EZB v PAW [2011] QDC 365

DISTRICT COURT OF QUEENSLAND CITATION: EZB v PAW [2011] QDC 365 PARTIES: EZB (applicant) v PAW (respondent) FILE NO/S: BD3040/09 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: DELIVERED ON: 25 November 2011 DELIVERED AT: Brisbane HEARING DATE: 25 November 2011 JUDGE: Samios DCJ ORDER: 1. Respondent to pay the Applicant $45,000. CATCHWORDS: COUNSEL: SOLICITORS: [1] This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995. The application was filed on the 23rd of October 2009. The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on the 1st of December 2009. However the transitional provisions provide that where the application has been filed before the 1st of December 2009, the Court must hear or continue to hear and decide the application under the repealed provision; see section 167(2) of the Victims of Crime Assistance Act 2009, therefore the application is within time. [2] Further, the offence was committed against the applicant on the 3rd of September 2005. The applicant was born on the 28th of November 1997, therefore she had three years upon turning 18 years of age within which to apply for compensation, that is, -- 1 of 5 -- 2 until the 28th of November 2018. Clearly, the application having been filed on the 23rd of October 2009, is filed within time. I therefore can proceed with the application. [3] The respondent committed a personal offence upon the applicant on the 3rd of September 2005. As I said, the applicant was then seven years of age; she is now almost 14 years of age. The respondent was 38 years of age at the time he committed the offence, having been born on the 6th of March 1967. [4] The respondent pleaded guilty to the personal offence, namely one count of indecent treatment of a child under 12. The basis upon which sentencing proceeded was that the applicant was only seven, she was at the time sleeping in a bedroom, she had another girl sleeping beside her, the respondent went into the room, he said things which indicated that he was really, perhaps, looking for his daughter, but at any rate, he wanted someone to suck his penis. He lay down beside the applicant, he grabbed her head and pushed it towards his genitals and rubbed his penis against the side of her face. The respondent was sentenced to a term of imprisonment for this offence. [5] The applicant has been examined by Dr McGuire, a psychiatrist. Dr McGuire has also interviewed the applicant's mother. The applicant's mother told Dr McGuire that since the offence was committed the applicant displayed inappropriate sexually coming out with accounts of the incident to relative strangers. For six months after the incident she would not go to sleepovers. The relationship with her mother had deteriorated. The applicant had told her mother that she hates her and doesn't want to live with her. [6] The family relationship became unstable. The applicant's mother said that the applicant was demonstrating promiscuous behaviour. The applicant was even taking inappropriate photos of herself and sending them to other people. The applicant was threatening to leave her mother, and there were arguments. [7] The extensive histories taken by Dr McGuire indicate to me that the applicant was -- 2 of 5 -- 3 upset that the offence occurred in circumstances where the applicant did not want to be sleeping with her friend but wanted to be sleeping with her mother. It may be that the applicant blames her mother for these events occurring. [8] Further, when this incident occurred, the respondent was beaten up by the applicant's father; it also seems the applicant's mother may have been involved in threatening the respondent because the sentencing remarks of the sentencing Judge refer to the respondent taking out a peace and good behaviour order against the applicant's mother. Clearly, things are not good in the household. That seems to be the effect of Dr McGuire's report. [9] Dr McGuire states that the applicant has had a sense of violation, she has felt frightened, she knew that it should not have been happening and felt confused. Dr McGuire concludes she has a post traumatic stress disorder. She had an increased fear and wanted to sleep with her mother, and was vigilant if she was out on the street noticing men who have cars parked. There are also adverse impacts. The applicant, specifically, has been indulging in self harming and rebellious behaviour at school. Dr McGuire believes that she suffers the condition to a severe degree that is hampering her performance, and she believes that counselling is appropriate immediately and would be helpful to her. [10] Dr McGuire saw the applicant again on the 5th of April 2011, on this occasion with her father. The applicant told Dr McGuire that things were not good at school, she was being suspended from schools and attending other schools, and having to leave those schools. She has also been aggressive at home. She has been engaging in the self harming activities. [11] These self harming activities have left significant scarring, which has been reported on by a plastic and a reconstruction surgeon, Dr Harris. He says nothing can be done about this scarring. It is on the upper limbs and the lower limbs. In his opinion, psychiatric treatment in order to try and prevent further self harm is essential. -- 3 of 5 -- 4 [12] From this latest interview with Dr McGuire, Dr McGuire concludes, "The applicant has demonstrated a development of an oppositional defiant disorder. The offence committed by the respondent is not necessarily entirely responsible for the applicant's current presentation." Dr McGuire in a further report concludes that, "The level of severity of the post traumatic stress disorder is to a severe degree." [13] She says the consequences when the trauma is child sexual abuse are likely to result in life long difficulties, and this is likely to be the case with the applicant, because of disruption of schooling and early promiscuity. However, in her opinion, the offence has materially and significantly contributed to the applicant's post traumatic stress disorder. [14] Had her only experiences been that of the offence committed by the respondent, she believes that she would have suffered stress disorder to a severe degree. In her opinion, the offence committed by the respondent has materially and significantly contributed to her developing oppositional defiant behaviour. [15] It is to be noted in applications of this kind that the compensation provided to the applicant is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. [16] Further, the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness; see section 22, subsections 3 and 4 of the repealed Act. [17] On the evidence before me, I am satisfied the applicant has suffered mental or nervous shock to a severe degree. I assess her compensation under item 33 at 30 per cent, which is the sum of $22,500. However, the evidence also indicates that the applicant has suffered adverse impacts of the sexual offence. There are many of these impacts which should be separately compensated under the regulation 1A of the Act, subsection (k). -- 4 of 5 -- 5 [18] The applicant has lost educational opportunities. There has been impact on her social relationships. There has been an impact on her family relationships. The family found the need to move, and she has been left with scarring from the self harming. There has also been an impact on the mother and daughter relationship. I suspect it may be because the applicant blames her mother for the event that happened, that is, she blames her mother for not protecting her from the respondent. [19] For these adverse impacts, I consider the applicant should be allowed 30 per cent of the scheme maximum, which is the sum of $22,500. The total therefore is $45,000. I do not consider this should be discounted as no specific factor is identifiable and the reaction of the applicant has been unfortunately severe. [20] I also find that the applicant did nothing to directly or indirectly contribute to her injuries. Therefore I order the respondent to pay the applicant the sum of $45,000. [21] There will be an order as per the draft initialled by me and left with the papers. -- 5 of 5 --