AJM v TRH [2011] QDC 218

DISTRICT COURT OF QUEENSLAND CITATION: AJM v TRH [2011] QDC 218 PARTIES: AJM (Applicant) v TRH (Respondent) FILE NO/S: D104/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Maroochydore DELIVERED ON: 30 September 2011 DELIVERED AT: Maroochydore HEARING DATE: 9 September 2011 JUDGE: Long SC, DCJ ORDER: I order that the respondent pay the applicant the sum of $25,500.00 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995, for injuries sustained as a result of the offences committed on her by the respondent and in respect of which he was convicted and sentenced on 27 April 2006 CATCHWORDS: APPLICATION – Criminal compensation – indecent dealing – unlawful carnal knowledge – mental or nervous shock – adverse impacts LEGISLATION: Criminal Offence Victims Act 1995, ss 19(1)(a), 22(3) and (4), 24 (8), 25(3), (4), (5), (6) and (7). Victims of Crimes Assistance Act 2009, s 167. Criminal Offence Victims Regulation 1995, ss 1A, 2. Public Trustee Act 1978, s 91. CASES: JI v AV [2002], 2 Qd R 367. Wren v Gaulai [2008] QCA 148. -- 1 of 9 -- 2 COUNSEL: D. J. Hanslow-Hastie, solicitor, for the applicant No appearance by or for the respondent SOLICITORS: DME Law Pty Ltd for the applicant No appearance by or for the respondent The Application [1] On 27 April 2009 this application for criminal compensation was filed. That occurred consequently upon the respondent pleading guilty, in the District Court at Maroochydore before Judge Dodds, on 18 April 2006, to one count of indecently dealing with the applicant when she was under the age of 16 and also two counts of unlawful carnal knowledge of her. [2] For these offences and on 27 April 2006, the respondent was sentenced respectively to terms of four and five years imprisonment, in the context of otherwise being sentenced to a total period of imprisonment of 13 years, for these and other sexual offences committed by him upon other young females, including his own daughter. Some of those other convictions were by jury verdict. [3] The offences committed upon the applicant were described by Judge Dodds for the purpose of sentencing, as follows: “[A] in 2001 was living away from her mother with friends in Beerwah. She met [K] one day, and, during a conversation with her asked her whether she knew where she could get work. [K] said her father might have work. She met the prisoner, he told her to turn up the next day. She did. She worked all day and was paid $10 an hour; she was given her money at the end of the day. Over the next three to four days she also worked, but the hours were less and she was paid less and less. On the last day she only received $20. The prisoner told her he had no more work. She remained friendly with [K]. The girls were going to move into together but [K] then decided she was going to move with the prisoner into a house he had obtained. It seems that house was at Currimundi. She moved in also, this is [A], and stayed a week. Once she moved in, the prisoner approached and crudely told her he wanted to have sexual intercourse with her. She refused. He persisted over days and offered money. She refused. He supplied cannabis and alcohol. She and [K] used it. She moved out. She -- 2 of 9 -- 3 remained friends with [K], sometimes visited and sometimes stayed overnight. The prisoner persisted asking her for sexual connection. She continued to refuse. One night over when intoxicated, when he was persisting, he offered her $300, waiving six $50 notes at her. She eventually agreed to sexual intercourse. She obtained the money first. The next day she spent the money. She had sexual intercourse with him on a couple more occasions. Money was paid.” [4] It would appear that the basis of the first offence (of indecent dealing) was the applicant‟s explanation of one of the respondent‟s crude approaches to her, which included her being backed against a wall, with the respondent importuning her for sex and kissing her neck. When these offences occurred, in a period from October 2001 to January 2002, the applicant was 15 years of age and the respondent 42. [5] The respondent remains a prisoner for whom the Public Trustee has responsibility pursuant to s 91 of the Public Trustee Act 1978. He has been served with the application and materials relied upon by the applicant but did not appear at the hearing of the application before me. Neither did the Public Trustee. However the solicitor for the applicant was given leave to read and file an affidavit sworn by the Acting Deputy Director Client Services in the office of the Public Trustee, which included the following: “1. The Public Trustee of Queensland (“the Public Trustee”) is not actively managing the affairs of the prisoner, the prisoner (“the prisoner”) pursuant to Pt 7of the Public Trustee Act 1978. 2. I am informed and verily believe that the prisoner provided written acknowledgment to the Public Trustee informing that he: (a) Was served with a copy of all material filed in connection with the application for criminal compensation and is aware of the return date of the hearing; (b) Wishes to take no part within the proceedings for criminal compensation; and (c) Has no assets with which to satisfy an order made against him. Exhibit “A” is a copy of the acknowledgment executed by the prisoner. -- 3 of 9 -- 4 3. I am informed and verily believe that the Public Trustee currently holds no assets on behalf of the prisoner.” The Law [6] This application is made pursuant to Part 3 of the Criminal Offence Victims Act 1995 (“COVA”), which provisions continue to apply to this application, despite the repeal of COVA, on 1 December 2009.1 [7] The scheme provided by Part 3 of COVA is to provide for compensation for injury suffered by an applicant that is caused by a personal offence committed against that applicant,2 which entitlement is intended to help an applicant rather than reflect the compensation entitlement that the applicant may have under common law or otherwise.3 [8] The maximum amount that may be awarded is fixed in the amount of $75,0004 and assessment under the Scheme is required to be by reference to the relative seriousness of an injury and the scaling of the injury against the schedule of injuries provided in Schedule 1 of COVA and the range of percentage or proportion of the Scheme maximum that may be attributable to such an injury.5 [9] It is necessary to follow the statutory methodology and to assess each of an applicant‟s injuries. Where it is practicable to do so, regard must be had to the statutory provisions for each comparable item and where it is necessary to have regard to more than one item of injury, it may be necessary to make adjustments to avoid duplication and to cater for the differences in ranges and maxima for separate items.6 1 By the Victims of Crimes Assistance Act 2009, which provided in s 167 that an existing application to this Court is to be heard and decided under the repealed provisions. 2 Section 19(1)(a). 3 Sections 22(3) and 24(8). 4 Section 25(2) Criminal Offence Victims Regulation 1995, s 2. 5 Sections 22(4) and 25(3)-(6). 6 Wren v Gaulai [2008] QCA 148, at [22]-[29]. -- 4 of 9 -- 5 [10] In respect of sexual offences, such as in issue here, it may be necessary to also assess compensation pursuant to s 1A of the Criminal Offence Victims Regulation 1995 (“COVR”)7 but only to the extent that any relevant adverse impacts of a sexual offence are not otherwise assessed and compensated as injury under COVA.8 Injuries [11] There is no suggestion of any physical injury as a result of these offences. [12] However a consultant psychiatrist, Dr Barbara McGuire, has recently assessed the applicant‟s mental state and in a report dated 7 April 2011, Dr McGuire identified a psychiatric disorder, as follows: “Her diagnosis is post traumatic stress disorder, depression and substance abuse. I believe she suffers these conditions to a severe degree. I base the diagnosis on her exhibition of the following symptoms: Nightmares, flashbacks, panic attacks, hyper-vigilance, low mood.” The emphasis in respect of the severe degree of suffering of these conditions appears in the doctor‟s report. [13] In a further report, dated 9 August 2011, Dr McGuire opined that: “3. Sexual assaults occurred in the context of [A] having had a recent bereavement and conflict with her mother which had resulted in her being expelled from her home and having no money. It appears that she was particularly vulnerable at the time. The offences occurred in 2001 and notes from the Lightning Ridge Multi-Purpose Service indicate that she first sought help there in 2006. At that stage she told her counsellor that the reason she had sought help was because of „heavy load of guilt for a situation where she was raped by Mr [TRH]‟. She expressed a fear that he could harm her children. She informed her therapist that her current sexual partner caused her to have flashbacks to Mr [TRH]. … 7 which prescribes the totality of the adverse impacts of a sexual offence as an injury for the purposes of the definition of injury in s 20 of COVA. 8 Section 1A(1) COVR and JI v AV [2002], 2 Qd R 367. -- 5 of 9 -- 6 5. The fact that she spontaneously sought help for symptoms which she related entirely to the behaviour of the respondent in my view indicates a causative link. 6. The report she gave me indicates that her flashbacks and nightmares are attributable to the offences by Mr [TRH]. 7. Her low self esteem is related to the fact that the respondent paid her for sex. Her feeling of uncleanliness is related to the incidents. Her hyper-vigilance and over-protectiveness of her children relates to her fear that he will find her and harm her through them despite his incarceration.” [14] Dr McGuire also observed, in that report, that the diagnosis of post traumatic stress disorder was based on the subjective account of the applicant but noted that the account given to her bore a similarity to the account earlier given to a psychiatrist at Lightning Ridge and was indicative of the conduct of the respondent being the trauma causing her symptoms. That history as provided by the applicant was reported in Dr McGuire‟s earlier report, as follows: “9. PSCYHOLOGICAL EFFECTS OF THE ABUSE She complains of a low mood. She is angry. She said that particularly from September to January each year she becomes distressed. This is the period over which the offences occurred. 10. She said that she used to get flashbacks and occasional nightmares. She has great difficulty with sexual activity. She has had the same partner for 10 years. She is avoidant of sex because flashbacks are precipitated during sexual activity. This has led to problems in their relationship and they have separated on occasion. Flashbacks are also triggered by seeing her grandfather with a granddaughter or by older men in general. She said that the only male that she trusts is her partner. 11. She experiences panic attacks and security fears. She said she had considered buying her mother‟s house at one stage but the father was against it because the respondent knew where it is. 12. She is hyper-vigilant. She is able to go out on her own but has an exaggerated startle reflex. She experiences lowered self esteem particularly as he paid her for sex. 13. She has an aversion to fat men because the respondent was overweight. She said her partner put on weight and this led to a lot of their difficulties. -- 6 of 9 -- 7 14. She has lots of showers; feels she can‟t get clean enough. 15. She has five children ranging in age from seven to three months. She is over protective of them and said that school excursions are out of the question. She also won‟t let them go to neighbours or to sleepovers. They have to be in her eyes constantly. She doesn‟t even trust family members. She said she hates to see an uncle giving a child a hug. 16. She is treated with Pristiq for depression. She has been suicidal but said that she has never undertaken any risky behaviour. She thinks about suicide. 17. She abuses substances. She said she has had cannabis. She also has alcohol daily or second daily. She said she had polished off a carton of beer and also drunk vodka and wine on occasions. 18. She has sleep problems. She goes to bed about 1.00 a.m. It takes her an hour to go to sleep and she then sleeps through.” [15] In reliance on this evidence, the submission made for the applicant is that her diagnosed disorder falls within the category of Item 33 in Schedule 1 of COVA, namely mental or nervous shock (severe) 20-34% and that an appropriate award under this item would be 27% of the Scheme maximum, or $20,250. Adverse Impacts [16] In addition, the applicant seeks an additional $7,500 (or 10% of the maximum prescribed amount for the prescribed injury constituted by the adverse impacts of a sexual offence)9 for the additional adverse impacts of the sexual offences committed on her. [17] This claim is made pursuant to s 1A of COVR and Dr McGuire specifically addressed the issue of adverse impacts, by specific reference to the kinds of impacts defined in s 1A, as follows: 9 Section 2A COVR and s 25(5) COVA. -- 7 of 9 -- 8 “27. ADVERSE IMPACTS (a) A sense of violation She did experience a sense of violation; knew it should not be happening. She said at the time she was always drunk and she closed her eyes and attempted to disassociate. (b) Reduced self worth She did experience lowered self esteem. (c) Post traumatic stress disorder She has post traumatic stress disorder. (d) Disease She did not sustain disease. (e) Lost or reduced physical immunity She did not sustain disorders of immunity. (f) Lost or reduced physical capacity (including the capacity to have children, whether temporary or permanent) She is over protective with the children. (g) Increased fear or increased feelings of insecurity She has experienced increased fear. (h) Adverse effect of the reaction of others She has been upset by her mother and sister‟s reaction to hearing of what happened to her. (i) Adverse impact on lawful sexual relations She is aversive of sex. (j) Adverse impact on feelings Not applicable. (k) Anything the court considers is an adverse impact of a sexual offence Not applicable.” [18] Dr McGuire then proceeded to note that only the impacts identified as “(f) and (h) were not included in or a feature of her diagnosis of post traumatic stress disorder. Otherwise, Dr McGuire identified that an ongoing impact on the applicant‟s life is that she has limited social life and dealings with her family and that an effect of the offending has been that the applicant “has a pessimistic view of life and lacks trust”. -- 8 of 9 -- 9 Conclusion [19] I accept the submissions for the applicant that an appropriate award for mental or nervous shock is pursuant to Item 33 in Schedule 1 of COVA and in the amount of $20,250.00. [20] In the circumstances outlined and having regard to the limited extent of adverse impacts, in addition to those included in the award for mental or nervous shock, it is my view that the additional amount allowed for adverse impacts should be $5,250.00 (or 7% of the prescribed amount). [21] Although and pursuant to s 25(7) of COVA, the court must have regard to any behaviour of the applicant that directly or indirectly contributed to the injury, having regard to the vulnerability of the applicant in the circumstances in which the offences occurred, it is not appropriate to make any reduction from these awards. Order [22] I order that the respondent pay the applicant the sum of $25,500.00 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995, for injuries sustained as a result of the offences committed on her by the respondent and in respect of which he was convicted and sentenced on 27 April 2006. -- 9 of 9 --