DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, JAC, pleaded guilty in the Beenleigh District Court on 11 January 2007 to three counts of indecent treatment of a child under 16 under care; 15 counts of rape; four counts of assault occasioning bodily harm; three counts of assault occasioning bodily harm while armed; one count of unlawful wounding and one count of maintaining a sexual relationship with a child under 16; all in respect of the applicant MAG. The respondent was sentenced to a range of concurrent penalties, with an effective head sentence (attached to the charges of rape and maintaining a sexual relationship with a child under 16) fixed at 14 years imprisonment.^[1]

Facts

2. [2]
   The respondent was the applicant’s uncle. When she was aged between 13 and 15, and residing with her father, her younger sister and the respondent, she was the victim of 18 particularised sexual incidents and nine further counts involving serious physical violence upon her. The sexual acts committed against her included acts of indecent dealing, penile, vaginal and oral rape. The assault offences included a protracted assault when the applicant was thrown and kicked against walls, her hair was pulled, and her head was smashed into a wall causing a hole in the plaster (count 20). On a subsequent occasion the respondent assaulted the applicant, grabbing her hair, throwing her on the lounge and beating her causing scratches and bruises (count 22). The applicant was then repeatedly hit over the head with a beer bottle and burnt with a lit cigarette (counts 23 and 24). The applicant on another occasion was punched in the face, held down by the throat and the respondent attempted to set her hair alight, leaving bruises and markings on her face (count 26).

3. [3]
   On a further occasion, when the applicant did not make herself available to the respondent for acts of intercourse, and the respondent swung at her with a knife cutting open her hand, requiring eight stitches and leaving scars (count 27). On another occasion the respondent swung a beer bottle at the applicant causing bruising and a lump (count 28).

4. [4]
   On a subsequent occasion when the applicant was seeing a friend the respondent believed was her boyfriend, the respondent hit the applicant in the back and head with a steering wheel lock resulting in injuries that were bleeding (count 29).

5. [5]
   On a further occasion the respondent accused the applicant of stealing money from him, swung his fist at her, grabbed her head and caused the head to hit a bench and cut open (count 30).

6. [6]
   In respect of the offence of maintaining a sexual relationship, as well as the particularised acts on the indictment, the applicant estimated that acts of intercourse occurred between 200 or 300 times during the period of the maintaining, including the respondent putting his penis in the applicant’s mouth “maybe 10 times”. The relationship evidence included “repeated acts of physical violence to coerce and threaten the [applicant] to enable … sexual offending to occur”. The respondent regularly threatened the applicant, including threats that he would hold a gun to her head and shoot her, that he would make her like a vegetable and put her in a wheelchair, and that he would run over her with his car. The respondent regularly beat the applicant. There were several occasions when the respondent used a steering wheel lock to hit the applicant in the back and the head.

7. [7]
   The applicant fell pregnant as a result of the sexual offences committed against her by the respondent.^[2]

Injuries

8. [8]
   The applicant suffered a range of physical injuries including bruising and lacerations, wounding, scarring, mental or nervous shock and adverse impacts, as well as a pregnancy.

For law

9. [9]
   The application in these proceedings was filed on 23 January 2009, prior to the repeal of Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  The application falls to be dealt with pursuant to the relevant transitional provisions of VOCAA s 167(2), and was brought in compliance with the relevant timeframe pursuant to COVA s 40(1).

10. [10]
    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. 

Leave to proceed

11. [11]
    The application was filed on 23 January 2009. There were court appearances on 16 March 2009, 25 September 2009 and 3 September 2010, and on each occasion the application was adjourned. There was no appearance by the respondent at any of these court proceedings. No further action was then taken on the file after 3 September 2010 until October 2011, when the file was transferred from previous lawyers to Legal Aid Queensland.

12. [12]
    I am satisfied, pursuant to the criteria set out in Tyler v Custom Credit Corp Ltd and Ors [2000] QCA 178, that leave to proceed should be granted pursuant to Uniform Civil Procedure Rules (UCPR) r 389(2).  It is clear that the failure to progress the matter was not the fault of the applicant, and the respondent has shown no interest in participating in the proceedings.  The claim is substantial and there is no prejudice to the respondent if leave to proceed is granted.

Compensation

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

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

14. [14]
    Ms Muirhead identifies a range of injuries which she submits should be compensated separately under Item 1 at 1% of the scheme maximum ($750) including lumps on the applicant’s head (count 20); scratches and bruises to the applicant’s ribs (count 22); a lump on the left side of the back of the applicant’s head after being hit with a beer bottle (count 23); bruises and marks from being punched to the left eye and having her hair set on fire (count 26); bruising and a lump on the applicant’s face from being hit with a long neck beer bottle (count 28); cuts and bleeding from being hit on the back of the head with a wheel lock (count 29); a cut head and bleeding (on the back of the head) which the applicant suffered when she was pulled off a stool by the respondent (count 30); as well as an order for 3% of the scheme maximum under Item 1 for the injuries to the applicant's hymen consistent with the respondent having coitis repeatedly with the applicant over a significant period of time.^[3]

15. [15]
    I accept that it is permissible to assess each of the identified injuries pursuant to Item 1 separately, and accordingly in total (given that they relate to different counts), I order 10% of the scheme maximum ($7,500) pursuant to Item 1.

2.Item 24 – gunshot/stab wounds (minor) – 6% - 10%. 

16. [16]
    The applicant was wounded on her hand by the respondent with a craft knife (count 27) which cut the true skin exposing tendons and nerves, leaving healed scars observed by Dr Roylance in June 2005 which he considered were “quite completely consistent with a laceration with a stanley knife”.^[4]  Dr Culliford in her report expressed the opinion that the cut to the hand was a full thickness cut that it would have breached the true skin (i.e. a wounding) and noted that the injury required eight sutures.^[5]

17. [17]
    It is submitted that an award should be made at 8% of the scheme maximum in respect of this injury. I accept that submission and accordingly award 8% ($6,000) pursuant to Item 24.

3.Item 28 – facial disfigurement – bodily scarring (severe) – 10% - 30%. 

18. [18]
    Dr Trevor Harris, plastic and reconstructive surgeon, examined the applicant on 10 November 2011 and provided a report dated 11 November 2011.^[6]  Dr Harris identified two scars on the posterior scalp, non-hair bearing but well camouflaged by the ceramic hair growth, one 2.5 cm by 3 mm, one 3 cm by 0.3 cm; a faint transverse scar 1.8 cm by 5 mm on the dorsum of the right forearm; a transverse scar 6 cm by 0.7 cm of the left hand; two scars on the anterior aspect of the right thigh each measuring 1.5 cm in diameter with slight depression and decreased pigmentation; and a 1.5 cm scar resulting from a burn, with slight depression and decreased pigmentation, in the mid portion of the right thigh.  I note that the scar on the left hand is the subject of the claim pursuant to Item 24 and should be excluded from the sum total of the injuries for which compensation is sought pursuant to Item 28. 

19. [19]
    Dr Harris noted that there was “abnormal sensation in the scars of the scalp” and “some cutaneous numbness surrounding the scar of the left wrist”, but “no particular change in sensation relating to the other scars”. Dr Harris did not consider that any of the scars could or should be treated, and estimated that the “impairment of the whole person” due to the scarring was “4 %”.

20. [20]
    Ms Muirhead submits that an order should be made pursuant to Item 28 at 20% of the scheme maximum for this array of injuries. With respect, I consider it more appropriate to make an award at the lower end of Item 28 and accordingly (exclusive of the injury to the hand which is the subject of a separate award) I award 10% of the scheme maximum ($7,500) pursuant to Item 28.

4.Item 33 – mental or nervous shock (severe) – 20% - 34%.

21. [21]
    The applicant was diagnosed by Dr Barbara McGuire, psychiatrist as suffering “from post traumatic stress disorder to a severe degree”, based on the applicant’s “exhibition of anxiety, hyper vigilance, security fears, aversion to sexual activity, low self esteem, exaggerated startled reflex etc.”. Dr McGuire notes that “because [the applicant’s] abuse resulted in a pregnancy, it is likely that this condition [i.e. the post traumatic stress disorder] will be perpetuated indefinitely but her symptoms have lessened overall.”^[7]

22. [22]
    In these circumstances, it is submitted that an award of 30% of the scheme maximum ($22,500) is appropriate. I accept that submission and accordingly award 30% ($22,500) pursuant to Item 33.

5.Criminal Offence Victims Regulation (COVR) s 1A - Adverse impacts.

23. [23]
    Dr McGuire identifies that the applicant suffered a disease (chlamydia) as a result of the sexual offending, which was treated and has not left any longstanding results;^[8] and the applicant’s difficulties bonding with her daughter^[9]as being “adverse impacts” not covered by or contained within the diagnosis of post traumatic stress disorder.^[10] In addition, Ms Muirhead identifies the following “adverse impacts” including: the problems created between the respondent's family and the applicant’s family and consequent threats;^[11] the loss of the applicant’s social life including her difficulties in making and maintaining friendships;^[12] the impact upon the applicant’s dressing to cover her body;^[13] the impact on the applicant’s schooling as a result of falling pregnant when she was in Year 10;^[14] the impact of raising a child fathered by the respondent;^[15] and the ongoing anger that the applicant felt blaming her father for failing to protect her.^[16]

24. [24]
    Ms Muirhead submits that the collation of adverse impacts outlined should receive an award of 40% of the scheme maximum ($30,000). I accept that submission and accordingly award $30,000 pursuant to COVR s 1A.

6.Pregnancy.

25. [25]
    The definition of “injury” in COVA s 20 includes “bodily injury, mental or nervous shock, pregnancy”. In addition to “any injury specified in the compensation table or prescribed under a regulation.”

26. [26]
    There being no specific reference to pregnancy in the compensation table in schedule 1 of COVA, the court must rely on s 25(5) which provides:

“In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by –

1. (a)
   comparing the injury with injuries to which subsections (4) and (5) apply; and

2. (b)
   having regard to the amounts that maybe ordered to be paid for those injures.”^[17]

27. [27]
    I accept the submission that “pregnancy” is a separate injury, distinct from (and compensable in addition to) mental or nervous shock, adverse impacts or other bodily injury.

28. [28]
    I note the review of the approach to quantum on the issue of pregnancy as set out by Jones J in MAV v OBA [2007] QCA 124, and conclude that a pregnancy which arose from long term sexual abuse of the applicant by the respondent, which proceeded to full term and has resulted in a child being raised by the applicant, should most appropriately be compensated by an award of 30% of the scheme maximum ($22,500). 

Contributing factors

29. [29]
    I do not consider, pursuant to SAY v AZ ex parte Attorney-General (Qld) [2006] QCA 462, that there are competing issues of causation which require any reduction of the award made by this court. 

Contribution

30. [30]
    The applicant has not contributed in any way to her own injures, either direct or indirect.^[18] 

Conclusion

31. [31]
    The amounts awarded as set out above equal 128% of the scheme maximum, being a total of $96,000. Pursuant to COVA s 25(2), any compensation order is limited to “the scheme maximum”. Accordingly the total award is limited to $75,000.

Order

32. [32]
    I order that the respondent, JAC pay the applicant MAG the sum of $75,000.