of Wayne Colin Heydt, commercial agent, filed 7 March 2011 establishes to my satisfaction that the respondent was served on 14 February 2011 with the following documents:

1. (a)
   Letter from Legal Aid Queensland dated 8 February 2011 advising new date for hearing;

2. (b)
   Originating application (Filed on 10 November 2009);

3. (c)
   Affidavit of the applicant;

4. (d)
   Affidavit of Dr Barbara McGuire; and

5. (e)
   Affidavit of Debbie Richardson, paralegal with Legal Aid Queensland.

There was no appearance by or on behalf of the respondent at the hearing of this application.

3. [3]
   The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. Section 155(1) of the Victims of Crime Assistance Act 2009 provides that where a conviction happens before commencement, a person may apply to the Court for an order for criminal injuries compensation if Section 145(1)(a)(i) applies to the person. It may be accepted that, had the Victims of Crime Assistance Act 2009 not commenced, the applicant could have applied to the Court for compensation under the Criminal Offence Victims Act 1995. Section 167(2) provides that if a person has applied to the Court for an order for compensation under the old scheme, then the Court must hear and determine the application under the repealed provision.

4. [4]
   This application (number 497/09) was filed on 10 November 2009, prior to the commencement of the Victims of Crimes Assistance Act 2009. Section 40(1) of the Criminal Offence Victims Act 1995 provides that an application to a Court for a compensation order against a convicted person must be made:

“(a)within three years after the end of the convicted persons trial; or

(b)if the applicant is a child at the time of the trial – before the end of three years after the child becomes an adult; or

(c)with the Court’s order under Section 41 – at any other time.”

The time limit expires three years from the date of sentence.^[1]The respondent was convicted on 25 January 2008 and sentenced on 13 March 2008. The time limit for filing the originating application would therefore have expired on 13 March 2011. In these circumstances, I accept that the application has therefore been filed within the time prescribed by the Criminal Offence Victims Act 1995.

5. [5]
   The respondent pleaded guilty to the following counts on 25 January 2008 at the District Court at Brisbane:

Count 2:

Indecent dealing with a child under 16, under care/on a date unknown between 1 January 1996 and 31 December 1996 at Ipswich.

Count 3:

Indecent dealing with a child under 16, under care/on a date unknown between 1 January 1996 and 31 December 1997 at Ipswich.

Counts 1 and 4 on the indictment were discontinued by the prosecution and the respondent discharged in relation to those counts. On 13 March 2008 the respondent was sentenced on each of counts 2 and 3 to imprisonment for two and half years to be served concurrently. The sentences were to be suspended after 10 months with an operative period of three years. Convictions were recorded.

6. [6]
   Count 2 involved the respondent touching the applicant’s breasts outside of her clothing, continuing to hold her and rub her breasts for five minutes notwithstanding that the applicant was crying and upset. Count 3 occurred approximately two weeks after Count 2. The respondent pinned the applicant down, pulled down her underpants and shorts and inserted a finger into her vagina moving his finger in and out notwithstanding that the applicant was crying and pleading for the respondent to desist.

7. [7]
   There is no claim for physical injuries, the claim being confined to mental or nervous shock and adverse impacts.

8. [8]
   In her affidavit filed 20 December 2010, the applicant deposes that at the time the offences were committed, she felt powerless. She was distressed and cried but the respondent apparently did not care. Immediately after the offences had been committed the applicant felt dirty and disgusted and would shower and lock herself away. In the days and weeks following the offences the applicant felt that she had been taken advantage of and that her youth and innocence had been taken from her. She felt alone, scared and isolated, and was afraid to tell anyone about what had happened to her. The biggest impact at the time was that the applicant’s first sexual experience was with a person who she regarded as a father figure. That damaged her self-esteem and she felt guilty and ashamed.

9. [9]
   The applicant states that her education suffered greatly as a result of the offences and she ended up dropping out of school in Year 11. She claims that her school work had declined because of the abuse and that she had trouble concentrating. She commenced binge drinking at the age of 14 years and this progressed to her drinking every day. When the applicant left school, she obtained a full time job at Woolworths, but states that due to the stress of the offences and confronting her mother with her allegations and providing statements to the police, her drinking resulted in the loss of her first job. The applicant deposes to having commenced using amphetamines around the age of 20 – 21 for approximately 12 months. She stopped using after 12 months and was able to remain drug-free without any problem.

10. [10]
    Many of the applicant’s relationships suffered. The applicant states that her relationship with her mother was the worst affected. When she first confronted her mother with her allegations, her mother did not believe the applicant and sided with the respondent. This was very traumatic for the applicant and it has taken years for her relationship with her mother to mend. The applicant deposes to having been “kicked out of home” by her mother and accused of “sleeping around” when she was a teenager. The applicant believes that the respondent told her mother that she had enticed the respondent and her mother accepted this. Both the applicant and her mother have attended counselling over the last couple of years to try and repair their relationship. The applicant’s mother’s husband died some six months ago and the applicant’s mother has spent more time with the applicant since then and in that short space of time there has been an improvement in the relationship.

11. [11]
    The applicant deposes to having withdrawn from friends after the offences and that her relationship with her younger sister, Errin, was also strained.

12. [12]
    When she was 16 the applicant entered into a relationship with “someone that was not very healthy for me”. She fell pregnant when she was 17 and remained in an unhealthy, emotionally abusive relationship for almost seven years. The applicant has two daughters by this person. Although the person was a drug addict, unemployed and burdened with debt, the applicant clung to him because she had nobody else.

13. [13]
    The applicant has found it difficult to bond with her children at times and struggles to determine what amount of affection is appropriate. She has struggled with knowing who to trust around her children and allowing the children “to go places in fear of what may happen to them if I am not there to protect them”. The applicant is anxious about her daughters having contact with males and in particular with her mother’s new partner when he was alive. She deposes that the only men she trusts are her father and her husband. Even though the applicant trusts her husband with her two oldest daughters she notices that he is very cautious in his relationship with them and keeps appropriate boundaries. The applicant and her husband have had a daughter together approximately 18 months ago and the applicant noticed that her husband was cautious when changing their daughter’s nappies and bathing her.

14. [14]
    The applicant states that due to her insecurities, she has found it difficult at times to feel comfortable in social settings and she thus tends to stay at home and withdraw from these situations.

15. [15]
    Following the release of the respondent from prison, the applicant started to have concerns for her security. She has seen the respondent since his release because he and his family still live in the same area as the applicant.

16. [16]
    The applicant states that her sexual relationships have varied since the offences occurred. She went through a stage of being very promiscuous feeling that the only way she could receive and give love was through sex. She would go out and find anybody to have sex with and feel disgusted immediately afterwards. With her husband, the applicant found it difficult to have a healthy sexual relationship. She states that she had always thought of sex as something dirty and wrong, so when it came to having sex with her husband she had to redefine what sex was. She deposes to still having problems with intimacy and claims that she still sees sex as dirty and wrong and feels ashamed when she is involved with it. She is scared that her husband will leave her eventually and she gets very jealous at times in their relationship, usually over nothing. She also fears the impact on her parenting and worries that she will be too protective of her children and not let them experience things because of her fear of their being abused. She finds it difficult to discuss topics of a sexual nature and worries that her children will not be open with her about such matters because of this.

17. [17]
    The applicant deposes to having had nightmares and flashbacks after disclosure for some 12 – 18 months. She deals with the abuse now by trying to block out all memories of it and has not had a nightmare or flashback for some years. She does however feel depressed at times when she thinks about the abuse and the insecurities that come from it. The applicant has attended counselling with Mr Peter Gee, a psychologist. She last saw Mr Gee approximately two and a half years ago when she first saw the respondent at a shopping centre after his release from prison. She has recently made an appointment to see Mr Gee again for further counselling.

18. [18]
    The applicant states that she is frequently anxious, has slow self-esteem and lacks confidence. She does not believe that she deserves good things to happen to her.

19. [19]
    The applicant’s affidavit mirrors and expands upon the contents of her victim impact statement which was tendered at the sentencing proceedings. I accept her evidence.

20. [20]
    A report under the hand of Dr Barbara McGuire, psychiatrist, dated 20 October 2009 confirms that the applicant suffers from post traumatic stress disorder as demonstrated by her feeling of constant arousal, difficulties with dissociation, irritability, low self-esteem, and self blame. Dr McGuire’s opinion is that the applicant suffers from this psychiatric disorder to a moderate degree. However, Dr McGuire notes that the applicant is able to function as a good mother and that she is working part-time.

21. [21]
    So far as adverse impacts are concerned, Dr McGuire confirms that the applicant did experience a sense of violation in that she felt her innocence had been taken away and also that she had feelings of having been immensely violated. Dr McGuire observes that the applicant knew that what the respondent did to her was wrong and it still distresses her that her first sexual experience was of abuse. Dr McGuire notes that the applicant has a feeling of reduced self worth which persists. Dr McGuire believes that the applicant may struggle with her children’s sexuality and notes that the applicant feels that her children will probably hate her when this occurs. With respect to increased fear or increased feelings of insecurity, Dr McGuire confirms that the applicant is hypervigilant. The applicant knows the sort of car that the respondent drives and is always on the alert looking for it. So far as the adverse effect of the reaction of others is concerned, Dr McGuire notes that the applicant’s mother’s disbelief has been very hurtful. With regard to the adverse impact on lawful sexual relations, Dr McGuire observes that the applicant has problems with sex in that she sees it as dirty and wrong.

22. [22]
    The material discloses that the applicant experienced more sexual abuse at the hands of the respondent than the two offences for which he was convicted. However, the applicant believes that had the two offences been all that she had been subjected to she would have been as badly affected and that those two offences made a substantial and material impact upon her symptoms. Dr McGuire supports this view and confirms that the offences committed by the respondent did materially and significantly contribute to the applicant’s condition. Furthermore, it is Dr McGuire’s view that the applicant would have suffered the level of post traumatic stress that Dr McGuire has diagnosed had the applicant’s only experiences been of the assaults comprised in the two offences. Dr McGuire states that it is not possible to separate the effects of the offences for which the respondent was convicted from other life experiences of the applicant. Dr McGuire believes that the applicant needs further counselling although it is difficult to estimate the duration of such treatment.

23. [23]
    The applicant in her affidavit has confirmed that the effects on her life of the incidents the subject of this application have been correctly detailed in Dr McGuire’s report. I accept the evidence of Dr McGuire. I am further satisfied that the applicant did not directly or indirectly contribute to her injuries.

24. [24]
    Although other factors may have contributed to the injuries sustained by the applicant, I do not consider that there should be any reduction in compensation in this case. As Dr McGuire has confirmed, the offences committed by the respondent not only materially and significantly contributed to the applicant’s condition, but the applicant would have suffered from moderate post traumatic stress had the two offences been the only contributors to the applicant’s injuries.

25. [25]
    In SAY v AZ, Ex parte Attorney-General of Queensland [2006] QCA 462 the issue of causation under the Criminal Offence Victims Act was considered. Holmes JA at paragraphs 22 and 23 of the judgment discussed the approach to causation where other factors contribute to injury.

[22] The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offences has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might be otherwise awarded.

[23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a 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 scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.

26. [26]
    I accept that in all the circumstances of this case, no account should be taken of other acts of sexual abuse for which the respondent was not convicted. The offences were, I accept, part of a continuing course of similar and reprehensible conduct by the respondent and made a substantial and material impact upon the applicant’s symptoms. Having regard to Dr McGuire’s opinion that the applicant would have suffered the same degree of post traumatic stress disorder if the applicant’s only experiences related to the offences for which the respondent was convicted, in my opinion there should be no reduction in compensation on the grounds of causation.

27. [27]
    I find that the applicant has suffered an injury as defined in Section 20 of the Criminal Offence Victims Act 1995 as a result of the offences committed upon her by the respondent. At the time of the offences the applicant was aged 13 years. The offences for which the respondent was convicted have had a significant impact upon the applicant’s life. I find that the applicant suffers from moderate post traumatic stress disorder and will require further counselling of indeterminate duration. The injury falls for assessment under Item 32 of the Schedule to the Act which permits an assessment of compensation at between 10% and 20% of the Scheme maximum which remains at $75,000. In view of the very significant effects detailed in the affidavit of the applicant and the report of Dr McGuire it is appropriate to award compensation at the upper level of this limit, namely 20% of the Scheme maximum which yields an amount of $15,000. In relation to the claim for adverse impacts there is clear evidence of lost or reduced physical capacity by the applicant in that she may struggle with her children’s sexuality leading to probable hatred of the applicant when this occurs. There is also clear evidence of adverse effect of the reaction of others stemming from her mother’s disbelief which has been very hurtful. Dr McGuire confirms that both these grounds are claimable as adverse impacts quite separate from any claim in respect of the diagnosis of post traumatic stress disorder. These adverse impacts should be considered in the context of the applicant’s feelings of loss of innocence, the adverse effect of the applicant’s leaving home at an early age as a result of the respondent’s conduct, the adverse effects on the applicant’s education and employment, her feelings of guilt with respect to the abuse of her sister by the respondent, and the adverse effects upon her parenting and relationships with family members. All these matters are identified in both the applicant’s affidavit material, her victim impact statement, and also in the report of Dr McGuire.

28. [28]
    Pursuant to Regulation 1A the Court is required to take into account the totality of the adverse impacts of a sexual offence upon an applicant. Under Regulation 2A the prescribed amount that may be awarded when taking into account the effect of adverse impacts is an amount up to 100% of the Scheme maximum of $75,000. In my opinion the material before me indicates that an assessment at 30% of the Scheme maximum would be appropriate in relation to the adverse impacts manifest in this case. This yields a further amount of $22,500.

29. [29]
    The total award is therefore $37,500.

30. [30]
    I order that the respondent is to pay criminal compensation to the applicant in the amount of $37,500.