AR v Estate of WG [2010] QDC 172

DISTRICT COURT OF QUEENSLAND CITATION: AR v Estate of WG [2010] QDC 172 PARTIES: A R by her litigation guardian J K (Applicant) v THE ESTATE OF W G deceased (Respondent) FILE NO/S: 219 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 23 April 2010 DELIVERED AT: Cairns HEARING DATE: 19 April 2010 JUDGE: Everson DCJ ORDER: 1. That the respondent pay the applicant as litigation guardian for the victim the sum of 18,750.00 by way of compensation. 2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. 3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.. CATCHWORDS: Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11] COUNSEL: SOLICITORS: Legal Aid Queensland for the applicant -- 1 of 4 -- 2 [1] This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). [2] The injuries giving rise to the application were suffered as a result of personal offences for which the respondent was convicted on indictment on 9 September 2004, namely four counts of indecent treatment of a child under 12 years. Facts [3] The deceased offender was the de facto partner of the victim’s mother. On four occasions when the victim was aged 10 he entered the victim’s bedroom and touched her on the vagina when he thought that she was asleep (“the incidents”). Injuries • Psychological sequelae. The relevant law [4] COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.” [5] Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov1 Homes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” [6] Relevantly the Compensation Table prescribes: • Item 32 mental or nervous shock (moderate) … 10% - 20% [7] Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.2 1 [2002] 2 QdR 303 at 310 2 s 25 (8) referring to s 22 (4) -- 2 of 4 -- 3 [8] Section 1A of COVR is also relevant to this application. It is in the following terms: “For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury. An adverse impact of a sexual offence includes the following – (a) a sense of violation; (b) reduced self worth or perception; (c) post-traumatic stress disorder; (d) disease; (e) lost or reduced physical immunity; (f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent; (g) increased fear or increased feelings of insecurity; (h) adverse effect of the reaction of others; (i) adverse impact on lawful sexual relations; (j) adverse impact on feelings; (k) anything the court considers is an adverse impact of a sexual offence. In this section- Sexual offence means a personal offence of a sexual nature.” The effect of section 1A was considered in R v Atwell ex parte Julie3 as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:4 “the regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20…” [9] Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum. The Assessment [10] It is clear that the incidents resulted in considerable psychological distress to the victim. I have been provided with a report from Dr McGuire, a psychiatrist, dated 13 December 2007. This records that the victim was exhibiting “moderate post traumatic stress disorder” (“PTSD”). However, Dr McGuire is of the view that practically all the relevant symptomatology within the contemplation of s 1A of COVR is associated with the diagnosis of PTSD. 3 [2002] 2 Qd R 367 at 373 per Chesterman J. 4 [2006] QCA 561 at [11] -- 3 of 4 -- 4 [11] Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows: • Item 32 – 20% $15,000.00 • Section 1A COVR 5% $ 3,750.00 15% $18,750.00 Order [12] I order that: 1. the respondent pay the applicant as litigation guardian for the victim the sum of $18,750.00 by way of compensation; 2. any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge; 3. The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.. -- 4 of 4 --