A v K [2005] QDC 262

1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. [2005] QDC 262 DISTRICT COURT CIVIL JURISDICTION JUDGE ROBIN QC No BD943 of 2005 A Applicant and K Respondent BRISBANE ..DATE 16/08/2005 REASONS CATCHWORDS: Criminal compensation - application under (repealed) s 663B of the Criminal Code - simple count of indecent treatment of a child under 12 - maximum available of $20,000 - circumstances in which the applicant's and the expert evidence suggested that the applicant's condition was greatly contributed to by other life experiences, including alleged stalking of her by the respondent (for which he was never charged, commencing four years after the offence and conviction - adjournment to allow applicant the opportunity to adduce further material isolating the impacts of the relevant offence. -- 1 of 10 -- 16082005 T04/MXB22 M/T CMS91/2005 (Robin DCJ) 2 REASONS 1 10 20 30 40 50 60 HIS HONOUR: This is an application by a young lady who was born in November 1984 for compensation under the now repealed section 663B of the Criminal Code. On 25th August 1993 the respondent pleaded guilty to indecent treatment of a child under 12, being the applicant, on a date between 31st August 1992 and 5th October 1992. He pleaded guilty to a second offence of a sexual nature committed against his own young grandson. He had a regrettable history of sexual offending, in particular of an exhibitionistic nature, which had occurred mainly in New Zealand. An awareness of the wider criminality may be one of the features contributing to the condition of which the applicant now complains. ... HIS HONOUR: The respondent was sentenced to six months imprisonment, accompanied by three years on probation which it was hoped, even at his age, might have some beneficial effect in ameliorating his behaviour. Regrettably, if the contents of the report of the psychologist, Beverley Freebairn, are correct, it did not because, according to it, when the complainant was 13 years old he began stalking her in a very determined fashion. The respondent apparently was never charged in respect of the stalking and that means the applicant is not entitled to seek compensation in respect of it - any award being limited to -- 2 of 10 -- 16082005 T04/MXB22 M/T CMS91/2005 (Robin DCJ) 3 REASONS 1 10 20 30 40 50 60 conduct which led to a conviction. As will be seen that circumstance complicates the application considerably in my view given that the psychologist has dealt with the applicant's situation on a global basis, making no attempt to separate out events involving the applicant which led to a conviction. Notwithstanding the very long time which has elapsed since that conviction which, it’s heartening to say, followed relatively soon after the offence, given that the applicant had the necessary fortitude and support to make an early report, there is no limitations problem. The applicant did not attain her majority until November 2002, and only then would any applicable limitation period start running. The relevant offence was described in my sentencing remarks in the following way: "The location was a cane field on a farm where the parties happened to be together...Count 1 involves the eight year old daughter of a family friend. It involves a brief touching of her or, more accurately, touching her pants in the region of her vagina and rubbing for what seems to have been a brief period which came to an end when the girl asked that it should. At the time you were carrying her through the cane fields with your chests touching, presumably her hand around your neck, her legs around your waist. It may be that some sort of playfulness was a lead-up to that. The matter is most serious given the girl's age, although the extent of your interference with her puts the offence at the less serious end of such indecent dealing." I think that is a reasonable summary of what was put before the Court by the prosecutor, Mr Vasta. It is not open to the Court to depart to any significant extent from that understanding of the facts of the offence, and indeed, the -- 3 of 10 -- 16082005 T04/MXB22 M/T CMS91/2005 (Robin DCJ) 4 REASONS 1 10 20 30 40 50 60 only detail which is added in the applicant's affidavit is that, "He also fondled his penis in front of me", something which appears to have been quite a feature of the respondent's behaviour generally. The applicant also tells the Court in her affidavit and I quote: "I have suffered considerable mental and emotional distress since the incident. I am anxious in social situations generally and particularly with people whom I do not know. Currently I am in a very supportive relationship but, prior to that, I was very uneasy with people in romantic or sexual settings. I'm particularly evasive of men of similar age to the respondent and consequently I am very protective of my baby and I am very anxious about not letting her out of my sight. Other things I associate with the respondent such as panel vans trigger flashbacks in me." On the 1st of November 2004, the applicant saw Ms Freebairn whose report is exhibited to an affidavit of the applicant rather than deposed to by its author. I am prepared to accept it, nevertheless. The respondent has not appeared to challenge that report or indeed anything else notwithstanding service on him of the application according to the affidavit of service of a police officer in Murgon, Clare Elizabeth Valkhoff. The affidavit does not depose to the service of supporting affidavits which one would hope occurred. It may be considered prudent by the applicant's legal advisors to confirm and file proof that it did indeed occur. No doubt the expectation is that this application will lead to a compensation award being satisfied from public resources; one -- 4 of 10 -- 16082005 T07/MXB22 M/T CMS91/2005 (Robin DCJ) 5 REASONS 1 10 20 30 40 50 60 of the checks made may be that matters have been properly attended to so far as the nominal respondent is concerned. I will highlight some aspects from the psychologist's report, with changes made to conceal identities. "In grade 8, at age thirteen, the respondent began stalking her. Stalking occurred on three or four occasions in the course of 18 months. The applicant stated she was frightened and did not know what was going on or why he was following her in his car. She was riding her bike. The applicant use to shake and cry during these occurrences. It was during this period that she suffered sleep disturbance. She found it difficult to go to sleep, woke frequently with dreaming and did not like to sleep alone. The applicant does not regard her childhood as happy. The applicant stated that she did not like her stepfather. He was hard on her and she frequently got into trouble for not doing her jobs properly. The stepfather worked on the oil rigs and would have a month on the rigs and a month off. The applicant stated that he would come home and in a bad mood and 'make like miserable'. Her grandmother did notify children's services after he had 'flogged' her with a whip. Trouble at school began at age nine when she was in grade four. She did not want to go to school because she was badly teased from being fat. She went to live with her grandmother in [another town] after the sexual assault for four years (age 8 to 12). The applicant stated that she 'was hard to live with and got into a lot of trouble at school.' She was expelled from two high schools. She use to fight, argue with teachers and smoked. She often felt angry and did not like being told what to do. She did grade 10 twice and left school mid grade 11. She worked from age fifteen in many retail jobs. She stopped work in January 2004 at age nineteen due to a complicated pregnancy. In her adolescence, the applicant was anxious with her sexuality. She was too scared to be sexually active. She did not trust men nor was she comfortable in their presence. She lost her virginity at age fifteen by a boy two years older. She was virtually forced into having sex and it was an unpleasant experience. The applicant had trouble forming and maintaining satisfactory relationships. Her first two serious partners resulted in her being physically abused. There was drug and alcohol involved in these relationships. -- 5 of 10 -- 16082005 T07/MXB22 M/T CMS91/2005 (Robin DCJ) 6 REASONS 1 10 20 30 40 50 60 Her third partner was ... She was with him for eight months and it broke down last September. She was put on an antidepressant at this time because she was not coping with the fighting between them. She was on medication for three to four months until falling pregnant. She stated she was a smoker of marijuana from the age of thirteen. She would take marijuana when she drank alcohol. She stated that she did not like not being in control. She was also involved in petty crime which took the form of shop lifting. Taking drugs and stealing stopped when she was sixteen years old. Playing the pokies was a preoccupation between the ages of seventeen and eighteen. The applicant's mother took her to counsellors and a psychologist from 1992 to 1999 to help her deal with the sexual assault and stalking. She indicated that she was sorry that she had not listened to the counsellors. The applicant felt that she would have coped better with life and relationships." The person named as the applicant's third partner has the same name as the complainant in the other charge to which the respondent pleaded guilty on 25th of August 1993 and I would say is undoubtedly the same person. That is but one interesting feature of a situation in which the applicant has had the misfortune to encounter reverses of various kinds in her life, both before and after late 1992 when the relevant offence happened. There are many factors that potentially contributed to her condition as assessed by Ms Freebairn. All is not bleak; the applicant has a supportive family beyond her present partner and she is said to be "euphoric" to be a mother. Ms Freebairn confirms what the affidavit says about difficulties the applicant has about trusting men. She is apparently completely happy in her present relationship. -- 6 of 10 -- 16082005 T07/MXB22 M/T CMS91/2005 (Robin DCJ) 7 REASONS 1 10 20 30 40 50 60 Ms Freebairn notes that the respondent: "Stated that she finds it hard to talk about what happened. She said she tried not to think about it however finds memories of stalking are triggered on a frequent basis. In particular, those memories are triggered by panel vans (being the type of vehicle the respondent drove)." The diagnosis offered by Ms Freebairn is as follows: "DIAGNOSIS WITH RESPECT TO THE ASSAULT (AND STALKING) • Sexual Abuse of Child, Code 995.81 V61.21 (DSM1V) • Generalised Anxiety Disorder, Moderate, Code 300.02 (DSM 1V) • Post Traumatic Stress Disorder, Moderate, (Code 309.81 DSM1V) • Evidence of social phobia • Self-esteem and self-worth issues" Therapy was recommended to assist the applicant "to work through the post-traumatic stress with the sexual assault and stalking". It was thought this therapy would greatly assist as a preventative measure as might some "psycho-education and life skills training in relation to social situations". The psychologist is concerned that general anxiety and social isolation may well increase if counselling is not embarked on with possible adverse consequences on the applicant's mothering abilities. The report clearly amalgamates the consequences of what is called "the assault", plainly the indecent treatment matter, and the stalking, which as I read the report, plays a very significant part in the applicant's present situation. The report is not helpful in respect of the consequences of three unsatisfactory relationships the applicant had, two at least -- 7 of 10 -- 16082005 T07/MXB22 M/T CMS91/2005 (Robin DCJ) 8 REASONS 1 10 20 30 40 50 60 of which involved physical abuse, and other difficulties such as the cruelty of the man who was her stepfather when she was young. The helpful outline of submissions prepared which comes from Mr Young, solicitor in Hervey Bay, who is not in Court, has collected a number of decisions in this Court and the Supreme Court in which awards of $20,000, being the relevant statutory maximum in the circumstances, were made against a background that the judge was comfortably satisfied that damages assessed on the ordinary civil basis would exceed the statutory maximum. R v Jones, ex parte McClintock established that an application should be dealt with by an ordinary civil assessment, which may or may not require to be reduced to the statutory "cap". The cases are Estate of J v. M, Supreme Court Brisbane, Byrne J, 6 July 2004, BS2915 of 2004; L v F, Judge Forde, 20 April 2004, 995 of 2004; M v L, Judge McGill, 16 April 2004, 4473 of 2003; K v J, Judge Howell, 15 April 2004, BD4012 of 2003; L v M, Judge Forde, 6 April 2004, BD993 of 2004; L v Mc, Judge Shanahan, 17 March 2004, BD151 of 2004; D v B, Judge Forde, 17 February 2004, 1810 of 2003; and K v D, Judge Skoien, 13 November 2003, 3369 of 2003. I can understand Mr Young's assumption that the outcome of this application would be similar. Unfortunately, I find myself unable to say that it is clear that if the applicant's -- 8 of 10 -- 16082005 T09/MXB22 M/T CMS91/2005 (Robin DCJ) 9 REASONS 1 10 20 30 40 50 60 damages attributable to the relevant offence were established, they would comfortably exceed $20,000. Although the respondent is not here, it is incumbent on the Court to be fair to him and there is also, as I understand the Court of Appeal to have confirmed, the proper interest of the public purse to consider. Doing the best that I can, I will be prepared to make an award of $15,000 and order the respondent to pay that sum to the applicant and also the costs of the application to be assessed. This, as I understand it, may be done in applications under the Criminal Code, although costs are unavailable under the Criminal Offence Victims Act 1995. As indicated to Mr Reardon who has appeared as town agent today, in the circumstances I think it is just to allow Mr Young the opportunity to consider whether the proposed award should be made or whether the obtaining, if available, and provision to the Court of supplementary material might lead to the awarding of the greater sum. So, for the moment, for reasons indicated, there is no order. I will indicate willingness to accept some written or even telephoned intimation from Mr Young if the outcome is that further material is not to be placed before the Court. If it is to be, then it seems to me there has to be another brief hearing and, of course, the respondent has to have notice of any further material. I note again, the deficiency in the affidavit of service. -- 9 of 10 -- 16082005 T09/MXB22 M/T CMS91/2005 (Robin DCJ) 10 REASONS 1 10 20 30 40 50 60 ... HIS HONOUR: I will adjourn the application to a date to be fixed. ... ----- -- 10 of 10 --