BJS v RSS [2010] QDC 378

DISTRICT COURT OF QUEENSLAND CITATION: BJS v RSS [2010] QDC 378 PARTIES: BJS (Applicant) V RSS (Respondent) FILE NO/S: BD15/10 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 24 September, 2010 DELIVERED AT: Beenleigh HEARING DATE: 18 August 2010 JUDGE: Dearden DCJ ORDER: The respondent RSS pay the applicant BJS the sum of $40,000 plus costs to be assessed on the standard basis. CATCHWORDS: APPLICATION – Criminal Compensation – Criminal Code – mental or nervous shock – prescribed amount LEGISLATION: Criminal Code 1899 (Qld) s 663A, s 663AA, s 663B. Victims of Crime Assistance Act 2009 (Qld) s 154, s155. CASES: R v Morrison; ex parte West [1998] 2 Qd R 79. HW v LO [2001] 2 Qd R 415. R v Jones; ex parte McClintock [1996] 1 Qd R 524. COUNSEL: Ms Y. Chekirova for the applicant No appearance for the respondent SOLICITORS: Campbell & White Lawyers for the applicant No appearance for the respondent -- 1 of 6 -- 2 Introduction [1] The respondent, RSS, pleaded guilty in the Beenleigh District Court on 31 January 2008 to 21 counts, including (relevant to the applicant in these proceedings) seven counts of indecent treatment of a child under 16 years, under 12 years and under care; one count of unlawful carnal knowledge of a child under 16 years, under 12 years and under care; and one count of maintaining a sexual relationship with a child. The respondent was sentenced to imprisonment for nine years in respect of the count of maintaining a sexual relationship with a child; three years concurrent in respect of the unlawful carnal knowledge of a child under 16 years, under 12 years and under care; and concurrent sentences of two years six months for all remaining counts. The sentencing judge, Howell DCJ, ordered that parole be fixed at 31 October 2010. Facts [2] The respondent was the uncle of the applicant and his brother, KMT. The sexual offending by the respondent against the applicant commenced in 1990 with the watching of pornographic videos and masturbating, which progressed to anal intercourse and the applicant sucking the respondent’s penis.1 The applicant was aged seven when the offences commenced. The applicant’s mother worked as a barmaid during the relevant period and the applicant’s father was away on business a lot, and the respondent would baby sit the applicant and his brother. The offences stopped when the applicant moved house on 30 April 1994 with his family.2 Injuries 1 Sentence Exhibit 2 p. 7. -- 2 of 6 -- 3 [3] The applicant suffered mental or nervous shock as a result of the sexual offences committed against him. The law [4] This is an application for compensation pursuant to s. 663B of the Criminal Code 1899, relevantly preserved (in respect of offences occurring prior to 18 December 1995) pursuant to the transitional provisions of the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. This application is compliant with the transitional provisions of VOCAA ss. 154 and 155. [5] The applicable provisions of the Criminal Code define “injury” to include “mental or nervous shock”, which includes any resultant psychiatric and psychological illness or injury flowing from the offence.3 The maximum “prescribed amount” payable for “mental or nervous shock” injuries arising from offences committed between 1 July 1984 and 18 December 1995 is $20,000.4 [6] Criminal Code s. 663B(1) provides: “(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than one indictable offence relating to the person of any person (whether in respect of one indictment or more than one 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 him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation injury suffered by him by reason of the offence or offences by which the offender is convicted. 2 Exhibit B (submissions on sentence) pp. 1-16 - 1-17 Affidavit of Abigail Webb sworn 8 January 2010. 3 Criminal Code s. 663A and see R v Morrison; ex parte West [1998] 2 Qd R 79. 4 Criminal Code s. 663AA. -- 3 of 6 -- 4 For the purposes of determining whether such courses of conduct are closely related, regard shall be had, in addition to any other relevant 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 omission, one in relation to another.” [7] In HW v LO,5 de Jersey CJ noted that: “In determining whether courses of conduct are “closely related”, [Criminal Code s. 663B] invite[s] analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them.”6 [8] de Jersey CJ held that: “assaying a definition of ‘course of conduct’ for [the] purposes of s. 663B, the words connote in this context a succession or serious of acts (or omissions) which, because of a sufficiently close interrelation, whether by nature, time, place, or otherwise, display, in aggregation and identifiable overall pattern.”7 de Jersey CJ went on to observe, however, that “it goes without saying that one cannot be prescriptive of the requisite extent of the relationship. One obviously cannot, for example, specify a maximum duration for any separate course of conduct. Given a high degree 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.”8 [9] R v Jones; ex parte McClintock9 held that the assessment of damages under the (now repealed) provisions of Criminal Code s. 663B proceeds on common law principles of assessment of damages for personal injury, provided that the amount does not exceed the prescribed amount and that costs can be awarded. 5 [2001] 2 Qd R 415. 6 [2001] 2 Qd R 415, 416 para 5. 7 [2001] 2 Qd R 415, 417 para 7. 8 [2001] 2 Qd R 415, 417 para 8. 9 [1996] 1 Qd R 524. -- 4 of 6 -- 5 Compensation [10] The applicant was examined by Luke Hatzipetrou, psychologist, who provided an amended report dated 12 August 2009.10 Mr Hatzipetrou formed the opinion that the applicant had “experienced pervasive and severe symptoms of a long-standing mental health disorder … consistent with post-traumatic stress disorder, chronic type and depression.” Mr Hatzipetrou noted that the applicant’s “clinical problems appeared to be masked by [his] poor anger and impulse control which manifested under the collective conditions of a substance dependency disorder and lack of personal stability.”11 Mr Hatzipetrou noted further that the mental health problems of the applicant had been compounded by substance dependency and family reorganisation, that the applicant had come to rely on cannabis and/or alcohol, and had also experienced indirect effects from the sexual assaults, being “poor school performance and onset of maladaptive coping strategies”.12 Mr Hatzipetrou considered that the applicant should be referred to a clinical psychologist for treatment, including cognitive behavioural therapy, for 20-30 sessions at a recommended rate of $205 per hour, focusing on addressing trauma symptoms, developing effective coping strategies and anger management, addressing avoidant behaviours and potentially preventing any further psychological decline.13 [11] The relevant provisions of Criminal Code ss. 663A and s. 663B limit the applicant’s award to $20,000, unless the court is persuaded that there was more than “one course of conduct”. In that respect, Ms Chekirova, who appears for the applicant, argues that the act of anal intercourse by the respondent against the applicant (a 10 Exhibit LH3 affidavit of Luke Hatzipetrou sworn 20 May 2010. 11 Exhibit LH3 p. 9 affidavit of Luke Hatzipetrou sworn 20 May 2010. 12 Exhibit LH3 p. 10 affidavit of Luke Hatzipetrou sworn 20 May 2010. 13 Exhibit LH3 p. 11 affidavit of Luke Hatzipetrou sworn 20 May 2010. -- 5 of 6 -- 6 circumstance of aggravation of the “maintain sexual relationship” count) was identified by the applicant as causing him a “high degree of distress” after the initial incident of anal intercourse, causing persistent pain “in [his] bottom for two years,” and causing “dramatic and pronounced effects on [the applicant’s] behaviours which [the applicant] differentiated from the indecent acts [committed against him by the respondent].”14 [12] In my view, the sexual offences committed by the respondent against the applicant can easily be construed as constituting courses of conduct (namely the anal intercourse considered separately to the indecent treatment conduct), and having regard to the report of Mr Hatzipetrou, any award the applicant is entitled to receive, assessed on common law principles, would substantially exceed the applicable maximum for two courses of conduct, of $40,000. Accordingly, I award the applicant, BJT, the sum of $40,000 in criminal compensation, plus costs to be assessed on a standard basis. Contribution [13] I do not consider that the applicant has, in any way, directly or indirectly, contributed to the injuries which he suffered as a result of the offences committed against him by the respondent.15 Order [14] I order that the respondent, RSS, pay the applicant, BJT, the sum of $40,000 and costs to be assessed on the standard basis. 14 Exhibit LH3 pp. 8-9 affidavit of Luke Hatzipetrou sworn 20 May 2010. 15 Criminal Code s. 663B(2). -- 6 of 6 --