MMM v GPW[2012] QDC 287

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: The applicant seeks compensation, pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for emotional injuries caused by the actions of the respondent between 9 October 1994 and 11 October 1999.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.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) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 29 January 2010. This was before the end of two months after the commencement as required by section 155(2)(b), it being the earlier of the dates required in that section.

On 3 December 2008, the respondent pleaded guilty to one count of maintaining a sexual relationship with a child with circumstances of aggravation. This offence was committed upon the applicant.

He was sentenced on 3 December 2008 in the District Court at Kingaroy to six and a half years imprisonment. On that date, he was also sentenced concurrently to six months imprisonment for one count of possessing child exploitation material. This offence did not relate to the applicant. A parole legibility date of 3 February 2011 was fixed.

Service of the respondent

Mr Kelly, who appeared for the respondent at the hearing of the application, accepts that service of the originating process and all relevant material was duly affected on the applicant. Accordingly, I proceed to determine the application.

Circumstances of the offence

The respondent is the applicant's biological father. The respondent maintained the sexual relationship when she was aged between 11 and about 16 years. It was maintained in the family home.

The respondent had expressed to the applicant an interest in watching her growing through puberty. He said he actually wanted to see her vagina up close as she developed. He used a mirror to show the applicant her vagina while he looked at it with her, and explained to her "what things were".

During the relevant period, the respondent went from looking at the vagina to touching it with his finger while she held onto his hand to control what he touched. This occurred more regularly as the years went by.

Initially, he also lightly touched the middle of her vagina without actually penetrating her. This routine occurred about twice a week, on average, and it became a normal and regular part of her life.

At around 11 years of age, he exposed his penis to her and said she should touch it, although she had previously seen his penis countless times during the family shower rotations. He encouraged her to masturbate herself. When she had difficulty in penetrating herself, he tried to help her do so. He also started to penetrate her with his own finger, on a regular basis.

He commenced penetrating her with two fingers. He also used a small white vibrator on her. He also started performing oral sex on her while penetrating her with his fingers. This happened three or four times, although it may have been more.

When the applicant was 12 years of age, he started simulating sex with her by placing his exposed penis between her legs. He did not penetrate her. On occasions, he asked if he could have sex but she said, "No".

He did these things to her everywhere around the house, on the couch, in her bedroom, in his bedroom and in the outside laundry. It also occurred when she was 13 years of age, in a tent they shared during a camping trip. By the time she was 13, they were having simulated sex nearly every day of the week. In the context of showing her hard core pornography on the internet, he masturbated himself in her presence. When she was still 13, the accused would dip jelly beans in her vagina and eat them.

On her 14th birthday, the respondent said he would buy her an ice cream cone but only if he could dip the end of his cone into her vagina. Although she did not want to do it, she eventually agreed so he would get off her back about it. She dipped it into her vagina while they were both in a car.

By this time she was very much against doing sexual acts with him. However, he was paying her and bribing her to allow him to look at her vagina, finger her vagina and watch her put a dildo into herself.

He also started blackmailing her into doing this through using guilt such as by referring to things he had done for her. He also played on her emotions by saying he was the one who looked after her and he was not getting any sex. The applicant says that he started to make her skin crawl and she felt sick in the stomach when he touched her.

When the applicant was 15, she states the respondent put her on an emotional roller coaster. When he was getting his way and doing what he wanted to her, they got along. When she was turning him down, he was nasty and using guilt on her. It got to the point that she was letting him do sexual things to her, which she hated, just because when she did, they got along with each other and it was easier on her.

This cycle went around and around at this stage in her life, and it got so bad she dreaded to be around him. She told him how she felt in order to bring it to a stop. He responded by not talking to her for about a month.

While she was still 15, she discovered that he was taking photographs of her showering. She deleted the photographs from his camera and refused to give the camera back to him. She did not recall any further sexual abuse occurring after this event.

Although the showing of pornography to her and the taking of these photographs do not form part of the acts which are the basis of the maintaining charge, they are part of the context in which his sexual interest in her was considered by the sentencing Judge. They are also relevant to the application of section 25(7) of the Act, which requires the Court to consider whether there are other relevant factors to which regard must be had in deciding what amount is payable for any injury suffered by the applicant as a consequence of the offence. And, if so, whether they operate to reduce the amount which might otherwise be awarded.

In this regard, it is also relevant that, as set out in the applicant's statement which is annexed to her affidavit in these proceedings, her first memory of abuse by the respondent was when she was four or five years of age.

At this time, the respondent told her it was all right to masturbate and do similar activities with other kids as long as she didn’t get caught. She refers to an occasion when, at seven years of age, she told her mother that the respondent was sexually abusing her. This was in the context of having received a talk at school about inappropriate touching.

Around the time she was in grade 2, she rubbed her forearm on the respondent's penis. At that stage, she thought this was normal. She recalled him telling her that they had a special relationship which other people and her mother wouldn’t understand.

According to her statement, the conversation about watching her go through puberty and commencing to use the mirror to show her vagina happened when she was about seven years of age, through to about 14 years when she told him that he couldn’t do it anymore. It was also from this time that he started touching her vagina in a non-penetrative way. When she was about eight years of age, he taught her how to flash her underwear.

In addition to the respondent, she gives an account of having been sexually abused when she was nine, by a male who was around 16. He also simulated sex with his erect penis between her legs, and put his thumbnail into her vagina inside her underpants. In her statement dated 4 February 2007, she said that, in comparison with the abuse by the respondent, this was relatively minor. It occurred on only one occasion.

When she was 19 years of age, she caught the respondent spying on her again while she was in the shower. She split up with her previous boyfriend in October 2004 when she was about 21 years. She organised to see a counsellor because she took the break-up badly and completely fell apart.

She moved into a flat in Brisbane with her parents, which I take to include the respondent. She was having constant nightmares and trouble sleeping at this time. She states that she thinks she couldn’t sleep out of fear that came from a childhood filled with sexual abuse.

It was in these circumstances that she told her mother about the abuse. Subsequently, she and her mother moved out of the house.

The applicant organised further counselling for herself. The first session included the whole family, including the respondent. The family attended the sessions, as a group, for the first few weeks. She and the respondent went to one counselling session on their own.

In her statement, she also refers to having had an emotional breakdown, and seeing a counsellor between March and April 2005. It is unclear whether this is a reference to the same counselling sessions that her family attended.

In February 2006, she married. She told her husband about these matters. By this time, she was no longer having as many nightmares. Having fallen pregnant in about February 2007, she decided to tell the police what happened. The respondent was subsequently charged.

Injuries and Medical Reports

The first medical report which is relevant to this application is from the experienced psychiatrist, Dr McGuire. It is dated 21 August 2009. It was prepared for the purpose of parenting proceedings before the Federal Magistrates Court concerning the child of the applicant's marriage. There had been a final separation in August 2008. The child was born in June 2007.

The applicant told Dr McGuire that, at the time she met her former husband in September 2005, she was unstable. At this time, she was living in a house with her mother, and having panic attacks. The applicant told her about the sexual abuse which she thought might have started when she was two years of age. Nonetheless, she felt guilty that she had got the respondent into trouble.

According to Mr McGuire, she had suffered from nightmares and had also suffered a dissociative period. She could not remember from the age of 15 to 16 years. She experienced suppressed anger. She was depressed when she was seen by Dr McGuire.

The applicant advised Dr McGuire about the breakdown of a long-term relationship with a boyfriend with whom she had got together when she was 20 years of age.

In context, I infer that this is the boyfriend from whom she split in October 2004, and, as a result of which she saw the counsellor. This is consistent with her telling Dr McGuire that this relationship precipitated a mental breakdown. She experienced uncontrolled crying.

She also told Dr McGuire that, "I lost the plot; I couldn’t study or organise. Something was trying to kill me and chase me around the house". The applicant also told her that she suffered post-natal depression when her son was born. However she did not have any treatment in terms of anti-depressant medication. She had a fear of sexual abuse of him. Although she said that, since his birth, she hadn't sat in a corner, had nightmares or panic attacks.

Her current partner was about 18 years of age; that is, about seven years her junior. He told Dr McGuire he felt that the applicant didn’t like men and couldn’t trust people. She was wary around his father.

Her former husband also said she had problems with fear. He said she had been hallucinating, seeing demons and believed that an evil gargoyle was watching her. He claimed the applicant had seen nine different counsellors. He said she was suicidal when they first met. He confirmed she was then suffering from severe panic attacks.

Dr McGuire considered the applicant to be pleasant, cooperative and appearing to be very forthcoming in her history. She concluded that the applicant was suffering from post-traumatic stress disorder and appeared to have difficulties in her decisions regarding male partners.

The applicant gave a history of hallucinations and delusional beliefs for a period at the age of 15 years. Dr McGuire's opinion was expressed in the following terms:

"[The applicant] has a history of severe sexual and emotional abuse which has resulted in post-traumatic stress disorder. Because of the timing of the abuse, it has distorted her sexuality and made it highly probable that she has impaired judgment about sexual relationships. The damage inflicted has been profound. One of the particularly concerning aspects of childhood sexual abuse is its capacity to distort relationships between the victim and their children. [The applicant] shows an awareness of this which renders her accessible to therapeutic help. She was particularly frank in her history and appears to demonstrate retrospective insight into some of her behaviours. I do not believe that the hallucinatory experiences that she has described represent a psychotic illness, but consider she suffers from a post-traumatic stress disorder with a severe degree of anxiety, and this leads her into impulsive alliances. I believe she will need years of counselling and she appears to have benefitted from the counselling she has received".

The annexures to the applicant's affidavit included reports of 23 October 2009 and 20 April 2010 from a psychologist, Mr Rodriguez, who has regularly been treating her since 9 June 2009 for post-natal depression/reactive depression and post-traumatic stress disorder and anxiety.

Mr Rodriguez specifically states that the post-traumatic stress disorder originates from severe childhood sexual and emotional abuse. Although he considered she was responding well to treatment with a reduction in the severity of her psychological symptoms, in his opinion, give the chronic nature of her conditions, she would require ongoing psychological treatment.

In the first report, Mr Rodriguez states that treatment outcomes have also included assisting her to develop effective ways of coping with her day-to-day life stressors, particularly within her relationship with her current partner, as well as developing improved parenting skills to cope with the responsibilities and stressors associated with parenting her son.

At the time of Mr Rodriguez' 20 April 2010 report, he observed the applicant's current psychological conditions continued to affect her day-to-day functioning including her ability to engage in employment and/or vocational training as well as impacting on her overall social and emotional functioning.

Although the reports by Dr McGuire and Mr Rodriguez were prepared for other purposes, a report by a psychologist, Mr Goldsmith, dated 2 November 2011, has been prepared specifically for the purpose of this application. He had the benefit of each of those reports together with the schedule of agreed facts and sentencing remarks. He received his diploma in psychology 31 yeas ago.

Mr Goldsmith was also told by the applicant, who, by then, was aged 28 years, that she was subjected to sexual assault by the respondent from the age of five years until she was at least 15 years old.

Mr Goldsmith states that the "breakdown" she described to Dr McGuire was related to her various relationships with older men, which continued through her time at the Australian College of Natural Medicine which she attended after completing grade 12 until 2008.

At the time, Mr Goldsmith spoke to the applicant in February and August 2011, she was still in the relationship with the younger man. She was expecting their child in February 2012.

In her affidavit of 4 June 2012, she confirms the factual circumstances outlined in Mr Goldsmith's report.

Mr Goldsmith states:

"The consequences for [the applicant] of the father's actions over a long period have had a far-reaching impact on her. She describes how she was punished for displaying sexualised behaviour with other children when she was at primary school. She encountered difficulties in her early relationships with peers of the opposite sex. She had nightmares, difficulty sleeping, problems with concentration and lower achievement at school, and later in her tertiary studies than she was capable of. She spoke of having periods when she 'zoned out' and Dr McGuire reports periods when she had a 'gap in her thinking' which she diagnosed as 'a dissociative period'. She has struggled with significant self-esteem issues, difficulty trusting others, impaired judgment about relationships and 'suppressed anger'. Since her father's release from gaol, she reports more nightmares and an exacerbation of symptoms. During her current pregnant [sic] she says she has been more anxious to the point that she has been nauseous, vomited and left with reduced energy and little tolerance".

Having referred to the specific findings of Dr McGuire and Mr Rodriguez, he describes the consequences of the respondent's sexually abusive treatment of her as "far-reaching", and of her being left with "significant diagnosable disorders".

He assesses the applicant as a genuine and conscientious woman who is endeavouring to look to a healthy future and make sense of an unhealthy upbringing.

Applying the depression, anxiety and stress scale [DASS], he concluded that her scores met the criteria for post-traumatic stress disorder within DSM-IV, and that she was in the severe range for depression, anxiety and nervous shock.

With reference to the judgment of Byrne SJA in RMC v NCA [2010] 1 QdR 395, that "nervous shock" is a recognisable psychiatric illness or disorder for the purposes of items 31-33 of the Compensation Table in schedule 1 of the Act, his opinion is that the applicant's symptoms conform to the traditional diagnosis of post-traumatic stress disorder.

It is his opinion that she has suffered mental or nervous shock in the severe range for the purposes of item 33, and this is as a result of the respondent's sexually abusive behaviour.

In JS v Graveur, [2012] QCA 196 at [20], Muir JA, with whom Fraser and Gotterson JJA agreed, accepted the accuracy of the analysis by Byrne SJA in preference to the different view of Thomas JA in R v Kazakoff, ex parte Ferguson [2001] 2 QdR 320. His Honour also accepted that "mental shock" and "nervous shock" are interchangeable expressions.

In reaching this conclusion, Mr Goldsmith observed that a post-traumatic stress disorder is said to exist if the person has repeated and intrusive recollections of a traumatic event, avoids circumstances or situations which resemble the original event, and results in emotionally aroused or restricted responses. Such a condition needs to exist for one month or longer.

He does not consider her to have a personality disorder. However, with reference to psychological and environmental stressors, he rated the sexual assault on her as "extreme" (five on a 1-6 scale) when compared with a list of acute psychological stressors.

With reference to a global assessment of her functioning (GAF), he considered that, at worst, she experienced severe symptoms together with a severe difficulty in social and occupational functioning. Her lowest GAF was 41-50 on a scale of 0-100, where 100 equates with superior functioning.

In Mr Goldsmith's subsequent affidavit of 28 August 2012, he exhibits his report of 23 August 2013, in which he concludes that the applicant's circumstances rank as among the most serious he has encountered during over 30 years of clinical experience. In his opinion, the severity is at the high end of the range (30 per cent-34 per cent).

Mr Goldsmith also opines that the applicant has experienced:

• a sense of violation
• reduced self-worth or perception
• disease
• increased fear or increased feelings of insecurity
• adverse effect to the reaction of others
• adverse impact on feelings

These are "adverse impacts" of a sexual nature under regulation 1A of the Criminal Offence Victims Regulation 1995 (Qld) (the Regulation) with the exception of adverse effect to the reaction of the others which is expressed in paragraph (h) of the definition as adverse effect of the reaction of others.

The basis of his opinion that she has suffered a sense of violation for the purpose of paragraph (a) of the definition is that her right to innocence as a child was taken away by the respondent's sexualised behaviour, and this behaviour intruded on her physically.

He considers she has a reduced self-worth or perception for the purposes of paragraph (b) because she has grown up doubting herself as a consequence of the respondent's schooling her to accept beliefs about this relationship which were self-serving for him. She was regularly asked to discard her own discomfort and accept his rationale.

His opinion that she experience disease for the purpose of paragraph (d) is based on her telling him that, during her studies in remedial massage, she learnt that she had a strong anterior tilt on her hips. She was taught that this can be caused by sexual abuse. It made childbirth more painful. This is Lordosis of the lumbar spine.

As Mr Goldsmith puts it, the applicant understands that she now had this as a consequence of the respondent's sexually abusive behaviour over a prolonged period.

He considers she has increased fear or increased feelings of insecurity for the purpose of paragraph (g), because she has experienced nightmares, anxiety and uncertainty about adult relationships.

The basis of his opinion that she has suffered an adverse effect to the reaction of the others is that she has struggled to know how to relate appropriately to others from her early days at primary school until her adult relationships.

As I have observed, this is not a specific adverse impact. Paragraph (h) of the definition is "adverse effect of the reaction of others." Although it may also be considered under paragraph (k) of the definition which extends to anything the Court considers an adverse impact of a sexual offence.

With reference to the adverse impact on feelings (paragraph (j)), he says she has had periods of disassociation and suppressed anger which have impacted on her ability to cope with parenting, relationships and studying and occupational functioning.

In Mr Goldsmith's most recent report of 23 August 2012, he states that these adverse impacts are over and above those which arise from his post-traumatic stress disorder diagnosis. In his opinion, the adverse impact on her of the respondent's long-running sexualised behaviour towards her, have been most severe.

The issue of whether she suffered adverse impacts as a consequence of the respondent's offence of maintaining a sexual relationship with her is an important matter in the assessment of compensation to which I will return.

The 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: JMRoboSRR v. Hornsby [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) 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 the Criminal Offence Victims Regulation 1995 (Qld)(the Regulation) section 2; 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: Riddle 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 amounts 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, 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 Regulation 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 Attwell; ex parte Jullie [2002]2 QdR 367 per Chesterman J at 372; per Atkinson 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 later stage when the total amount payable under the order is being determined. That is to say, it is in determining the percentage 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

It was submitted, during oral argument on behalf of the applicant, that she has suffered the following injuries and should be compensated on the following basis:

• Item 33 - mental or nervous shock (severe) - 30 per cent - $22,500
• Regulation 1A - adverse impact of a sexual offence - 10 per cent - $7,500

Therefore, an award is sought of 40 per cent of the scheme maximum, which is $30,000. It was accepted that this award was the appropriate measure for compensation despite an earlier written submission that the award should be on the basis of a maximum of 34 per cent for item 33, and of 15 per cent for Regulation 1A impacts. This was a claim of 49 per cent of the scheme maximum; that is, $36,750.

Mr Kelly, who represented the respondent, during oral argument, conceded an award being made in the sum of $30,000.

Assessment

I am satisfied on the balance of probabilities that the applicant suffered mental and nervous shock and adverse impacts as a result of the offence of maintaining a sexual relationship with a child with circumstances of aggravation committed against her by the respondent, between 9 October 1994 and 11 October 1999; that is, when she was aged between 11, and about 16 years. This offending has materially contributed to these injuries.

Item 33 - Mental or nervous shock (severe) - 20 per cent - 34 per cent

The applicant submits that I should award a sum of compensation at 30 per cent under the Compensation Table. There is a preponderance of evidence that the applicant was suffering from a post-traumatic stress disorder as a result of the respondent's sexual abuse of her involved in the offence over a period of five years.

This is the opinion of both Dr McGuire and Mr Goldsmith. Dr McGuire's opinion is particularly important because it was reached for a purpose independent of this application. It was prepared to assist the Federal Magistrates Court in parenting proceedings in which the applicant was involved.

Independently of these proceedings, Mr Rodriguez was treating her for, what he stated, was a post-traumatic stress disorder and other disorders. He's also stated that the post-traumatic stress disorder originated from severe childhood sexual and emotional abuse.

In AT v FG, [2004] QCA 293, Jerrard JA made reference to: "Establishing the existence of post-traumatic stress disorder and therefore mental or nervous shock".

I accept that post-traumatic stress disorder is a recognisable psychiatric illness or disorder, and, therefore, is compensable as mental or nervous shock within the meaning of those words in the Act. And having regard to the expert opinions, I am satisfied that the respondent's conduct constituting the events, was a material cause of that disorder and is a proper subject for compensation.

I accept Mr Goldsmith's opinion that this is in the severe range. This is supported by Dr McGuire who describes the damage inflicted as profound, and diagnosed the post-traumatic stress disorder to involve a severe degree of anxiety.

Dr McGuire's opinion also was that she would need years of counselling despite benefiting from the counselling she had already received. Mr Rodriguez, who was responsible for that counselling, described her condition as chronic, and also considered she would require ongoing psychological treatment.

This is further supported by the fact that the post-traumatic stress disorder has persisted since the offending ended in October 1999, which, at the time of Mr Goldsmith's initial report, was approximately 12 years.

Consistently with the opinions of Dr McGuire and Mr Rodriguez, ongoing treatment would be required.

Although these opinions were expressed in 2009, as indicated, Dr McGuire's experienced opinion was that years of further counselling would be required.

I am therefore satisfied that the post-traumatic stress disorder is within item 33 of the schedule for severe mental or nervous shock.

The next task is for me to fix compensation for this at the appropriate place in the range of 20 per cent to 34 per cent of the scheme maximum. As stated in Ward at 438 [5]:

"But in our opinion, the proper method is to fix compensation for, say, severe mental or nervous shock, at the appropriate place in the range, 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the 'most serious' case which must be compensated by an award of the maximum of 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault should, on that count, get no more than $25,000".

As indicated, Mr Goldsmith considers that the degree of mental or nervous shock is at the high end of the range (30 per cent - 34 per cent). Given that this post-traumatic stress disorder with its serious consequences in most areas of her life had persisted for 12 years at the time of Mr Goldsmith's report, and was likely to persist indefinitely with the need for extensive counselling, I assess compensation, as submitted, at 30 per cent of the scheme maximum. This is $22,500.

This is subject to consideration as to whether, for the purpose of section 25(7) of the Act, there are other relevant factors to which regard must be had, and, if so, whether they should operate to reduce the amount which might otherwise be awarded: Ward at [22].

Regulation 1A - Adverse impact of 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 to include five of the six impacts that Mr Goldsmith has identified as being suffered by the applicant.

"Sexual offences" are defined in section 1A(3) of the Regulation to be a sexual offence of a personal nature. There is no doubt that the offence committed by the respondent against the applicant is a sexual offence.

As I have said, these adverse impacts can only be an injury pursuant to the regulation to the extent that they are not symptoms of the mental or nervous shock for which I have compensated the applicant.

Therefore, the threshold question is whether any of the adverse impacts of the sexual offences are relied upon to support the diagnosis of mental or nervous shock. If the answer is in the affirmative, section 1A is inapplicable to the assessment of compensation to this extent.

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 at [25]:

"Applicants for compensation who are diagnosed as suffering from post-traumatic stress disorder or from depression or from anxiety will benefit from having their legal representatives insist upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis. Those matters may then be capable of being adverse impacts".

In Mr Goldsmith's 23 August 2012 report, he clearly states that the adverse impacts he has identified are separate from the post-traumatic stress disorder he has diagnosed.

However, I am not satisfied that the applicant suffered a disease for the purpose of paragraph (d) as a result of the respondent's offending against her. The disease of Lordosis of the lumbar spine is solely based on the applicant's understanding as a consequence of her studies in massage.

As it is put by Mr Goldsmith, she learnt that she has a strong anterior tilt on her hips that can be caused by sexual abuse. In my view, it is purely speculation as to whether this was caused by the respondent's conduct. I do not accept her as an expert witness on this issue. Mr Wood has not argued to the contrary when I raised the matter with him during oral argument.

Although as I have indicated, an adverse impact to the reaction of others which is referred to by Mr Goldsmith, is not a specific defined adverse impact, I consider that the impact described, which is her struggle to know how to relate appropriately to others from her early days at primary school until her adult relationships, is an adverse impact within the broad category recognised by paragraph (k).

Having regard to the totality of the adverse impacts to which the respondent's offending materially contributed and which are not relied upon to support the diagnosis of mental or nervous shock, I assess an award at 10 per cent of the scheme maximum; that is, $7,500.

Section 25(7) of the Act - Contribution

In SAY v AZ, ex parte A-G (Qld) at [22] Holmes JA said:

"In deciding what amount is payable for a given injury, the Court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which otherwise might be awarded".

As indicated, this includes any behaviour by the applicant that directly or indirectly contributed to the injury. I conclude that there was nothing in the applicant's actions which contributed to the mental or nervous shock or other adverse impacts she has suffered as a consequence of the respondent's offence against her.

She did not, in any way, directly or indirectly contribute to her injuries. She was aged between 11 and 16 years at the time of the offending. As Mr Goldsmith says, the respondent's activities were those of an adult in a trusted role who, for his own sexual gratification, schooled his daughter to believe that his sexually inappropriate behaviour with her was acceptable and for her own education.

He schooled her to believe that the nature of this "special" relationship was something that other adults would not understand. As Mr Goldsmith said, there was a litany of predatory behaviour by the respondent father which beguiled her from a young age into believing that his sexualised actions were for her benefit.

He would encourage her to let him perform some sexualised act, and, as she got used to it, he would then gradually extend the degree of his sexual intrusiveness. All this was introduced in a way that a vulnerable 11 year old girl in this "special" relationship would, by that time, believe it to be normal and acceptable including the simulated sex into which it evolved.

He schooled her to keep these actions secret by encouraging her to collude with him in disguising the sexual activities so that others, like her mother, did not notice.

Even though she resisted more and more as she grew older, the respondent used emotional manipulation in the form of blackmail and bribery to get her to comply.

However, the sexual abuse, on which Mr Goldsmith bases his opinion, consistent with the applicant's police statement is identified by him as commencing from five years of age.

Dr McGuire's opinion was given in circumstances where she was told by the applicant that the sexual abuse might have started from the age of two years.

The totality of the sexually abusive behaviour therefore included the uncharged acts against the applicant when she was about five to 11 years of age; that is approximately 50 per cent of the period.

In his 23 August 2012 report, Mr Goldsmith is adamant that the respondent's sexually exploitive behaviour outside the precise time of the charge for which he was convicted, did not contribute to the post-traumatic stress disorder or adverse impacts to the extent there should be a reduction in the effects on the applicant of his offending behaviour.

In relation to this, he says:

"In my view, no matter how many other times outside this period he committed similar offences for which he was not charged, the damage he did during that four and a half year period when [The applicant] was aged 11 to 16 years - particularly formative years at the start of her adolescence - was extensive and far-reaching. This is a critical time in the development of a young person's identity and should be the beginning of their sexual awareness. A healthy young person learns gradually to understand themselves and is protected by their parents. [The applicant] had none of this healthy nurturing, instead she was repeatedly assaulted by a parent she should have been able to trust. Her PTSD symptoms, even if they existed before as a result of the respondent's earlier actions (and I have no reliable evidence of this) would have been insignificant compared to the impact of his ongoing behaviour on his daughter during this vulnerable and sensitive period. As I have already indicated in my example above, the adverse impacts equally would have been most pronounced due to the respondent's actions during this four and a half year period. There is no logic in my assessment for imagining that the extent of [The applicant's] present difficulties should or could be discounted or adduced because there were events that occurred outside the four and a half year period of the respondent's sexually exploitive actions".

With reference to such a situation, the Court said in SAY v AZ at [23]:

"Given the Act scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that the contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of the continuum of offending, whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant's state of injury, will depend on all the circumstances which may include the nature of that behaviour, how closely related it was to the relevant offences and the relationship of the victim and the offender when it occurred".

That was a case where the applicant sought compensation in respect of her stepfather's conviction for raping her. However, the offence occurred in the wider context of the respondent regularly touching her from the time she was about 10, culminating in the rape when she was 14.

An indictment was presented charging only the rape count to which the respondent pleaded guilty. The application for compensation was supported by the opinion of a psychologist to the effect that, as a result of the rape, the applicant suffered from post-traumatic stress disorder and other adverse consequences.

The Judge, at first instance, accepted this and assessed compensation in respect of nervous shock on the basis of the post-traumatic stress disorder at 30 per cent of the scheme maximum, and adverse impacts falling within section 1A of the Regulation at 25 per cent. He allowed another two per cent for bruising and lacerations.

However, he found a flaw in the psychologist's report. That was she had not dealt with the abuse of the applicant before the rape.

That was, his Honour said, a matter contributing to the post-traumatic stress disorder and the additional adverse impacts, and it required that the applicant's compensation should be discounted.

For that reason, he reduced the compensation for her psychological injuries by 50 per cent to 27.5 per cent of the scheme maximum. The Court of Appeal set aside this aspect of the decision, and ordered that the respondent pay compensation at 57 per cent of the scheme maximum without alteration.

In reaching this conclusion, Holmes JA said at [28]:

"While having regard to the fact that the earlier events are likely to have contributed to the applicant's psychological injuries (although to a lesser extent than the rape) two factors lead me to conclude that no alterations should be made to the percentages allowed: firstly, the uncharged acts were part of a continuing course of similar and reprehensible conduct by the respondent of which the rape was the culmination; and, secondly, the applicant, as a child, was powerless both in that course of events and in what seems to have been a relatively arbitrary decision not to charge the respondent in respect of the earlier acts".

This reasoning is directly applicable to the present case. It is to be accepted that the earlier events are likely to have contributed to the applicant's nervous shock and adverse impacts. Although this was, to a lesser extent, than the maintaining offence.

As Mr Goldsmith recognises, as the years went on, the respondent gradually extended his "lessons" to even more explicit and intrusive acts. This emerges clearly from her statement. It is his actions from the age of 11 years that are by far the most significant events. It is from this period that she speaks of his regularly penetrating her with his finger and with the vibrator, performing oral sex on her on three or four occasions, engaging in simulated sex, dipping jelly beans in her vagina and emotionally manipulating her through blackmail and bribery when she showed signs of resistance.

The uncharged acts, including showing her pornography and taking photographs of her whilst naked, were part of a continuing course of similar and reprehensible conduct by him. It was part of the continuum of the offending.

The applicant, as a child, and in particular, as his daughter, was powerless in that course of events which involved his schooling her to believe they had a "special" relationship in which this sexually inappropriate behaviour was acceptable. He schooled her to keep this activity secret.

Further, although the complaint was made to police when she was a 22 year old married woman, in her clearly fragile emotional state, she was also powerless in the decision not to charge the respondent with the earlier acts.

This reasoning is consistent with the strong opinion of Dr Goldsmith in his most recent report to which I have referred. Therefore, as in SAY v AZ, no alternation should be made to the percentages I have assessed on this basis.

Similarly, no alteration should be made because of the applicant's mental breakdown following the ending of her relationship with an earlier boyfriend, in October 2004, which resulted in her seeking counselling.

Dr Goldsmith says that this breakdown related to her various relationships with older men. However, it is clear that the far-reaching consequences of the respondent's actions on her included difficulties and impaired judgments about relationships and suppressed anger.

As Dr McGuire said, the timing of the abuse has distorted her sexuality and made it highly probable that it has impaired her judgment about sexual relationships.

In my view, the applicant's offending has left her emotionally vulnerable with particular impact on relationships. In these circumstances, these breakdowns have not contributed to her injuries but are other consequences of the respondent's sexual abuse of her.

A person such as the applicant who suffers from a post-traumatic stress disorder and other adverse impacts that I have identified can be expected to suffer breakdowns as a result of a failed relationship.

The reasoning also extends to the failed relationship with her former husband, which Mr Goldsmith opines was a symptom of her post-traumatic stress disorder and the adverse impacts not a cause of her present difficulties.

Although the complainant was sexually abused by a male of around 16, who simulated sex with his erect penis when she was nine, this occurred only on one occasion. She described it as relatively minor compared to the respondent's sexual abuse of her.

As such, I consider its effect was so overwhelmed by the extent of the respondent's offending so as to not have contributed in any way to the applicant's injuries identified by Mr Goldsmith and the other experts, and certainly, it is no way sufficient to alter the percentages I have assessed on the basis of the effect of the respondent's offending behaviour upon the applicant.

The same is the case with reference to her having caught the respondent spying on her again while she was in the shower when she was 19 years of age.

I also note that the applicant suffered post-natal depression following the birth of her first child, and she was still being treated by Mr Rodriguez for this two years later.

He alternatively referred to this as a reactive depression. However, I do not consider this as contributing to her post-traumatic stress disorder or other adverse impacts as opposed to another chronic condition which she experienced concurrently with those injuries.

Mr Goldsmith was aware of Mr Rodriguez' reports and he did not suggest the post-natal depression in any way contributed to these injuries. Therefore, there is no reason for any reduction of my assessment of compensation against the respondent for this or on any other basis.

Conclusion and Orders

Accordingly, I assess compensation in terms of the Compensation Tables as follows:

• Item 33 - mental or nervous shock (severe) - 30 per cent - $22,500
• Regulation 1A - adverse impacts of sexual offences - 10 per cent - $7,500

Therefore, the total assessment is $30,000.

I order the respondent pay the applicant the sum of $30,000 by way of compensation, pursuant to section 24 of the Act for injuries sustained as a result of the offence of maintaining a sexual relationship with a child with circumstances of aggravation which led to the conviction of the respondent in the District Court at Kingaroy on 3 December 2008.

That is my decision.

I'll just go further and say this; in terms of the draft order, the way in which I expressed the order in the decision was slightly different in that, on the third line, the words "a conviction" are omitted, and the words "the offence" are inserted.

And, in the second last line, the word "at" is omitted at the end of that line, and the word "in" is inserted. Accordingly, the terms of the order should read, "The respondent pay the applicant the sum of $30,000 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of maintaining as sexual relationship with a child with circumstances of aggravation which led to the conviction of the respondent in the District Court at Kingaroy on the 3rd of December 2008".

The order as amended is initialled by me, dated today, the 30th of August 2012. I also amend the date in the order to the 30th of August 2012 in lieu of the 28th of August 2012. I will place the draft order with the papers.

I apologise to you both for the length of this decision at this late stage of the day, but it seemed to me, on reading the material, there were a number of significant issues that needed to be addressed. And, of course, I'm conscious as I previously said that, if this matter is ultimately to be resolved by seeking an ex gratia payment to the government, or from the government, it is important that those who make those decisions have access to full reasoning to justify the order that I have made.

Unless either of you have anything further, that really completes the matter today.

MR WOOD: Your Honour, the only thing I would ask is to take up the last point that your Honour's made. Perhaps if there could be a direction that your reasons were transcribed and provided to the parties.

HIS HONOUR: Yes. Well, I certainly give that direction. That’s normally the case‑‑‑‑‑

MR WOOD: Yes.

HIS HONOUR: ‑‑‑‑‑in any event, and my practice is that, when the reasons are returned to me, I then settle them and make any necessary amendments.

MR WOOD: Thank you.

HIS HONOUR: And then I publish the reasons in cases like this on the Court website, but I will ensure that both you and Mr Kelly are forwarded, by my Associate, as soon as this occurs with a copy of the transcript.

Sometimes there is some delay‑‑‑‑‑

MR WOOD: Yes.

your Honour ‑‑‑‑‑on that, but I will get it done as soon as is humanly possible.

MR WOOD: Thank you, your Honour.

HIS HONOUR: But both you and Mr Kelly - unless you want to say anything else, Mr Kelly - are excused. I'm also sorry I raced through that to an extent. Probably the people who are monitoring it will be more concerned about that, but, largely, that was due to the fact that I know that there's a jury in that room there‑‑‑‑‑

MR WOOD: There's a jury.

HIS HONOUR: ‑‑‑‑‑and I wanted to see if I could deliver and finalise the decision without any further adjournments of it before they returned with their verdict.

So thank you, both. You're both excused. Mr Wood, thank you for all the other assistance you’ve given to me‑‑‑‑‑

MR WOOD: Thank you, your Honour.

HIS HONOUR: ‑‑‑‑‑during the course of the sittings.