BAW v JAM [2011] QDC 297

DISTRICT COURT OF QUEENSLAND CITATION: BAW v JAM [2011] QDC 297 PARTIES: BAE (Applicant) v JAM (Respondent) FILE NO: 29/2010 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 23 November 2011 DELIVERED AT: Beenleigh HEARING DATE: 28 October 2011 JUDGE: Dearden DCJ ORDER: That the respondent JAM pay the applicant BAE the sum of $39,750. CATCHWORDS: Application – criminal compensation – three counts of indecent treatment under 16 under 12 – three counts of incest – four counts of indecent treatment under 16 under care – one count of maintaining a sexual relationship – mental or nervous shock – adverse impacts – whether competing contributory factors - LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss. 25(7) & 40(1) Victims of Crime Assistance Act 2009 (Qld) ss. 154 & 155 Criminal Offence Victims Regulation 1995 (Qld) s.1A CASES: JMR obo SRR v Hornsby [2009] QDC 147 SAY v AZ; ex parte Attorney General [2006] QCA 462 COUNSEL: Ms F Muirhead (solicitor) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The respondent, JAM, pleaded guilty on 20 October 2009 to three counts of indecent treatment of a child under 16 under 12, three counts of incest, four counts of indecent treatment of a child under 16 under care, and one count of maintaining a sexual relationship with a child, each relating to the applicant. The respondent was sentenced to imprisonment for three years (concurrent) in respect of each of counts 1, 2 and 3 (indecent treatment of a child under 16 under 12), five years imprisonment (concurrent) for each of counts 4, 5 and 9 (incest), two years imprisonment (concurrent) on each of counts 6, 7, 8 and 10 (indecent treatment of a child under 16 under care), and nine years imprisonment (concurrent) in respect of count 11 (maintaining a sexual relationship with a child). The effective nine year head sentence had a parole eligibility date set at 15 October 2013 (i.e. serving four years of the sentence).1 Facts [2] The respondent was sentenced by Judge McGill in the Beenleigh District Court on 20 October 2009. The offending was summarised by Judge McGill as follows:- “When [the applicant] was between ten years of age and fourteen years, the offending occurred. The offending initially involved indecent touching, without penetration, of the breasts and genitalia. This then extended to digital penetration and simulated intercourse and masturbation in her presence, and then to sexual intercourse which seems to have occurred for the first time when [the applicant] was about eleven. There were three examples of sexual intercourse which are the subject of specific charges, but the schedule indicates that, apart from those examples, the offence of maintaining involved a number of occasions of sexual intercourse or examples of oral sex. The specific counts include one occasion when [the applicant] performed oral sex on you, and also an incident when you provided her with a book of indecent photographs, and an incident when you took an indecent photograph of her, apparently without her knowledge. The offending started when the [applicant] was about ten years of age. It covered a period of about four and a half or five years. It included actual sexual intercourse. There was a step-parental relationship and there was also, in the material and the statement of facts, some indication of emotional blackmail in the form of threats to abuse younger siblings if [the applicant] did not continue to co- operate. It is therefore a fairly serious example of the offending and a significant breach of trust on [the part of the respondent].”2 1 Exhibit A (Certificate of Indictment), Affidavit of Lorraine Penshorn, sworn 20 July 2011. 2 Exhibit B (Sentencing Remarks) pp. 2-3, Affidavit of Lorraine Penshorn , sworn 20 July 2011. -- 2 of 4 -- 3 Injuries [3] The applicant suffered mental or nervous shock, and adverse impacts, as a result of the offences. The Law [4] The application in these proceedings was filed on 27 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The application complies with the relevant transitional provisions of VOCAA ss. 154 and 155, and has been brought compliant with the relevant timeframe pursuant to COVA s. 40(1). [5] I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147. Compensation [6] Ms Muirhead, for the applicant, seeks compensation as follows:- (1) Item 33 – mental or nervous shock (severe) – 20%-30% [7] The applicant was examined by Dr Barbara McGuire, psychiatrist on 10 January 2011 and provided a report dated 19 January 2011.3 [8] Dr McGuire diagnosed the applicant as suffering “post traumatic stress disorder, obsessive compulsive disorder and adjustment disorder with depressed mood.”4 Dr McGuire considers that the “post traumatic stress disorder is the result of the offences committed by the respondent [and that] it is also possible that [the offences committed by the respondent] may have contributed to the obsessive compulsive disorder and to the adjustment disorder with depressed mood.” Dr McGuire considers that the applicant “experiences the conditions to a severe degree and the probability is that [the applicant] will continue to experience symptoms for an indefinite period.”5 [9] There are other factors which may have contributed to the applicant’s injuries. As indicated in SAY v AZ; ex-parte Attorney General of Queensland,6 there may be circumstances in assessing criminal compensation where a “broad brush” approach will be necessary.7 [10] Dr McGuire identifies the murder of the applicant’s father when she was three, and sexual abuse by the respondent commencing when she was five or six (the dates charged on the relevant offences do not commence until the applicant was nine) as competing contributory factors to the appellant’s mental or nervous shock. [11] In the circumstances, Ms Muirhead submits that an award would ordinarily be made at 30% of the scheme maximum, but to allow for other contributing factors, could 3Affidavit of Barbara McGuire affirmed 24 May 2011. 4 Exhibit A, p. 4, Affidavit of Barbara McGuire affirmed 24 May 2011. 5 Exhibit A, p. 4, Affidavit of Barbara McGuire affirmed 24 May 2011. 6 [2006] QCA 462. 7 SAY v AZ; ex-parte Attorney General of Queensland [2006] QCA 462, per Holmes J, para 23. -- 3 of 4 -- 4 be reduced to a level of 28% of the scheme maximum. I accept the submission and accordingly I award 28% ($21,000) pursuant to item 33. (2) Criminal Offence Victims Regulation (COVR) s. 1A – Adverse Impacts [12] Dr McGuire identifies a series of adverse impacts suffered by the applicant, although many of these were identified by Dr McGuire as being a pre-requisite to, or part of, the diagnosis of post traumatic stress disorder.8 Dr McGuire specifically identifies lost or reduced physical capacity (including the capacity to have children, whether temporary or permanent);9 and the adverse effect of the reaction of others;10 as compensable “adverse impacts” arising (respectively) from the removal of the applicant’s child from her care; and the breakdown of the applicant’s relationship with her mother. [13] Ms Muirhead also identifies as an “adverse impact” within the “catchall” provision COVR s.1A(2)(k), the significant loss of educational and occupational opportunities by the applicant. [14] In these circumstances, the submission by Ms Muirhead is that an award should be made at 30% of the scheme maximum for the adverse impacts. In my view, it would be more appropriate in these circumstances to award 25% of the scheme maximum ($18,750), given that most (but not all) of the adverse impacts suffered by the applicant are covered by or included in the diagnosis of post traumatic stress disorder. Contribution [15] The applicant has not contributed in any way, either direct or indirect, to her own injuries.11 Conclusion [16] I order that the respondent, JAM, pay the applicant BAE the sum of $39,750. 8 Exhibit A (addendum to report 20 April 2011) p. 1, Affidavit of Barbara McGuire affirmed 24 May 2011. 9 COVR s.1A(2)(f). 10 COVR s.1A(2)(h) 11 COVA s.25(7). -- 4 of 4 --