R v N; ex parte N[2002] QSC 290

SUPREME COURT OF QUEENSLAND 

1. This application, filed on 19 June 2002, is for compensation for an injury suffered in October 1988 by reason of an offence of which the respondent was convicted. The application is made under the now omitted chapter 65A of the Criminal Code;  see s.46 of the Criminal Offence Victims Act 1995. 

2. On 25 September 1989 the respondent, who is the applicant’s father, came before Kneipp J. in Townsville charged with committing incest on the applicant on or about 10 October 1988 at Ayr, Queensland. The respondent pleaded guilty and was convicted. He was sentenced to imprisonment for four years. At the time of the offence the applicant was thirteen years old, having been born on 8 August 1975. The offence was not an isolated incident: it was the continuation of similar conduct extending over at least two years. At no time was the applicant a willing party to the offence: she complied, but unwillingly. She is now twenty-seven years old.

3. Professor Basil James, psychiatrist, interviewed the applicant on 21 November 2001 in his rooms in Townsville and provided a report dated 23 November 2001. Professor James gave this summary of the applicant’s condition and his conclusions:

Your client, Ms [N], is a twenty-six year old woman who has experienced a series of very damaging events during her developmental years.

These events have included the desertion of her family by her mother;  severe physical abuse by her father;  severe sexual abuse by her father;  a pregnancy at the age of fifteen, and premature parenthood with the birth of a little boy as its outcome;  desertion by the father of three children;  the need to relinquish care of her children into foster care;  and later a further sense of repeated betrayal in terms of her relationship with her mother.

These events are, of course, not unconnected, and they can be collectively understood as a cascade of consequences initiated by parental behaviour.  It would seem that, from the point of view of her mother’s contribution, she was unprotected from a violent and predatory father, and finally abandoned by her mother to her fate;  and subsequently subjected to the treatment by her father which has been described in Ms [N]’s statement, and referred to above in  the body of my report.  These facets of such woefully defective parenting constitute trauma, and inevitably adversely affect, the natural development of personality.  Most frequent amongst these effects are to be found a markedly and persistently unstable and unfavourable self-image, and sense of Self;  a degree of impulsivity in areas which are self-damaging;  intense periods of dysphoria and  depression, irritability or anxiety, usually lasting a few hours;  chronic feelings of  emptiness;  periods of intense anger or difficulty controlling anger;  and a sense of desperation, and thus often poor judgement, in interpersonal relationships.  There is an eroded sense of trust;  there is the experience of dreams or other recurrent and distressing recollections of the earlier trauma;  efforts to avoid thoughts, feelings and conversations associated with the trauma;  feelings of detachment or estrangement from others;  concern about future life;  marked difficulty in concentration;  exaggerated startle response, and difficulty with sleeping. 

Ms [N], as indicated above, conveys the experience of very many of these residua of the trauma, both in feeling and thinking states, and in her behaviour.   

The cascade of events has included, in my view symptomatically, her premature conception and parenthood, the periods of alcohol and other substance abuse, and her earlier contact with Mental Health Services.

Collectively, her experience and behaviour can be understood in what is now referred to as ‘Complex Developmental Post Traumatic Stress Disorder’.

It is my view that Ms [N] suffers from this disorder, and it is of moderate severity.  In terms of the Global Assessment of Functioning (GAF) Scale as set out in DSM IV …  I would say that she would score not more than fifty out of a possible one hundred, and although, through what clearly constitute some innate positive qualities, she has survived the most disintegrating consequences of the experience, and can present herself as appearing as a functioning person, her own sense of things “not being right” are valid, and are reflected also in the trajectory of her life to date.

On the positive side, Ms [N] is an intelligent and engaging person, thoughtful, and with the potential for psychological mindedness.  Her longer term outlook is potentially very favourable, but in my view she is in need of psychotherapy in order to achieve her potential.

My opinion is that the psychotherapy should be of the kind known as ‘psychodynamically informed’, and is required on a weekly basis over a period of at least two years.  It would need to be undertaken by a person suitably trained, and the cost could be anything up to $200 per session.  The slow and unhurried development of a trusting relationship, the capacity for empathy, and appropriate background professional knowledge and skill are of the essence.

I have noted Ms [N]’s own view that one has to be ‘ready’ to undertake such a task, and I consider that a valid statement.  She should, however, if possible, have the availability of the treatment and the avenue by which it may be obtained, clarified for her, and facilitated.

4. The applicant is unemployed. She swears that she feels ‘an emotional wreck’. She has been admitted to the Mental Health Unit of the Bundaberg Base Hospital twice: for five days in October 1996, and for one day in August 2000. She was referred for treatment as an outpatient there in July 2000. She explains her delay in bringing this application as being the result of her ignorance of her right to compensation until 2000 and her unwillingness, until recently, to confront her past.

5. On behalf of the applicant it was submitted that she should be awarded $20,000 for mental shock or nervous shock both of which come within the definition of ‘injury’ for which compensation may be ordered under Chapter 65A : s.663A. The prescribed limit of an order for compensation for such injury is $20,000 : s.663AA(1).

6. Since the respondent was convicted in September 1989, the relevant limitation period expired on 7 August 1999 (six years from the applicant’s eighteenth birthday) and so her claim was statute-barred when the application was filed, as was conceded on her behalf: see ss. 10(1)(d) and 29(1) of the Limitation of Actions Act 1974, and R. v. Chong, ex parte Chong [2001] 2 Qd.R. 301.  The respondent did not, however, appear at the hearing to rely on the expiration of the limitation period or to contend that delay should defeat the applicant’s claim:  as to the effect of delay see Hogg v. Dudman (2001) 23 Qld Lawyer Reps 1 at pp.2-3.

7. The offence of which the respondent was convicted was not the only cause of the applicant’s condition, but was a material contribution to it, and so the applicant is entitled to recover a sum by way of compensation on that premiss: see Steinback v. Steinback [2001] Q.C.A. 12.  I see no reason, pursuant to s.663B(2), to withhold relief or to reduce the sum awarded.

8. Taking all the circumstances into account including of course the likely cost of treatment, I conclude that the applicant should have the order she seeks. I shall therefore order that the respondent pay to the applicant $20,000 by way of compensation for the injury she suffered as a result of the offence of incest committed by the respondent on or about 10 October 1988.