Allen v Datson; Bennett obo Jemison [2007] QDC 123

DISTRICT COURT OF QUEENSLAND CITATION: Allen v Datson; Bennett obo Jemison v Datson [2007] QDC 123 PARTIES: STACI KATHERINE ALLEN (Applicant) v CHRISTOPHER REX DATSON (Respondent) and WENDY ANNE BENNETT obo JACKIE LOUISE JEMISON (Applicant) v CHRISTOPHER REX DATSON (Respondent) FILE NO/S: 609/2006 601/2006 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Southport DELIVERED ON: 21 June, 2007 DELIVERED AT: Mt Isa HEARING DATE: 2 February 2007 JUDGE: Dearden DCJ ORDER: The respondent Christopher Rex Datson pay the applicant Staci Katherine Allen the sum of $12,500. The respondent Christopher Rex Datson pay the applicant Wendy Anne Bennett on behalf of Jackie Louise Jemison the sum of $18,750. CATCHWORDS: Application – criminal compensation – mental or nervous shock LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss 20, 22(4), 24, 25(7), 26 -- 1 of 11 -- 2 Criminal Offence Victims Regulation 1995 (Qld) r 1A CASES CITED: R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 R v Atwell; ex parte Jullie [2002] 2 Qd R 367 R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 SAY v A2; ex parte Attorney-General (Qld) [2006] QCA 462 MAV v ABA; ex parte Attorney-General (Qld) [2007] QCA 124 Gottfried v Wills & Attorney-General [2004] QDC 2 COUNSEL: Mr C Bagley for the applicants Mr A Kimmins for the respondent SOLICITORS: McLaughlins for the applicants Jacobson Mahoney Lawyers for the respondent Introduction [1] The applicant Staci Allen seeks compensation in respect of injuries suffered by her arising out of events occurring between 2 September 2002 and 22 April 2003, resulting in the respondent Christopher Rex Datson pleading before me in the Southport District Court on 4 November 2005 to three counts of indecently dealing with a child under 16 years who was under the respondent’s care. The respondent was sentenced to two years imprisonment in respect of Count 1, wholly suspended, with an operational period of three years, and three years probation in respect of each of Counts 2 and 3. [2] The applicant Jackie Louise Jemison (by her litigation guardian Wendy Anne Bennett) seeks compensation in respect of injuries suffered by her arising out of events which occurred between 5 December 2002 and 31 January 2003, resulting in the respondent Christopher Datson pleading guilty before me in the Southport District Court on 4 November 2005 to five counts of indecently dealing with a child -- 2 of 11 -- 3 under 16 years of whom the respondent was the guardian. In respect of each of these counts, the respondent was sentenced to three years probation. Facts [3] The facts in respect of the offences committed against the two applicants were set out by the prosecutor at the sentence hearing. These facts are as follows:1 “With respect to the eight charges on the indictment, there are two complainants. The first complainant is Staci Allen. She is the niece of Wendy Bennett, who, at the relevant time, was the partner of the [respondent]. Staci was born on the 13th of March 1988. In 2002 Staci’s mother became ill and had to go to hospital for a period of time for chemotherapy. During this time Staci stayed at Wendy Bennett’s residence and at that time the [respondent] was also living there. Staci was 14 years of age. One night during her stay, Staci was watching television with her Aunt Wendy, her cousin Cassie and the [respondent] in the lounge- room. Aunt Wendy and Cassie went to bed. After this the [respondent] has asked Staci if she wanted a massage. Staci has agreed and the [respondent] has told her to lie down on the floor. At the time she was wearing a black Bond’s singlet and some form of bottoms. She laid on the floor on her front and the [respondent] kneeled down beside her. He told her to take off her top. She’s pulled her top up to her neck and at this time she is still laying on her front. He has massaged her back for a period of about 10 minutes and also her sides. He has told her to turn over so he could massage her stomach. She’s pulled her top down and rolled over. He has folded her top up, but at this time her breasts were still covered. He has placed baby oil and her stomach and began to massage her stomach. He then moved up towards her breasts with his hands. He has placed both hands under her top and began to massage her breasts with both hands. Staci estimates that he did this for about five minutes and that she felt uncomfortable, but didn’t say anything to him because she was too shy and didn't know how to stop him. The massaging of the breasts is Count 1 on the indictment. Count 2 occurred during the same period whilst Staci was staying there. She was lying on the double bed in the room she was staying in. [The respondent] has entered the room and said he would give her another massage. At this time she was wearing summer pyjamas, that’s short and a top. She’s laid on her stomach and pulled her top up around her neck. She has put baby oil on her back and massaged her back for a while. He has then asked her to roll over. She said no, she had sore ribs. She states that she said this because she didn’t want him to massage her front. There was a conversation about 1 Exhibit B (Sentence submissions) pp 2-5; Affidavit of Angus Walker sworn 1 December 2006 -- 3 of 11 -- 4 where she got sore ribs from. He has then continued to massage her back. He began to massage her legs with both hands, one on each leg. Both of his hands then went up under her shorts and underpants. He has touched her vagina with one hand. He kept doing this in one motion going down her legs and then going back up to the top of her legs under her clothes and touching her vagina under the clothes, but on the outside of the vagina. Count 3 occurred the following year when Staci was in Year 10. She thinks it was in the Easter holidays and she would have been 15 years of age at that time. Arrangements had been made for Staci to clean the [respondent’s] boat. She went to the boat with him and she helped him clean the boat. When they had finished he said to her that he would give her a massage. At the time she had a bikini top, undies and shorts on. At his request she has laid on her front on the wooden table. [The respondent] has told her to take her top off. She has resisted. He said ‘they are only boobs’ [and that] he was not going to look. She has undone her bikini top and he has begun to massage her back. He then told her to roll over and she again made up the excuse that she had sore ribs. He then began to pull her underpants off. She said no, she didn't want him to. He continued to pull them. She grabbed them. He said that he could not massage with them. Staci has asked for a towel. She has placed the towel over her body. He has folded the towel up to her bottom and then continued to massage her back. He has massaged her legs going from the bottom half of her legs to the top and up to her vagina. He has run his hand along her vagina touching her on the outer vagina lips. He continued to do this for some time and she was very tense. He has told her to stop tensing and relax. He then stopped and put her undies back on for her. Counts 4 to 8 involve the complainant Jackie Jemison. Her date of birth is the 26th of March 1989. She was the daughter of Wendy Bennett who was the de facto of the [respondent] and at the relevant time they were living at the same residence. Count 4 occurred some time during December 2002. At this time Jackie was 13 years of age. Her mother and sister were absent from the house and the [respondent] has told her that he would give her a massage. They went into her room and she has laid face down on the bed. At the time she was wearing a shirt and pants. He started massaging her back through her shirt, then he took her shirt off. She was just wearing a bra and he continued to massage her back. After a time he has taken her bra off. He has continued – he has moved down to the lower back. He has taken off her pants leaving her underwear on. He massaged – continued to massage for a while, and pulled her underpants down a bit and eventually he has taken her underwear off. Jackie … states that she began to tense up. He has massaged her inner thigh. She has tried to get up and he asked ‘Where are you going?’ She said that she wanted to go for a swim. [The respondent] said that was because she was horny. He pushed her back down and continued to massage her. He started to rub the outside of her vagina -- 4 of 11 -- 5 while she was lying face down. He stated that he was trying to teach her about her body. He kept doing this for about a minute, and during this time, Jackie tried to squeeze her legs together, and squirm, to stop him from touching her. When she did that, he would grab her legs and pull them back out and apart, and again touch her on the vagina. After a time he stopped, massaged her back again, and stopped completely. Jackie then went and had a shower. [That was Count 4]. About a week later her mother was again at work, and her sister was at a friend’s place. … On this day [the respondent] told her to go to her room as he was going to massage her. He took her shirt off first, then massaged her. He then took her bra off, massaged her some more. He pulled her pants down, and gradually pulled her underpants down bit by bit, until he eventually pulled them off. He massaged her inner thighs for a couple of minutes, and he touched and rubbed the outside of her vagina, including her clitoris. She squirmed and tensed her legs, but he pulled her legs apart and rubbed the outside of her vagina with his fingers. This [was] Count 5. The next three counts are virtually identical to these two. Each occasion involved him giving Jackie a massage, and during the course of the massage, removing her clothing and touching and rubbing her on the vagina. The touching would continue for a couple of minutes, and these incidents all occurred in January 2003, and the complainant was still aged 13 years.” Injuries [4] Mr Bagley, who appears for both applicants, submits that each has suffered post- traumatic stress disorder as a result of the offences committed (i.e. mental or nervous shock) and further, that each has suffered adverse impacts2 as a result of the sexual offences committed against them. The Law [5] These are applications under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence. R v Ward; ex parte 2 Criminal Offence Victims Regulation r.1A -- 5 of 11 -- 6 Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling it within the ranges set out in the compensation table (Sch 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Sch 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. [6] R v Atwell; ex parte Jullie [2002] 2 Qd R 367 held that “adverse impacts” can be compensated under Criminal Offence Victims Regulation 1995 (“COVR”) only in respect of the totality of the adverse impacts of a sexual offence suffered by a person, to the extent that those impacts were not an injury under COVA s 20, which they will be if the injury amounts to “mental or nervous shock”. Mental or nervous shock has been interpreted broadly3 as being “not limited to cases where there is a diagnosable mental disorder or psychiatric illness resulting from the criminal offence, although it must be more than fear, fright, unpleasant memories or anger, or other adverse impact on feelings.”4 Ultimately, the questions of causation and quantification require the court to exercise its discretion pursuant to COVA s 25(7), which requires the court to “have regard to everything relevant”5 . Compensation [7] Mr Bagley, who appears on behalf of the applicant Staci Allen submits that, based on the diagnosis of post-traumatic stress disorder by Ms Katie Boast, psychologist6 3 See Thomas JA in R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320, at 325 4 R v Attwell; ex parte Jullie [2002] 2 Qd R 367 per Atkinson J at 382 5 See SAY v A2; ex parte Attorney-General (Qld) [2006] QCA 462 per Holmes JA at para 20; MAV v ABA; ex parte Attorney-General (Qld) [2007] QCA 124 per Jones J at para 32 6 Exhibit A, Affidavit of Katie Boast sworn 30 November 2006 -- 6 of 11 -- 7 that an award of 25% of the scheme maximum ($18,750) should be made under Schedule 1 Item 33 - mental or nervous shock (severe). In addition, Mr Bagley submits that the applicant Staci Allen has suffered specific adverse impacts of a sexual offence, namely in respect of issues of self-esteem, depression and trust, and accordingly pursuant to COVR s 1A, submits that a further award of 30% of the scheme maximum ($22,500) would be an appropriate assessment for those adverse impacts of the sexual offences committed upon her by the respondent7 . [8] In respect of the applicant Jackie Jemison, Mr Bagley submits that, based on the diagnosis by Ms Boast that Jackie Jemison is suffering from chronic post-traumatic stress disorder, an award of 30% of the scheme maximum ($22,500) should be made under Schedule 1 Item 33 – mental or nervous shock (severe). In addition, Mr Bagley submits that an award should be made for the adverse impacts of a sexual offence under COVR s 1A in respect of the issues of guilt, self-esteem, depression, trust and stress in an amount of 40% of the scheme maximum ($30,000) as an appropriate assessment for those adverse impacts8 . [9] Ms Boast gave oral evidence at the hearing of this matter before me at the Beenleigh District Court on 2 February 2007 and was cross-examined by Mr Kimmins on behalf of the respondent. It became clear, as a result of questions addressed to Ms Boast, that she had not documented in her reports in respect of either of the applicants any of their personal psychological history. In particular, she had not documented or considered the effect on the applicant, Jackie Jemison, of being the child of a single mother. Ms Boast had not in respect of either applicant addressed the issues as to how long the “chronic post-traumatic stress disorder”, which she diagnosed in each case, was actually suffered, whether it was still being suffered (as 7 Outline of argument – applicant (re Staci Allen) pp 3-4 -- 7 of 11 -- 8 at the date of the report) nor had she provided any assessment as to whether that condition was likely to continue to be suffered in the future9 . [10] On further re-examination by Mr Bagley, Ms Boast claimed that the applicant, Jackie Jemison, was “definitely still suffering from all of the symptoms that [Ms Boast] mentioned [in her report]”, whereas [the applicant Staci Allen] “had probably combated a lot of what she had been through” … but her PTSD “would no longer be a diagnosis (sic) disorder at this stage [i.e. at the date of hearing]”. Ms Boast was unable to give any estimate as to how long Ms Allen might have suffered from the diagnosable disorder [PTSD]10 . Ms Boast went on to state that she had “serious concerns regarding [Jackie Jemison’s] ongoing condition”11 . As will become apparent in these proceedings, I consider Ms Boast’s reports and evidence in these proceedings to have been of only limited assistance, and she does not appear to have undertaken an appropriately comprehensive consideration of the issues relevant to this court’s consideration of an application for criminal compensation12 . In short, the reports provided by Ms Boast were seriously inadequate in respect of key issues of causation and quantification13 . Application by Staci Allen [11] In respect of Ms Allen’s application I accept that she was diagnosed by Ms Boast with “chronic post-traumatic stress disorder”14 , although the classification as “chronic” was because “the symptoms were evident for a period of three months or more” 15 . Other than Ms Boast in oral evidence16 stating that Staci Allen’s post- 8 Outline of argument (re Jemison) pp 3-5 9 Hearing T.15 10 Hearing T.16 11 Hearing T.17 12 See Gottfried v Wills & Attorney-General [2004] QDC 2 para 43 for a similar criticism by Bolton DCJ 13 See para 6 of these reasons and footnote no.5 14 Exhibit A, Affidavit of Katie Boast sworn 30 November 2006 15 Exhibit A, p 4, Affidavit of Katie Boast sworn 30 November 2006 -- 8 of 11 -- 9 traumatic stress disorder was no longer diagnosable “at this stage” (presumably at the date of hearing), Ms Boast was unable to give any estimate as to how long Staci Allen had suffered from post-traumatic stress disorder. [12] Doing the best that I can with what, in my view, is inadequate evidence, I accept that the applicant, Staci Allen, has suffered “mental or nervous shock” and I assess the injury on Item 32 of Schedule 1 at 10% of the scheme maximum ($7,500). Adverse Impacts of a Sexual Offence – Staci Allen [13] Ms Boast cites adverse impacts of a sexual offence17 suffered by Staci Allen as being “feelings of depression, reduced self-esteem and trust issues” (i.e. the impact on Staci’s Allen’s ability to trust men). In my view, depression would clearly be an aspect of “mental and nervous shock” and therefore is unable to be the subject of an award under COVR s 1A. In respect of the adverse impacts on self-esteem and trust, I accept that each of these are “adverse impacts” which can be the subject of an assessment under COVR s 1A, and again, doing the best I can with the inadequate evidence provided, I award an amount of $5,000 under COVR s 1A. Application by Jackie Jemison [14] Mr Kimmins who appeared on behalf of the respondent, makes the following points in respect of Ms Boast’s report in relation to Ms Jemison’s application, namely: “(i) No personal or psychological history of [Ms Jemison from] before the indecent dealing; (ii) So one would not know whether there was any other cause which could have impacted on the level of damage [Ms Jemison] may have suffered as a result of the offences; (iii) That though Ms Boast did say that Jackie [Jemison] did suffer from post-traumatic stress disorder, Ms Boast does not say for how long Jackie did suffer from it. Ms Boast did only treat Jackie for a few months – 3 to 4 to be exact; 16 Hearing T.16 17 COVR s. A -- 9 of 11 -- 10 (iv) The last offence was committed on Jackie [Jemison] in January 2003 and it was not until March 2004 that Jackie was referred to Ms Boast for treatment. Even then the treatment only lasted for 3-4 months. This takes on up to about July 2004. Jackie [Jemison] has not had any treatment since. The interview in November 2006 was only for the purposes of a report. So since about July 2004 Jackie [Jemison] has had no need for treatment.”18 [15] Ms Boast diagnoses Jackie Jemison as suffering from “chronic post-traumatic stress disorder as a result of the assaults by Mr Datson”19 . The PTSD diagnosed by Ms Boast in respect of Jackie Jemison was “classified as chronic as the symptoms were evident for a period of three months or more”20 . Jackie Jemison received treatment for some three or four months and was still suffering from a diagnosable disorder as at the date of Ms Boast’s report (28 November 2006)21 . Ms Boast, when asked at the hearing about a prognosis for Ms Jemison said, “I have serious concerns regarding her ongoing condition”22 but otherwise did not provide any further opinion which I consider to be of assistance in assessing the level of mental or nervous shock suffered by Ms Jemison. [16] Doing the best I can with what I consider to be inadequate evidence, I award Ms Jemison an amount of 15% of the scheme maximum pursuant to Schedule 1 Item 32 ($11,250). Adverse Impacts of a Sexual Offence – Jackie Jemison 18 Outline of submissions of respondent, pp 5-6 19 Exhibit A, p 2, Affidavit of Katie Boast sworn 30 November 2006 20 Exhibit A, p 5, Affidavit of Katie Boast sworn 30 November 2006 21 Hearing T.16 22 Hearing T.17 -- 10 of 11 -- 11 [17] Ms Boast outlines a number of further matters which she asserts are “adverse impacts of a sexual offence”23 , namely Ms Jemison’s guilt about disclosing the assaults upon her, knowing that her mother was happy in her relationship with the respondent; generalised mistrust of all males (fear), impact on self-esteem (putting on weight and “feeling dirty and ashamed”); depression, impact on trust and stress 24 . [18] The “depression” is, in my view, clearly an aspect of “mental or nervous shock”. The fear, self-esteem and trust issues are, in my view, compensable “adverse impacts of a sexual offence” but not the items of “guilt” or “stress”. In all of the circumstances, and again noting the inadequacy of the evidence provided, I consider an appropriate award under COVR s 1A is an amount of $7,500. Contribution [19] It is clear that neither applicant contributed in any way to her own injuries 25 . Conclusion (1) I order the respondent Christopher Rex Datson pay the applicant Staci Katherine Allen the sum of $12,500. (2) I order the respondent Christopher Rex Datson pay the applicant Wendy Anne Bennett on behalf of Jackie Louise Jemison the sum of $18,750. 23 COVR s 1A 24 Exhibit B, Affidavit of Katie Boast sworn 30 November 2006 25 See COVA s 25(7) -- 11 of 11 --