D v R [2012] QDC 341

DISTRICT COURT OF QUEENSLAND CITATION: D v R [2012] QDC 341 PARTIES: D (applicant) v R (respondent) FILE NO: 388/10 PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 15 November 2012 DELIVERED AT: Brisbane HEARING DATE: 13 November 2012 JUDGE: Rafter SC, DCJ ORDERS: 1. Leave granted to continue the proceeding pursuant to r 389(2) Uniform Civil Procedure Rules 1999; 2. That the respondent pay to the applicant the sum of $22,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care, which led to the conviction of the respondent in the District Court at Brisbane on 29 February 2008; 3. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until he attains 18 years. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – sexual offences – adverse impacts of sexual offences COUNSEL: S J Hamlyn-Harris for the applicant No appearance by or for the respondent SOLICITORS: Matthew Love Solicitors for the applicant -- 1 of 7 -- 2 No appearance by or for the respondent Introduction [2] The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (―COVA‖) for emotional injuries caused by sexual offences committed by the respondent on 8 June 2007. COVA was repealed by the Victims of Crime Assistance Act 2009 (―VOCAA‖) which came into force on 1 December 2009. The originating application was filed on 29 January 2010. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA. [3] On 29 February 2008 the respondent pleaded guilty to six counts of indecent treatment of a child under 12, with a circumstance of aggravation that he had the child under his care. All offences were committed on 8 June 2007. The respondent was sentenced by Tutt DCJ on 13 June 2008 to four years imprisonment with a parole eligibility date after 12 months on 13 June 2009. [4] On 3 October 2008 the Court of Appeal granted the respondent leave to appeal and substituted a sentence of two years imprisonment suspended after eight months for an operational period of three years in respect of each count.1 Service [5] The originating application and supporting material were initially served on the respondent personally on 19 June 2012.2 The hearing date listed in the originating application was simply stated as ―DTBF‖. The respondent was also served with a letter from the applicant’s solicitor dated 14 June 2012.3 However that letter has not been exhibited to any of the affidavit material. It is doubtful that the respondent would have understood that the letters ―DTBF‖ meant that the hearing was to be on a date to be fixed. [6] The applicant’s solicitor did not progress the application promptly and on 30 August 2012 an application was filed seeking leave to continue the proceeding after a delay of more than two years pursuant to r 389 Uniform Civil Procedure Rules 1999. That application does not seem to have been served upon the respondent. [7] On 11 October 2012 the respondent was served with a further copy of the originating application and a letter from the applicant’s solicitors dated 10 October 2012.4 The letter from the applicant’s solicitors dated 10 October 20125 states that ―…this matter is listed at the Brisbane District Court, at 304 George Street, Brisbane on Tuesday, 13 November 2012 at 10.00 am.‖ Unfortunately the incorrect street address of the court complex has been provided to the respondent. The court has now been operating from the Queen Elizabeth II Courts of Law at 415 George Street, Brisbane for some months. Mr Hamlyn-Harris pointed out that s 28(1) Criminal Offence Victims Act 1995 simply requires that the convicted person be notified of the application. Nevertheless it is plainly desirable that respondents be 1 See R v RAD [2008] QCA 305. 2 Affidavit of Dean Andrew Sawyer filed 30 August 2012. 3 Affidavit of Dean Andrew Sawyer filed 30 August 2012 at para 1A. 4 Affidavit of Dean Andrew Sawyer filed 31 October 2012. 5 Affidavit of Matthew James Love filed 8 November 2012, Exhibit A. -- 2 of 7 -- 3 notified of the correct date and place of hearing. In the circumstances this error does not prevent the application being heard. [8] The respondent has not appeared at the hearing of the application. Delay [9] There has been considerable delay in the progress of this application. The delay is explained in the affidavit of the applicant’s solicitor.6 Mr Love explains that delays between July and December 2010 were caused by the fact that his firm was extremely busy and the solicitor with carriage of the matter was occupied with other matters.7 Nevertheless the delay is not the fault of the applicant. In the circumstances it is appropriate that leave be granted to continue the proceeding pursuant to r 389 Uniform Civil Procedure Rules 1999. Circumstances of the offences [10] The applicant was six years old at the time of the offences. The applicant’s mother and the respondent were engaged to be married. [11] The offences were all committed in the early hours of Friday, 8 June 2007. The applicant and his siblings were left in the respondent’s care when the applicant’s mother went to work. [12] After the applicant’s mother went to work the respondent began drinking alcohol and watching pornography on his computer. At about 3.00 am the respondent went to the applicant’s bedroom. The applicant was awoken and told to undress. He was then taken to the area where the respondent had been watching the computer. The respondent directed the applicant to masturbate himself. He then masturbated the applicant. The facts are set out in the judgment of the Court of Appeal delivered on 3 October 2008: R v RAD.8 The facts need not be repeated. Injuries and medical reports [13] Between August 2007 and February 2008 the applicant had 21 counselling sessions.9 The counsellor says that in the early sessions the applicant presented with extreme levels of anxiety. He appeared to be extremely withdrawn and had very low levels of trust. However as counselling progressed the applicant showed signs of improvement in his emotional state. The counselling sessions ceased in February 2008 when the applicant was reported to be functioning well at home and at school. [14] The applicant’s mother says that following the offences the applicant experienced periods of sobbing and often had tantrums.10 She also says that the applicant wanted to sleep in her bed for about three months after the offences. The applicant became isolated from his friends at school because after the offences he was placed 6 Affidavit of Matthew James Love filed 8 November 2012. 7 Affidavit of Matthew James Love filed 8 November 2012 at para 13. 8 [2008] QCA 305 at paras 8-19. 9 Report of Helen Kershaw dated 5 February 2009, Exhibit MJL4 to the Affidavit of Matthew James Love filed 6 November 2012. 10 Affidavit of the applicant’s mother filed 11 October 2012 at para 13. -- 3 of 7 -- 4 in a group of children with special needs.11 The applicant’s mother observed that following the offences the applicant became more socially introverted, that he was ostracised by his peers, that he had trust issues and often suffered from angry outbursts.12 [15] The applicant was assessed by Dr Barbara McGuire, psychiatrist on 19 October 2011. In her report dated 26 October 201113 Dr McGuire says that at this stage the applicant cannot be diagnosed with a psychiatric disorder. She says that he has suffered a severe trauma which led to generalised anxiety and a deterioration in his inter-personal relationships. She says that although it is not possible to diagnose post-traumatic stress disorder at this stage, a frequent consequence of sexual abuse for a child can be the development of such a disorder in later adolescence or adulthood. [16] However Dr McGuire identifies a number of adverse impacts upon the applicant by reference to the matters set out in s 1A of the Criminal Offence Victims Regulation 1995. Dr McGuire describes the following adverse impacts upon the applicant: A sense of violation (s 1A(2)(a)) – Dr McGuire says that the applicant was unable to say whether he felt violated but did say that he was confused, lacked understanding of what was happening to him and did not think that an adult should treat a child in the manner that the respondent did. Reduced self worth (s 1A(2)(b)) – Dr McGuire states that the applicant’s mother believes that the applicant has experienced reduced self worth. His self esteem has been lowered and he appears to be more anxious than his friends. Increased fear or increased feelings of insecurity (s 1A(2)(g)) – Dr McGuire states that the applicant has experienced increased fear and feelings of insecurity. She has based that conclusion on the applicant’s mother’s observations and also on the applicant’s need to sleep with his mother at night. Adverse effect of the reaction of others (s 1A(2)(h)) – Dr McGuire states that the fact that the applicant was placed in a group of students with special needs at school may have had an adverse impact upon him. The applicant’s submissions [17] Mr Hamlyn-Harris for the applicant recognised that Dr McGuire is of the opinion that there are limitations in assessing the applicant at the present time. She recommended that it may be preferable to obtain another report when the applicant is in late adolescence or early adulthood. However Mr Hamlyn-Harris submitted that the application should be heard and determined upon the available materials because the transitional provision in s 183(2) VOCAA requires that a person intending to make application to the State for an ex gratia payment under s 32 11 Affidavit of the applicant’s mother filed 11 October 2012 at para 14. 12 Affidavit of the applicant’s mother at para 15. 13 Affidavit of Dr Barbara McGuire filed 8 October 2012, Exhibit A. -- 4 of 7 -- 5 COVA must provide all necessary information and documents by 1 December 2012. Otherwise the application for an ex gratia payment lapses. [18] Mr Hamlyn-Harris submitted that as the applicant has not been assessed by Dr McGuire as having any psychiatric injury, the award of compensation should be assessed under s 1A Criminal Offence Victims Regulation 1995. He submits that the adverse impacts of the offences should result in an award of 30% of the scheme maximum which is $22,500. The applicable principles [19] The assessment of compensation is governed by Part 3, COVA. It is necessary to bear in mind that compensation is designed to help the applicant is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). [20] The maximum amount of compensation provided under COVA is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). [21] The Regulation provides in s 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury. Pursuant to s 2A the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum. [22] Section 1A of the Regulation provides: ―(1) For section 20 of the Act, 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. (2) An adverse impact of a sexual offence includes 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. -- 5 of 7 -- 6 (3) In this section— sexual offence means a personal offence of a sexual nature.‖ [23] It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the Regulation to the extent that they are not an injury under s 20: R v Atwell, ex- parte Jullie.14 ―Nervous shock‖ within COVA is confined to a recognisable psychiatric illness or disorder: RMC v NAC15, JS v Graveur16. It is only additional adverse impacts that may be compensated under the regulation: R v Atwell, ex-parte Jullie17. The effect of the Regulation is that ―… post-traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever, be the case.‖18 Assessment [24] The applicant was six years old at the time of the offences in 2007. He has clearly experienced the adverse impacts described by Dr McGuire and by his mother. [25] As the applicant has not suffered a mental or nervous shock injury, all of the consequences of the offences are to be assessed as adverse impacts under s 1A of the Regulation. [26] The amount sought by Mr Hamlyn-Harris for the applicant which is 30% of the scheme maximum is reasonable. I would therefore assess compensation in accordance with s 1A as 30% of the scheme maximum which is $22,500. [27] There is no behaviour of the applicant that contributed directly or indirectly to his injuries. Protection order [28] Mr Hamlyn-Harris accepted that a protection order pursuant to s 67 Public Trustee Act 1978 was appropriate. Orders [29] The orders will be in accordance with the draft order (as amended). The orders are in effect as follows:- 1. Leave granted to continue the proceeding pursuant to r 389(2) Uniform Civil Procedure Rules 1999; 2. That the respondent pay to the applicant the sum of $22,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 12, under care which led to the conviction of the respondent in the District Court at Brisbane on 29 February 2008; 14 [2002] 2 Qd R 367 at [20] per Chesterman J. 15 [2010] 1 Qd R 395. 16 [2012] QCA 196. 17 [2002] 2 Qd R 367 at 57 per Atkinson J. 18 R v Atwell, ex-parte Jullie [2002] 2 Qd R 367 at 372, para 22 per Chesterman J. -- 6 of 7 -- 7 3. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until he attains 18 years. -- 7 of 7 --