CAP v GJT [2010] QDC 143

DISTRICT COURT OF QUEENSLAND CITATION: CAP v GJT [2010] QDC 143 PARTIES: CAP (Applicant) v GJT (Respondent) FILE NO/S: 2580/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 13 April 2010 DELIVERED AT: Brisbane HEARING DATE: 1 October 2009 JUDGE: Tutt DCJ ORDER: The respondent GJT pays to the applicant CAP the sum of $22,500.00 for injury suffered by her including adverse impacts caused by the respondent to the applicant for which the respondent was convicted by the District Court at Toowoomba on 31 August 2007. CATCHWORDS: CRIMINAL COMPENSATION – unlawful and indecent treatment of child under 16 under 12 years – where applicant suffered “mental or nervous shock” - where applicant suffered “adverse impacts” of a sexual offence under s 1(A)(2) of the Criminal Offence Victims Regulation 1995 - where applicant’s behaviour did not contribute to injury. Criminal Offence Victims Act 1995 s 20, 24, 25(7), 31 Criminal Offence Victims Regulation 1995 s 1A Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 -- 1 of 17 -- 2 R v van Gilman ex parte Owens [2001] QSC 391 Re JI v AV [2001] QCA 510 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 Zaicov and McKenna v Jones [2001] QCA 442 SOLICITORS: Mr B.G. Fotheringham Solicitor of John Paul Mould Solicitors for the applicant Mrs J. Harrison appeared by leave for the respondent Introduction: [1] CAP (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged injury she sustained arising out of the criminal conduct of GJP (“the respondent”) who was convicted by the District Court at Toowoomba on 31 August 2007 of three offences of unlawfully and indecently dealing with a child under 16 years then under 12 years. [2] The application is made on the basis of a “mental or nervous shock” disorder together with a claim under s 1A of the Criminal Offence Victims Regulation 1995 (“the regulation”) that the applicant has suffered a number of “adverse impacts” as defined under s 1A(2) of the regulation arising out of the sexual offences committed against her. [3] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) The applicant’s affidavit with exhibits sworn 3 September 2009 and filed in this court on 10 September 2009; -- 2 of 17 -- 3 (b) The affidavit with exhibits of Dr Barbara Anne McGuire psychiatrist sworn 19 May 2009 and filed in this court on 10 September 2009. (c) The affidavit of service of Kevin Edward Dooley bailiff sworn 30 September 2009 and filed by leave in this court on 1 October 2009. Background Facts: [4] The respondent’s criminal conduct relates to offences committed “between 1 August 1999 and 1 January 2000” when the applicant was approximately 10 years of age her date of birth being “5 October 1989”. The circumstances of the respondent’s criminal conduct involved the inappropriate touching and kissing of the complainant to which the respondent pleaded guilty when he appeared before the court on 31 August 2007. Injury: [5] The particulars of the applicant’s injury are set out in her affidavit and exhibits thereto and the medical report dated 13 May 2009 from Dr Barbara McGuire psychiatrist being exhibit 2 to her affidavit. [6] The applicant describes her injury in the following terms: “As a result of the incident, I sustained post traumatic stress disorder, which has affected me in the way referred to in my victim impact statements prepared after the incident the subject of this application.”1 1 Paragraph 9 of applicant’s affidavit sworn 3 September 2009. -- 3 of 17 -- 4 [7] The “victim impact statements” referred to are dated “7.8.07” and “19/08/2009”, that is, approximately eight years and ten years respectively after the offences were committed which were within a five month timeframe. The first impact statement was made shortly before the respondent’s sentencing on 31 August 2007. [8] Dr McGuire sets out the applicant’s “personal history” which confirms that the applicant has had a very unstable family background evidenced by the following: • CAP’s father “didn’t find out … she existed … until … she was eight”; • She has three half siblings, at least two of whom have different fathers; • “She finds it very difficult to have anything to do with her (mother)”; • “Her mother has had a series of relationships with men all of whom were drunks or abusive”; • “She stated that whenever she did go to visit her mother at Cecil Plains she feels weak and scared, like a child in that all they do is fight”; • “She is angry with her mother and sees her mother as choosing men over her”; • “She doesn’t get any support from her mother but does get quite a lot of support from her stepmother who has recently become estranged from her father”; • “She has attended numerous primary schools – Landsborough, Beerwah, Caloundra, Cecil Plains, Biloela, Currimundi”; • “She used to be able to make friends easily but after the incident tended to lock herself away and found it hard to communicate. This makes it difficult for her to do her job when she is having a bad day. Her grades were average until she got to year 12. At that stage she was involved in Court proceedings and her grades slipped”; • “She also attended numerous high schools, Palm Beach, Currumbin, Chermside, Clontarf, Morayfield”; • “She knew nothing of her father until he turned up when she was eight. She believes that at that stage her mother had contacted him to ask for child support. He wanted DNA testing done and that made her feel that he was -- 4 of 17 -- 5 rejecting of her. For a while she had alternate weekends with him and she believes that he and his wife found her hard to deal with. She said she got involved with cannabis and alcohol when she was 17”; • “She has had an eating disorder. She starved herself for 8 months. She now weighs 47 kilos but thinks she is fat”; • “She complains that she hates life and she doesn’t like the way she looks. She has had weight problems since the age of 12 and is not comfortable with her body”; • “There has been another incident of sexual abuse when she was 13 or 14. She was at a skating rink when the proprietor made advances to her and her girlfriend”. [9] Dr McGuire makes the diagnosis that the applicant “suffers posttraumatic stress disorder in a setting of a borderline personality disorder …… I base the diagnosis of psychiatric disorder on her symptoms of nightmares, flashbacks, avoidant behaviour, security fears, irritability, hypervigilance etc.”2 Contributing Factors: [10] Dr McGuire states: “Contributing factors are the other incident of sexual abuse and her difficult relationship with her mother. However, I believe that the abuse suffered at the hands of GJT made a significant and material contribution to her symptoms”. [11] Dr McGuire’s report continues:- 2 Page 4 of Dr McGuire’s report. -- 5 of 17 -- 6 “Opinion regarding contributing factors: a. Is it possible to say that the offences committed by the offender have materially and significantly contributed to our client’s condition. The offences committed by the offender made a significant contribution to her symptoms. b. Would the applicant have suffered the level of posttraumatic stress you have diagnosed had the applicant’s only experiences been that of the assault. I believe she suffers the posttraumatic stress disorder to a severe degree and that had the offences committed by GJT been the only adverse experiences she had had she would have suffered the condition to a severe degree. c. Is it possible to separate the effects of the offences for which the offender was convicted from the applicant’s other life experiences. It is not possible to separate out the offences for which the offender was convicted but there is a probability that she may not have suffered the borderline personality disorder to the same degree had it not been for the adverse experiences of her childhood.” -- 6 of 17 -- 7 Applicant’s Submissions:- Categories of Injuries: [12] It is submitted on behalf of the applicant that her injuries fall under the following categories of injury contained in Schedule 1 of the Act and s 1A of the Regulation respectively namely: (a) “Item 33 – Mental or Nervous Shock (Severe) ….. 20% - 34%” and in respect of this item the applicant claims that the appropriate assessment of compensation should be 27% of the scheme maximum that is $20,250.00; (b) An assessment under s 1A of the regulation on the basis of the totality of the adverse impacts she has suffered as a result of the sexual offences committed upon her in the sum of 30% of the prescribed maximum that is the sum of $22,500.00.”3 [13] In support of the submission for the appropriate assessment under s 1A of the regulation it is submitted on behalf of the applicant that those “impacts” relevant to this category are: “ • (b) reduced self worth or perception – the Applicant feels weak and has never felt normal; 4 she has been involved in self harming, cutting herself on her thighs and arms as it releases tension;5 3 Paragraph 5 of applicant’s written submissions dated 24 September 2009. 4 See Affidavit of Dr Barbara McGuire, Annexure “BMcG – 2”, p.3. 5 See Affidavit of Dr Barbara McGuire, Annexure “BMcG – 2”, p.3. -- 7 of 17 -- 8 • (i) adverse impact on sexual relations – the Applicant has an aversion to sex and feels that it is disgusting. The Applicant finds it difficult to engage in kissing which makes her feel dirty;6 • (j) adverse impact on feelings; • (k) anything the court considers is an adverse impact of a sexual offence.” [14] The applicant further submits that “with regards to s 1A(k) of the regulation ….. the court needs to consider but not limit itself to the following other adverse impacts. Dr McGuire notes on p 2 of her report that the applicant was on a prescribed course of anti-depressants approximately two years ago.”7 [15] It further submitted that: • “The applicant has difficulty with concentration getting in trouble at work because of this”; • “The applicant’s capacity for further employment in the future has been affected, her social interaction is limited, and that her life generally has been adversely affected due to the condition.”8 Respondent’s Submissions: [16] The respondent appeared at the hearing and by leave was represented by his daughter. 6 See Affidavit of Dr Barbara McGuire, Annexure “BMcG – 2”, p 2. 7 Paragraph 20 of applicant’s written submissions. 8 Ibid at paragraph 21 and 22. -- 8 of 17 -- 9 [17] The following submissions were made on behalf of the respondent relevant to this application: • He has no assets; • The applicant has been attending the same medical practice (the family practice) since 2002 where she has consulted a number of medical practitioners including a Dr Deborah Sambo and according to the notes did not complain about psychological symptoms including “self harm” until 2008 following the respondent’s appearance in court in August 2007. • “If the applicant was suffering symptoms from the sexual abuse why didn’t she mention it to the doctor before”. 9 Medical Records: [18] The medical records from the family practice 10 reveal among other things that: • “The applicant has attended the practice since “Monday, October 7, 2002”. • Has been treated for a variety of matters including recurring tonsillitis over a number of years; • First mention of any “anxiety” was on “Monday January 14, 2008” to Dr Sambo. The notes recording: “Currently anxiety Scratching legs at night, self harm etc. Has been in court recently to testify about molestation from mother’s boyfriend’s father abusing her when she was a kid. • He was let off because of his age. • So she is angry about it. • Self mutilates. • Discussed at length 9 Page 11 line 25 of hearing transcript. -- 9 of 17 -- 10 • Will need counselling.” [19] Further on “Friday May 9, 2008” the records reveal that she was seen by Dr Sambo and stated “worsening anxiety, scratching at night, history of sexual abuse as an eight year old, mothers boyfriend’s father recently in court to testify against him.” “Anxious Sees counsellors Recent scratching episode left a huge 10 cm gash on her legs There are multiple scars all over her legs affecting her self confidence and image Emotional crying Discussed mother diagnosed with OCD/bi polar” [20] The applicant continued to attend the practice in 2008 and on “Friday November 28, 2008 there is a record of the applicant attending Dr Sambo who notes: “not eating for days – no appetite – eats two days/week – living on water/juice”. There was a further notation on “Friday December 12, 2008” from Dr Sambo which states: “eating regular now things are going well has put on a size extra so happy – very grateful etc. meds going well.” Causation: [21] The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those 10 Exhibit 9 to applicant’s affidavit -- 10 of 17 -- 11 offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending. [22] Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made particularly where her Honour states: “[23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.” -- 11 of 17 -- 12 “What is mental or nervous shock”? [23] The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that: “Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”. Adverse Impacts: [24] An applicant’s claim for further compensation under s 1A of the Regulation is comprehensively discussed in the matter of Re JI v AV [2001] QCA 510 and in particular in the reasons of Chesterman J as he then was at paragraph [20] when discussing the phrase “to the extent to which the impacts are not otherwise an injury under s 20” as contained in Reg 1A(1) of the Regulation: “There can be no doubt about its meaning. Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the Regulation unless they amount to an injury under s 20, in which case they fall outside the scope of the Regulation and are to be assessed under the Act. This follows from the phrase. Impacts are an injury for the purposes of the Regulation to the extent that the impacts are not an injury under s 20. They will be such an injury if they are mental or nervous shock. I cannot see any escape from this conclusion.” [25] Further, in paragraph [22] Chesterman J said: “This construction of the Regulation means that post traumatic stress disorder can only be an adverse impact where it does not amount to mental -- 12 of 17 -- 13 or nervous shock which will rarely, if ever, be the case. That, however, does not have the effect that the scheme for compensation found in s 1A is unworkable, or even absurd. It means only that that one impact will probably always be assessed under the Act rather than the Regulation. This consequence is not enough to give the words “to the extent to which the impacts are not otherwise an injury” a meaning other than their plain one. Section 1A will still have substantial scope to operate. It makes compensation available to victims of sexual offences for a greater variety of consequences than was available under s 20.” [26] Again at paragraph [57] of that authority Atkinson J said: “Many of the specified adverse effects in s 1A fall squarely within the definition of injury in s 20 of bodily injury or nervous or mental shock. It has been accepted, for example, that “post-traumatic stress disorder”, found in s 1A(2)(c) of the COVA Regulation, is within the definition of mental or nervous shock.11 It follows that post traumatic stress disorder, for example, is said to be compensable under s 20 and under s 1A.12 The same could be said of many of the specified adverse effects in s 1A and the definition of injury in s 20. The only way of avoiding such an interpretation is by the construction given to the section by the trial judge, i.e., that its purpose is to avoid double compensation by providing that if the injury is one that falls within s 20, as bodily injury, mental or nervous shock, pregnancy or injury specified in the compensation table, then it should be compensated according to that section. Only additional adverse effects of sexual 11 MAJ v KM [2000] QCA 410, CA No 6042 of 2000, 6 October 2000, at [13]; Whyte v Robinson (supra); R v Tiltman; ex parte Dawe [1995] QSC, SC No 324 of 1995, 22 June 1995, Lee J. 12 The divergence of opinion on how to compensate victims of sexual offences for post-traumatic stress disorder can be seen in a number of District Court decisions: R v Hagaen; ex parte Townsend (supra); R v Daniel; ex parte Raymond (supra); R v Gilchrist; ex parte Hall (supra); R v Di Fiori; ex parte Anthony (supra); R v Peacock; ex parte Homer (supra); Newby v Mullins (supra); Hoy v Dunbar (supra); Lester v Ahmed (supra); Codd v Codd (supra); Jones v Thompson (supra); Morris v Soper (supra); Steven v Atwell [2001] QDC, DC No 2710 of 2001, 20 June 2001, McGill DCJ. -- 13 of 17 -- 14 offences fall to be compensated under s 1A of the COVA Regulation.” [27] It is therefore necessary for an applicant who claims compensation under the regulation for alleged “adverse impacts” to establish additional sequelae of injury not included in the definition of “Injury” under s 20 of the Act. [28] The applicant’s entitlement to additional compensation under the category of “adverse impacts” must be assessed on all of the evidence before the court including the medical evidence and any other evidence “the court considers is an adverse impact of sexual offence”. 13 Findings: [29] On the basis of the evidence before the court and the submissions made I make the following findings in this application: (a) The applicant has suffered a “mental or nervous shock” injury within the terms of s 20 of the Act arising out of the respondent’s criminal conduct the subject of the application and is entitled to an award of compensation therefor under the Act. I make this finding on the basis of the applicant’s own evidence contained in her affidavit filed in this application together with the evidence contained in Dr McGuire’s report of 13 May 2009 wherein she concludes that the applicant “suffers post traumatic stress disorder in a setting of a borderline personality disorder”. I note further that it is Dr McGuire’s opinion that “the offences committed by the offender made a significant contribution to her symptoms”; 13 Regulation 1A(2)(k). -- 14 of 17 -- 15 (b) I find further that the category of injury under which the applicant is entitled to an assessment of compensation for her “mental or nervous shock” injury is item 32 of the compensation Table under Schedule 1 of the Act that is “mental or nervous shock (moderate) … 10% - 20%” for the following reasons: (i) It is clear from Dr McGuire’s report that the applicant, who is presently only 20 years, has had to endure a grossly dysfunctional, unstable, disruptive and generally unloved childhood evidenced by the following: • She did not know her father until she was eight; • She felt rejected by him; • “She is angry with her mother and sees her mother as choosing men over her”; ● “Her mother has had a series of relationships with men all of whom were drunks or abusive” • She has attended schools in no fewer than 11 locations because of the instability in her upbringing. She has had to reside at various locations throughout her life because of the “very difficult relationship with her mother” and generally her life has been characterised by instability and disruption. For these reasons I find it is inescapable, that notwithstanding the three incidents of sexual abuse by the respondent in 1999 over a five month time-frame the applicant would have been and still is, a very troubled person susceptible to much of the adverse indicia set out in Dr McGuire’s report, in any event. I therefore assess the applicant’s compensation under this item at 15% of the scheme maximum that is the sum of $11,250.00. (c) I am further satisfied that the applicant has suffered some “adverse impacts” over and above the diagnosed “post traumatic stress disorder”, on -- 15 of 17 -- 16 the basis of Dr McGuire’s report at pages 2 and 3 thereof and I find that those “adverse impacts” which “are not otherwise an injury under s 20” of the Act are as follows: (i) Reduced self worth or perception; (ii) Increased feelings of insecurity; (iii) Adverse effect of the reaction of others; (iv) Adverse impact on lawful sexual relations; (v) Adverse impact on feelings; and (vi) Difficulty with concentration. (d) In all the circumstances I assess the applicant’s compensation under s 1A(i) of the regulation at a further 15% of the scheme maximum that is the sum of $11,250.00. Applicant’s Contribution to the Injury: [30] In deciding the amount of compensation payable to the applicant I must also take into account any behaviour of the applicant that directly or indirectly contributed to the injury the subject of the claim (see s 25(7) of the Act). [31] I am satisfied that the applicant in no way either directly or indirectly contributed to the injury or adverse impacts she has suffered arising from the respondent’s criminal conduct and is entitled to the full award of compensation as assessed herein. Order: [32] I order that the respondent GJT pay to the applicant CAP the sum of $22,500.00 for injury suffered by her including adverse impacts caused by the respondent to the -- 16 of 17 -- 17 applicant for which the respondent was convicted by the District Court at Toowoomba on 31 August 2007. [33] In accordance with s 31 of the Act I make no order as to costs. -- 17 of 17 --