OBB v PFX[2012] QDC 241

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 Regulation 1995 for the impacts of a sexual offence. The applicant’s date of birth is 28 March 1991. At the time of the relevant offence, he was aged 16 years and is now aged 21 years. The respondent to this application was aged 36 years at the date of the offence. He was a friend of the applicant’s family.

2. [2]
   The Criminal Offence Victims Act 1995 and the Criminal Offence Victims Regulation 1995 were repealed by the Victims of Crime Assistance Act 2009, which commenced on 1 December 2009.  Chapter six of the latter Act deals with repealed and transitional provisions.  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 s 154(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for an order for compensation under the old scheme, then the Court must hear and determine the application under the repealed provision.

3. [3]
   The respondent pleaded guilty to one count of indecent treatment of a child under 16 years on 20 November 2007 at the District Court at Brisbane.  He was sentenced on 14 March 2008 to imprisonment for 12 months, suspended forthwith with an operational period of two years.

4. [4]
   It is apparent, therefore, that the conviction occurred prior to the commencement of the Victims of Crime Assistance Act 2009 and that the provisions of s 155(1) of that Act have been satisfied.

5. [5]
   Section 154 of the Victims of Crime Assistance Act 2009 provides as follows:

1) This division applies if –

a. a person could have, if this chapter had not commenced, applied to a court for an order requiring the payment of compensation for injury suffered because of a personal offence committed before the commencement, under –

i. section 24 of the repealed Act; or

ii. section 663B of the repealed Criminal Code chapter; and

b.  at the commencement, the person has not made an application under a provision mentioned in paragraph (a)(i) or (ii) for the injury.

6. [6]
   Section 24 of the repealed Criminal Offence Victims Act 1995 provides that if ‘the convicted person’ is convicted on indictment of a personal offence the person against whom the personal offence was committed may apply to the Court for an order that the convicted person pay compensation for injuries suffered because of the offence.

7. [7]
   It may be accepted, then, that the applicant is a person who could have applied under s 24 of the repealed Criminal Offence Victims Act 1995 by reason of the fact that he is the victim of a personal offence committed against him by the respondent who was convicted on 20 November 2007 in the District Court.  Section 154 (1)(a)(i) of the Victims of Crime Assistance Act 2009 is satisfied.

8. [8]
   The affidavit of James Robert Hodge, commercial agent, filed 29 June 2012 establishes to my satisfaction that the respondent was served on 18 June 2012 with the following documents:

1. (a)
   Letter from Legal Aid Queensland dated 6 June 2012 giving notice of intention to proceed with the application on 13 August 2012;

2. (b)
   Originating application (Filed on 12 January 2010);

3. (c)
   Affidavit of the applicant, affirmed 26 April 2012;

4. (d)
   Affidavit of Dr Sandra Michelle Hacker, sworn 17 April 2012; and

5. (e)
   Affidavit of Lorraine Penshorn, paralegal with Legal Aid Queensland, sworn 3 April 2012.

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

9. [9]
   Section 155(2) of the Victims of Crime Assistance Act 2009 provides that an application must be made before the earlier of the following:

1. a)
   the expiry of the period within which the person could have, if this chapter had not commenced, applied for the order mentioned in section 154(1)(a);

2. b)
   the end of two months after the commencement.

In relation to s 155(2)(b), the Victims of Crime Assistance Act 2009 commenced, as previously noted, on 1 December 2009.  Under s 155(2)(b) an applicant therefore had until 31 January 2010 to apply for orders from a court under s 24 of the Criminal Offence Victims Act 1995.  This application was filed on 12 January 2010, thus complying with the provisions of 155(2)(b) of the Victims of Crime Assistance Act 2009.

10. [10]
    Section 155(3) of the Victims of Crime Assistance Act 2009 provides that the court to which the application is made must hear and decide the application under the relevant provision.  Section 155(4) provides that for subsection (3), the repealed provision, and any other provisions of the repealed legislation that are necessary or convenient to be used in relation to the application, continue to apply as if chapter six of the Victims of Crime Assistance Act 2009 had not commenced.

11. [11]
    As previously indicated, the offence was committed against the applicant on a date unknown between 1 August 2005 and 1 October 2005. Accordingly, the application for compensation is properly commenced under the provisions of the Criminal Offence Victims Act 1995.  Section 40(1) of that Act 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 person’s 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 s 41 – at any other time.

12. [12]
    The respondent pleaded guilty in the District Court at Brisbane on 20 November 2007 to one count of indecent treatment of a child under 16 years.  He was sentenced on 14 March 2008 to imprisonment for 12 months, suspended forthwith for an operative period of two years.  The date of birth of the applicant is 28 March 1991 and he was aged 16 years at the date of conviction and sentence.  He therefore had three years from the date he turned 18 (that is until 28 March 2012) to file his application for criminal compensation.  The application was filed on 12 January 2010 and therefore has been filed within time under s 40(1) of the Criminal Offence Victims Act 1995.

13. [13]
    A further issue arises in relation to continuation of proceedings after a period of delay. Rule 389 of the Uniform Civil Procedure Rules 1999 states:

1) if no step has been taken in a proceeding for one year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.

2) if no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice.

3) for this rule, an application in which no order has been made is not taken to be a step.

14. [14]
    In this application r 389(2) is relevant, the application having been filed on 12 January 2010, and the Court’s leave is sought to continue with the application. In Tyler v Custom Credit Corp Ltd and ors [2000] QCA 178 the Court of Appeal held that the Court’s discretion in deciding whether to give leave to proceed under r389 is not to be fettered by rigid rules.  Atkinson J (with whom McMurdo P and McPherson JA agreed) identified a number of factors which a Court will take into account:

1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation commenced;

2) how long ago the litigation was commenced or causes of action were added;

3) what prospects the plaintiff has of success in the action;

4) whether or not there has been disobedience of court orders or directions;

5) whether or not the litigation has been characterised by periods of delay;

6) whether the delay is attributable to the plaintiff, the defendant, or both the plaintiff and the defendant;

7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;

8) whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;

9) how far the litigation has progressed;

10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.  Such dilatoriness will not necessarily be sheeted home to the client but it may be.  Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisors;

11)  whether there is a satisfactory explanation for the delay;

12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

15. [15]
    In relation to points 1 and 2 it should be noted that the applicant’s right to commence an application under s 24 of the Criminal Offence Victims Act 1995 did not accrue until the date of conviction (20 November 2007).  Because the applicant was a child at the time of conviction he had three years after which time he became an adult to make his application.  The applicant’s date of birth being 28 March 1991 he had until 28 March 2012 to commence these proceedings.  The application was filed in this court within time on 12 January 2010.

16. [16]
    In relation to point 3 the medical evidence relied upon in support of the application, and in particular the report of Dr Sandra M Hacker, psychiatrist, which will be considered in due course, clearly establish good prospects of success for the application.

17. [17]
    In relation to point 4 there has been no disobedience of court orders or directions in this matter.

18. [18]
    In relation to points 5, 6, 8, 9, 10 and 11 the applicant relies upon an affidavit sworn by Patricia Maree James filed 3 August 2012. Ms James is a lawyer in the employ of Legal Aid Queensland who has the carriage of this matter on behalf of the applicant. Ms James states as follows:

2. On 17 July 2009, Legal Aid Queensland granted the applicant legal assistance to make a claim for criminal compensation.

3. In the initial stages of the file, there was difficulty in contacting the applicant  to obtain his instructions as he had changed his contact details without informing Legal Aid Queensland and this contributed to delay in the progress of the file.

Effect of change of legislation

4. On 1 December 2009 the Criminal Offence Victims Act 1995 (COVA) was repealed and the Victims of Crime Assistance Act 2009 (VOCAA) was introduced a new statutory scheme for making applications for criminal injuries compensation.  In order to proceed with an application for compensation under the old scheme provided by COVA, the application had to be filed within strict time limits prescribed by the transitional provisions of VOCAA.

5. Applications for criminal injuries compensation are handled by the Criminal Injuries Compensation Unit within Legal Aid Queensland.  The Criminal Injuries Compensation Unit is staffed by the full-time equivalent of 2.1 lawyers and 3 full time paralegals.  This has been the case for many years and was certainly case from well before the enactment of VOCAA.

6. The change of legislation resulted in a very large number of applications for assistance for criminal injuries compensation being made to Legal Aid Queensland over a very short period of time.  As a consequence, the Criminal Injuries Compensation Unit was required to obtain written instructions from each existing client, a number in the vicinity of 400, as to which scheme the client wished to proceed with.  Very few clients opted to proceed under the new scheme.

7.  In order to meet the statutory limits, the Criminal Injuries Compensation Unit had to lodge ex gratia applications with the Department of Justice and Attorney General by 1 December 2009 and file all court applications by 31 January 2010.

8.  This resulted in the Criminal Injuries Compensation Unit having to manage an exceptionally large caseload of active files from early 2010.  As a consequence, the timeframe in which preparatory work could be complete on individual files became drawn out in virtually every case.  This file was no exception.

9.  The applicant instructed Legal Aid Queensland to proceed with his application under COVA and the Originating Application was filed on 12 January 2010 so that it would not be statute-barred.

10.  There was a short delay in the provision of material from the Office of the Director of Public Prosecutions, and then further delay in obtaining a report from Lifeline Caboolture requested on the applicant’s behalf.

11. Once all of the conviction and background medial material was obtained, an appointment was made for the applicant to attend a psychiatric appointment in Brisbane on 28 July 2010.

12.  This appointment had to be cancelled as the applicant was living in Victoria at that time.  An appointment with another psychiatrist had to be made and there was some difficulty in finding a psychiatrist who was prepared to do a medico-legal report at Legal Aid rates in the area in which the applicant resided.  This added to the delay in the matter.

13.  The applicant eventually saw Dr Hacker, Psychiatrist on 8 February 2011.

14.  After receipt of Dr Hacker’s report, steps were taken to obtain instructions from the applicant for the purposes of preparing his affidavit in support of the application for compensation.

15.  Preparation of the applicant’s affidavit was delayed, in part because of the apparent difficulty faced by him in undertaking this task. An officer at Legal Aid Queensland was also required to resend the applicant a copy of Dr Hacker’s original report and an affidavit questionnaire to complete because the applicant had changed addresses without notifying Legal Aid Queensland of the change in his contact details.  It then took approximately three months for the applicant to return the completed questionnaire to the office of Legal Aid Queensland to assist in the drafting of his affidavit.

16.  Dr Hacker was also requested to provide a supplementary report addressing relevant matters.  Again, due to the circumstances described in paragraphs 6 to 8 of this affidavit, there was initial delay in reverting to Dr Hacker for this purpose.  Ultimately two addendum reports were required and received from Dr Hacker dated 31 January 2012 and 14 March 2012 respectively.

17.  All affidavits in support of the application for compensation were filed in the Court on 30 April 2012, apart from the Affidavit of Service which was filed on 29 June 2012.

19. [19]
    In the circumstances outlined in the affidavit of Ms James, I am of the view that the delays in this litigation have been satisfactorily explained. In particular any delay caused by the applicant himself has to be assessed in the context of the effects upon him of the unlawful conduct of the respondent. The huge burden on the workload of those employed in the Criminal Injuries Compensation Unit at Legal Aid Queensland as a result of the change in law relating to victims legislation on 1 December 2009 has clearly had a very significant effect on the capacity of that unit to effectively manage cases in a timely fashion.

20. [20]
    In any event I am unable to discern any prejudice to the defendant as a result of the delays in bringing this application. In particular it should be noted that all relevant material has been available to the respondent including transcripts of proceedings and witness statements to police together with all relevant medical evidence including reports from Dr Hacker. The applicant’s affidavit was filed 30 April 2012 and was served together with all other relevant material upon the respondent on 18 June 2012. Furthermore, there is no suggestion that any witness is unavailable for purposes of cross-examination notwithstanding that the offences occurred some six or seven years ago. I note that the material served upon the respondent on 18 June 2012 included a letter from Legal Aid Queensland dated 6 June 2012 in which the respondent was given one month’s notice of the applicant’s intention to proceed with the application on 13 August 2012 under r389(1) of the Uniform Civil Procedure Rules 1999.  The suggestion was made in that letter that the respondent should seek independent legal advice regarding the application.

21. [21]
    I accept that all reasonable steps have been taken by Legal Aid Queensland to prepare this matter for hearing and that it is appropriate for the court to grant the applicant leave to continue with the application.

22. [22]
    The facts the subject of this application may be shortly summarised. The applicant’s date of birth is 28 March 1991 and at the time of the offence the applicant was aged approximately 14 years. The respondent was aged approximately 36 years at the time of the commission of the offence. He was a friend of the applicant’s family. The Crown Prosecutor outlined to the Court the facts of the offence as follows:

Mr Minnery: In relation to the offence contained on the separate indictment, the one count indictment, the complainant…was also known to the prisoner and he was assisting the prisoner with a delivery of fish to X in Queensland.  At that point the complainant and the prisoner stayed overnight in a motor inn… in X town.  They shared the same room.  The complainant was sleeping on a single bed and the prisoner was sleeping on a double bed, a separate double bed.

His Honour: How old was this complainant?

Mr Minnery: I’m sorry, your Honour, 14 at the time of the offence.  During the night the complainant woke up.  He saw the prisoner kneeling beside him with his jeans pulled down.  The complainant felt that the prisoner was rubbing the top of his penis through the complainant’s boxer shorts.  That was with an open hand.  The complainant rolled over.  He pretended that he was asleep.  The prisoner then attempted to pull the complainant’s boxer shorts down but the complainant was holding on to them himself and was holding on too tightly for them to come down.  The prisoner then stood up.  He had a cigarette in the room and it seems he went back to bed.  Your, Honour, those are the facts in relation to those offences.

23. [23]
    In his affidavit filed on 30 April 2012 the applicant confirmed that he attended upon Dr Hacker, psychiatrist, on 8 February 2011 and explained to her how the offence had affected him. The applicant stated that he has read Dr Hacker’s report provided to his solicitors for the purpose of this application dated 14 February 2011, together with the doctor’s addendum report dated 31 January 2012 and her further addendum report dated 14 March 2012. The applicant confirmed that he told Dr Hacker the truth as to the effects of the offence upon him and agreed that the effects on his life of the offence have been correctly detailed in Dr Hacker’s reports and that those effects are continuing.

24. [24]
    The applicant has detailed in his affidavit the ways in which the offence has affected his education, employment, relationships and lifestyle. After the offence had been committed the applicant felt sick to his stomach and dirty. When he returned home following the incident he tried to stay in his room so he didn’t have to face people. When he did go out, he felt anxious and thought everyone was looking at him. He made excuses not to attend family outings because he did not want to be around anyone. He trusted very few people. The applicant found ways to secure his bedroom window after the incident. He never went anywhere with just one person unless that person was a family member.

25. [25]
    The applicant stated that he really wanted to talk to his mother after the incident because he feared he had caught a terrible disease from the respondent. It took about 18 months after the offence occurred before the applicant could tell his mother what the respondent had done to him.

26. [26]
    Since the incident the applicant’s sleep has been very poor. He rarely goes to bed before midnight and his sleep is often broken.

27. [27]
    The applicant felt that he had no self-worth after the incident. When details of the offence came to light, boys from his school and local area teased him and called him names such as ‘poof, homo, and fag’ and this made him feel disgusting.

28. [28]
    As a result of the offence, the applicant’s family was forced to move some 100 kms to get away from all of the taunts. The relocation came at a high financial cost to the applicant’s family. It took the applicant’s mother and stepfather some time to find new employment to support the family. It was also disruptive for the applicant as he had to start at a new school and try to make new friends which he found difficult. The applicant found it hard to settle in and adjust to the new school system after the relocation.

29. [29]
    The applicant’s family also struggled financially because of the time his mother had to take off work in order to attend counselling, school appointments and court hearings. The applicant did not socialise outside the home much because money was always short. The applicant hid his court appearances from his friends and extended family and felt very embarrassed that the situation was spoken about openly in court. He was anxious for a long time leading up to the respondent going to court.

30. [30]
    The applicant stated that the offence committed by the respondent has affected many areas of his life including his schooling, education, employment, home life and relationships. His grades slipped badly following this offence but the applicant never asked teachers for help and never approached his mother for help in case someone noticed that something was wrong with him. The applicant tended to miss school on occasion or pretend to be sick so that he could stay at home. His concentration diminished and he failed to complete his high school certificate, leaving school part way through year 11. He attended three high schools after the offence was committed. At one stage he attempted to repeat year 11 after he moved interstate but was not successful as he still found it difficult to concentrate.

31. [31]
    After the applicant left school he did very little for a year apart from associating with the wrong crowd and getting into trouble with the law.

32. [32]
    The applicant stated that because he did not complete his high school certificate he has limited employment prospects. Any employment he has had has not lasted very long because the applicant could not find a way to relate to male employers. His inability to relate to male employers results in anxiety on his part. He would rather work with a female employer. He has felt self conscious at all his workplaces. Since leaving school the applicant has completed a few work placement courses but has found that these are no substitute for being able to obtain good grades and a good job. He has studied landscape gardening with the local council and has also obtained a first aid certificate. Currently, the applicant is unemployed and in receipt of a disability payment because of his psychological conditions. He stays at home having not worked since December 2009. He lives with his girlfriend and her mother. He spends a lot of time at home playing computer games and doing housework. He worries about his future financial security because of his lack of education and skills. Because he does not have a motor vehicle or a drivers licence he spends many days alone while his girlfriend is at work.

33. [33]
    The applicant stated that any relationship that he now has with an older man causes him anxiety. He experiences flashbacks of the offence which gives him a cold shiver when he thinks of the abuse. This occurs once or twice each month. The applicant also suffers from occasional nightmares about the incident. He does not know how to put the offence behind him but accepts that if he is occupied he tends to think less about it. The offence has crushed any trust he has with most people. He felt violated at the time of the offence and has felt anxious and depressed about the incident in the years since the offence was committed. The applicant tries to block out the bad memories of the incident but hearing or reading other stories of young persons being violated in the newspapers and media makes it hard to ignore. He tends to yell at the television set if he sees anything about sexual abuse. The applicant thinks about the abuse every couple of weeks.

34. [34]
    The applicant stated that his soccer skills suffered after the offence as he was unable to focus on team training and being part of a team. He stopped playing within a year after the offence was committed and the promising career he had in soccer, having represented both Queensland and New South Wales, ended.  He believes that some team members found out about the incident and started excluding him which made him feel lonely.  As a result, he stopped playing soccer and eventually threw out all of his trophies.  The applicant did resume playing indoor soccer for a time with his stepfather but found it difficult to get changed out of his playing gear in front of other members of the team after a game.  As a result, the applicant asked his mother to wash the team jerseys every week so he did not have to get undressed at all after a game.  He has not continued with indoor soccer.

35. [35]
    The applicant stated that he is unsure of who he can trust and how to react in certain situations. He is reserved when he meets people and feels that people must wonder why he acts in this way. He feels that when he meets new people he is being judged by them about everything. He tends to keep most of his feelings bottled up but sometimes overreacts to what people say or suggest. The applicant is very irritable since the incident and has had trouble controlling his anger which has led to him being involved in a few fights.

36. [36]
    The applicant chose to wear baggy clothes for a long time after the incident so that he could hide his body. He does not like to go to the beach now because he does not like undressing in public. The applicant states that he feels depressed and anxious on almost a daily basis but does not take any medication because he is concerned about the side-effects of the medication. When he is depressed the applicant argues with those closest to him and this puts strain on his relationships. The applicant states that he does not see himself as being able to become a parent whilst he continues to suffer from depression and anxiety.

37. [37]
    The applicant states that his appetite has fluctuated dramatically since the incident depending on how he feels emotionally. He has lost more than 10kgs in weight since the offence. The applicant questioned his sexuality for a time after the incident but concedes that he has always had difficulty talking about sexuality. He stated that he has to work hard every day to keep his relationship with his girlfriend normal. His girlfriend is sometimes confused by his shyness and this can be stressful. The applicant is conscious of the moods he experiences and he claims to be open in his relationship if his girlfriend questions him. He is able to talk to his girlfriend about his problems on occasions although he claimed to ‘zone out during sexual intercourse at times’.

38. [38]
    The applicant stated that he has become anti-social since the incident and has trouble making and keeping friendships. He still experiences difficulty in trusting new friends which makes friendships rather strained and awkward. The applicant lost contact with all of his old friends as a result of the family relocation and because of trust issues he had as a result of the offence. He stated that he only has a few friends around him at any time. The applicant does not attend bars or hotels because of fear that another sexual incident may occur or that he could be bashed by an older man. The applicant does not go out socially often and prefers to stay at home watching television. When he does go out, he gets stressed at the thought and feels his body becoming shaky. He becomes uptight and angry and it takes some time for him to calm down and get ready to go out.

39. [39]
    The applicant attended counselling at Lifeline after the incident but he found it difficult to talk to the male counsellor and he stopped attending. In mid 2011 he attended counselling at a hospital close to his residence and spoke with a female counsellor on approximately four occasions. These sessions were organised for the applicant by Centrelink and he found the sessions helpful. The applicant lived with his family up until about two years ago but then moved interstate to distance himself from the memories. The move was stressful and expensive but it was necessary to help the applicant forget about what had happened.

40. [40]
    The applicant claimed that there was a lot of tension in his relationship with his stepfather and after the incident that relationship became almost non-existent. The applicant’s relationship with his brother and mother were never the same after the offence. His anger affected his family relationships. He felt that his relationship with his mother became strained and when he argued with his stepfather he felt that his mother never supported him. Since the applicant relocated interstate, his relationship with his mother has improved somewhat. He has received one visit from her and he and his mother speak by telephone every two or three weeks.

41. [41]
    The applicant stated that his mother’s relationship with her husband (the applicant’s stepfather) suffered following the incident and the couple broke up several times for a number of weeks because of the tension in the house and because of the arguments the applicant would have with his stepfather. The marriage is now stable following counselling through his mother’s church.

42. [42]
    The applicant stated that he found it difficult to make contact with his solicitor to give instructions in this matter and he acknowledged that this has contributed to the delay. Whenever he is required to think about what happened and its effects upon him he feels depressed and unwilling to talk about it. Eventually, the applicant spoke to his solicitor in February 2012 to provide instructions to finalise his affidavit.

43. [43]
    In her report of 14 February 2011, Dr Sandra M. Hacker, consultant psychiatrist, confirms that she interviewed the applicant on 8 February 2011 for a period of an hour and fifteen minutes, having previously perused the material forwarded by Legal Aid Queensland and the applicant’s school reports which had been provided by the applicant’s mother.  It was noted that on mental status examination the applicant was extremely anxious but attempted to be cooperative and made good eye contact.  He appeared of above average intelligence and there were no cognitive difficulties noted although cognition was not formally tested.  The applicant provided a history with significant spontaneous speech but with some hesitation when discussing the details of his distress.  Dr Hacker noted that the content of the applicant’s thought related very significantly to the intense despair, distress and rage that he suffered.  His affect was depressed, restricted and somewhat blunted and his mood was of a well communicated depression.  His judgement was significantly affected and insight was reasonably maintained but dissociative and perceptual phenomena (flashbacks) were noted.  Dr Hacker was of the opinion that the applicant suffers from a post-traumatic stress disorder and a major depressive disorder as a result of the abuse.  The applicant also suffers from chronic cannabis dependence.  The sociopathic behaviour of the applicant’s middle adolescence appears to be resolved, however the impact of the incident on the applicant’s scholastic capacity and sporting potential appear to have been significant.  Dr Hacker considers that the applicant’s post traumatic stress disorder and major depressive disorder are of a severe level.  His marijuana dependence is said to be of a minor to moderate severity.  These disorders are considered to have persisted since the incident and the applicant’s psychiatric condition appears to be deteriorating and it is therefore likely that the disorders will continue without treatment.  In Dr Hacker’s opinion the applicant requires urgent, skilled psychiatric treatment but that on no account should he be asked to see a male psychiatrist, psychologist or counsellor.  In Dr Hacker’s opinion the applicant would be best served by seeing a female psychiatrist experienced in managing sexual trauma patients as he would be assisted by skilled pharmacological management in addition to psychotherapy.  Dr Hacker considers it likely that psychotherapy would be required on a weekly basis for a period of approximately two years while medication may be required for a longer period.  Dr Hacker notes that the Medicare rebate for an hour consultation is $150.20; the recommended fee is $176.70 and the AMA fee is $305.00.

44. [44]
    In two addendum reports dated 31 January 2012 and 14 March 2012 Dr Hacker identified disease and lost or reduced physical capacity as adverse impacts of the offence which are compensable as Adverse Impacts under regulation 1A of the Criminal Offence Victims Regulations 1995 which came into force on 19 December 1997.  Pursuant to that 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 s 20, is prescribed as an injury.  Regulation 2A of the Criminal Offence Victims Regulations 1995 states that for an injury mentioned in regulation 1A an amount of up to 100% of the scheme maximum (which remains at $75,000) may be awarded.

45. [45]
    In addition to disease and lost or reduced physical capacity it is appropriate to take into account the following additional adverse impacts referred to by Dr Hacker or by the applicant in his affidavit. Those matters include disruption or relocation after the incident, adverse impact on family and finance, adverse effect on education and employment opportunities, adverse effect on relationships/social life/loss of friendships, change in dress sense, impact on capacity to become a parent, adverse impact on health and impact on sexuality.

46. [46]
    Having regard to the contents of Dr Hacker’s reports and the applicant’s affidavit I am satisfied that the applicant has suffered injuries as a result of a personal offence which entitles him to seek compensation for the effects of such injuries. As noted previously, at the time of the offence, the applicant was aged 14 years. The offence has had a significant impact upon the applicant’s life. He has been diagnosed as suffering from post traumatic stress disorder and a major depressive disorder both at a severe level and he also suffers from chronic cannabis dependence of minor-moderate severity. The applicant’s severe post traumatic stress disorder is characterised by symptoms of experiencing ruminations, flashbacks, nightmares, avoidance, irritability, sleep disturbance, concentration disturbance, hypervigilance, reexperiencing, avoidance and increased arousal symptoms. The application is in respect of mental or nervous shock suffered as a result of the offence committed by the respondent. The relevant item in Schedule 1 of the Criminal OFFENCE VICTIMS Act 1995 is Item 33 which refers to severe mental or nervous shock and which permits an assessment to be made at between 20%-34% of the scheme maximum.  Having regard to Dr Hacker’s expert opinion it is appropriate, in my view, to make an assessment at 32% of the scheme maximum in this regard which yields an amount of $24,000.

47. [47]
    In relation to the assessment pursuant to regulation 1A having regard to those matters identified as comprising the adverse impacts of the sexual offence upon the applicant I am satisfied that an award of 35% or $26,250 is appropriate. The total is therefore $50,250.

48. [48]
    There is nothing on the material before me to indicate that the applicant was in any way responsible for contributing to the injuries sustained by him as a result of the respondent’s unlawful conduct.

49. [49]
    I order that 1) the applicant be granted leave pursuant to rule 389(2) of the Uniform Civil Procedure Rules 1999 to proceed with his applicant for criminal injuries compensation and 2) that the respondent pay to the applicant the sum of $50,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence which led to the conviction of the respondent on 20 November 2007 upon indictment under the Criminal Code Act 1889.