JHS v SPJ[2011] QDC 99

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent pleaded guilty at the Beenleigh District Court on 29 May 2002 to two counts of administering a stupefying drug with intent to commit an indictable offence, five counts of indecent treatment of a child under 16 years, and one count of rape. The respondent was sentenced to eight years imprisonment in respect of one of the counts of administering a stupefying drug (Count 3) and the count of rape (Count 4) with lesser concurrent terms for the balance of the counts. A period of 544 days in pre-sentence custody was declared time served. It was recommended that the respondent be eligible for early release on parole after serving one third of the overall sentence.

The facts

2. [2]
   The respondent was the applicant’s step father. Counts 1 and 2 are alleged to have occurred between 1 January 2000 and 31 July 2000, and Counts 3-8 are alleged to have occurred between 5 July 2000 and 28 October 2000. When the applicant was aged 12 or 13, the family were living together at Shailer Park.  The applicant’s mother found some photographs of the applicant in the respondent’s car, and as a result the offences came to light.  The photographs are the subject of Counts 5, 7 and 8. 

3. [3]
   At the time the offences occurred, the applicant had been drugged and was unaware of the offences occurring. The facts placed before the court in respect of Counts 1 and 2 came from the respondent’s record of interview. The respondent stated that he had obtained instructions on how to use chloroform from an internet site. The respondent purchased chloroform from a chemist and kept it in the garage. The respondent spoke of an occasion when he administered the chloroform to the applicant when she had fallen asleep on the lounge while watching a movie. The respondent went to the garage and placed some chloroform on a sponge, returned to the lounge room, and held the sponge away from the applicant’s face so that she breathed the fumes (Count 1 – administer stupefying drug with intent to commit an indictable offence). The respondent then pushed the applicant to see if she was r esponsive. There was no response. The applicant had a pair of loose fitting jeans on and the respondent reached in with a pair of scissors and cut off the applicant’s underpants (Count 2 – indecent treatment of a child under 16 years as guardian). A pair of the applicant’s underpants were subsequently located by the applicant’s mother in a cupboard in the garage, cut along the side seams. The applicant was then 12.

4. [4]
   The respondent, one night after 6 July 2000 when he returned from a trip to New Zealand, again went to the garage and placed some chloroform on a sponge.  The respondent returned with the sponge to the room while the applicant was asleep.  The respondent again held the sponge away from the applicant’s face and allowed her to breath in the fumes.  The respondent tried to wake the applicant.  While she was asleep, the respondent committed a series of offences identified as Counts 3-8.  Count 3 (administer stupefying drug with intent to commit an indictable offence) arises from the administration of the chloroform. 

5. [5]
   The respondent admitted in his interview that while the applicant was asleep he undressed her and penetrated her vagina with his penis. He did not thrust his penis nor ejaculate. The activity lasted for a few minutes (Count 4 – rape).

6. [6]
   While the respondent’s penis was inserted in the applicant’s vagina, the respondent took a photograph with a camera he had purchased on the trip to New Zealand (Count 5 – indecent treatment of a child under 16 years, (indecent film)). 

7. [7]
   The respondent also admitted that while the applicant was asleep he placed a flute or recorder near her vagina and had intended “to do something disgusting with it” but could not do it (Count 6 – indecent treatment of a child under 16 years).

8. [8]
   The respondent took other photographs of the applicant, including one photograph in which the applicant was partially naked, showing her vagina and her pyjama top pulled up over her breasts (Count 7 - indecent treatment of a child under 16 years, (indecent film)), and another photograph in which the flute was seen placed up against the applicants vagina (Count 8 - indecent treatment of a child under 16 years (indecent film)).

9. [9]
   In July 2000, the applicant told her mother that one morning she had woken up with her sanitary pad missing and her underpants were fitted incorrectly. The applicant’s mother then located a bottle of chloroform and pornographic material hidden in the family home the next day. The applicant’s mother confronted the respondent about these things and they were destroyed. Subsequently, in October 2000, the applicant’s mother discovered the photographs the subject of Counts 5, 7 and 8 in the respondent’s car.^[1]

The injuries

10. [10]
    The applicant sustained a tear of the hymen, but no diagnosable mental or nervous shock injuries. The applicant, however, seeks compensation for adverse impacts arising from the sexual offences, as well as compensation for the physical injury.

The Law

11. [11]
    The application in these proceeding was filed on 30 July 2008 pursuant to s. 24 the Criminal Offence Victims Act 1995 (COVA) which was subsequently repealed by the Victims of Crime Assistance Act 2009 (VOCAA) on 1 December 2009.  Pursuant to VOCAA s. 167(2), the application proceeds under the repealed provisions of COVA.

12. [12]
    I refer to and adopt my exposition of the relevant applicant law under COVA as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

13. [13]
    Ms F Muirhead, for the applicant, seeks compensation as follows:

(1)  Item 1 – Bruising/laceration etc (minor/moderate) – 1%-3%. 

Ms Muirhead relies on the report of Dr Elizabeth Culliford dated 11 December 2002 which indicated that on a genital examination “the hymen was thick, fimbriated and elastic.  There was a healed, full radial tear of the hymen at five o’clock.”  Dr Culliford states further that “no other genital injuries were noted”.^[2]  Ms Muirhead submits that an award of 1% of the scheme maximum ($750) should be made pursuant to Item 1.  I accept that submission and accordingly award 1% ($750) pursuant to Item 1.

(2) COVR 1995 s. 1A – Adverse impacts

14. [14]
    The applicant was examined by Dr Barbara McGuire, psychiatrist, on 14 April 2008. Dr McGuire provided a report dated 18 April 2008.^[3]  Dr McGuire concluded that “it is not possible to diagnose post traumatic stress disorder”^[4].  There was a significant further complication noted by Dr McGuire, in that the applicant suffered a serious head injury in a motor vehicle collision in January 2007, could not walk for nine months and was unconscious for about six weeks.^[5]

15. [15]
    Dr McGuire then supplied further reports dated 4 December 2009^[6], 25 August 2010^[7] and 4 May 2011^[8].  In her report of 4 December 2009, Dr McGuire, after referring to the injuries suffered by the applicant in the motor vehicle collision in New Zealand on 27 January 2007 (which included suffering a subarachnoid hemorrhage and petechial hemorrhages), states:

“as noted in my report of [18 April 2008] I could not make a diagnosis of post traumatic stress disorder.  However [the applicant] did give an account of the following symptoms which preceded the head injuries [incurred in the motor vehicle collision on 27 January 2007].  [The applicant] exhibited behavioural problems, substance abuse, truancy from school, disturbed relationship with her mother, flashbacks and occasional panic attacks.

This leads me to the conclusion that as a consequence of the sexual abuse she developed borderline personality traits and I believe that there is a probability that the car accident and serious physical injuries was a consequence of these borderline traits; in other words that the sexual abuse laid down a personality structure which mitigated against [the applicants] education, the capacity to form rewarding interpersonal relationships and her capacity to trust.  This had a very far reaching effect upon the quality of her subsequent life.”^[9]

16. [16]
    In her report dated 4 May 2011 Dr McGuire goes on to explain that “the highly exploitative and abusive nature of the offences [committed against the applicant by the respondent] contributed very substantially to [the applicant’s] recklessness and lack of self care.”^[10]

17. [17]
    In these circumstances, the submission by Ms Muirhead on behalf of the applicant is that a substantial award should be made for “adverse impacts” pursuant to COVR s. 1A. These adverse impacts include “a sense of violation” (viewed retrospectively because it wasn’t experienced at the time of the actual offence); “reduced self worth” (based on the applicant’s description of her behaviour in social situations and consequent alcohol abuse); “lost or reduced physical capacity (including the capacity to have children, whether temporary or permanent),” (the applicant described her tendency to lack judgement in interpersonal relationships which may affect her capacity to parent children); “increased fear or increased feelings of insecurity” (the applicant reports increased fear and feelings of insecurity by a tendency to have a deadlock on her bedroom door); “adverse impact of the reaction of others” (the applicant has suffered from her mother’s ineffectual response to the abuse); “adverse impact on lawful sexual relations” (the applicant reports being unable to associate sex with feelings of love of affection); “anything the court considers is an adverse impact of a sexual offence” (Dr McGuire considers that the applicant’s reckless behaviour (a consequence of the sexual abuse) led to her subsequent serious head injury in a motor vehicle collision).

18. [18]
    Ms Muirhead also points out that the applicant has lost the ability to make and maintain friendships;^[11] has performed poorly in her schooling;^[12] and now has a poor relationship with her mother, step father and half brother.^[13]

19. [19]
    In summation, Ms Muirhead submits that the significant range of adverse impacts arising from the impact of the sexual offences upon the applicant should receive an award at 40% of the scheme maximum.

20. [20]
    It is clear that significant and compensable “adverse impacts” can occur, even in the absence of any diagnosable mental disorder or psychiatric illness sufficient to amount to “mental or nervous shock”.^[14]

21. [21]
    I accept Ms Muirhead’s submission and accordingly I award 40% ($30,000) pursuant to COVR s. 1A.

Contribution

22. [22]
    I do not consider that the applicant has contributed to her own injuries, either directly or indirectly, in any way.^[15]

Conclusion

23. [23]
    I order that the respondent, SPJ, pay the applicant, JHS, the sum of $30,750.