EB v TC [2011] QDC 323

DISTRICT COURT OF QUEENSLAND CITATION: EB v TC [2011] QDC 323 PARTIES: EB (applicant) v TC (respondent) FILE NO/S: BD2304/09 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: DELIVERED ON: 22 November 2011 DELIVERED AT: Brisbane HEARING DATE: 22 November 2011 JUDGE: Samios DCJ ORDER: 1. Respondent to pay the Applicant $20,000. CATCHWORDS: CRIMINAL LAW – compensation – mental or nervous shock - assessment Criminal Code Chapter 65, s663B(1) Victims of Crime Assistance Act 2009, s 167(2) Cases Freeman v. Graham and others [2001] 2 Qd R 406 R v Holder, Ex-Parte Jenna [1988] 2 Qd R 580 R v Hurle, Ex-Parte Anderson [1991] 2 Qd R 682 R v Jones, Ex-Parte McClintock [1996] 1 Qd R 524 Re Poore; Re Scully (1973) 6 SASR 308 COUNSEL: SOLICITORS: [1] The applicant seeks compensation pursuant to section 663B subsection 1 of the Criminal Code. The applicant's date of birth is 3 September 1980. During a period of between 31 December 1987 and 31 December 1994 a number of men sexually abused the applicant. [2] The basic circumstances of this offending is that the applicant, who was a child, was a -- 1 of 6 -- 2 member of a Cook Islands dance group. There were about 10 adults and between 10 and 15 children in this group. [3] The respondent in this application committed one offence against the applicant for which he was convicted. That offence was one count of indecent treatment of a child under 16 with a circumstance of aggravation. He committed that offence between the 2nd of September 1990 and the 4th of September 1991. [4] One of the offenders absconded whilst on bail and has died before he could be dealt with in Court. There are three other offenders who were convicted of committing the sexual offences against the applicant. [5] As the applicant says in her affidavit, the offences had a massive effect on her life. Her life would have been very different if the abuse had not occurred. [6] One of those three offenders that I have referred to committed four offences against the applicant. His offending occurred between the 31st of December 1987 to the 31st of January 1992. Those offences were two indecent treatments of a child under 14 and three indecent treatments of a child under 12. [7] The third offender committed the offence of unlawful carnal knowledge. That was between the 1st of January 1994 and the 31st of December 1994. As to this last mentioned offender, he has reached agreement with the applicant as to the amount of compensation to be paid to her. The application with respect to him has been adjourned to the Registry. [8] The offender who absconded on bail and has since died committed two rapes and an indecent treatment on four occasions upon the applicant. [9] The application was filed on the 19th of August 2009. The applicant had until the 27th of November 2009 to file her application, therefore the application is within time. However, it is clear that this and the associated applications relating to this applicant against other offenders are somewhat complex. No step has been taken in the proceeding for two years, however, it is clear the respondent does not intend to take any part in the proceedings. There is no prejudice to the respondent by reason of the delay in progressing the application. The applicant's allegations have been available since her police statement on 2 August 2001 and the medical evidence is -- 2 of 6 -- 3 available and could be the subject of cross-examination if that was intended. Therefore I give leave for the application to proceed. [10] The Victims of Crime Assistance Act 2009 commenced on the 1st of December 2009. This application was filed before that date. The effect of section 167 subsection 2 of that Act is that the Court must hear or continue to hear and decide the application under the repealed provision. Therefore I proceed to decide the application. [11] The basic facts of the offending in relation to this respondent is that he forced the applicant to perform oral sex on him until he ejaculated into her mouth. She did not know what was happening and recalled an awful taste causing her to dry retch. [12] The applicant in her affidavit deals with the many offences committed against her by these men. One of these men, not this respondent, made the applicant pregnant. In February or March 1994 at the age of 13 she underwent a termination of pregnancy because of that pregnancy. It was a terrifying matter for her. Life was such that she was allowed a couple of hours to recover and then her mother and she boarded a train for Brisbane. Her mother swore her to secrecy. She suffered pain and bleeding as a result of the procedure, but psychologically she states there was a huge change in her feelings towards her mother. She directed her anger towards her and to this day it still affects her relationship with her. [13] I again confirm that this is not something this respondent is responsible for, but it is part of the background to the applicant's claim to compensation. [14] The applicant states that her relationship with her father was severely affected by the offences. She felt he failed to protect her from the men who were his mates. Her parents brought the offenders into their home and into her life. She started wagging school when she was eight years old, she had achieved high grades in early primary school, but her results deteriorated as the abuse occurred. She abused alcohol and drugs. Her education suffered and she dropped out of school. She had another abortion as a result of a pregnancy by one of the offenders. She tried to reenrol in school, but left after two days. She could not connect with the other children at the school. She enrolled again, but only lasted a few months. She was expelled after getting into another punch up. She started to become promiscuous. She had a number of pregnancies which she terminated. She also started to over eat and force -- 3 of 6 -- 4 herself to vomit. Her employment opportunities had been limited by her failure to finish high school. She has had difficulty keeping employment. People at her employment have made disparaging comments about her weight. She also turned to prostitution for a short period of time. She worked on a container ship and on a prawn trawler, but she has been in hospitality ever since. She has not been able to complete her chef's qualifications, but she can work at that level. [15] She states she has not had the support of her parents and her mother tried to prevent her from making the disclosure. The culture of the Cook Islands where her mother is from was to resolve such issues within the family and not report the matter to police. She experienced disapproval from her mother's family. [16] The applicant has been examined by Dr Kosoff, a psychiatrist. The history I have referred to above was considered by Dr Kosoff. She examined the applicant. Her diagnosis was when she assessed the applicant on 24 June 2010 that the applicant was suffering from a borderline personality disorder, illicit drug abuse and dependence and alcohol abuse. In her opinion the sexual abuse by the offenders is fully responsible for her current psychiatric disorders. [17] She says the applicant has dealt with these issues by trying to deny their existence, however, the applicant is prepared to look at having treatment at some time in the future. [18] I am satisfied as a result of the offence committed by the respondent this materially contributed to the applicant's condition. However, her condition in the broad sense has been caused by a number of offenders. [19] Dealing with the assessment of compensation, though, this is to be done in accordance with the ordinary common law principles for the assessment of damages and civil proceedings for personal injuries; see R v. Jones, Ex-Parte McClintock [1996] 1 Qd R 524. Of course, this is subject to the prescribed statutory maximum, amounts provided for in chapter 65A of the Criminal Code. In this case the maximum is $20,000. However, the common law damages that could be assessed that I consider the applicant is entitled to is a sum of $80,000 for general damages, a sum of in the region of $200,000 for past and future economic loss and a sum of $18,000 for lost superannuation benefits. -- 4 of 6 -- 5 [20] In this regard I am in agreement with his Honour Harrison in the assessment of criminal compensation for the applicant's sister who was similarly abused by a number of men over a period of time. That is, at common law the applicant could expect to recover something in the order of $300,000 for damages. However, the situation is difficult when there is several offenders responsible for that condition. [21] In Freeman v. Graham and others [2001] 2 Qd R 406 the Chief Justice stated, "It is well established that where joint offenders inflict injury upon a victim of their crime the Court may, under section 663B of the Criminal Code, if applicable, order each offender to pay by way of compensation an amount not exceeding the prescribed maximum." [22] Further his Honour said, "It is also established that the Court should approach the assessment of compensation under that provision in accordance with the ordinary principles of assessment of damages for personal injuries in civil cases. What is not expressly established is whether in the case, say, of equally culpable offenders the Court may legitimately order an amount equal to the prescribed maximum against each where that maximum is less than the civil damages to which the victim would be entitled, but the aggregation of the amounts ordered would exceed the amount of those civil damages. Re Poore; Re Scully (1973) 6 SASR 308, decided on comparable legislation, would suggest that the amount assessed for civil damages should in such a case be divided equally between the co-offenders and the amount so obtained ordered against each provided that no amount so ordered exceeds the prescribed maximum." [23] In my opinion in this matter the $300,000 could be divided by four leading to a claim of $75,000 against each offender. In the present case the maximum being $20,000, that is what should be ordered against this respondent. [24] I have been referred to other authorities which also support the proposition of general damages for pain and suffering and loss of amenities of life being in the order of $80,000 to which there would be added the losses for past and future economic loss and other matters such as loss of superannuation benefits. There could also be added in this matter a claim for future cost of counselling and treatment. There are figures available, but as to whether and when the applicant may avail herself of counselling and/or treatment is a matter of speculation. -- 5 of 6 -- 6 [25] I record my indebtedness to his Honour Judge Harrison for his reasons in the application involving the applicant's sister. It seems to me therefore in this case this respondent should be ordered to pay the applicant the sum of $20,000. [26] I therefore order the respondent to pay the applicant the sum of $20,000. I also order the respondent to pay the applicant's costs of the application to be assessed on the standard application. This is permitted by R v. Holder, Ex-Parte Jenna [1988] 2 Qd R 580. [27] A similar order was made by Justice Ryan in R v. Hurle, Ex-Parte Anderson [1991] 2 Qd R 682. [28] I should at this stage add, if it is of assistance, to the applicant that in relation to the deceased offender, clearly his offending might arguably be said to be more serious than offending by other offenders, however, it seems to me that by this stage it would be difficult to give more weight to one offender's offending compared to another offender. Clearly he would at common law be liable for an amount in the order of $75,000, but of course the scheme maximum at the time of his offending was $20,000. It is hoped for this applicant that an ex gratia payment might be made to her in relation to the offending by the deceased offender whose name I'm not providing in these reasons, trying to keep the circumstances as anonymous as possible. -- 6 of 6 --