CD v AJP [2011] QDC 24

DISTRICT COURT OF QUEENSLAND CITATION: CD v AJP [2011] QDC 24 PARTIES: CD (Applicant) V AJP (Respondent) FILE NO/S: BD 2818/09 DIVISION: Civil PROCEEDING: Criminal Compensation Application ORIGINATING COURT: District Court, Brisbane. DELIVERED ON: 10 March 2011 DELIVERED AT: Brisbane HEARING DATE: 27 September 2010 JUDGE: Tutt DCJ ORDER: 1. The respondent AJP pays the applicant CD the sum of $70,000.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 July 2006; 2. The respondent pays the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale. CATCHWORDS: CRIMINAL COMPENSATION – sexual offences against complainant child under 14 and under 16 including rape (4) – where applicant sustained no physical injuries –s 663B of the Criminal Code – mental or nervous shock – prescribed amounts – whether “one course of conduct or closely related courses of conduct” – relevant test to be applied. Criminal Code Amendment Act 1984 (Qld) -- 1 of 23 -- 2 Criminal Code (Qld) ss 663A, 663AA and 663B. Criminal Offence Victims Act 1995 (Qld) ss 40 and 46 (2). Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. LMW v Nicholls [2004] QDC 118. MAJ v KM [2001] QCA 410. McClintock v Jones [1995] 79 A Crim R 238. HW v LO [2001] 2 Qd R 415. SOLICITORS: Ms J Fadden of Legal Aid Queensland for the applicant. No appearance by or on behalf of the respondent. Introduction: [1] The applicant CD claims compensation for injury sustained by her as a result of 7 criminal offences of a sexual nature committed against her by the respondent to the application AJP. [2] The respondent was convicted by this court at Beenleigh on 14 July 2006 of two counts of indecent treatment of a child under 14 years, one count of indecent treatment of a child under 16 years and four counts of rape. [3] The offences were committed against the applicant over a six year period between 1 January 1985 and 31 December 1990, when the applicant was aged between 11 and 16 years; her date of birth being 11 August 1973. [4] The application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Rob Shieff, psychiatrist, in his report of 7 May 2004, exhibited to his affidavit filed 14 May 2010 together with a further report by Dr Mark Davis, psychiatrist, of 8 July 2008 exhibited to his affidavit filed 14 May 2010. -- 2 of 23 -- 3 [5] There are no physical injuries to the applicant which form the basis of any claim for compensation before the court. Relevant legislation: [6] As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed. 1 [7] Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides: “Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted” (emphasis added). [8] Under s 663A of the Code “injury” is also specifically defined and includes “mental or nervous shock”. This was inserted by the Criminal Code Amendment Act 1984 and commenced operation on 1 July 1984. 1 Section 46(2) Criminal Offences Victims Act 1995. -- 3 of 23 -- 4 [9] In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amounts” which applied at the times when the respective offences were committed. [10] Under s 663AA of the Code as amended the maximum “prescribed amount” payable for injury described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00. [11] The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.2 Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.3 [12] The offences which give rise to the “injury” suffered by the applicant in this claim occur after the 1 July 1984 date so the maximum “prescribed amount” for compensation payable is $20,000.00 (emphasis added). Course of conduct: [13] Section 663B allows only one award of compensation for injury to be made “arising out of the one course of conduct or closely related courses of conduct” and goes on to provide: “(1A) For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant 2 See McClintock v Jones [1995] 79A Crim R 238 at 242. 3 Ibid. -- 4 of 23 -- 5 matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.” [14] This application concerns sexual offending by the respondent of the applicant over a period of 6 years for which the respondent was convicted on seven counts as set out in paragraph [2] above. In the applicant’s comprehensive submissions it has submitted that the seven offences of which the respondent has been convicted and sentenced constitute “five separate courses of conduct…because the offences were so different in nature, occurred in different places and occurred over a period in excess of five years….” Therefore “if this submission is accepted it would be appropriate to award compensation of up to $100,000.00 ($20,000.00 per course of conduct) in respect of these offences.” 4 [15] I have been directed to a number of relevant Court of Appeal authorities on point, being: • HW v LO [2000] QCA 377; • MAJ v KM [2000] QCA 410 • McLeod v Jones (District Court, D3696 of 2000; 13 October 2000) • Ridler v MsConnell District Court D17 of 2003, Newton DCJ, 14 February 2003. [16] Having regard to those cases it is clear that in determining whether the injury to the applicant arises out of separate and distinct courses of conduct, the Court must consider the details and particulars of each of the separate counts as charged. This is plainly stated by the Chief Justice in HW v LO (supra) at 417: 4 See pages 15 & 16 of the applicant’s written outline of submissions at paragraphs [53] & [58] respectively. -- 5 of 23 -- 6 “Assaying a definition of “course of conduct” for purposes of s 663B, the words connote in this context a succession or series of acts (or omissions) which, because a sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern. The American cases provide assistance, pointing to the need for an element of continuity (Dyer v Dyer 166 Pa.Super. 520) and regularity (Aetna Cas. And Sur. Co. v Industrial Commission 127 Colo. 225). It goes without saying that one cannot be prescriptive of the requisite extent of relationship. One obviously cannot, for example, specify a maximum duration for any separate course of conduct. Given a high level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist over days, weeks, months. But even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct. (These observations are consistent with the approach which has been taken by a number of judges of the District Court.)” [17] This principle has been followed and affirmed since HW v LO in MAJ v KM (2000) QCA 410. 5 Evidence of commission of offences by respondent: [18] The applicant’s evidence in respect of the offences of which the respondent was convicted is contained in a number of statements to the police both in New South Wales and Queensland and exhibit “A” to the applicant’s affidavit filed 14 May 5 See separate judgments of Davies JA, Ambrose J and Chesterman J (as he then was) on point but in particular Chesterman J at paragraph [38] when he said: “The decisions to which Davies JA has referred illustrate the fact that there will on occasions be difficulty in deciding whether offences giving rise to an applicant’s injuries, particularly psychiatric injuries, were committed in a course of conduct or closely related courses of conduct, or whether they were discrete. Giving the words, “course of conduct”, the meaning elucidated by the Chief Justice (with whom Muir J agreed) in HW v LO [2000] QCA 377 paras 7 and 8, there must be a succession or a series of acts which because of a sufficiently close inter-relation by reason of their nature, time, place or other circumstance display an identifiable overall pattern. There should ordinarily be elements of continuity and regularity if there is to be found a “course of conduct”. -- 6 of 23 -- 7 2010. In particular the circumstances of the offences are contained in the applicant’s “addendum statement” dated 28 May 2002 to the Queensland Police Service when she states as follows: Count 1 – Indecent treatment of a girl under 14…..between 01.01.1985 and 01.12.1985 at Cresthaven Drive, Mansfield. The applicant states that “In January 1984 we all moved to Brisbane.6 The applicant’s evidence in her statement is that the respondent had sexually assaulted her “when we were living at 67 Western Road, Ngongataha in New Zealand. I recall that it was in 1983 and I was 10 years old. I recall that it was near the end of the year. I recall that this incident happened a few months before we all came to Australia which was about 16 January 1984”. The applicant stated “The first time that I can specifically remember AP sexually assaulting me in Australia was when we were at the Crest Haven Drive house. I recall that my mother went back to New Zealand around March 1985 ….. I recall that I was 11 years of age at this time and after mum had been gone for about four or five days AP came into my room one night after I had gone to bed. I recall that A actually woke me up on this occasion and sat on the side of my bed. He then made me sit up beside him. I recall that he was dressed at the time. I recall that the passage light was on in my doorway was ajar so some light was coming into the room. He took my hand and tried to make me stroke his penis through his pants. I tried to pull my hand away but he held on harder so that I couldn’t pull my hand away. I recall that I then started to cry. I recall that he had the strong smell of alcohol on his breath. He then unzipped his pants and pushed my hands inside his pants and also inside his underpants. He was still making my hand stroke his penis. I recall that his penis was hard. I recall feeling a ridge on his penis. He let go of my hands so that I would try and pull my hand away but he would grab it and put it back on his penis. He then put my hand around his penis and told me to move my hand up and down. He said words to the effect of ‘do it gently, don’t squeeze it just pull it gently up and down’. I recall that his penis was hard.” The applicant stated that she recalled “that the same routine happened another two or three times before my mother came back from New Zealand”. 7 6 From New Zealand 7 Count 1 - pages 2 and 3 of statement -- 7 of 23 -- 8 Count 2 – Indecent treatment of a girl under 14…..between 01.07.1986 and 31.12.1986 at Collard Street, Slacks Creek. The applicant states that “My next specific memory of AP sexually assaulted me was when we were living at the Slacks Creek house in Collard Street. This happened when I was in grade eight at Mabel Park High School in 1986…..I recall that it was towards the end of the year but was at school so it would have been around October or November 1986.....I know it was after my birthday which was in August so I had turned 13 years of age…..After my mother left to go shopping which only left A and me at home…..During this time I had gone upstairs and A was downstairs in the garage. As soon as Mum left A came upstairs and took me by the arm and led me in to my bedroom. I started to cry. I was standing beside my bed and A lay on my bed I specifically recall that A was wearing brown or blue stubbies and a t-shirt….After he laid on the bed he pulled his stubbies and underpants down to his ankles. At this time I could see his penis, his penis was not hard at the time he pulled his pants down. A then told me to kneel down beside the bed and start rubbing his penis. I was still crying after rubbing it for a short time his penis became hard. A then picked up my hand and put it on his penis how he wanted it. He then told me to put my hand around his penis and pull it up and down. I recall that he had a tea towel next to him on the bed…..I kept pulling his penis until I saw white stuff coming out of the top of his penis”.8 Count 3 - Indecent treatment of a girl under 16…..between 01.07.1987 and 31.12.1987 at Trulson Drive, Crestmead. The applicant states “After Easter 1987 we all moved to 73 Trulson Drive, Crestmead. I was still 13 years old when we moved in. Because after I had turned 14 years old that I specifically recall another incident happening to me. This happened towards the end of 1987. A got up from the lounge and went to the bathroom. He came back with his bathroom towel and sat back on the couch. A then told me to come over and sit next to him. I sat on the couch next to him he took hold of my hand and made my hand stroke his penis through his pants. I recall that his penis came hard from me stroking it through his pants…..He then made me pull his penis up and down for a little while. After a little while he said ‘I want to try something different, bend over and put your mouth over my dick, start moving it up and down in your mouth, try and suck it at the same time but don’t use your teeth…..As this I was doing this he would push my head down on to his penis. This would put his penis to the back of my throat. This felt like it was going to choke me.” 9 8 Count 2 - pages 4, 5 and 6 of statement 9 Count 3 – pages 6 and 7 of statement -- 8 of 23 -- 9 Count 4 - Rape…..between 01.01.1988 and 31.12.1988 at Trulson Drive, Crestmead. The applicant states “In 1988 I recall that my mother was working in a stall at Expo 88…..I recall that during Expo 1988 there were a number of times that A actually had full sexual intercourse with me while Mum was at work. I can recall once specific incident during Expo 88 in detail where A had sexual intercourse with me10 . The applicant was residing at the Trulson Drive, Crestmead address and describes the circumstances of count 4 in the following terms: “The respondent said ‘Take your pants off and lay down on the towel’. I pulled my tracksuit pants and underpants down to my ankles and lay down on the towel…..He bent down and took one leg of my pants off and spread my legs apart. He then lay down beside me…..I then felt him rub his hand up the inside of my leg. I then felt his finger go inside my vagina. This made me jump a bit as it hurt when he did this. He then pushed his finger in and out until my vagina was moist. He then took his stubbies and underpants off…..He lay on top of me and pushed my legs a bit further apart. He moved his pelvic area up a bit so he could get his penis inside my vagina. He used his hand to place his penis on my vagina and then started to push his penis in to my vagina. I started to cry and felt extreme pain in my vagina. It felt like something was being forced in my vagina like something that should not be there…..After he got his penis inside my vagina he started to slowly move it in and out….I could feel that his penis was hard. After a little while he pulled his penis out and stood up”.11 Count 5 - Rape…..between 01.01.1989 and 01.02.1989 at Trulson Drive, Crestmead. The applicant states “The next specific incident I recall happened in my bedroom of this house. It happened just after the new year of 1989. I can recall that it happened before his birthday 1989. His birthday is on 25 January. It was when he was back at work during this period. I recall that I was 15 years of age at the time. It was at night time and I was in my bedroom. I was in bed asleep at the time. I recall being woken up by A. He then got in to bed beside me…..I recall that when he got in to my bed he only had his underpants and a singlet on. I saw that he put in a small packet on my bedroom dresser…..I now know that this small packet was a condom.” The applicant then went on to describe the respondent having sexual intercourse with her and then leaving the room.12 The applicant then says in her 10 Expo 1988 was held in Brisbane between 30 April 1988 and 30 October 1988 11 Count 4 – pages 7, 8 and 9 of statement 12 Count 5 – pages 9 and 10 of statement -- 9 of 23 -- 10 statement 13 “Between the two incidents I have described above, there were numerous times when I have had to suck A’s penis with my mouth. I can recall that every time that I did this it was always to bring A to the point where he would ejaculate. There were a couple of times when I wasn’t able to get my head away in time and he would start ejaculating in my mouth. Count 6 - Rape…..between 01.01.1989 and 31.12.1989 at Trulson Drive, Crestmead. The applicant states “The next incident I can specifically recall happened on a Saturday towards the end of 1989…..I can recall that I had already turned 16 years of age so it was after August 1989 but before school had finished for the year…..this time I was left at home with only A…..I recall that he came inside through the laundry door and came up to me and took me by the hand. He then led me in to the spare room of the house…..When we were in the room he told me to lie on the bed. I started to cry and he asked me why I was crying, I said ‘I wish I was dead and this would all go away’. At this time I lay on the bed. A said ‘Is that really what you wish because I can arrange it if you like?’ I said ‘I just wish I was dead’. A then grabbed me around the throat with both his hands and said ‘This is what it is like to be dead’. He then started to strangle me so that it was getting difficult to breathe. It felt like he was going to kill me as it didn’t feel like he was going to stop. I started to struggle and he took his hands off my neck and said ‘You obviously don’t want to be dead then, do you?’”. The applicant then went on to describe what the respondent did to her in circumstances similar to those described in respect of count 5 above including using a condom; putting Vaseline on the top of his penis and pushing his penis “in and out” of the applicant’s vagina and then walking out of the bedroom. Again the applicant states that “between these two incidents14 I recall he would come in to my bedroom on a regular basis and have full sexual intercourse with me in my bed. This would happen about three times a month and went on until I went to university in Rockhampton in 1992. I can recall that just before my half sister J was born on 16 January 1990 A went and had a vasectomy…..After this he never used a condom when he had sex with me. 13 Page 11 of statement 14 That is between counts 5 and 6 -- 10 of 23 -- 11 Count 7 - Rape…..between 01.01.1990 and 31.12.1990 at Trulson Drive, Crestmead. The applicant states “Another incident I can specifically recall happened on the way home from dancing in 1990. I recall that I was in grade 12. I recall that it was the first semester of grade 12 as we were rehearsing a song called America out of Westside Story. This would have made me 16 years old. I do not recall the exact time but it was some time between the start of school in February and before the June holidays.” The applicant states that in respect of this incident the respondent had sexual intercourse with her in the back of his “white Mitsubishi courier van” after he had “dropped off” a few of the applicant’s classmates and was on his way home. The injury: [19] As stated in paragraph [4] above, the basis of this application for compensation is the assessments of the applicant by Dr Rob Shieff and Dr Mark Davis specialist psychiatrists contained in their reports exhibited to their respective affidavits.15 Dr Shieff consulted with the applicant “on 30 April 2004 (and) 7 May 2004” that is approximately 12 years after the respondent’s sexual abuse of the applicant ceased and approximately 14 years after the final count which the applicant was able to particularise of which the respondent was convicted. Dr Shieff’s report includes the following information: • “(The applicant) presented herself as a cooperative, consistent and compliant historian. Her information was considered to be accurate and reliable”. • “On the basis of the information made available to me there is no doubt that (the applicant) has suffered and continues to suffer from the presence of specific psychiatric disorders. In particular, (the applicant) meets the required criteria delineated within the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (fourth edition text revision) for the discreet and separate diagnoses of post traumatic stress disorder of chronic duration together with major depression”. 15 Report of Dr Rob Sheiff dated 7 May 2004 exhibited to his affidavit filed 14 May 2010. Report of Dr Mark Davis dated 17 July 2008 exhibited to his affidavit filed 14 May 2010. -- 11 of 23 -- 12 Dr Shieff then elaborates in his comprehensive report the numerous symptoms which the applicant suffered confirming his diagnoses of “post traumatic stress disorder of chronic duration together with major depression” exhibited by: • “(The applicant) described a sustained and lengthy exposure to multiple repeated episodes of sexual assault and abuse from the age of approximately 12 through to her late teenage years”. • “(The applicant) experienced frequent nightmare recollections of her abuse with daytime intrusive memories impacting on her conscious awareness”. • (The applicant) finds memories of her childhood experiences of abuse highly traumatic and utilises a significant degree of cognitive avoidance in order to minimise the emotional impact of these recollections”. • “(The applicant) describes a sustained and enduring disorder of mood cutting across her life from her mid teenage years. This presents itself in the form of pervasive teary unhappiness. This is strongly maintained by chronic negative belief structures bringing with them low self esteem seeing herself as a failure, unacceptable and not good enough. (She) has a strong sense of self loathing and frequently criticizes, berates and punishes herself”. • “It is my opinion that (the applicant) experienced a multitude of episodes of sexual assault and abuse carried out against her over a period of many years. From (the applicant’s) account this plethora of experiences amalgamated into a relatively unitary hole. (She) was not able to single out with any clear specificity discrete memories of the seven events delineated nor was she able to point specifically to unique consequences to each of those seven occurrences. (Her) psycho pathology is of a general nature with complex and condensed recollections of events spanning many years and many occurrences. This is crystallized for (the applicant) into a global negative sense of herself, other people and her future and has led to the perception of general patterns of startle responding and situational avoidances. Although (she) was very clear that there were sustained adverse consequences arising from these episodes of abuse that they were in essence non specific”. • “I have no doubt that (the applicant) is currently significantly impaired of both chronic post traumatic stress disorder and chronic major depression. (She) maintains a significant state of distress and a markedly impaired quality of life. I have no doubt that given the chronicity of these problems to date and the magnitude and severity of their impact that both of these conditions are most unlikely to resolve spontaneously from this time.”16 16 See pages 2-6 of Dr Shieff’s report. -- 12 of 23 -- 13 [20] Dr Davis’ report of 17 July 2008 confirms that he interviewed the complainant on “8/7/08 for 2 ½ hours” that is approximately 16 years post offending and 18 years post the final count of sexual abuse of which the respondent was convicted. [21] Dr Davis was asked to provide a report which is an “update of our client’s current condition and your opinion as to whether her symptoms have changed (for better or worse) since she was examined by Dr Shieff in 2004. Could you please comment on counselling which our client is currently receiving and which it is of benefit to her.” [22] Dr Davis’ report is likewise comprehensive and includes the following information: • “(The applicant) reports that she has not been on any psychotropic medication since she stopped Citalopram five years ago. She acknowledges that medication was helpful at the time, particularly in coping with the stress of making application for the laying of charges. She considers that since she has been in more regular counselling she has been supported enough by that and does not have a current need for medication.” • “She reports that it is very difficult for her to constantly go over specifics of what happened to her. Finding detail is both difficult in terms of memory since many of the events are ‘glued together’ but also because it is emotionally distressing to have to remember and repeat what had happened to her… (She) attributes the stabilisation and in some areas improvement in her functioning entirely to the benefits of the counselling.” • “(The applicant) states that she is not as depressed as she used to be.” • “She loses herself in her work and she also covers up her distress. She works excessively and describes herself as a workaholic and attributes this pattern to her wish to not have -- 13 of 23 -- 14 to face her real feelings which are more apparent when she stops working. She states that she has never lost any work time because of depression or other mental symptoms.” • “Overall she would describe her mood generally as 4 to 5 out of 10 where 10 is fully happy and content and zero is as low as she could imagine.” • “Her sense of self has strengthened in the past 2 to 4 years and she can approach things differently. Whilst depressed she does not feel suicidal and would not kill herself. At times she feels that she cannot keep going particularly when she sees other peoples’ lives going forward. She becomes negative towards herself because she is not experiencing what others seem to be. With the counselling she is now more able to pull herself out of those negative spins.” [23] In his “Summary and Diagnostic Formulation” paragraph Dr Davis reports the following: • “I consider that (the applicant) presents a history indicating continuation of Major Depressive Disorder plus anxiety symptoms over the past four years. Her depression is constant and is manifest particularly in terms of negative self-evaluation, depressing thoughts and fluctuating interest and motivation. However, it is not interfering with her work performance in any overt way and she has not lost time from work because of clinical depression.” • “I consider that she is still manifesting symptoms of Post Traumatic Stress Disorder and still fulfils diagnostic criteria for that disorder.” • “My impression is that there have been clinical improvement in some of these symptom profiles, both in terms of depression and Post Traumatic Stress Disorder, and based on her description my impression is that the counselling has been effective in this regard. However, despite improvements in certain aspects of her clinical symptomatology, I consider that her overall functioning is still impaired in certain key areas of her life whereas in certain areas she is functioning more effectively, for example at work”. • “I think her description of her orderliness, her cleaning rituals and her need to have excessive regimented structure in her life is indicative of an -- 14 of 23 -- 15 obsessive compulsive process which I consider fulfils DSM-IV criteria for Obsessive Compulsive Disorder” which Dr Davis relates to the applicant’s “sexual abuse.” [24] Ultimately Dr Davis confirms the applicant’s “Clinical Disorders” and describes the applicant’s “Global Assessment of Functioning” in the following terms: “In my opinion it is difficult to accurately assess her Global assessment of functioning (as defined) in that in certain areas she is functioning well, while in other areas of her life she is functioning very poorly. At a personal and symptomatic level I would describe her level of symptoms as being mild to moderate and so would score her in the 61 to 70 range. However she has serious impairment in social and personal functioning and so I would score her at 50. However, in terms of her work performance she would score 81 to 90”.17 What is “mental or nervous shock”? [25] 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”. His Honour’s analysis is comprehensively set out in the judgment and I accept the conclusion he reached as to the meaning of “nervous shock” under the Act. 17 See pages 1-7 of Dr Davis’s report -- 15 of 23 -- 16 Applicant’s submissions: [26] The applicant through her legal advisers has made detailed and comprehensive submissions on all aspects of her claim which include the following: Courses of conduct: [27] On this topic the applicant refers to the two well established authorities of HW v LO [2000] QCA 377 and MAJ v KM [2000] QCA 410 which established the principles by which the question of what constitutes a course of conduct should be considered referred to in paragraph [16] hereof. [28] In HW v LO there were six offences (one of indecent dealing and five of rape) committed over a period of six to seven years. de Jersey CJ said in paragraph [9]: “The events involved in these offences were too far distinct and separated in time and place to warrant the conclusion that they arose out of the same course of conduct. They arose out of the same relationship affected by “guilty passion” on the part of the respondent. But that was not enough to establish a “course of conduct” sufficiently precise and limited for the purposes of the provision.” [29] Further at paragraph [63] McMurdo P said when discussing the question as to “whether offences arise out of one course of conduct or a closely related course of conduct ….” relative to that case “Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed sometimes years apart and over a six year period. Although the respondent perpetrated regular sexual abuse upon the applicant over a lengthy period it is the conviction for the six offences that upon application leads to an order for compensation.” Each offence in this case is completely distinct in time, place and detail and cannot fairly be said to arise out of the one course of conduct or closely related courses of conduct. -- 16 of 23 -- 17 [30] HW v LO was applied by the Court of Appeal in MAJ v KM which concerned six offences of indecent dealing over a period of a little under five months which were part of a wider pattern of conduct of this kind. Davies JA (with whose reasons Ambrose J and Chesterman J agreed) said at paragraph [14]: “The question is whether the offences to which I have referred arose out of one course of conduct or closely related courses of conduct of the respondent. Factors relevant to the determination of that question appear to be the similar but escalating nature of the respondent's conduct; and the facts that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months. Giving s 663B its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent. I agree with what Chesterman J has said about the applicant's supplementary submissions in this respect. Consequently, in my opinion, the learned primary judge was correct.” [31] Davies JA said at paragraph [15] that there were sound policy reasons for construing the phrases “one course of conduct” and “closely related courses of conduct” narrowly. [32] Ambrose J said at paragraph [20]: “It is clear that the legislation does not contemplate the offences of which a person is convicted as themselves exclusively constituting a course of conduct. The legislative intent is that where more than one offence of which a person is convicted arise out of the one course of conduct which may often comprise the aggregation of many such offences whether or not leading to conviction there will be one order only for compensation not exceeding the prescribed amount and not an order made in respect of each offence of which a person is convicted.” -- 17 of 23 -- 18 [33] Ambrose J continued at paragraph [22]: “There is nothing on the face of the legislation in my view which would prevent a significant number of offences committed over a long period of time – years perhaps - coming within a category of offences “arising out of the one course of conduct”. If for example the same kind of sexual abuse of a child occurred on a frequent and regular basis as the opportunity arose from time to time and circumstances permitted, the commission of particularised offences of such sexual abuse over a period of years leading to a psychiatric disorder in my view might well permit characterisation of those offences as offences arising out of the one course of conduct. I find nothing in the section which would justify reading down the clearly expressed limitation by selecting an arbitrary time frame within which a “course of conduct” must be held to commence and terminate in disregard of the persistence and regularity of the conduct and the absence of any significant intervals in its occurrence.” [34] In this application the applicant submits that the seven offences of which the respondent was convicted constitute five separate courses of conducted categorised as follows: • The first course of conduct – Counts 1 and 2 • Second course of conduct - Count 3 • Third course of conduct – Count 4 • Fourth course of conduct – Counts 5 and 6 • Fifth course of conduct – Count 7 [35] The basis of the above submission is: “That these seven offences can properly be categorised as not arising out of the one course of conduct or closely related courses of conduct but from five separate courses of conduct by virtue of the fact they were committed over a period of five years, occurred at various locations and consisted of differing acts of a sexual nature”. -- 18 of 23 -- 19 Further it is submitted: “There is a demonstrated escalation in the seriousness of the nature of the offences commencing with indecent dealing consisting initially of touching and then progressing to masturbation and oral sex and culminating in rape.”18 [36] Ultimately the applicant submits that she is entitled to an award of $100,000 that is the maximum amount of $20,000 for each course of conduct on the basis that if her damages were to be assessed “according to common law principles”,19 her assessment of damages would exceed the maximum “prescribed amount” provided under the Code at the relevant time, that is $20,000 per course of conduct. [37] In this regard it is submitted “if the applicant’s claim was assessed on a common law basis claims could be made under the following heads: • “1. Pain and suffering; • 2. Loss of amenities; • 3. Cost of counselling; • 4. Past and future economic loss.”20 18 See paragraphs 54 and 55 of applicant’s submissions 19 See McClintock v Jones (1995) 79 A Crim R 238 at 242 20 See paragraph 84 of applicant’s written submissions -- 19 of 23 -- 20 Findings: Courses of conduct: [38] On the basis of the evidence before the court and the submissions made I make the following findings in this application: (i) The applicant has suffered a “mental or nervous shock injury” within the meaning of that term under s 663A of the Code as inserted by the Criminal Code Amendment Act 1984 in that I find that the applicant suffers from a “post traumatic stress disorder” and/or “major depressive disorder” and/or obsessive compulsive disorder” all of which are recognisable psychiatric illnesses or disorders as set out in the medical reports of Drs Shieff and Davis respectively referred to herein; (ii) The applicant has suffered this injury as a result of four separate courses of conduct categorised as follows: (a) First course of conduct – Count 1; (b) Second course of conduct – Count 2; (c) Third course of conduct – Count 3 (d) Fourth course of conduct – Counts 4, 5, 6 and 7. (iii) My reasons for the above findings in respect of the seven offences of which the respondent was convicted as constituting four courses of conduct based upon the principles set out in the authorities to which reference is made at paragraphs [15] to [17] and 27 to [34] hereof and on the evidence before the court are as follows: (a) Count 1 was committed at Cresthaven Drive, Mansfield “around March 1985” when the applicant was 11 years of age and essentially -- 20 of 23 -- 21 consisted in the respondent having the applicant masturbate or attempt to masturbate him; (b) Count 2 was committed at a different location in Collard Street, Slacks Creek some 18 months approximately later when again the respondent had the applicant masturbate him to ejaculation; (c) Count 3 was committed at Coulsen Drive, Crestmead approximately 12 months after Count 2 and consisted in the respondent requiring the applicant to give him oral sex. I am therefore satisfied that each of the above offences constitute separate courses of conduct in that each offence was a distinct and separate act “clearly separated in time, place and circumstance.” (d) Counts 4 to 7 inclusive were committed between April 1988 and June 1990 and consisted of the respondent having full vaginal intercourse with the applicant at Coulsen Drive, Crestmead (Counts 4, 5 and 6) or in the respondent’s motor vehicle (Count 7) on the way back to Coulsen Drive, Crestmead. I am satisfied that counts 4 to 7 inclusive constitute one course of conduct as the offences were the same criminal offence (rape); they were committed at the same place or near to it and the circumstances in respect of each offence were very similar but in particular the applicant has stated that from the time of count 4 onwards (mid 1988) until she “went to University in Rockhampton in 1992” the respondent continuously sexually abused her at Coulsen Drive, Crestmead by requiring the -- 21 of 23 -- 22 applicant to perform oral sex upon him and/or have sexual intercourse with the applicant and to use her words “I recall that he would come in to my bedroom on a regular basis and have full sexual intercourse with me in my bed. This would happen about three times a month and went on until I went to university in Rockhampton in 1992”.21 Assessment of compensation: [39] I have set out in paragraphs [19] to [24] above the effects suffered by the applicant and the diagnoses made by Drs Shieff and Clark respectively as a result of the respondent’s sexual abuse of the applicant and the court must therefore assess the applicant’s compensation in respect of each course of conduct as set out in s 663AA of the Code and the principles set out in McClintock v Jones. [40] There is a degree of artificiality in attempting to assess damages at this point in time on common law principles for separate courses of conduct which occurred in the first instance more than 25 years ago when the applicant was then only 11 years of age. It must be accepted however that the respondent’s offending in a collective sense has had a profound and debilitating effect on the applicant and while it is impossible to assess with any degree of precision what might be reasonable damages for each course of conduct, I am satisfied that the escalating nature of the respondent’s offending would have had a corresponding increase in the injury suffered by the applicant and I therefore assess the applicant’s compensation in the aggregate sum of $70,000.00 calculated on the basis of an award of $10,000.00 in respect of the first course of conduct and $20,000.00 for each of the remaining three courses of conduct. I am satisfied that the applicant’s assessment of damages at common law in respect of the latter three courses of conduct would have exceeded the maximum prescribed amount in each instance and therefore she is entitled to an 21 See paragraph [22] of MAJ v KM per Ambrose J referred to above. -- 22 of 23 -- 23 award of compensation for the relevant maximum prescribed amount for each such course of conduct. In respect of the first course of conduct, while I am satisfied it would have been a traumatic experience for a young girl of 11 years of age I am not satisfied that an assessment of her damages on common law principles for this course of conduct alone in all the circumstances discussed, would be assessed at more than $10,000.00 and I therefore assess her damages accordingly for this course of conduct. Contributing factors: [41] I am satisfied the applicant did not contribute to her injury in any way nor are there other factors which may have contributed to such injury and that her condition is materially if not wholly attributed to the respondent’s offending. Orders: [42] I make the following orders herein: 1. The respondent pays the applicant the sum of $70,000.00 by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted and sentenced by this court on 14 July 2006. 2. The respondent pays the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale. -- 23 of 23 --