CHR v FSR [2011] QDC 79

DISTRICT COURT OF QUEENSLAND CITATION: CHR v FSR [2011] QDC 79 PARTIES: CHR (Applicant) v FSR (Respondent) FILE NO/S: 52/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 21 April 2011 DELIVERED AT: Beenleigh HEARING DATE: 21 April 2011 JUDGE: Dearden DCJ ORDER: The respondent FSR pay the applicant CHR the sum of $80,000. CATCHWORDS: Application – Criminal Compensation – Indecent treatment – LEGISLATION: CASES: COUNSEL: SOLICITORS Post Traumatic Stress Disorder Criminal Code Act 1899 s.663B(1) & (2) (section since repealed) Criminal Offence Victims Act 1995 Uniform Civil Procedure Rules r.389(1) Victims of Crime Assistance Act 2009 s.167(2) HW v LO [2000] QCA 377 R v Jones; ex parte McClintock [1996] 1 Qd R 524 TLK v JD [2007] QDC 132 Ms Fadden (solicitor) for the applicant No appearance for the respondent Legal Aid Queensland for the applicant No appearance for the respondent -- 1 of 10 -- 2 JUDGMENT INTRODUCTION [1] HIS HONOUR: The respondent, FSR, was sentenced in the Beenleigh District Court on 11 September 2007 to four years imprisonment in respect of each of seven counts of indecent treatment of a girl under 16 years, under 14 years, in respect of the applicant, CLR (the respondent's daughter). The respondent's sentences were suspended after serving a period of 16 months imprisonment with an operational period of five years. FACTS [2] The offences occurred between 1984 and 1990, when the applicant was aged seven to 13 years old. [3] The schedule of facts (sentence Exhibit 2) sets out the facts in respect of each of the offences as follows: “Count 1 [4] On an unknown date between 1 January 1985 and 1 December 1987, the [applicant] was living with her family at Kingston. At this time the [applicant] was a student at a State Primary School. The [applicant] remembers lying in her bed when the [respondent] entered her bedroom and sat on the bed next to the [applicant]. He then placed his hand underneath her nightdress and used his fingers to stroke the top of her vagina and the top of her underwear. The [respondent] then pulled the sheet away from the [applicant] and lay next to her on the bed. He pulled off her underwear. The [respondent] moved one of his hands between her legs and he used his -- 2 of 10 -- 3 JUDGMENT fingers to stroke the inside of the complainant's vagina in an up and down motion. The [respondent] then left the bedroom. Count 2 [5] Up to a week after the first incident, the [applicant] stated that she awoke in her bed to her underwear being removed down her body. The [applicant] was lying on her stomach and then saw the [respondent] kneeling over her body and removing her underwear. The [respondent] moved the legs of the [applicant] slightly apart with his hands, and then put his hands between her legs. The [respondent] touched her on the vagina with his hands and moved his hands around her inner upper thighs and buttocks. The [respondent] propped up the [applicant's] body with both of his hands, holding her waist. He then used his tongue to lick the inside of her vagina. The [respondent] then moved his body to lie next to the [applicant] and she felt his hand moving up and down the side of her legs and back. The [applicant] could feel the penis of the [respondent] moving up and down, and his hands. She remembers him making groaning noises and felt "stickiness" on her upper legs. Count 3 [6] On an unknown date between 1 January 1985 and 1 December 1987, the mother of the [applicant] was at work and the [applicant] was playing outside with her brother and her neighbour. The [applicant] remembers going inside to tell something to her father, the [respondent]. The [applicant] went into her parents' bedroom. The door was closed but the -- 3 of 10 -- 4 JUDGMENT [applicant] entered and observed her father standing naked rubbing his groin. The [respondent] was rubbing his groin with shampoo. He told her to shut the door. The [respondent] then told the [applicant] to take her pants off, which she did as well as her underwear. He picked up the shampoo bottle that was on the bed and told her "put this on, it's really good". The [respondent] then put some shampoo on her hand and proceeded to guide her hand with his around the top of her vagina. The [respondent] then moved his hand off and said to her, "Keep rubbing, keep rubbing". The [applicant] continued to rub the top of her vagina but stopped rubbing because the shampoo was making her vagina sting and it began to hurt her. The [respondent] sat down and masturbated his erect penis to ejaculation. The [applicant] says that she saw semen and (sic) his chest and on the floor next to the bed. The [respondent] then picked up a towel and wiped her vagina area. The [applicant] was told to put her clothes back on and go outside. She left the room and went to the toilet and tried to clean herself. It was painful for the [applicant] to go to the toilet for the following two days. Count 4 [7] The biological mother of the [applicant] separated from the [respondent] in late 1987. The [applicant] remained in the care of the [respondent] at Kingston. On an unknown date between 1 November 1987 and 10 August 1988, a next door neighbour who was the same age as the [applicant] slept the night with the [applicant] in the [applicant's] bedroom. The [applicant] awoke to see the [respondent] leaning over the -- 4 of 10 -- 5 JUDGMENT body of her friend, touching her vagina and the top of her underwear. The [applicant] knocked his hand away. The [respondent] then moved his hand onto the top of the [applicant's] vagina and stroked her on the top of her clothing on the vagina. The [applicant] believed her friend was asleep and never spoke to her about the incident. Count 5 [8] The [applicant] moved with the [respondent] to Mareeba. She remembers living in a motel and finishing grade 6 a State Primary School in 1988. On a date unknown between 1 June 1988 and 1 February 1989, the [applicant] was asleep in bed when she awoke to find the [respondent] on top of her. She could smell a strong scent of liquor. The [respondent] then removed her underwear and moved her legs apart and then used his tongue to lick the inside of her vagina. The [respondent] then moved his body to lie next to the [applicant]. She felt him move his hands up and down on his penis against the (sic) her body. Count 6 [9] The [applicant] moved with her father back to Brisbane some time in early 1989. On an unknown date between 1 January 1989 and 1 February 1990, the [applicant] was asleep in bed and awoke to the [respondent] touching her on her vagina on the top of her underwear. The [respondent] then removed the underwear worn by the [applicant] and he used his hands to spread her legs apart. He used one of his fingers to rub up and down on the inside of the [applicant's] vagina. The -- 5 of 10 -- 6 JUDGMENT [applicant] felt the fingertip of the [respondent] enter her vagina. He moved his finger around in a circular motion inside her vagina. The [respondent] then removed his finger. The [respondent] then moved his penis up and down on the [applicant's] vagina. He moved his penis up and down in a continuous motion for a number of minutes. Count 7 [10] This offence occurred in Brisbane some time in early 1989. The family lived at Kingston. On an unknown date between 1 January 1989 and 1 February 1990, the [applicant] was asleep in bed and awoke to the [respondent] touching her on the top of her vagina. She saw the [respondent] sitting on the bed. He proceeded to remove her underwear and then used his fingers to rub up and down the inside of the [applicant's] vagina. The [respondent] then inserted one of his fingers into the [applicant's] vagina, moving his finger around. He removed his finger from her vagina before inserting it in again a second time.” THE LAW [11] The application in these proceedings was filed on 22 April 2009. Pursuant to Victims of Crime Assistance Act s.167(2), the application filed under the now repealed (as of 1 December 2009) Criminal Offence Victims Act 1995 is preserved. The Criminal Offence Victims Act then in turn preserved applications pursuant to the repealed provisions of s.663B of the Criminal Code. My exposition of the relevant law (including the law in relation to "courses of conduct") is set out in TLK v. JD [2007] QDC 132 at paragraphs 9- -- 6 of 10 -- 7 JUDGMENT 11, and I adopt that exposition. [12] This applicant has complied with the provisions of Uniform Civil Procedure Rules r.389(1) and has provided the requisite one month's notice to the respondent where the last step was taken more than one year ago. COMPENSATION [13] The applicant was examined by Dr Barbara McGuire, psychiatrist on 1 April 2008 and 1 December 2010. 1 (1) Post Traumatic Stress Disorder (moderate) [14] Dr McGuire diagnosed the applicant as suffering from post traumatic stress disorder (PTSD) to a moderate degree, on both separate examinations. Dr McGuire considers that the applicant will have lifetime effects from the sexual abuse, although these effects may improve over time (Exhibit A p.4), affidavit of Dr Barbara McGuire sworn 11 March 2011. 2 [15] The diagnostic criteria used by Dr McGuire in her assessment include "difficulties with sleep, flashbacks, nightmares, recurrent intrusive thoughts of the abuse, low self esteem, hyper-vigilance, security fears, exaggerated startle reflex and low mood." 3 I should note that this ongoing PTSD, is of course, in respect of offences which occurred between 1984 and 1990, and the effects are still 1 (Exhibits (A) and (B)), affidavit of Dr Barbara McGuire sworn 11 March 2011. 2 (Exhibit A p.4), affidavit of Dr Barbara McGuire sworn 11 March 2011. 3 Exhibit B p.7, affidavit of Dr Barbara McGuire sworn 11 March -- 7 of 10 -- 8 JUDGMENT extant. [16] It is submitted by Ms Fadden, who appears today in respect of the application, but relies on detailed and comprehensive written submissions by Ms Muirhead, that the seven offences can be parsed as four separate courses of conduct (each of which are then entitled to a maximum award of $20,000, given the relevant applicable legislation), resulting in an overall maximum award for this applicant for offences allegedly occurring on these dates, of $80,000. [17] The parsing submitted for is as follows: (i) It is submitted that counts 1, 2 and 3 occurred while the applicant was aged between seven and nine, all at Kingston, and all prior to the applicant's mother separating from the respondent. (ii) Count 4 occurred after the applicant's parents separated, when she was nine, in the context of a simultaneous sexual assault by the respondent on a friend of the applicant's, who was staying over. I note that the applicant has indicated she never told her friend about the assault on her while she was sleeping and no doubt that was an added burden which she carried as a child. (iii) Count 5 occurred in a motel in Mareeba when the applicant was 10, post-separation of her parents, and also involved cunnilingus. -- 8 of 10 -- 9 JUDGMENT (iv)Counts 6 and 7 occurred after the applicant and the respondent had moved back to the family home at Kingston and each involved digital penetration (which would, of course, as a result of subsequent legal reforms, constitute "rape"). I note also that count 6 involved the respondent rubbing his penis on the applicant's vagina. [18] I accept the submission that these seven counts can be parsed as four separate courses of conduct as set out in paragraphs (i)-(iv) above. The applicable maximum is therefore $80,000 (Criminal Code s.663B(1), and see also HW v LO [2000] QCA 377, per de Jersey at paras 8 and 9.) [19] I consider that any assessment of the applicant's injuries on the ordinary principles of assessment of damage in personal injuries (R v. Jones; ex parte McClintock [1996] 1 Qd R 524), would substantially exceed what I have concluded is the relevant applicable maximum in this case of $80,000. Accordingly, I consider that the applicant should receive the maximum applicable award of $80,000 pursuant to Criminal Code s.663B(1). CONTRIBUTION [20] The applicant has not contributed in any way, direct or indirect, to her own injuries (Criminal Code s.663B(2)). CONCLUSION -- 9 of 10 -- 10 JUDGMENT [21] I order that FSR pay CHR the sum of $80,000, and costs to be assessed on a standard basis. ----- -- 10 of 10 --