CJA v SAA [2010] QDC 147

DISTRICT COURT OF QUEENSLAND CITATION: CJA v SAA [2010] QDC 147 PARTIES: CJA (applicant) v SAA (respondent) FILE NO/S: 374/10 PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane ORDER MADE: 15 April 2010 REASONS DELIVERED: 16 April 2010 DELIVERED AT: Brisbane HEARING DATE: 15 April 2010 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $26,250.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 16 whilst under care which led to the conviction of the respondent in the District Court at Brisbane on 19 September 2007 CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – where applicant was the victim of sexual offences – where the applicant suffered “mental or nervous shock” – where the applicant suffered “adverse impacts” – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 20, s 22, s 24, s 25 Criminal Offence Victims Regulation 1995 (Qld), s 1A, s 2, s 2A Public Trustee Act 1978 (Qld) Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 R v Atwell, ex parte Jullie [2002] 2 Qd R 367; [2001] QCA -- 1 of 7 -- 2 510 R v Ward, ex parte Dooley [2001] 2 QdR 436; [2000] QCA 493 RMC v NAC [2009] QSC 149 COUNSEL: D Kozaric, solicitor for the applicant No appearance by or for the respondent SOLICITORS: A P Hodgson & Associates for the applicant No appearance by or for the respondent Introduction [1] The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for emotional injuries caused by sexual offences committed by the respondent. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. However the application was filed on 29 January 2010 which is before the two month expiry period contained in the transitional provision in s 155(2)(b). Therefore the court is required to hear and determine the application under the Criminal Offence Victims Act 1995 (s 155(3)). [2] On 19 September 2007 the applicant pleaded guilty to six counts of indecent treatment of a child under 16 years who was under his care. He was sentenced to three years imprisonment. It was declared that the respondent had served 225 days in pre-sentence custody which was deemed to be imprisonment already served under the sentence. [3] The respondent was served with the application and supporting affidavit material at the Maryborough Correctional Centre on 17 February 2010.1 There was no appearance by or for the respondent. [4] As the Public Trustee is the manager of the respondent’s estate pursuant to Part 7 Public Trustee Act 1978, the applicant’s solicitors took the step of sending the application and supporting affidavit material to the Public Trustee by mail and facsimile on 7 April 2010.2 The applicant’s solicitors have not received any indication that the Public Trustee wished to participate in the proceeding. Circumstances of the offences [5] The offences occurred over a 10 month period from February to October 2002. The complainant was 12 years old at the time of the offences. The respondent was the applicant’s stepfather. When sentencing the respondent I observed that the offences involved a gross violation of trust. I remarked that the respondent’s behaviour was “persistent, audacious and brazen.”3 1 Affidavit of David Francis Frost filed 4 March 2010. 2 Affidavit of Drazen Kozaric filed 14 April 2010. 3 Transcript of sentencing remarks, District Court Brisbane, 19 September 2007. -- 2 of 7 -- 3 [6] When sentencing the respondent on 19 September 2007 I summarised the offences as follows: “Count 1 was committed on a date unknown in February or March 2002. The boy was watching television. You told him to pull his pants down. You then began masturbating him for several minutes before you stopped doing that. At the conclusion of the incident you told him that it was “secret men’s business” and not to tell his mother. Counts 2, 3 and 4 were all committed on the same occasion on a camping trip to Rainbow Beach. Those offences were committed in the Easter school holidays of 2002. On the Saturday evening you were alone in the tent with the boy and you asked him to remove his pants. He is unsure whether he removed his pants or whether you did so. In any event, his pants were pulled down to his knees. You then poured a substance similar to baby oil over his penis and started to masturbate him. That certainly indicates a degree of pre-planning on your part because one would not ordinarily expect such a substance to be taken on a camping trip. The complainant says that he gained an erection but he did not ejaculate. During the incident you asked him whether it felt good. After masturbating him you placed your mouth over his penis and performed an act of oral sex upon him for several minutes. He says that he is unable to recall why you eventually stopped performing oral sex upon him and he cannot say whether or not he ejaculated. After having done that you told the complainant to masturbate you. The boy says that he was scared of what you would do if he didn’t do as he was told. The boy masturbated you for several minutes until you ejaculated on to your own chest. You told him not to tell anyone and that it was “secret men’s business”. The offences comprising counts 5 and 6 occurred on the same occasion in September 2002. You masturbated the boy in the lounge room and then told him to accompany you to his bedroom. The boy followed you into his own bedroom where you told him to lie on his back and pull his pants down. You then rubbed a substance similar to baby oil on to his upper thighs just below his penis. You then placed his thighs together and inserted your penis between them and simulated sexual intercourse by thrusting your penis back and forth between his thighs. After a short time you ejaculated on to his legs.” 4 Injuries and medical reports [7] The applicant’s affidavit filed 29 January 2010 illustrates that the offences have affected many aspects of his life. Prior to the offences he led a happy childhood with many friends and he enjoyed sport.5 After the offences he became depressed. 4 Transcript of sentencing remarks, District Court Brisbane, 19 September 2007 at pp 2-3. 5 Affidavit of the applicant filed 29 January 2010 at para 9. -- 3 of 7 -- 4 He remained depressed throughout his school years.6 He could not concentrate at school and was constantly absent.7 [8] The other children at school noticed changes in him and teased him. This led to confusion and his self esteem was eroded. 8 The applicant was fearful of the respondent and he became alienated from the family. He had feelings of hopelessness and he felt unloved. 9 [9] The applicant continues to experience difficulties resulting from the offences. He says that he finds it hard to trust people and form friendships.10 [10] The applicant has trouble sleeping and experiences flashbacks. 11 [11] The applicant describes the following adverse impacts of the offences: • A grave sense of violation as he was not prepared to deal with the emotional impact of the sexual molestation; • Reduced self worth and perception which led to him becoming aggressive, drunk and drug affected; • Confusion about his sexuality; • An inability to sustain relationships; • Constant depression. 12 [12] The applicant attended psychological therapy sessions with Ms Anette Renneflott, psychologist in 2008. In her report dated 4 March 2009 Ms Renneflott states that the applicant was referred for treatment of clinical levels of depression and severe anxiety. He had recently undergone treatment for drug and alcohol abuse. Ms Renneflott expressed the opinion that the applicant fulfilled the criteria for post traumatic stress disorder. [13] The applicant was examined by Dr B Klug, psychiatrist on 3 August 2009. In his report dated 5 August 2009 Dr Klug says that the applicant’s recovery is not complete. He says that the applicant continues to suffer from depression, flashbacks about twice a month, nightmares involving the respondent’s release from prison, an acute fear when he sees someone resembling the respondent, feelings of being “different from everyone else”, lack of confidence and self esteem and difficulties in communication with people. 13 [14] Dr Klug’s diagnosis is that the applicant developed a mixture of anxiety, depressive, post traumatic stress symptoms as well as anti-social behaviour which was best classified as an adjustment disorder with mixed disturbance of emotions and 6 Affidavit of the applicant filed 29 January 2010 at para 14. 7 Affidavit of the applicant filed 29 January 2010 at para 15. 8 Affidavit of the applicant filed 29 January 2010 at para 16. 9 Affidavit of the applicant filed 29 January 2010 at para 23. 10 Affidavit of the applicant filed 29 January 2010 at para 44. 11 Affidavit of the applicant filed 29 January 2010 at paras 49-50. 12 Affidavit of the applicant filed 29 January 2010 at para 54. 13 Report of Dr B Klug dated 5 August 2009 at p 3. -- 4 of 7 -- 5 conduct (DSM-IV-309.4). He is of the view that the applicant has a range of residual symptoms consistent with the diagnosis of mild post-traumatic stress disorder. Dr Klug states that the percentage of disability that the applicant has suffered and will suffer in the future with reference to the compensation table is a minor disability in the region of 10%. 14 The applicable principles [15] The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). [16] The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). The assessment of compensation does not apply principles used to decide common law damages for personal injuries (s 25(8)). [17] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.15 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained: “But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.”16 [18] If more than one injury in the compensation table is applicable the amounts are to be added together and if the total exceeds the scheme maximum then only the scheme maximum may be awarded (s 25(3)). [19] The regulation provides in s 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury. Pursuant to s 2A, the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum. [20] Section 1A of the regulation provides: 14 Report of Dr Klug dated 5 August 2009 at p 5. 15 [2001] 2 QdR 436. 16 [2001] 2 QdR 436 at 438 para [5]. -- 5 of 7 -- 6 “(1) 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. (2) 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.” [21] It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the regulation to the extent that they are not an injury under s 20: R v Atwell ex parte Jullie.17 “Nervous shock” within the Criminal Offence Victims Act 1995 is confined to a recognisable psychiatric illness or disorder: RMC v NAC.18 It is only additional adverse impacts that may be compensated under the regulation: R v Atwell, ex parte Jullie.19 The effect of the regulation is that “… post traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever be the case.”20 The applicant’s submissions [22] Mr Kozaric for the applicant submitted that the following injuries in the compensation table were applicable: 31 - Mental or nervous shock (minor) 10% Regulation 1A - Adverse impacts of sexual offences 25% This would lead to a total assessment of $26,250.00. Assessment [23] Dr Klug’s opinion is that the applicant has suffered and will suffer a minor disability in the region of 10%. Dr Klug made specific reference to the compensation table in the Criminal Offence Victims Act 1995. Mr Kozaric’s submission that the applicant’s mental or nervous shock should be assessed at 10% of the scheme maximum should be accepted. I therefore assess the applicant’s mental or nervous shock at 10% of the scheme maximum leading to an award of $7,500.00. 17 [2002] 2 QdR 367 at para [20] per Chesterman J. 18 [2009] QSC 149 at [38] per Byrne SJA. 19 [2002] 2 QdR 367 at [57] per Atkinson J. 20 R v Atwell ex parte Jullie [2002] 2 QdR 367 at 372 para [22] per Chesterman J. -- 6 of 7 -- 7 [24] The applicant has also suffered adverse impacts of the sexual offences which do not comprise part of the mental or nervous shock injury. Once again I consider that the amount of 25% sought by Mr Kozaric on behalf of the applicant is reasonable. I therefore assess the adverse impacts of the sexual offences component at 25% of the scheme maximum leading to an award of $18,750.00. [25] The total assessment is $26,250.00. Order [26] I order that the respondent pay to the applicant the sum of $26,250.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of indecent treatment of a child under 16 whilst under care which led to the conviction of the respondent in the District Court at Brisbane on 19 September 2007. -- 7 of 7 --