EB v UOT [2011] QDC 322

DISTRICT COURT OF QUEENSLAND CITATION: EB v UOT [2011] QDC 322 PARTIES: EB (applicant) v UOT (respondent) FILE NO/S: BD1292/09 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 $40,000. CATCHWORDS: CRIMINAL LAW – compensation – mental or nervous shock - assessment Criminal Code Chapter 65, s663B(1) Victims of Crime Assistance Act 2009, s167(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] This is an application by which the applicant seeks criminal compensation to be assessed pursuant to section 663B subsection 1 of the Criminal Code. [2] The applicant was born on the 3rd of September 1980. She has been offended against by a number of males during the period 31 December 1987 and 31 December 1994. She was, during that period, about seven years of age up to 14 years of age. -- 1 of 5 -- 2 [3] A number of these men have been convicted of offending against the applicant. One of the offenders is deceased. The respondent to this application offended on four occasions against the applicant. He was convicted on the 17th of May 2006 for this offending. His offending was two indecent treatments of a child under 14 and three indecent treatments of a child under 12. [4] The other offenders, one was convicted of one indecent treatment of a child under 16 with a circumstance of aggravation. Another offender was convicted with unlawful carnal knowledge and another was convicted of two counts of rape and four counts of indecent treatment. [5] The latter offender that I have referred to is the offender who is now deceased. I have made a recommendation in my reasons for another application by the applicant that she be given an ex gratia payment of $20,000 to represent the criminal compensation that he might have otherwise been ordered to pay. [6] With respect to the respondent to this application, the application was filed on the 11th of May 2009. The applicant had therefore until the 16th of May 2012 to file her application. Her application is therefore within time. However, no step has been taken in the proceeding for two years from the last time the last step was taken, therefore the leave of the Court is required for the matter to proceed further. [7] On the material that I have it is clear the respondent has been served, but does not appear to want to be involved in the application. [8] It seems to me that there clearly is no prejudice to the respondent. The applicant's police statement was available since the 2nd of August 2001 and her medical evidence could be the subject of cross-examination if that were desired and basically speaking one can understand with a matter of this complexity that there would be delay in getting all the materials gathered together to prosecute the application. There are a number of respondents involved and I consider the delay is explicable in the circumstances. Therefore I give leave for the application to proceed. [9] Basically speaking the applicant's family were from the Cook Islands and were members of a dance troupe which performed throughout Queensland. From an early age the applicant was offended against by various male members of the dance troupe. -- 2 of 5 -- 3 [10] I have made an order this afternoon against one offender. I have also made a recommendation there be an ex gratia payment in relation to another offender. Another offender has made an agreement with the applicant leaving the respondent to this application. [11] The evidence before me satisfies me that this respondent committed offences that can be considered to be two courses of conduct. That is, one offence was committed against the applicant when she was eight or nine years of age and another series of offences were committed against her when she was about 10 and 11 years of age. I approached the matter on that basis on sentencing. As I have said, I consider that to be two separate courses of conduct. [12] I should also say that the Victims of Crime Assistance Act 2009 commenced on 1 December 2009. The effect of section 157 subsection 2 is that as the application was filed on the 11th of May 2009 the Court must hear or continue to hear and decide the application under the repealed provision. [13] The scheme maximum allows for each course of offending $20,000, therefore the maximum the applicant is entitled to in this application is $40,000. [14] Dealing with the assessment of the compensation, though, the Court is obliged to assess the compensation according to the ordinary principles of assessment of damages for personal injuries in civil actions subject to the prescribed amount; R v. Jones, Ex-Parte McClintock [1996] 1 Qd R 524. [15] I am grateful for the reasons of judgment of by his Honour Judge Harrison in the applications of the applicant's sister who was also sexually abused by a number of men. His Honour points out that the applicant, in his case, and I accept it would be the same for the applicant in this case, could be awarded $80,000 for general damages for pain and suffering and loss of amenities of life and something in the region of $200,000 for past and future economic loss and an additional 9 per cent for superannuation contributions coming to an amount of $18,000; a total in round figures of $300,000. Clearly in this case that is the damages that could be assessed for the applicant when one also takes into account an allowance for future counselling and/or treatment. A figure of $300,000 is clearly within range. [16] The applicant confirms in her affidavit the sexual abuse at the hands of these four -- 3 of 5 -- 4 men. She also states that her relationship with her father was severely affected by the offences. He failed to protect her from the men who were his mates. His 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. She engaged in prostitution and promiscuous behaviour. Her employment opportunities were affected. Her schooling was affected. She dropped out of school. She returned to school and lasted two days as she could not connect with the girls her age as her life experience was so different. She enrolled in school again and only lasted a few months. She was expelled after getting into another punch up. She had no self- respect. Her employment was affected. Ultimately she has been in the hospitality industry. She has not been able to complete her chef's qualifications, but she has skills to work at that level. [17] 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 them to police. She experienced disapproval from her mother's family. [18] Dr Kosoff, a psychiatrist, saw the applicant on the 24th of June 2010. She considered the history and the examination and concluded that the applicant is 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. She also says that counselling and treatment would be available, but it appears the applicant is in denial about her condition. [19] Where there are multiple offenders, as there is in this case, the Chief Justice in Freeman v. Graham and others [2001] 2 Qd R 406 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." [20] Further, he 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 -- 4 of 5 -- 5 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." [21] He also said, " 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." [22] In this matter I assess the applicant's damages at $300,000 for the reasons I have given. [23] There being four offenders, I consider that each offender is responsible for $75,000. However, because of the scheme maximum I can only order against this respondent in this application the sum of $40,000 for the two courses of conduct in which he engaged in. [24] Therefore, I order the respondent to pay the applicant $40,000. I also order the respondent to pay the applicant's costs of the application. That is provided for in R v. Holder, Ex-Parte Jenna [1988] 2 Qd R 580 and Justice Ryan in R v. Hurle, Ex-Parte Anderson [1991] 2 Qd R 682. -- 5 of 5 --