JKMG v JJT[2012] QDC 117

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: For the record I've anonymised these proceedings so that the parties are JKMG by her litigation guardian, AAMR, as applicant against JJT as respondent.

INTRODUCTION

The applicant, by her litigation guardian, seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for mental or nervous shock and adverse impacts claimed to have been sustained by her as a result of two offences of indecent treatment of a child under 12 years of which the respondent was convicted on his pleas of guilty on 23 April 2009.

On that date I released the respondent who was a child at the time of the commission of these offences and was being sentenced under the Juvenile Justice Act 1992 (Qld) (now the Youth Justice Act 1992 (Qld)) on three years' probation with a condition that he attend treatment with the Griffith Youth Forensic Service or an alternative service provider as directed and, further, that he comply with all reasonable requirements of the program and maintain a rate of progress that is satisfactory to the treatment program. I did not record a conviction against him.

The Act was repealed by the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009. The transitional provision in section 155(1)(a) requires the application to be determined in accordance with the Act, as it was made on 27 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).

Section 40(1)(b) of the Act requires that the application be made before the end of three years after the applicant child became an adult. The applicant was born on 23 July 2003. She was six years' of age at the time of the application, therefore, the application was made within the required time.

SERVICE

Rule 105(1) of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) provides that a person serving an originating process must serve it personally on the person intended to be served. Rule 27(1) provides that an application must be filed and then served on each respondent, at least, three business days before the day set for hearing the application.

Mr Wynn, a licensed commercial agent, deposes in his affidavit, sworn on 14 October 2010 and filed on 22 October 2010 to personal service upon the respondent of the application, a letter from Legal Aid Queensland advising the date for hearing on 26 November 2010 at 9 a.m. and all other materials which had been filed to that date in support of the application. This was on 13 October 2010.

Accordingly, the respondent was duly served in accordance with Rules 105 and 27 of the UCPR. There was no appearance by him or on his behalf on 26 November 2010. As a result I commenced to hear the application in his absence. On that date I adjourned the hearing to a date to be fixed to enable the applicant's legal representative to address issues that I had raised during argument. This provided the opportunity for further evidence to be obtained and further submissions to be made on these issues.

As a consequence a further affidavit sworn by Dr Flanagan on 1 February 2012 was filed on 8 February 2012. This exhibited a further report by him of 1 December 2011. A further affidavit from the litigation guardian was filed and read by leave before me on 5 April 2012.

Notice of the applicant's intention to proceed was served upon the respondent on 5 March 2012. As established by the affidavit of Mr Fox, the Gladstone Bailiff, sworn on 6 March 2012 and filed on 14 March 2012 this notice was in the form of a letter dated 22 February 2012 from Legal Aid Queensland to the respondent advising the date and time of the relisted hearing. This also enclosed Dr Flanagan's 1 February 2012 affidavit and the exhibit report.

Mr Fox deposes that not only did the respondent confirm his identity but also was known to him personally. In addition, Ms Lo, a Legal Aid Queensland paralegal affirmed in her affidavit of 29 March 2012 and filed the next day that on the first mentioned date she posted the 28 March 2012 affidavit of the litigation guardian to be respondent at the service address.

Because no step had been taken in the proceeding for over one year from the time the last step was taken Rule 389(1) of the UCPR requires that before taking another step the party who wants to proceed must give a month's notice to every other party of the intention to do so.

The Acts Interpretation Act 1954 (Qld) defines "month" to mean a calendar month: section 36. Calendar month is then defined by the section as "a period starting at the beginning of any day of one of the 12 named months and ending immediately before the beginning of the corresponding day of the next month". I am satisfied that as the respondent was served on 5 March 2012 with a notice of the applicant's intention to proceed on 5 April 2012 Rule 389(1) has been complied with.

In addition, the respondent was served at that time with the additional affidavits referred to. There was, again, no appearance by him when his name was called on 5 April 2012. I am satisfied that he has been served with all relevant material. It is, therefore, appropriate to proceed to determine this application in his absence.

JURISDICTION

The respondent was convicted in the Childrens Court of Queensland, however, this application has been filed in the District Court. The Childrens Court of Queensland is a separate Court to the District Court as Bradley DCJ said in Boyd-Bush -v- Braden [2010] QDC 348 at [12]. In Laning -v- Cherry-Kelly [2010] QDC unreported, number 3795 of 2009, 20 August 2010, Martin SC DCJ came to the view in paragraph [16] of the decision that it is reasonably open (given the ties between the District Court and the Childrens Court of Queensland; the legislative intention behind the Act; and the omission of any reference to the Childrens Court of Queensland in the definition section of the Act) to read the Act as conferring jurisdiction on both the District Court and the Childrens Court of Queensland to hear applications for compensation resulting from convictions in the Childrens Court of Queensland for indictable personal offences.

I agree with her Honour with reference to R -v- Callaghan and Fleming ex parte Power [1986] 1 QDR 457 per Connolly J; Summers -v- Dougherty and Anor [2000] QSC 365 per White J and Pettingill -v- Minister for Justice and Attorney-General [2003] QSC 385 that this view of Martin SC DCJ is consistent with a benign interpretation of the Act given that it is remedial legislation. I am of the same view and like their Honours I am satisfied that the District Court has jurisdiction to hear this application.

CIRCUMSTANCES OF THE OFFENCES

The applicant was four years and the respondent was 16 years at the time of the offences. They were not related. The applicant had moved temporarily with her mother, the litigation guardian, into a friend's house in Gladstone. The respondent was at the house because he was a friend of one of the other children who lived in the house.

The offences occurred on dates unknown between 31 March 2008 and 9 May 2008. They occurred in the applicant's bedroom. In relation to the first count the respondent was observed to be on top of the applicant. He had his pants down and was moving his body up and down against her body in a thrusting motion. The witness called on the respondent to stop. The respondent then got off the child and pulled his pants up before leaving the room.

On the second occasion the respondent was seen to be at the foot of the bed with the applicant lying directly in front of him. She was on her back with her legs spread apart and her underpants around her ankles. The respondent was holding her leg with his hands. His pants were around his ankles and he was naked from the waist down. The applicant was described as being about a ruler length from his groin.

The applicant was interviewed by a police officer on 15 July 2008. She said the respondent was "pedering" her. By this she meant wrestling. She was asked what the respondent did when he wrestled her. Her reply was "like pedering and f‑you". She said, "f-you" meant "bad things" and "bad thing" meant that "everyone have to get hurt". She said that, "hurt means girls want their mummies" and she wanted her mummy when she got wrestled.

According to her, when the respondent wrestled her he was "pedering me when I cry". She said, "He put me between his legs". When asked what he did then she replied, "F-you now and it hurts". She was asked how he did this. Her reply was "Throw me on the table then I went bump then I started to cry loud". She said, "I tried to wrestle hard but I can't because my muscles run out. He wants my muscles in him". When she was asked, "Which is your muscle, where is your muscle?"  She replied, "Punch".

She was also asked whether the respondent had ever touched her where he shouldn't. She responded he touched her on the bum and "I break it into pieces. Break, break, break, break". She gave a similar response when asked what she meant when she said he touched her bum. This was, "Because he doesn't like me much and I break him into pieces" and then she repeated, "break" seven times. When asked how he touched her bum she said, "He put his dick on her bum". She said he had done this before.

The applicant was examined on 14 July 2008. The introitus and the hymen were normal without any evidence of indentation or disruption of the hymen rim. Therefore, consistently with the charges, there was no evidence of penetration. However, as the Prosecutor said, "The respondent's conduct may be said to amount to simulated intercourse". This is particularly so in relation to the first offence.

INJURIES AND MEDICAL REPORTS

The effect of the offences on the applicant is set out in the affidavits of the litigation guardian sworn on 23 July 2010 and filed on 30 July 2010; and sworn on 28th March 2012 and filed by leave on 5 April 2012, and the affidavits of Dr Flanagan sworn on 30 June 2010 and also filed on 30 July 2010; and his affidavit sworn on 1 February 2012 and filed on 8 February 2012 attaching his updated report.

The litigation guardian confirms that she told Dr Flanagan the truth and agrees that the effects of the offences on the applicant's life are correctly detailed in his reports of 17 March 2010 and 1 December 2011 which are exhibited to his affidavits. She also deposes that these effects were continuing as at 28 March 2012, the date that she swore her second affidavit. As she puts it, the offences have had a devastating effect on the applicant.

A victim impact statement which was tendered on the sentence is Exhibit B to the litigation guardian's affidavit. This was an exhibit on sentence. It is dated on 17th April 2009. In the affidavit the litigation guardian says that prior to the offending she had no concerns regarding the applicant's emotional state or behaviour. According to her, the applicant had always been a placid easily going child. Although the applicant had previously had problems sticking up for herself, this had started to improve.

However, after the offending the applicant became depressed and had suicidal thoughts. She would say she wanted to die. She would also say that the litigation guardian wanted her to die and did not love her any more. This is an example of emotional harm which was also mentioned in the victim impact statement.

The applicant had also gone backwards in regards to standing up for herself. As it was put, she had "gone back into her clam" and was more frightened of confrontation than before. She became negative about herself and often said things putting herself down. Further, she tended to be shy towards other children and preferred to be with adults. She was also frightened of teenage children particularly boys.

In the victim impact statement it is said that the applicant was slowly becoming herself again after seeing a guidance officer. An example was given that she had started to play with other children again rather than playing with their parents. In the affidavit, the litigation guardian says that seeing this school counsellor through the whole of her prep year made a big difference because it helped her deal with what had happened and cope with her mood swings.

However, while the applicant was no longer expressing suicidal thoughts at the time of the affidavit she was still moody and narky with her brother and sister. This had also been the position at the time of the victim impact statement. She also got really depressed when she got into any kind of trouble.

The litigation guardian deposes that in the beginning the applicant had a couple of nightmares. Reference was made in the victim impact statement to her having woken a couple of times saying, "the bad man is back". However, by 23 July 2010 these seemed to have settled and were not as frequent.

Consistent with the victim impact statement it is deposed that initially she had to leave the applicant wake up naturally from sleep. This was because any attempt to wake the applicant frightened her so, she would become hysterical. This had also settled over time but as at 23 July 2010 the applicant was still unsettled when woken. As was also mentioned in the victim impact statement for a while after the offending the applicant started to wet the bed.

The litigation guardian's two major concerns at this time of swearing this affidavit appear to have been that it took the applicant some time to get motivated at school and she had started to act out sexually. The first issue was based on what the litigation guardian had been told by her teachers. There were no complaints about her behaviour. She was said to be a bright girl.

In relation to the second issue, the litigation guardian says the applicant had never acted out sexually before the offences. Two examples are given. She had never played with herself, but since the offending did so non-stop. She had also commenced touching her brother's private parts since the offending.

Dr Flanagan has practised in the field of psychiatry for approximately 30 years. He has held a number of senior mental health appointments. His opinion is based on a psychiatric examination of the applicant on 10 March 2010. He interviewed her mother, the litigation guardian, separately.

An issue that the litigation guardian told him, not expressly mentioned in the victim impact statement, is that the applicant would get upset by anything to do with wrestling. If children were wrestling the applicant would run to her and go into hysterics. Dr Flanagan notes that during his examination the applicant was very friendly showing no reserve at all. She talked freely and answered questions about herself. She was quite active, as was normal for a child who was now six years of age.

There was no evidence in the interview of sexual disinhibition. He identified a number of recurrent and what he described as "interpenetrating themes". These included strength and size in males, males in general, boys and men, boys lifting people up, romantic love and her two current "boyfriends" Mika and Jonathan fighting over her. I have adopted the term "boyfriends" from Dr Flanagan's report.

He makes particular reference to an open ended question to her about any bad or yucky things that had happened to her. In response she whispered in his ear that sex was a bad thing and he shouldn't tell anyone. She said she had been touched by these men, Suki, and another man who was called Brownie because he was brown. According to her, the other boys didn't say anything.

Dr Flanagan reports that when she whispered this in his ear and for a few minutes she squirmed and wriggled in the space between their chairs as she talked about what the bad and naughty boys had done to her. He notes that her narrative continued to be interpenetrated by her boyfriends, in particular, Mika, whom she seemed to say had witnessed her being abused. She said this had occurred where she was then living rather than in Gladstone.

Dr Flanagan's diagnosis is that the applicant is suffering from an anxiety disorder (NOS). In Dr Flanagan's subsequent report of 1 December 2011 he confirms this is a psychiatric disorder coded in the diagnostic and statistical manual of mental diseases, fourth edition (DSM IV). The acronym "NOS" means "Not otherwise specified". This diagnosis includes disorders that do not meet the criteria for any other specific anxiety disorder.

According to Dr Flanagan, there are no diagnostic criteria for NOS disorder. He says it is accepted among the experts responsible for DSM IV and among practising clinicians that patients can present with disorders that do not fully meet criteria for a named disorder. It is up to the clinician to decide whether the symptoms are sufficiently severe and pervasive to cause "clinically significant distress or impairment in social...or other important areas or function". Importantly for the purposes of the present application he says that one considers particularly behaviours that are abnormal developmentally or are inimical to normal development.

Dr Flanagan enlarges on his diagnosis as follows:

"Specific foci of her anxiety are teenage boys and their strength wrestling and manhandling. She is abnormally preoccupied with and ambivalent about romantic love. This being the obverse of sexual activity. On her mother's account there is some sexual precocity.

She is aware that she has been forcefully molested by a teenage boy or boys and this was bad and shameful. Her fantasy relationships with present peers seem, in some way, conflated with the traumatic experiences. She is normal developmentally and intellectually."

With reference to causation Dr Flanagan expresses the opinion:

"There is no evidence of pre-existing disorder. Other stressors include her separation from her father and the sequela of the sexual abuse such as the police interview, the sexual assault examination, her mother's distress and the move to a new town.

The sexual assault is the major cause of her disorder. It seems to have occurred in a chaotic crowded environment when there was inadequate supervision and this may have added to the stress of the molestation."

In his second report of 1 December 2011 he says the offences committed by the respondent materially and significantly contributed to the applicant's psychiatric disorder.

As to treatment his opinion is:

"There does not seem to be any need for treatment other than ongoing monitoring by the school counsellor". His opinion about the prognosis of her condition is uncertain and it will partly depend on her future developmental experiences. He observes that more than half of childhood anxiety disorders remit before adulthood but the remainder can persist or exacerbate. There may be an enduring vulnerability to particular kinds of developmental and intercurrent stressors.

He considers that the adverse impacts of the crime are largely subsumed under the diagnosis of anxiety disorder. He says that the actual molestations would have been frightening and conflict engendering. He makes particular reference to her repetition of "break, break" in the police interview. Moreover, he says the molestations seemed to have occurred in a background of chaos, male aggression and the lack of adult supervision which inculcated fear, insecurity and vulnerability.

APPLICABLE PRINCIPLES

The assessment of compensation is governed by part 3 of the Act. 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 that offence: JMR obo SRR -v- Horsnby [2009] QDC 147 per Dearden DCJ at [6]. A personal offence is an indictable offence committed against the person of someone: section 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: section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 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: Section 22(3) of the Act.

A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: See section 25(2) of the Act and section 2 of the Regulation; See also Riddle v. Coffey (2002) 133 AcrimR 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: section 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: Section 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 of the percentages of the scheme maximum set out in the table: Ribble v. Coffey (2002) 133 AcrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 438, 440. It follows that in such cases the amount 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: R v. Ward; ex parte Dooley [2001] 2 Qd R 436 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]; JMRoboSRR 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 section 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 proscribed by section 25 of the Act which is mandatory; Wren at [22]; Hornsby at [6].

In respect of sexual offences, it is necessary to commence by compensating the victim in so far as the impact amounted to an injury pursuant to section 20 of the Act, and to assess compensation pursuant to section 1A of the Regualation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under section 20 of the Act: R v. Atwell; ex parte Jullie [2002] 2QdR 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 & 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 latter 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 relevant matters, including contribution.

The issues of fact on this application must be decided on the balance of probabilities; Section 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS

Ms Muirhead recognises that she is asking the Court to proceed to hear the application at a time when the full picture of the applicant's condition is not known. As indicated, Dr Flanagan is uncertain about her prognosis which will depend on her future developmental experiences. He states that more than half of childhood anxiety disorders remit before adulthood. The applicant is still only nine years' of age.

Notwithstanding this, Ms Muirhead submits that the application proceed at this time because of the effect of section 183 of the 2009 Act on an application to the State for the payment of an amount in relation to a compensation order under Section 32 of the Act. By virtue of section 183(1)(b) if the compensation order is made after the commencement of the 2009 Act the application must be made within six months after the order is made. This is the case here.

Further, by virtue of section 183(2) the application lapses if, at the end of three years after commencement, a person who makes it has not given all the necessary information, documents or other assistance to enable the application to be decided. Accordingly, the applicant will be precluded from seeking an ex gratia payment from the State under section 32 of the Act in relation to any compensation order I make unless the application and all necessary information, documents and other assistance have been given by 1 December 2012.

As Ms Muirhead submits that I proceed to hear the application at this time, I do so despite the full picture of the applicant's condition being unknown.

Ms Muirhead accepts that the applicant did not suffer any bodily injuries as a result of the offences.

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

• item 32 - mental or nervous shock (moderate) - 15 per cent - $11,250;
• regulation 1A - adverse impact of a sexual offence - 10per cent - $7,500.

Therefore, an award is sought of 25 per cent of the scheme maximum. This is $18,750.

ASSESSMENT

Item 32 - mental or nervous shock (moderate) - 10 per cent - 20 percent.

In Dr Flanagan's opinion the applicant is suffering from an anxiety disorder (NOS). According to the litigation guardian, prior to the offending, she had no concerns regarding the applicant's emotional state or behaviour. However, after it occurred she observed the applicant to develop the detrimental traits that I have described.

Dr Flanagan says that there is no evidence of pre-existing disorder. He expresses the opinion that the sexual assault is the major cause of her anxiety disorder. As indicated in his second report he says the offences committed by the respondent materially and significantly contributed to this disorder.

While he refers to other stressors or potential stressors I conclude that the respondent's offending materially contributed to this disorder as required by the judgment of Holmes JA (with whom Jones and Mullins JJ agreed) in SAY -v- AZ, ex parte A-G (Qld) [2006] QCA 462 at [20].

The other stressors or potential stressors referred to are properly to be considered in determining what amount should be ordered to be paid in the event that the applicant's anxiety disorder is mental or nervous shock and, therefore, a compensable injury under the Act.

I'm satisfied, on the balance of probabilities that the applicant suffered an anxiety disorder (NOS) as opined by Dr Flanagan and this is as a result of the indictable offences  of indecent treatment of a child under 12 years committed against her by the respondent on dates unknown between 31 March 2008 and 9 May 2008 in the sense that this offending materially contributed to this disorder.

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] 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, on the basis of Dr Flanagan's evidence, that an anxiety disorder (NOS) is a recognised psychiatric disorder within DSM IV. As such it constitutes mental or nervous shock and is compensable under the Act.

Dr Flanagan concluded that the applicant was still suffering from this anxiety disorder when he examined her on 10 March 2010. This is between 22 and 24 months after the offending. Consistently with the offending this anxiety is specifically directed to teenage boys, their strength, wrestling and manhandling. She was aware at the time that she had been forcefully molested by a teenage boy or boys and this was bad or shameful.

She squirmed and wriggled when she talked about what had been done to her. These traumatic experiences were conflating her fantasy relationships with her present male peers, Mika and Jonathan. He adds that the molestation would have been frightening and conflict engendering.

Consistently with the accepted position among experts responsible for DSM IV and practising clinicians, to have diagnosed her with this disorder, it was necessary for Dr Flanagan to be satisfied the applicant had sufficiently severe perverse symptons to cause her clinically significant distress or impairment in social or other important areas of functioning, particularly with reference to behaviours that are abnormal developmentally or which are inimical to normal development.

Although Dr Flanagan found her to be normal, developmentally and intellectually, the behaviours that he and the litigation guardian describe following the offending, are another matter in my view.

As I have indicated the litigation guardian's evidence is that after the offending the applicant changed from a child about whom she had no concerns regarding emotional state and behaviour to a person with a number of detrimental traits. These were depressed, negative and suicidal thoughts, going backwards in regards to standing up for herself, being shy towards other children and preferring to be with adults, having nightmares, bedwetting and becoming frightened and hysterical if an attempt was made to wake her. Although she had improved after counselling from a school guidance officer I note that Dr Flanagan is of the view that ongoing monitoring by this officer seems to be sufficient treatment for her.

However, according to the litigation guardian, by 23 July 2010, about 26 to 28 months after the offending the applicant was still having some nightmares and was still unsettled when woken. In addition, she was still moody and narky with her brother and sister. Significantly, as Dr Flanagan expresses it, there was some sexual precocity. This is based on the litigation guardian's evidence that she changed from a child who never acted out sexually before the offences to one who started playing with herself non-stop and touching her brother's penis.

The litigation guardian also referred to the applicant's teachers advising that it took some time for her to get motivated at school. But as Dr Flanagan observes in his second report there have been no complaints about her behaviour from the teachers who consider her a very bright girl. In these circumstances I consider the litigation guardian's concern that she is not concentrating and is easily distracted so as to affect her ability to participate in class is purely speculative.

However, I take into account the litigation guardian's report to Dr Flanagan describing how the applicant was slow to switch from one task to another. This is referred to in his second report. He says, to the extent, the applicant is suffering from difficulty in attention and concentration, this is subsumed under the diagnosis of anxiety disorder. Accordingly I take it into account to a similar extent in assessing an appropriate compensation award for mental or nervous shock.

It is also relevant to this assessment that the litigation guardian deposes in her 28 March 2012 affidavit that the effects on the applicant's life detailed in Dr Flanagan's 1 December 2011 report were continuing at the time of the affidavit. This is about four years after the offending. Although, as will appear from my analysis of that report, other than the effects described on the applicant's attention and concentration, the effects detailed are, in reality, impacts on the litigation guardian.

Ms Muirhead has referred me to a decision of Noud DCJ as being comparable to this case. I anonymize the citation to protect the identity of the child involved. As such it is MM as litigation guardian for JRM -v- BAS, QDC, unreported, number D68 of 2008, 1 October 2009. This decision was delivered in Bundaberg.

In that case the respondent was convicted of three offences concerning sexually interfering with the applicant who was aged between seven and eight years at the time. He touched her on the private parts, placed his hand on his penis and tried to expose his penis to her. Like the present complainant there was no physical harm caused to her. She suffered mental or nervous shock.

The symptoms included depressive responses, generalised anxiety responses and phobic responses. She suffered to different degrees in relation to the symptoms. It was an ongoing condition. His Honour assessed the mental or nervous shock at 15 per cent of the scheme maximum. Care must be taken in comparing decisions on quantum for compensation applications. Every case depends on its own facts. The full facts on which Noud DCJ relied are not set out in the decision.

As Holmes JA said in SAY -v- AZ at [21], "Compensation under this Act is not meant to be comprehensive or equivalent to what might have been recovered in a common law action". The Court is left with considerable discretion in assessing compensation.

In this case it is apparent that there is a similarity in symptoms by the applicants in this case and in MM as litigation guardian for JRM -v- BAS. Although Dr Flanagan's prognosis for the present applicant is uncertain whereas Noud DCJ referred to the applicant in that case having an ongoing condition, in the present case the applicant was still demonstrating symptoms including sexual precocity 26 to 28 months after the offending and according to the litigation guardian was still suffering the effects approximately four years later.

In my view, in these circumstances, an award of 15 per cent of the scheme maximum on the basis that the applicant has suffered mental or nervous shock (moderate) is the appropriate compensation award. This is $11,250.

Regulation 1A - Adverse Impact of a Sexual Offence -

One 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 section 20 is prescribed as an injury and "adverse impact" of a sexual offence is then defined by section 1A(2). "Sexual offence" is defined in section 1A(3) of the Regulation to mean a personal offence of a sexual nature. 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 section 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 294 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 prescribing the matters experienced by the applicant which are not replied on in support of the diagnosis; those matters may then be capable of being adverse impacts."

In this case, Dr Flanagan considers that adverse impacts are largely subsumed under the diagnosis of anxiety disorder. He has not described in either report any matters experienced by the applicant which are capable of being adverse impacts and were not subsumed under the diagnosis of anxiety disorder. Although he notes and comments on the adverse impacts notified by the litigation guardian.

It is these matters which are relied upon by Ms Muirhead as being adverse impacts of the offences on the applicant. These are:

• adverse reaction of others/loss of social/family relationships;
• impact on parenting capacity;
• impact on school performances.

Only adverse reaction of others is a specific adverse impact itemised in Regulation 1A(2) in terms of "adverse effect of the reaction of others" under paragraph (h). The others require to be considered under paragraph (k) which allows for an award to be made for anything the Court considers is an adverse impact of the offence.

In accordance with the decision of Holmes JA in Vlug -v- Carrasco [2007] 2 QDR 393 at [12], an adverse impact for the purposes of paragraph (k) must be such as to impair the individual's psychological emotional or physical functioning.

Impact on school performances can immediately be disregarded as compensable as an adverse impact under Reg 1A. It is based on the litigation guardian's worries that the applicant is not concentrating and is easily distracted so as to effect her ability to participate in class.

Not only is this purely speculative, as I have previously observed, but Dr Flanagan says in his second report that to the extent the applicant is suffering from difficulty in attention and concentration, this is subsumed under the diagnosis of anxiety disorder. Therefore, it is not additional to her mental and nervous shock as required under PAJ -v- AAK in order to be compensable under the Act.

As recognised by Dr Flanagan, in his second report, this and the other adverse impacts relied on represent adverse impacts on the mother.

As I have said, 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 that offence.

Under section 24(2) it is the person against whom the personal offence is committed who may apply to the Court for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence (see also section 19(1)(a)). Therefore, in this case it is the child against whom the offences were committed by the respondent who may apply for compensation for the injury suffered by her because of the offences. However, because she is a child she must do so through her litigation guardian.

This is recognised by the litigation guardian who deposes in paragraph 2 of the affidavits of 23 July 2010 and 28 March 2010 that JKMG, through her litigation guardian, is the applicant and claims compensation for injuries suffered as a result of the offences committed by the respondent.

The applicant child is not entitled compensation for injuries in the form of adverse impacts which were suffered by her mother, the litigation guardian, and not by her.

As a matter of commonsense Dr Flanagan says that the litigation guardian's emotional functioning is important to the applicant's own functioning. For example, he says about the issue of the impact of the offending on the litigation guardian's parenting ability, this can have an adverse impact on the applicant's healthy development and may tend to increase her anxiety and feelings of insecurity. As Dr Flanagan says, in relation to causation the stressors on the applicant include the sequelae of the sexual abuse such as her mother's distress.

However, I am not satisfied that the evidence establishes that any adverse impact on the applicant's psychological emotional or physical functioning as a consequence of the concerns of the litigation guardian about her school performance or difficulty in attention and concentration is in addition to the diagnosis of mental or nervous shock on the basis of the anxiety disorder. Accordingly, for reasons I have given, this impact is not compensable under the Act.

The combination of the adverse effect to the reaction of others and loss of social/family relationships is based on the litigation guardian's affidavit in which to adopt Dr Flanagan's accurate summary, she describes her experience of her friend being derelict in her responsibilities and of becoming alienated from her and her family and as a result losing their support.

This is a reference to her friend with whom she and her family were staying in the house where the offences were committed against the applicant. She felt betrayed by this good friend as a result of the offending. As a result she has nothing to do with this person and her family.

In relation to the impact on her parenting capacity, the litigation guardian deposes in paragraph 12 of her 23 July 2010 affidavit: "I feel my parenting has been affected. I am now very protective of [the applicant] and my children. I feel I cannot trust their care to anyone except my partner. I find it very hard to make friends. I just stick to myself. I do not let my children be cared by anyone except me or my partner."

She adds in paragraph 4 of her 28 March 2012 affidavit that she has become very protective of the applicant as a result of the offending. She feels that her concerns that nothing happens to the applicant again affects their relationship. She is worried it will affect the applicant's development.

Dr Flanagan comments that this pertains to the litigation guardian's emotional health which is important to her parenting responsibilities for the applicant. He says it is not usual for mothers of abused children to become over protective of their children. This can have adverse effects on the child's healthy development and may tend to increase the child's anxiety and feelings of insecurity.

In my view, the position in relation to these impacts is the same as with the impact on school performance. As I have said, Dr Flanagan says these are adverse effects on the litigation guardian in her capacity as the applicant's mother. Although, again, I accept the litigation guardian's optimal functioning is important to the applicant's own functioning I am not satisfied that the evidence establishes that any impact on the applicant's psychological, emotional or physical functioning as a consequence of the adverse effect of the reaction of others and the loss of social/family relationships on the litigation guardian or the impact on her parenting capacity is in addition to the diagnosis of mental or nervous shock on the basis of an anxiety disorder.

The mere fact that adverse impacts on the litigation guardian's parenting capacity can have adverse effects on the child's healthy development and may tend to increase the child's anxiety and feelings of insecurity does not establish this. As with the impact on her school performance, based as it is on her concerns and worries about the effect of the impact of the offending on her parenting capacity and its consequential effect on the applicant, it is purely speculative.

Therefore, I do not consider the applicant has suffered adverse impacts of the sexual offences which are not otherwise an injury under section 20. Therefore, I make no award of compensation on the basis of Regulation 1A(1).

SECTION 25(7) OF THE ACT - CONTRIBUTIONS

I conclude that nothing in the applicant's actions contributed to her mental or nervous shock.

However, it is still necessary to consider whether there were other factors which contributed to this and for which some allowance must be made or which requires a lower percentage of compensation to be fixed.

In considering this issue it is necessary to consider what Dr Flanagan said about causation. While he considered that the sexual assault is the major cause of the applicant's anxiety disorder and the offences committed by the respondent materially and significantly contributed to it, he also refers to other stressors.

These are said by him to include her separation from her father and the sequelae of the sexual abuse such as the police interview, the sexual examination, her mother's distress and the move to a new town. He also says that the offending seems to have occurred in a chaotic crowd environment where there was inadequate supervision and this may have added to the stress of the molestation.

As I have previously said, the stressors or potential stressors are properly considered in determining what amount should be ordered to be paid as compensation.

It is relevant to the consideration of this issue that the litigation guardian's evidence is that prior to the offending she had no concerns regarding the applicant's emotional state or behaviour. It was after the offending that the applicant became depressed and had suicidal thoughts, started to wet the bed, began acting out sexually and exhibited the other symptoms referred to. Dr Flanagan found no evidence of pre‑existing disorder.

In these circumstances I consider that even if the separation from her father which, on the available evidence, occurred before the offending was a stressor on the applicant, if it were not for the offending the anxiety disorder would not have been triggered.

As such I find that this is not a factor which contributed to her mental or nervous shock and for which some allowance should be made or which requires a lower percentage of compensation to be fixed.

Even if the sequelae of the sexual abuse as identified by Dr Flanagan contributed to the anxiety disorder I consider that this is merely part of the continuum of the offending (see SAY -v- AZ at [23]). In my view, the stressors would not have occurred if it was not for the triggering effect of the respondent's conduct. As such these are also not factors for which some allowance should be made or which requires a lower percentage of compensation to be fixed.

Further, I do not consider that the quantum of the award for compensation should be reduced because of the occurrence of the offending in a chaotic environment where there was inadequate supervision which may have added to the stress of the molestation. This is purely part of the continuum of the offending in the sense that the respondent took advantage of this environment in order to commit the offences. In my view, any stress arising from this environment was integral to the stress of the offending on the applicant which was the material and significant cause of her disorder. The respondent cannot take advantage of the fact that he took advantage of an environment which added to the stress of his molestation of the applicant in order to reduce the quantum of his liability for this disorder.

It is also necessary to consider the effect of evidence giving rise to a suggestion that the applicant was abused during or at about the same period by, at least, one other offender. As Dr Flanagan says, the litigation guardian states there were two offenders.

In the litigation guardian's affidavit of 23 July 2010 she deposes:

"I found out that the respondent and his mates had been behaving inappropriately with [the applicant]."  She also gives evidence that she understands from the applicant that her friend's brother, Matthew, had also been involved but the police only charged the respondent.

In her police statement dated 15 July 2008 which is Exhibit A to her 23 July 2010 affidavit the litigation guardian says that the applicant replied affirmatively to her question as to whether anyone else had touched her. However, when she asked for the identity of this person or persons the applicant started talking about falling over and hurting her knee.

When the litigation guardian asked the applicant why she didn't tell her about the respondent touching her the applicant started talking to her about Anthony and Jasmine who were children of her friend. The litigation guardian's account of the offences to Dr Flanagan included:

"She found out that [her friend's] teenage son and his mates were having their way with her daughter...

Everyone was admitting to everyone else that the teenagers had been touching her daughter..."

She also told him that the applicant had asked her father whether he was going to hurt the two boys who hurt her.

While the police interview of the complainant on the 15 July 2008 when she was four years was directed to what the respondent had done to her, when asked the open question, "Has anyone come to your place and has hurt you at all?"  She replied, "Yeah, like Anthony hurt me". She said, "He grappled me". She was then asked, "What about anyone else?"  In answer she named the respondent.

Dr Flanagan records in his report of his interview with the applicant on 10 March 2010 when she was six years' old that:

"She had been touched by these men, Suki, and another man who was called Brownie...the other boys didn't do anything...

The boys who touched her they liked doing that. They like doing it to girls. Only one wasn’t a bad boy...it was Mika. He just watched and didn't leave. It was a very bad thing. It happened in Moura at their place. The party ended and the boy just grabbed her". This last reference is to the present town of residence and not to Gladstone where the offences occurred.

In his second report, Dr Flanagan says that the litigation guardian gave no indication of any knowledge of any malfeasance since moving from Gladstone. This arises from the litigation guardian's 28 March 2012 affidavit in which she says she is not aware of the applicant being molested by any person since leaving Gladstone and she would have taken immediate action if this had been the case.

While in these circumstances Dr Flanagan thinks it is likely that further sexual abuse has occurred since leaving Gladstone he concedes he is in no position to be sure. Therefore, in my view, this conclusion is speculation. To emphasise this I observe that Dr Flanagan says in his first report: "Her fantasy relationships with her present peers seem in some way conflated with the traumatic experiences".

In the context of the interview I take her present peers to be Jonathan and Mika. Dr Flanagan is of the opinion that she has created a fantasy relationship with them. I note he has described her as being clearly imaginative. This is also consistent with what the litigation guardian has sworn in relation to the mention of Suki and Brownie of which I will have more to say. Therefore, I am unable to exclude that she has conflated her traumatic experience of being molested by the respondent to those present peers. I'm also unable to rule out that she has done likewise in relation to Matthew and Anthony who are specifically mentioned.

Although the litigation guardian understands from the applicant that Matthew was involved, the applicant makes no specific reference to him in her interviews with the police and Dr Flanagan. She did not identify to the litigation guardian who else was touching her, instead she changed the subject to falling over and hurting her knee. It was in this context she mentioned Anthony. This was in conjunction with his sister, Jasmine.

She also mentions Anthony in the police interview but as Dr Flanagan observes only in regard to grappling her. Unlike her account to the police in relation to the respondent she is no more specific than this in relation to Anthony. She also told Dr Flanagan she was touched by Suki and Brownie without being more specific.

However, the litigation guardian has made no reference to being told this by the applicant. As the litigation guardian says in her 28 March 2012 affidavit she knows of no friends, relatives or school children with these names and since moving from Gladstone the applicant seems to have developed imaginary friends; and as Dr Flanagan says, this was in the context of her friendship with Jonathan and Mika. As in their case I am unable to rule out in relation to Suki and Brownie, that they are part of her imagination and she has conflated her traumatic experience of her being molested by the respondent to them.

As Dr Flanagan says, her references to sexual abuse are elusive and rather obscure. The fact is the respondent is the only person who has been charged with sexual offences against her. This is because he is the only person against whom there is independent evidence of offending. In addition, the respondent made admissions to another person in the watch‑house of sexually molesting the applicant.

In these circumstances, particularly, where Dr Flanagan, rightly in my view, considers the applicant's reference to sexual abuse to be elusive and obscure I am not satisfied, on the evidence, that the applicant was abused during the same period by, at least, one other offender. Therefore, I do not reduce the quantum of the award of compensation on this basis.

Accordingly, the respondent is liable to pay compensation to the applicant for the totality of the injury 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 32 - mental or nervous shock (moderate) - 15per cent - $11,250.

This is the total amount of compensation which I order.

ORDER

1. The respondent, JJT, pay to the applicant, JKMG, the amount of $11,250 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries suffered by the applicant by reason of the offences for which the respondent was convicted on 23 April 2009;
2. The moneys are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such moneys on behalf of the applicant until she attains the age of 18 years;
3. The Public Trustee of Queensland is hereby further authorised to advance such moneys or part of such moneys from time-to-time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate; and
4. The Public Trustee of Queensland is hereby further authorised to pay out of such moneys received the reasonable costs of the present application to Legal Aid Queensland.

I initial the order as per draft dated today, 20 April 2012, and I place it with the papers in relation to this matter. That is my decision.