FJN v BMA [2010] QDC 479

DISTRICT COURT OF QUEENSLAND CITATION: FJN v BMA [2010] QDC 479 PARTIES: FJN Applicant V BMA Respondent FILE NO/S: 4/2010 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 1 October, 2010 DELIVERED AT: District Court, Beenleigh HEARING DATE: 31 August 2010 JUDGE: Dearden DCJ ORDER: The respondent, BMA, pay the applicant, FJN, the sum of $22,500 CATCHWORDS: Application – criminal compensation - sexual assault – mental or nervous shock – adverse impacts. LEGISLATION: Penalties and Sentences Act (Qld) s. 43B, s. 43C. Criminal Offence Victims Act (Qld) (1995). Criminal Offence Victims Regulation (Qld) 1995 s.1A, s. 25(7). Victims of Crime Assistance Act (Qld) (2009) s.154, s. 155. CASES: Kennedy v Faafeu [2010] QDC 21 JMR obo SRR v Hornsby [2009] QDC 147 SAY v AZ; Ex-parte Attorney General [2006] QCA 462 R v Attwell; Ex-parte Jullie [2002] 2 Qd R 367 COUNSEL: Ms Y Cherikova of Counsel for the applicant No appearance on behalf of the respondent SOLICITORS: Campbell & White Lawyers for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The respondent, BMA, pleaded guilty before me in the Beenleigh District Court on 5 May 2009 to two counts of sexual assault in respect of the applicant, FJN. The respondent was sentenced to 18 months imprisonment, wholly suspended, with a 3 year operational period in respect of each of the counts. In addition, a no contact order was made pursuant to Penalties and Sentences Act ss.43B and 43C for a period of 2 years. Facts [2] The offences occurred on 21 September 2005 at Gympie. The applicant was then 16 years old and the respondent was 47. The respondent had been the best friend of the applicant’s father who died in 2002. The respondent had known the applicant her whole life. [3] The applicant came to stay with the respondent and his family for a week in Gympie. On the afternoon of 21 September 2005 the respondent came home early. The applicant had been watching TV, and when she went to her room, she was followed by the respondent. The respondent put his hands on the applicant’s hips, then placed his hands on her breasts, which he squeezed and rubbed for a minute. [4] The applicant grabbed the respondent’s hands and moved them away, and he then put a hand down the applicant’s underpants and touched her on the outside of her vagina. The respondent then made an excuse about it being “a fantasy,” and asked the applicant not to tell anyone. The applicant spent the rest of the day closely shadowing the respondent’s partner before the applicant contacted her family and arranged for someone to pick her up.1 Injuries [5] The applicant suffered mental or nervous shock and adverse impacts as a result of these offences. The law [6] I refer to and adopt my exposition of the relevant law (Criminal Offence Victims Act (1995) (COVA) repealed by the Victims of Crime Assistance Act (2009) (VOCAA)), as set out in paragraph 6 of Kennedy v Faafeu [2010] QDC 21. I note that this application was filed after the repeal of COVA (1 December 2009) but prior to the relevant cut off date of 1 February 2010, therefore satisfying the relevant provisions of VOCAA ss.154 and 155. [7] I refer to and adopt my exposition of the relevant applicable law under COVA as set out in JMR obo SRR v Hornsby [2009] QDC 147 at paragraph 6. Compensation [8] Ms Cherikova, who appears for the applicant, seeks compensation as follows: 1 Exhibit B (sentencing remarks) p1-2 -- 2 of 4 -- 3 (1) Item 32 – Mental or Nervous Shock (moderate) – 10% - 20%. In my sentencing remarks, I noted that the applicant in her Victim Impact Statement2 had stated that she “still experiences nightmares, has trouble sleeping and has flashbacks of the event because, it’s an experience she can never forget”.3 The report of Dr Christine Richardson, psychologist, who assessed the applicant on 2 March 2010 and produced a report dated 5 April 2010,4 concludes (unsurprisingly) that the applicant suffers Post Traumatic Stress Disorder (PTSD) “in the moderate range”, but in addition, satisfies the DSM-IV-TR criteria for “major depressive disorder… mild to moderate and without psychotic features”.5 Dr Richardson expressed the view that the applicant would benefit from 30 “one hour” sessions of psychological therapy with a suitably qualified therapist at a rate of $206 per hour.6 It is submitted on behalf of the applicant that although the applicant developed a chronic low grade depression as a result of the death of her father in a motor vehicle accident in August 2002,7 the mental or nervous shock which the applicant suffered from the respondent’s sexual assault materially contributed to the applicant’s mental and nervous shock injury, and that any award should not be reduced, despite the contribution caused by the trauma of the death of the applicant’s father in 2002. Ms Cherikova relies on the decision of the Court of Appeal in SAY v AZ; Ex-parte Attorney General8 in submitting that the sexual offences committed by the respondent materially contributed to the applicant’s injuries and those injuries are therefore compensable under COVA. I accept that submission. Ms Cherikova submits that, in the circumstances, an appropriate award would be at the upper end of the Item 32 range, at 20% of the scheme maximum ($15,000). I accept this submission and accordingly I award $15,000 pursuant to Item 32. (2) Criminal Offence Victims Regulation (COVR) s.1A. Ms Cherikova submits that although many of the “adverse impacts” suffered by the applicant are associated with the diagnosis of PTSD and/or major depressive disorder9, there are still a number of adverse impacts which, it is submitted, do not form part of the applicant’s mental and nervous shock injury. These are identified by Ms Cherikova as being the adverse effects of the offences on the applicant’s lawful sexual relationships (in particular the demise of a relationship after the offences occurred in September 2005); the difficulties the applicant has in maintaining friendships; and the difficulties that the applicant has in her employment (the applicant feels insecure and uncomfortable when serving 2 Sentence Exhibit 1 3 Exhibit B (sentencing remarks) pp1-2 – 1-3 4 Exhibit CR2 Affidavit of Christine Richardson sworn 8 April 2010 5 Exhibit CR2 p.3 Affidavit of Christine Richardson sworn 8 April 2010 6 Exhibit CR2 p.5 Affidavit of Christine Richardson sworn 8 April 2010 7 Exhibit A (report of Dr John Varghese, Psychiatrist, 26 June 2006) Affidavit of Lauren Wilkie sworn 8 April 2010 8 [2006] QCA 462, paragraph 22 9 Exhibit CR2 p.5 Affidavit of Christine Richardson sworn 8 April 2010 -- 3 of 4 -- 4 older men at her workplace and had to take time off work for related court appearances). Ms Cherikova submits that an award of 10% of the scheme maximum ($7,500) would be appropriate to compensate the applicant for these adverse impacts which do not otherwise constitute an injury under COVA s.20.10 I accept that submission and accordingly I award $7,500 for adverse impacts pursuant to COVR s. 1A. Contribution [9] The applicant has not contributed in any way, direct or indirect, to her own injuries.11 Order [10] I order that the respondent BMA pay the applicant FJN the sum of $22,500. 10 R v Attwell; Ex-parte Jullie [2002] 2 Qd R 367 per Chesterman J at p.372; per Atkinson J at p.382 11 COVR s.25(7) -- 4 of 4 --