RJW v AJC
[2012] QDC 342
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- RJW v AJC[2012] QDC 342
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RJW v AJC[2012] QDC 342
RJW v AJC[2012] QDC 342
[2012] QDC 342 | |
DISTRICT COURT | |
CIVIL JURISDICTION | |
JUDGE LONG SC | |
No 39 of 2010 | |
RJW | Applicant |
and | |
AJC | Respondent |
MAROOCHYDORE | |
DATE 13/11/2012 | |
DAY 1 | |
JUDGMENT |
HIS HONOUR: On 29 January 2010, this application for criminal compensation was filed. That occurred, consequently, to the respondent being convicted and sentenced on 27 November 2008, in the District Court at Maroochydore for six offences committed against the applicant; being an offence of maintaining an unlawful sexual relationship with a child in the period 1 January 2000 to 28 September 2002 and five offences of indecent treatment of a child in his care, also committed within that period.
The respondent was sentenced for these offences to a total period of five years' imprisonment, with a parole eligibility date fixed at 25 July 2010.
The applicant was the step-daughter of the respondent and in the period of the commission of the maintaining offence, she was aged 13 to 16 years (her date of birth is 29 September 1987). She is now aged 25 years.
The respondent was born on 28 February 1970 and therefore is now aged 42, and was aged between 29 and 32 years when the offences occurred.
This application is made pursuant to Part 3 of the Criminal Offence Victims Act 1995 ("COVA"), which provisions continue to apply to this application despite the repeal of COVA on 1 December 2009. This is because sections 154 and 155 of the Victims of Crime Assistance Act 2009 provide for the continued availability of these provisions because of the making of this application before the end of two months after the commencement of that Act.
Although the respondent is still subject to the sentence imposed on him on 27 November 2008, he has been released from prison and was, on 25 September 2012, served with the application and the supporting materials which were originally filed with the application, together with a notice of intention of the applicant to proceed with this matter at the hearing on 9 November 2012. The respondent, therefore, remains a prisoner for whom the Public Trustee has responsibility pursuant to section 91 of the Public Trustee Act 1978 (except if notification has been given pursuant to section 92 of that Act). It is not known whether any such notification has been given and if it has not, then the incapacity of the respondent is expressed in section 95(1)(b) of the Public Trustee Act in terms that:
“During the time when the public trustee is manager of the prisoner’s estate under this part, a prisoner shall be incapable, except with the consent in writing of the public trustee
…
(b) of bringing or defending any action of a property nature or for the recovery of any debt or damage.”
No such consent is before the Court and the Public Trustee has not been notified of this proceeding. In the affidavit of Ms Penshorn, she deposes to receiving a telephone call from the respondent at 2.45 p.m. on 8 November 2012, in which he confirmed that he had received a copy of the application and affidavit material in relation to this application and it can be noted that the remaining material to be relied upon in support of the substantive application was sent to the respondent on 19 October 2012 by express post. The respondent further informed Ms Penshorn that he would not be attending the hearing, as he did not intend to contest the application or to take any part in the proceedings and that he did not own any assets.
In these circumstances and where the respondent not only does not appear to defend these proceedings but there is also positive evidence of his disinterest in doing so, the absence of notification of the Public Trustee is no impediment to the matter being heard and decided.
There is another formal or procedural issue to consider. After the filing of the application on 29 January 2010, no steps have been taken in the proceeding until the respondent was personally served with the application on 25 September 2012. That is, if that can be regarded as a step, because he was then also served with a notice of intention to proceed with this application on 9 November 2012.
As I have already noted, the remainder of the affidavit material relied upon by the applicant as to the substance of her application has been sent to the respondent by express post. Accordingly, the applicant seeks and is granted leave to proceed under UCPR 389(2) because there has been no step taken in the proceedings for a period of over two years. That leave is granted having regard to the circumstances deposed to in the affidavits of the applicant, filed on 23 October 2012; Ms Muirhead, filed on 23 October 2012; and Ms Carr, filed on 2 November 2012, all in respect of the lack of action of the solicitor engaged to pursue this application under a grant of legal aid given on 4 November 2009 (apart from collection of materials that were available from the criminal proceedings against the respondent and seeking and obtaining adjournments of the hearings dates from the Court, as that became necessary) and until and under a review of such grants commenced in the latter half of 2010, this matter was identified came to the attention of Legal Aid Queensland and the file was transferred to the inhouse legal section of Legal Aid Queensland.
In this matter, that occurred at the end of August 2012 and matters have progressed expeditiously from that point. Further, and having regard to the considerations identified in Tyler v Custom Credit Corp Limited and Others [2000] QCA 178 as considerations typically arising in respect of such an exercise of discretion, for the reasons to follow it is apparent that the applicant has a prima facie entitlement to an order for compensation and there can be no suggestion of any prejudice to the respondent leading to any inability to ensure a fair trial, in the circumstances.
It is of particular relevance that this application is made consequently to the conviction of the respondent and that conviction establishes the right to bring the application under section 24 of COVA, and the factual issues as to the circumstances of the commission of the offence are effectively determined by the sentencing proceedings: see R v Bennett, ex-parte Facer [2002] 2 Qd R 295 at 300.
The purpose of Part 3 of COVA is to provide for a compensation scheme for injury suffered by an applicant that is caused by a personal offence committed against that applicant, which entitlement is intended to help an applicant rather than reflect the compensation entitlement that the applicant may have under common law or otherwise. The maximum amount that may be awarded is fixed in the amount of $75,000 and assessment under the scheme is required to be by reference to the relative seriousness of an injury and the scaling of the injury against the schedule of injuries provided in Schedule 1 of COVA and the range of percentage or proportion of the scheme maximum that may be attributable to such an injury.
It is necessary to follow the statutory methodology and to assess each of an applicant's injuries. Where it is practicable to do so, regard must be had to the statutory provisions for each comparable item and where it is necessary to have regard to more than item of injury, it may be necessary to make adjustments to avoid duplication and to cater for the differences in ranges and maxima for separate items: see Wren v Gaulai [2008] QCA 148 at [22]-[29].
Although also described in more detail by the sentencing Judge and in the materials before her at the sentencing proceedings on 27 November 2008, Judge Richards generally described the offending conduct as:
"Persistent offending over a long period of time."
And, as:
"Serious, including an attempt at intercourse, oral sex, rubbing her on the clitoris on numerous occasions and getting her to touch you."
The applicant seeks compensation under item 33 for "mental or nervous shock (severe)", for a post-traumatic stress disorder and compensation under regulation 1A for other adverse effects that are not part of that disorder.
The applicant specifically recognises, by reference to the decision in R v Atwell, ex-parte Jullie [2002] 2 Qd R 367, that only those impacts as listed in regulation 1A which do not go to the assessment of a diagnosable psychiatric disorder, can be claimed as adverse impacts under the regulation.
In support of her claim for mental or nervous shock, the applicant relies upon the diagnosis of Dr Barbara McGuire, a psychiatrist who examined the applicant on 26 September 2012 and who, in her report dated 27 September 2012, states that the applicant is suffering from post-traumatic stress disorder, which is experienced to a moderate degree. Dr McGuire further states the evidence for post-traumatic stress disorder is the applicant's experience of nightmares, flashbacks, avoidant behaviour, hyper-vigilance, security fears, anxiety and low mood. Dr McGuire further opines that the applicant has suffered this condition at least since the age of 16 and it is likely that it will proceed indefinitely, although some improvement in her symptoms is noted.
In her report, Dr McGuire sets out the effects identified by her in more detail.
“7.The suicide attempts first occurred in Grade 12 when she was 16. She said she has had 7 overdoses, possibly more. She was taken to hospital for 4 or 5 of these attempts in Nambour and Innisfail. She was seen by a psychiatrist when she had an admission to the Royal Brisbane Adolescent Psychiatric Unit. She is disparaging about the treatment she received. She has never had antidepressants but was given some Valium at one stage. She said that the first suicide attempt was the most serious. She took 64 Panadol but then got scared and rang the ambulance. She saw her general practitioner fortnightly after she was discharged from hospital but the general practitioner was male and she never made a disclosure to him. She has a general mistrust of males. She also saw the guidance officer at school but didn't like her.
8.She still occasionally thinks of suicide but does not regard herself as being at risk. The last time she felt like this was when he was released from prison one year ago. She states that she bought a guard dog in response to his release.
9.She said that she now lives in a house with her girlfriend whose mother owns the house. They occupy a downstairs apartment and another apartment upstairs is rented. His girlfriend came to live there and this resulted in an altercation between them but she hasn't seen the respondent since Court. She constantly imagines that she sees him in the street and said that on the way to her appointment with me she saw a man who resembled him in the train and experienced a feeling of panic.
10. She has occasional flashbacks when she sees cars which resemble his. On one occasion when she was half asleep her girlfriend kissed her and this precipitated a flashback.
11.She can have friendly relationships with males but they are like her brothers. She has a good stable relationship with her girlfriend and they have been together for 4 years.
12.She has experienced difficulty sleeping and this has been accentuated since she obtained legal advice about compensation. She has occasional nightmares that he is in the house raping her. This occurs every 3 weeks. She has difficulties travelling in public transport and can't do it on her own. Whenever she is out in public she likes to have her back against the wall and she experiences hypervigilance. She doesn't like anyone touching her on her back and whenever she goes out tries to go out with her girlfriend.
13.After the abuse by the respondent she had a 3 month sexual relationship with a male but said she had to be drunk to have sexual relations with him. She sees sexual relationships with men as nasty and horrible but not with her girlfriend.
14.She has not been involved in self harming apart from her overdoses. She decided in Year 11 that she would become obese as a protection against unwanted sexual advances. She said she has never cared about looks. For a long time she felt dirty, had 4 or 5 showers a day but after the Court proceedings she felt better and this feeling of dirtiness has passed. Overall she found the Court proceedings helpful but said that he only pleaded guilty at the last minute and she was given a hard time during the committal hearing.
15.In general she has experienced some problems with anger. She was very angry and unsettled as an adolescent. She has never physically abused anyone but has punched a tree and broken a knuckle.
16.Her relationship with her mother is poor but she sees her mother weekly. Chloe is in her mother's care.
17.She believes that her schoolwork suffered as a result of the abuse. She had to repeat Year 12. She said that she used to truant, get drunk on the school bus and smoke weed. She abused substances for 6 years, mainly cannabis with occasional amphetamine but ceased substance abuse when her youth worker who was counselling her got cancer. That affected her and she ceased substances.
18.She experiences occasional depression. She believes that there may be a family history and that her mother may be depressed.”
It can be noted that the applicant otherwise deposes to the factual history referred to by Dr McGuire, in her affidavit filed on 23 October 2012.
Dr McGuire has also provided evidence in relation to the issue of adverse impacts and in summary, she identifies only one adverse impact not considered to be part of the diagnosed post-traumatic stress disorder as being:
"(h) Adverse effect of the reaction of others.
Her mother's failure to protect her was an adverse effect of the abuse."
Further, and on the issue of contributing factors, Dr McGuire noted at paragraph 30 of her report, that the applicant's mother is alcoholic and it is likely that there were deficiencies in her upbringing before the introduction of the respondent into the household. Dr McGuire says:
"However, it is my belief that the post-traumatic stress disorder is the consequence of the offences committed by the respondent and that her current symptoms are due to the abuse."
Dr McGuire also states in paragraph 31 of her report, in part, that:
"The offences caused a deterioration in her relationship with her parents and limited social contact."
The applicant puts forward the following in support of her claim in respect of adverse effects (as extracted from the outline of argument and quoting from her affidavit):
“14.I believe that my mother knew the abuse was happening. I have never talked to my mother about the abuse. I had a close relationship with her but this changed once she started her relationship with the respondent. My mother is a chronic alcoholic and there had been some difficulties prior to the abuse by the respondent. I understand that there had been family court proceedings between my mother and father but I have little memory of this. My mother and father had a lot of conflict when I was younger.
15.My mother had a child, Chloe, to the respondent when I was 12. I have a particularly close relationship to Chloe and I try to protect her. Chloe has been diagnosed with Asperger's syndrome. I am very protective of Chloe. I found out in 2012 that Chloe had been having contact with the respondent after his release from prison. I understood that the contact was occurring at the respondent’s parents’ home. I felt very uneasy about this and felt that Chloe’s interest were not being protected. I contacted the Department of Child Safety in relation to this contact. I don’t think any action has been taken. The respondent sees Chloe under the supervision of her paternal grandparents. I worry about Chloe’s safety.
- My relationship with my mother is poor but I see my mother weekly so I can see Chloe who is in my mother's care. My relationship with my mother soured after the abuse by the respondent started. After I reported the abuse my mother continued to support the respondent. He would go to her house and have coffee. I was at the time staying and that it when I went to the youth organisation to help me find alternate accommodation. I felt my mother did not try to protect me and put her relationship with the respondent before my needs as a child. I blame my mother for not protecting me. I am very sad that I have lost my relationship with my mother and no longer trust her because of what the respondent did.”
Impact on Self Image – The applicant states in her affidavit:
“ 29.When I was in Grade 11 I decided I would become obese as a protection against unwanted sexual advances. I have never cared about my looks. …….”
Impact on Education – The applicant states in her affidavit:
“ 31.I believe that my schoolwork suffered as a result of the abuse. I had to repeat Year 12. I used to truant, get drunk on the school bus and smoke weed. I enjoyed primary school and was an average student. I did really well at sport. The abuse started I think towards end of grade 7 or early in grade 8. I found with what was happening to me that I had trouble concentrating and focusing on school work. I felt angry and helpless. I took my anger out on school authorities and other students. I failed grade 12 and Nambour High would not have me back to repeat.”
And –
“ 37.I was raised in Mapleton, attended Mapleton School and loved it and then transferred to St Joseph's in Year 4. I didn't like that and was bullied there. I changed back to Mapleton school in Year 7 and I was vice captain and excelled in sport. I then attended Beerwah High School for 2 years and one term. At that stage my grades were poor and I was given some special help. By this time the abuse by the respondent had started and I feel I was starting to be really affected by the abuse. I then attended Nambour High School and I failed Year 12. Nambour High School would not have me back and I went to another high school to repeat. I had a bad reputation at Nambour school. I was always truanting, drinking and fighting. I feel I had massive defence mechanisms and didn't let anyone get close to me. I still don’t.
- On repeating Grade 12 I passed and obtained an OP of 19 which I thought was better than not getting one at all. I feel that I was capable of doing better at school. I feel that the offending by the respondent prevented me from achieving at school and being able to get a good well paying job. I would have liked to have been a teacher.”
And –
“40.On leaving school I worked in a rose farm but had some problems with a male boss. He was aggressive in his management style and I found it intimidating and reminded me of the respondent. I left this job after about 8 months. I then went to Innisfail where I stayed at a backpackers and worked in a shop for 18 months. I came back to Nambour and at that stage the prosecution of the respondent was going through Court. My mother came to Court, initially she supported the respondent but later started to support me.
41.During the respondent’s prosecution I was working with Green Corp. Despite the stress I managed to get a Certificate I in horticulture. I received a lot of support from the youth organisation that had arranged this training. When things got tough I went to them for assistance and support.”
And –
“ 42....I obtained a job in a nursery for a year and then another nursery for 3 months and then returned to the first nursery. I am back at that first nursery again and my job involves potting and packing products for the wholesale nursery business. My boss is supportive of me. I am head for my Department – Potting and Packing.”
Impact on Housing Needs – The applicant states in her affidavit:
“ 42.Because the respondent was visiting my mother's house I left home and obtained youth housing……”
In my view, and having regard to the fact that "reduced self-worth" is an adverse impact of a kind expressly recognised under regulation 1A, and that this was specifically noted by Dr McGuire as part of the diagnosis of the post-traumatic stress disorder, it is necessary to exclude the claim made in respect of "impact on self-image" as part of the adverse impacts claim.
Otherwise, the claims made by the applicant are properly to be regarded as connected to the adverse effect of the reaction of her mother and the sense of failure of protection by the applicant's mother and in explanation of the extent of that impact. As such, it can be seen that this is a factor which had significant and ongoing impact on such a young person. In my view, the extent of this impact as it relates to the separation of this applicant from familial support, an adverse effect upon her education and need for her to seek her own accommodation and support herself towards establishing her employability and a life for herself within the community, should not be undervalued.
Pursuant to regulation 1A, the Court is to take into account the totality of the adverse impacts of sexual offence upon the applicant. Under regulation 2A, the prescribed amount that can be awarded when taking into account the effect of adverse impacts, is an amount up to 100% of the scheme maximum of $75,000.
In summary, therefore, the applicant claims under item 33, Mental or Nervous Shock (Severe), which allows a range of 20% to 34%. Although Dr McGuire's diagnosis is of post-traumatic stress disorder experienced to a moderate degree, it needs to be considered that it has been a condition suffered since age 16 and therefore in excess of eight years, with the serious consequence of repeated suicide attempts, including a consequential admission to hospitalised psychiatric care. This item is therefore appropriate and in the circumstances I accept the applicant's submission of an assessment of 23%, or $17,250, as reasonable and appropriate under this item.
In respect of adverse impacts under the regulation, and particularly where the amount is to be assessed against an upper yardstick of a limit of 100% of the allowable amount, I am of the view that the additional amount allowed should be a figure approaching that allowed under item 33 and I would allow 22%, or $16,500.
This would result in a total award of 45%, or $33,750, which I otherwise regard as an appropriate outcome as a total award, in the circumstances.
As already noted, and despite identifying pre-existing deficiency in the applicant's upbringing, Dr McGuire opined that the post-traumatic stress disorder condition is the consequence of the abuse and the matters to be regarded as adverse impacts are clearly so connected. Accordingly, there is no warrant for any reduction of this amount for pre-existing vulnerability or any reason relevant to the consideration of section 25(7) of COVA.
Therefore, I will make orders in accordance with the draft that was provided to me at the hearing. In order 2, I will insert the amount of $33,750 and I will initial that document and place it with the record.