WCA v Willis[2010] QSC 304

SUPREME COURT OF QUEENSLAND

1. Margaret Wilson J: This is an application for criminal compensation for offences committed between 1998 and 2004.

2. On 31 October 2006 the respondent pleaded guilty to having committed the following offences –

1 x maintaining an unlawful sexual relationship with a child

7 x indecent treatment of a child under 16

1 x indecent treatment of a child under 12

1 x exposing a child under 16 to an indecent act

1 x sodomy

4 x attempted sodomy

1 x procuring a child under 16 to commit an act of indecency

On 16 February 2007 he was given a head sentence of six years imprisonment. After pre-sentence custody was taken into account, his parole eligibility date was fixed as 31 October 2008.

3. The victim of the offences was the present applicant. He was born on 10 November 1989, so he was aged between eight and 14 years when the offences were committed. By s 40 of the Criminal Offence Victims Act 1995 (Qld) (“the 1995 Act”) he had three years from attaining the age of 18 on 10 November 2007 in which to apply for criminal compensation.

4. This application was filed on 15 January 2010 – after the commencement of the Victims of Crime Assistance Act 2009 (Qld). By s 149 of that act, the 1995 Act was repealed. However, in the circumstances of this case, s 155 provided a window of two months from 1 December 2009 for the filing of an application for compensation under the 1995 Act, which must be heard and decided under the 1995 Act.

5. The respondent was served with the application and supporting material, as was the Public Trustee. Neither took any part in the proceeding.

6. The applicant’s parents were separated and he lived with his mother. The respondent, who suffered from an intellectual disability described clinically as “mild mental retardation”, provided child-minding services in his home.

7. The offences were all committed in the respondent’s home over a period of years. Typically they were committed when the applicant child was asleep and woke to find the respondent attempting a sexual act upon him. The sexual acts included anal intercourse, oral sex, rubbing his penis between the applicant’s legs, digital penetration of his anus and masturbation.

8. The offending conduct has had profound effects on the applicant. He received counselling from a psychologist Ms Madonna Abella in 2004, and he saw Ms Abella again for assessment on 15 April 2005 (when he was 15) and on 17 May 2010 (aged 20). Ms Abella has written reports dated 20 May 2005 and 30 May 2010 and a supplementary report dated 6 June 2010.

9. In 2005 Ms Abella noted that the applicant was attending a special school for children with behavioural problems. She considered that he had a post-traumatic stress disorder (“PTSD”) in consequence of the sexual abuse. He was clinically and psychometrically severely anxious and depressed. His cognitive functions and social functioning had been compromised. He suffered flashbacks and intrusive memories, and was preoccupied with self-defeating thoughts, guilt and shame. He had resorted to using cannabis sativa and was vulnerable to substance abuse. At one stage he had been suicidal: he had hung himself but fortunately police had arrived in time to cut him down. Ms Abella recommended psychological/psychiatric intervention to deal with chronic symptoms of PTSD.

10. The applicant did not seek further treatment. When he saw Ms Abella five years later for assessment she found him to be suffering from the following in consequence of the abuse –

1. a strong sense of violation, demonstrated by ongoing feelings of shame, guilt and powerlessness;

2. reduced self-worth or perception;

3. PTSD, recurrently re-experiencing the trauma, avoiding places, people and experiences associated with the trauma, and having chronic physical signs of hyper arousal;

4. substance dependence: he abused alcohol, cannabis and amphetamines as a form of self-medication and had punched his mother while under the influence of drugs; and

5. increased fear and feelings of insecurity.

11. Ms Abella concluded –

“Mr. WCA reported unable to trust any other psychologist. Hence, he was unable to seek any further treatment. He also explained that he did not feel he could repeat telling the story and details of his abuse to another strange person. He reported being unable to make friends other than those in the ‘drug network’. His occupational functioning is impaired and had been unable to hold a job for longer than two weeks [sic]. He described himself as very sensitive and reactive to any cues that remind him of the abuse. His concentration and memory are severely impaired. His prognosis is poor given that he has not achieved anything significant in his life. Without psychiatric and psychological interventions, Mr. WCA is trapped in a vicious cycle of unproductivity or general loss of interest, low sense of self-worth and escaping his symptoms through the use of illicit drugs, aggravating his PTSD.”

12. The 1995 Act provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant.^[1] The offences committed by the respondent were of that character. “Injury” is defined in s 20 as bodily injury, mental or nervous shock, pregnancy or any injuries specified in the compensation table, which is a schedule to the Act, or prescribed under a regulation. “Nervous shock” means a recognisable psychiatric illness or disorder,^[2] and has been held to include PTSD.^[3]

13. Compensation is intended to assist the applicant, but not to reflect compensation to which he may be entitled under the common law or otherwise.^[4]  The court may order the payment of compensation,^[5] in total not exceeding the “scheme maximum”, which is $75,000.^[6]

14. Various categories of injuries and degrees of severity are set out in the compensation table,^[7] and with respect to each, there is a range, expressed as percentages of the scheme maximum, within which compensation may be awarded. The maximum amount is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.^[8]

15. The potentially relevant heads in the compensation table are as follows:

16. In the case of a sexual offence, “the totality of the adverse impacts” of the offence on the applicant, to the extent which they are not otherwise an injury under s 20, is prescribed as an injury: Criminal Offence Victims Regulation 1995 (Qld) s 1A. An “adverse impact” of a sexual offence includes –

“(2) ... the following –

(a)a sense of violation;

(b) reduced self worth or perception;

(c) post-traumatic stress disorder;

(d) disease;

(e) lost or reduced physical immunity;

(f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

(g) increased fear or increased feelings of insecurity;

(h)adverse effect of the reaction of others;

(i) adverse impact on lawful sexual relations;

(j) adverse impact on feelings;

(k) anything the court considers is an adverse impact of a sexual offence.

(3) In this section –

‘sexual offence’ means a personal offence of a sexual nature.”

In principle, the totality of the adverse impacts may attract up to 100% of the scheme maximum.^[9]

17. The applicant suffered nervous shock (namely PTSD) and other adverse impacts^[10] as a result of personal offences committed by the respondent, and he is entitled to compensation under the 1995 Act. There is nothing to suggest that that compensation should be refused or reduced because any conduct on his part directly or indirectly contributed to his injuries.^[11]

18. For nervous shock, I assess compensation under item 33 at 30% ($22,500).

19. For other adverse impacts, I assess compensation at 35% ($26,250).

20. Thus, the total compensation I assess is $48,750.

21. I order that the respondent pay the applicant $48,750 because of the injuries he sustained when the respondent committed the offences with which he was charged on indictment number 910/06 and convicted on 31 October 2006, and for which he was sentenced on 16 February 2007.