DM v MJG [2011] QDC 205

[2011] QDC 205 DISTRICT COURT CIVIL JURISDICTION JUDGE SAMIOS No 112 of 2009 DM Applicant and MJG Respondent TOOWOOMBA DATE 13/04/2011 ORDER -- 1 of 6 -- HIS HONOUR: This is an application by which the applicant seeks compensation to be determined by the Court under section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of personal offences which led to the conviction of the respondent for indecent treatment of a child under 16, under 12, under the Criminal Code of Queensland. The applicant was born on the 16th of April 2004. At the time the personal offence was committed against her, she was three years of age. She is now almost seven years of age. The circumstances behind the offence are contained in the statement to police by the applicant's mother. She says that the AUSTAR service at their house in Cunnamulla was not working. They contacted someone to come and see to it being fixed. The respondent attended the house and set about his work. The applicant was at day-care at the time and the applicant's mother and the applicant's mother's mother were at the house, and the applicant came home. At one stage the applicant's mother went into the bedroom where the respondent and the applicant were. She saw the respondent kneeling on one leg and he was facing away from her towards the window, and she saw the applicant leaning on a white, plastic chair and her back was facing the respondent's front. She noticed that they were very close together, and when she walked he sprung up and stood up. When he stood up he was facing away from her, -- 2 of 6 -- and she saw the top of his backside and he was doing up the front of his pants. At this time she saw the applicant had her shorts and underpants down, and she could see the top of her bottom. The applicant's mother challenged the respondent and he left the house. The respondent pleaded guilty to the charge of unlawfully and indecently dealing with the applicant, being a child under 12 years of age. The sentencing proceeded on the basis that the respondent had exposed his penis to the applicant and that he had taken down the applicant's pants, or partly down. He was sentenced by the sentencing Judge to 12 months' imprisonment, to be suspended after serving two months' imprisonment, with an operational period of two years. The respondent was, at the time of sentencing for the offence, 54 years of age, and would now be 57 years of age. The applicant, as far as the evidence before me shows, suffered no physical injuries. The application was commenced by being filed in this Court on the 27th of November 2009. At the time it was filed, no litigation guardian was appointed for the application. The applicant seeks an order that the originating application filed on the 27th of November 2009 be deemed valid and effectual, pursuant to rule 371, sub-rule 2(d) of the Uniform Civil Procedure Rules. The evidence before me shows that this was an oversight -- 3 of 6 -- because of the urgency of filing the application before the pending repeal of the legislation and the enactment of new legislation. I consider in all the circumstances it is proper to order that the application be deemed valid and effectual for all purposes. The consent of the litigation guardian has been filed now in this Court. One other matter that should be dealt with is that the applicant's first name is spelt [D]. I order the proceedings be amended so that the applicant's first name be spelt [D]. There is no basis on which it can be suggested the applicant directly or indirectly contributed to her injuries. As a child of three years of age, she could not be held responsible for anything the respondent did to her. The application is supported by a report from Mr Meurs, a psychologist. He assessed the applicant's psychological condition on the 6th of May 2010. He noted at the time the applicant was still experiencing some lasting anxiety symptoms that can be dated back to the weeks following her sexual abuse at the hands of the respondent. She has been somewhat clingy and continues to have sleeping difficulty. Furthermore, it appears she may be displaying some oppositional behaviour problem, as -- 4 of 6 -- evidenced by an elevation on the child behaviour checklist, but not to the degree that warrants clinical concern. He also states, however, that on the whole she seems to be functioning quite well academically and socially, as evidenced by her carer's report and the psychometric testing. Although the current consequences of the abuse seem mild-moderate, it should be said that the long-term repercussions of her abuse may not be readily foreseeable, and will only become evident once she begins to form adult romantic attachments. He states children who have experienced abuse have a considerably higher risk of developing a range of mental health problems such as depression or anxiety disorders and personality problems later in life. In all the circumstances, I am satisfied, although the applicant is very young, she suffered mental or nervous shock within the meaning of that term as used in the Act. I should also say that the legislation was repealed on the 1st of December 2009, however the application was filed within time, and pursuant to section 167 subsection 2 of the Victims of Crime Assistance Act 2009, the Court must hear or continue to hear and decide the application under the repealed provision. I bear in mind that on applications of this kind, compensation provided to an applicant is intended to help -- 5 of 6 -- the applicant, and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. 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. In all the circumstances, I assess the applicant's compensation under item 31 of the schedule, under the heading "Mental or nervous shock - minor", at 10 per cent, which is a sum of $7,500. I order the respondent to pay the applicant the sum of $7,500. Mr MacDonald, did you bring a draft order with you? MR MACDONALD: I did bring a draft order. It was made out for the 11,250 we're seeking, but I've crossed that out and written 7,500. I can also email a perfected version to the Court. HIS HONOUR: Do you have any provision in there for payment to the Public Trustee? MR MACDONALD: I haven't, but I imagine the money - well, the money will have to be paid to the Public Trustee, your Honour. HIS HONOUR: Yes. I order the said sum of $7,500 be paid to the Public Trustee of Queensland. -- 6 of 6 --