CER v Moore [2009] QDC 293

DISTRICT COURT OF QUEENSLAND CITATION: CER v Moore [2009] QDC 293 PARTIES: CER (Applicant) AND JOHN PATRICK MOORE (Respondent) FILE NO/S: Bowen D3 of 2009 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court, Bowen DELIVERED ON: 14 September 2009 DELIVERED AT: Brisbane HEARING DATE: 19 August 2009 JUDGE: McGill DCJ ORDER: Order that the respondent pay to the applicant $47,500 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was convicted on 5 April 2007, and costs to be assessed. CATCHWORDS: CRIMINAL LAW – Compensation – Criminal Code Ch 65A – application of limitations – course of conduct HW v LO [2001] 2 Qd R 415 – applied. MAJ v KM [2000] QCA 410 – applied. SAY v AZ [2007] 2 Qd R 363 – cited. SAM v SAM [2001] QCA 12 – applied. COUNSEL: F.D. Richards for the applicant No appearance for the respondent SOLICITORS: Hinschen Lawyers for the applicant The respondent was not represented [1] This is an application for compensation under Chapter 65A of the Criminal Code. On 5 April 2007 the respondent pleaded guilty to a large number of sexual offences, including 13 committed against the applicant. The last of these was alleged to have been committed on or about 25 May 1992, before the date of commencement of the -- 1 of 10 -- 2 Criminal Offence Victims Act 1995, so that Act does not apply for the purpose of this application. 1 The dates charged on the indictment in respect of the 13 counts relevant to the applicant were as follows: Count 9 – 1 January 1984 to 28 April 1985 Count 14 – 1 January 1986 to 31 December 1986 Each of Counts 42-51 – 30 November 1988 to 25 December 1988 Count 66 – on or about 25 May 1992. Details of offences [2] The respondent was sentenced in respect of 68 counts involving nine complainants. Understandably, there was nothing specific in the sentencing remarks about the offending involving the applicant. 2 There is, however, more information about the offending in an affidavit by the applicant filed 23 April 2009. The applicant had contact with the respondent and his wife a few times a year, and from the age of about five during those visits the respondent would always cuddle her. She said that she could feel his hands wandering but this did not particularly worry her when she was younger. When she was about 11 years of age and started to develop breasts she became very self-conscious of such hugging and being touched on the chest. [3] In paragraph 6 she described the incident which was Count 9, when she was 11 years old. She was watching television at night and everyone else had gone to bed. The respondent came and sat next to her, started talking to her, put his hand on her leg, rubbed the inner side of her leg and then put his hand near her genitalia outside her clothing. She got up and went to bed. She was very shocked and upset by what the respondent had done, and became very anxious and confused about what had happened. She said that thereafter every time there was contact with the respondent he would walk up and hug her from behind and the same thing would happen. He would also rub his hands over her breasts. These incidents were not the subject of charges. She said that although these made her feel uncomfortable, she did not really know at that age that it was wrong for him to be doing this, and she had seen him behave in a similar way to her older sisters. [4] The next specific incident was when she and her family visited the respondent when she was 12 years of age: this was the subject of Count 14. When they arrived the respondent walked over and hugged her and put his hands on her breasts outside her clothing. She moved away after a quick hug. She felt very awkward and ashamed, and very angry towards both herself and the respondent. [5] She next described the incidents which occurred in December 1988, at a time when she was fifteen and a half years of age, having just finished Year 10. She was staying with the respondent and his wife; there were two other girls staying there as well. On one occasion when the respondent was swimming with the applicant and another girl, he was mucking around with them in the water in the course of which 1 Criminal Offence Victims Act 1995 s 46(1). 2 The affidavit material does not include details of the particulars of the charges involving the applicant. -- 2 of 10 -- 3 he was touching the applicant on her breasts.3 She felt anxious about what he was doing during that stay, as the respondent became very friendly, “more hands on with me and it stopped just being cuddles and he started to rub his hands over my legs and would often rub his hands down onto my vagina over the top of my clothing.”4 The respondent would “touch me every chance he got.” [6] One morning while she was staying at the respondent’s house she woke to find him sitting on the bed beside her, with his hand under the sheet and beneath her underwear, with his fingers inside her vagina. 5 This continued even after she was obviously awake. She became very frightened, and eventually jumped and ran out of the room. The following day when the applicant and the other two girls were making the beds they had a pillow fight in the respondent’s bedroom. The respondent came in and horsed around with them and they all ended up lying on the bed, with the respondent next to the applicant. He started to hug her, rubbing his hands over her, and touching her breasts and her vagina, over her clothing.6 He then put his fingers under her clothing and inside her vagina7 and, after the other girls had left the room, began rubbing his erect penis on the outside of her underwear between her legs. 8 She got up and left the room, and was scared, nervous and exceptionally embarrassed. She felt dirty and had a shower which did not help. [7] The following evening the respondent’s wife went out and one of the girls had gone home. The applicant and the other girl went to bed but the applicant could not sleep and later she went into the lounge room where the respondent was. He took her into his bedroom, kissed her, sucked her breasts, 9 undressed her and penetrated her digitally,10 put her hand on his penis,11 and then had intercourse with her.12 This was physically painful as she had not done this before. She felt helpless, fragile, anxious and terrified, she felt dirty but was too frightened to have a shower at that stage, so she went to bed. Next day, after speaking to the other girl who was staying there, they both complained to the respondent’s wife who rejected the allegations. [8] Later that day his wife took the other girl home, and then went out in the evening so the applicant was left alone with the respondent. The respondent again had intercourse with her. 13 Again it was painful, and she was frightened and horrified by what was happening, and by the thought of catching a disease or getting pregnant. She showered afterwards and then locked herself in another room until the respondent’s wife returned. [9] Count 66 related to an incident some years later, in May 1992 when the applicant was 19 and in a relationship with a man whose child she was expecting. She went to a party where the respondent was also present. At one stage the applicant and the respondent were alone in the kitchen of the house, some distance from where the party was being held. The respondent hugged the applicant and felt her breasts on 3 Said in submissions to have been Count 42. 4 Affidavit of applicant para 16. 5 Said in submissions to have been Count 43. 6 Said in submissions to have been Count 44. 7 Said in submissions to have been Count 45. 8 Said in submissions to have been Count 46. 9 Said in submissions to have been Count 47. 10 Said in submissions to have been Count 48. 11 Said in submissions to have been Count 49. 12 Said in submissions to have been Count 50. 13 Said in submissions to have been Count 51. -- 3 of 10 -- 4 the outside of her clothing. The applicant repulsed him, pushed him away, went back to the party and remained with her partner for the rest of the event. I accept the account of what passed between the parties given by the applicant. Medical evidence [10] The applicant was seen by a psychiatrist, Dr McGuire, on 10 September 2008 for the purposes of a report. 14 Dr McGuire diagnosed post-traumatic stress disorder which she said was suffered to a moderate degree with indications of improvement. She noted the applicant had had counselling at different places, which had helped her to relax. Dr McGuire noted a range of symptoms, flashbacks of the respondent particularly in connection with sexual intercourse, an associated avoidance of sex, lack of trust in men, nightmares and other sleep difficulties, security fears, hypervigilance, and exaggerated startle reflex. She had in the past been treated by a general practitioner for depression and anxiety. [11] Dr McGuire noted that the applicant’s daughter when eight years of age had been sexually molested by the applicant’s second husband, which was reported to the police and ultimately he was said to have been convicted on a plea of guilty. This was said to have stirred up a lot of her own problems, as I would expect. Dr McGuire noted that in the applicant’s victim impact statement she referred to herself as having been overprotective of her children and commented that the abuse of her daughter has had a profoundly disturbing affect upon her. Indeed, the report recorded the applicant’s having said that the abuse of the daughter had “affected her more badly than her own”. At the end of the report Dr McGuire under a heading “Courses of conduct” commented that the applicant “stated that the two offences involving intercourse were the worst. She worried about disease. The next offence in severity was the digital penetration.” Apart from that, the analysis in the report of Dr McGuire essentially looked at the effect on the applicant of everything the respondent did to her. The law [12] Section 663B(1) of the Criminal Code provides a power for the court to order compensation to be paid in “a sum not exceeding the prescribed amount”. Section 663A defines the prescribed amount as, where the injury in connection with which the application was made was suffered before the commencement of the Criminal Code Amendment Act 1984, $5,000. In the case of mental and nervous shock, s 663AA provides that the prescribed amount is $20,000, that is for injuries suffered after the commencement of the 1984 Amendment Act. 15 The 1984 Amendment Act commenced on 1 July 1984. The period given in the indictment for Count 9, 1 January 1984 to 28 April 1985, straddles this date. In paragraph 6 of her affidavit, the applicant stated that the incident occurred in 1984 when she was 11 years old. She turned 11 that year on 28 April. There is no other information as to when the incident occurred. In the circumstances, I find on the balance of probabilities that it occurred after the commencement of the 1984 Amendment Act, so that the scheme as amended by that Act applies to all counts. 14 Affidavit of McGuire filed 23 April 2009, Exhibit A. 15 HW v LO [2001] 2 Qd R 415, the analysis in the reasons for judgment of the Chief Justice. -- 4 of 10 -- 5 [13] Section 663B(1) provides that the power to make an order for compensation arises “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 effect of this is that the prescribed amount applies in relation to each indictable offence except where two or more indictable offences arise out of one course of conduct or closely related courses of conduct, in which case the prescribed amount applies in relation to injury suffered as a consequence of that course or those courses of conduct. Subject to that, damages are to be assessed on common law principles, subject to the operation of the maximum prescribed under the statute. 16 [14] It is also relevant to note s 663B(1A) which provides: “For the purpose of determining whether 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 omissions, one in relation to another.” [15] The application of this part of s 663B was considered in HW v LO [2001] 2 Qd R 415. In that case, the respondent had been convicted of six indictable offences over a period of six to seven years. The Chief Justice said at p 416: “The offences were committed on distinct occasions, separated substantially in time and place, with the nature of the acts constituting the offences exhibiting some variety. … In determining whether courses of conduct are ‘closely related’, those Code provisions invite analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them. … [Subsections (1) and (1A)] assume, without expressly saying so, the existence of a relationship in time and subject matter between or among the events going to make up a course of conduct, and even though the provision focuses directly on courses of conduct inter se.” [16] His Honour referred to the history of this provision, and continued at p 417: “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 of 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 and regularity. 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 level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist 16 R v Jones, ex parte McClintock [1996] 1 Qd R 524. -- 5 of 10 -- 6 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. … 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.” [17] Muir J (as his Honour then was) agreed with the reasons of the Chief Justice. The President, in a separate concurring judgment, said at p 423: “This will be largely a question of fact in each case and some attention must be given to the disturbing facts of this case.” [18] Her Honour did so and continued at p 425: “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.” [19] Shortly thereafter, 17 a differently constituted Court of Appeal considered another case involving the issue as to whether a number of offences constituted a course of conduct: MAJ v KM [2000] QCA 410. In that matter the respondent had been convicted of six acts of indecent dealing which were said to have occurred some time between October 1977 and a couple of months after Christmas 1977 when the applicant was approximately seven years of age. The offences occurred on occasions when the applicant and her siblings were staying at the home of the respondent’s parents who were minding them while the applicant’s parents were working. Davies JA said at [4]: “As is often the case in matters of this kind the acts of indecent dealing involved gradually worsening conduct although they did not involve penetration of the applicant and did not involve actual violence other than that which was involved in the offences.” [20] His Honour reviewed the facts of the different counts, the last two of which involved simulated intercourse. His Honour considered some other matters and then at [14] continued: 17 The appeal in MAJ v KM was argued prior to the decision in HW v LO being delivered, with the judgment delivered subsequently, although their Honours had regard to the decision in HW v LO. -- 6 of 10 -- 7 “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.” [21] Each of the other members of the court expressed agreement with those reasons, and went on to make some additional comment about the “course of conduct” issue. Ambrose J said that in principle there was nothing on the face of the legislation to prevent a course of conduct extending over a long period of time, even years, if the same kind of sexual abuse of a child occurred on a frequent and regular basis as the opportunity arose from time to time when circumstances permitted: [22]. He rejected the notion that there was any arbitrary timeframe in the absence of any significant interval in the occurrence of the relevant conduct. He added at [24]: “If there were long intervals of time during which no acts of abuse occurred with regularity – for whatever reason, be it lack of opportunity or voluntary restraint on the part of the offender – then obviously one would need to consider whether psychiatric injury resulted from only one course of conduct or closely related courses of conduct and this of course would involve considering, inter alia, the length of any intervals between acts of abuse.” [22] The third member of the court, Chesterman J (as his Honour then was) at [38] referred to the reasons of the Chief Justice in HW v LO (supra) and continued: “There should ordinarily be elements of continuity and regularity if there is to be found a ‘course of conduct’.” [23] His Honour at [39] took into account the similarity of the acts of indecency, that they occurred whenever the applicant and her sister were left at the respondent’s parents’ house to be cared for, that the applicant alleged the six offences were committed in the course of a period when she was indecently dealt with much more frequently, and that “there was a clearly discernible pattern of conduct persisting for a period of about five months.” [24] His Honour said at [40] that the question of whether the offences arose out of the one course of conduct “is not to be answered by reference to the minutiae of the conduct which constituted the offences.” He said that in that case there was “a marked similarity in the acts of indecency on the occasion of each offence.” Clearly his Honour did not regard as a meaningful distinction that one offence involved the respondent placing the applicant’s hand on his penis, three involved the respondent touching the applicant in the area of her vagina under her clothing, in one case while masturbating himself, and two involved simulated intercourse to ejaculation without penetration. It seems clear from this decision that the occurrence of what used to be conveniently referred to as “uncharged acts” is properly taken into account when determining whether there has been a course of conduct. -- 7 of 10 -- 8 Analysis [25] In the present case it is not difficult to treat the first, second and last counts as not being part of any course of conduct. The actual offending behaviour in the first and second counts was different, and the first took place at the applicant’s residence while the second took place at the respondent’s residence. The separation in time was significant. There were other incidents of uncharged acts referred to in the affidavit similar to the second count, but on the whole I think they are distinct from the first count. The last count was also separated by a period of years during which there were neither offences nor uncharged acts, and occurred in different circumstances. [26] On the other hand, I find the other counts properly amount to one course of conduct. These counts occurred at a time when the applicant was staying with the respondent and his wife and two other girls, while on holidays. On the first day while the applicant and the respondent were swimming together at the beach the respondent was feeling the applicant’s breasts outside her swimming togs. There was then touching every chance he got, which had stopped being just cuddles; he was rubbing his hands over her legs and down onto her vagina on top of her clothing. After about a week she woke to find him sitting on her bed with his fingers inside her vagina. The following day, after a pillow fight involving all four of them, the respondent lay down on the bed next to the applicant and was touching her, and put his hand between her legs from behind, extending to digital penetration, followed by simulation intercourse from behind. The following evening there was further offending which extended to digital penetration and intercourse, and the evening after that, at a time the applicant and respondent were alone in the house, there was the second instance of intercourse. [27] The offences all occurred during the one visit, and involved an acceleration of the abuse extending to digital penetration and intercourse as the culmination of the offending over the whole period of the visit. Because of the short period of time involved, a matter of less than two weeks on the applicant’s account, with most of the, and the more serious, offending occurring on successive days, because it all happened during the one visit, and because it involved a progressive worsening of the conduct, it is properly characterised as one course of conduct. [28] It was submitted on behalf of the applicant that the offences which were committed on the first occasion on which there was intercourse should be treated as a separate course of conduct from the offences which had preceded them during the same visit, with the second incident of intercourse also constituting a separate course of conduct. In each case, however, the conduct was very close in time; it would mean that there were three courses of conduct within this period of a few days, the second course occurred on the day after the last part of the first course, and the third course, consisting of only one offence, the day after the second course. That strikes me as an unduly narrow and restricted approach to adopt. It seems to me to be quite artificial, and in the circumstances I am not persuaded that such a characterisation should be adopted. [29] In the alternative it was submitted that the instances of intercourse should be regarded as separate courses of conduct, or at most as themselves one course of conduct which was separate from the other courses of conduct. But in circumstances where the other conduct extended to digital penetration and simulated -- 8 of 10 -- 9 intercourse, and where the first act of intercourse occurred immediately after other offending including digital penetration, and bearing in mind that the offending represents a discernible pattern of worsening conduct over a period of just a few days, I consider that such a distinction would be artificial. Perhaps in some circumstances a change in the content of the offending conduct would be sufficient to distinguish two courses of conduct, even if the end of one was in close proximity in time to the beginning of the other, though even then an issue might arise as to whether they were closely related courses of conduct. But in circumstances where there is a discernible pattern of acceleration and worsening of the offending, as here, it seems to me that it is artificial to distinguish between intercourse and digital penetration or simulated intercourse. 18 I therefore reject the distinction sought to be drawn on behalf of the applicant. Assessment [30] It is therefore necessary to assess compensation, and apply the limitation of the prescribed amount, four times. 19 [31] As to Count 9, there is not much information about this, but it would be unsurprising if an offence of that nature produced some adverse psychological consequences which would amount to a recognised disorder. The difficulty is in knowing what the consequences would have been had there been no subsequent offending. There is no reason to think, in the light of the medical evidence, that the applicant’s condition would have been as bad as it became anyway after 1988, and I think that quite unlikely. I am not persuaded that this offence alone can be characterised as a cause of the overall psychological condition ultimately suffered by the applicant. 20 On the whole I think it likely that there would have been some adverse psychological consequences, and doing the best I can I assess damages at $10,000. In these circumstances, the statutory limitation is irrelevant. [32] With regard to Count 14, the situation is similar. This would have aggravated the psychiatric consequences of the first offence, but had there been no further offending no doubt the consequences to the applicant would have been much less severe than they became after 1988. Again, there is little specific evidence to assist the assessment of these damages, but doing the best I can I assess a further $10,000. [33] As to Counts 42 to 51, which constitute one course of conduct, it is I think sufficient to say that in the light of the applicant’s evidence and Dr McGuire’s report an assessment of damages at common law would be substantially in excess of the prescribed amount, and in those circumstances it is appropriate to award compensation of $20,000. [34] Finally, for Count 66, this occurred in circumstances where the applicant was in a somewhat better position to stand up to the respondent, and it appears from her affidavit that to some extent at least she did so. I accept that this would have had an aggravating effect on her psychological condition as a result of the earlier offences, 18 In SAY v AZ [2007] 2 Qd R 363 Holmes JA at [26] spoke of a count of rape as the culmination of a course of conduct involving uncharged acts over a number of years, although not in the context of the Code provisions. 19 HW v LO (supra) at p 419 per de Jersey CJ. 20 Applying the test in SAM v SAM [2001] QCA 12. -- 9 of 10 -- 10 although it does not seem as though it had any great effect in itself. However, because of its significance as an aggravation, I assess damages of $7,500. [35] In relation to the assessment, I referred to a number of examples of other decisions relevant to the question of quantum in my reasons for judgment in BJE v Spoor [2007] QDC 345. I was also referred to the decision of Paten v Bale21 but this would really only be of relevance to the damages arising in relation to the counts which constitute one course of conduct. [36] A claim was advanced in relation to economic loss in the outline of argument on behalf of the applicant. On the basis of the applicant’s affidavit, the offending caused considerable disruption to her life, aggravated by the fact that when she had complained about this behaviour she was not believed. As a result, her education was disrupted; she left school halfway through Year 11. She has had various jobs at different times, but nothing very much in the way of a career. She has had four children and has been married twice, but has had great difficulty with relationships. Her economic circumstances currently are quite modest. The real difficulty is in knowing what would have been the situation had the offending not occurred, although it is not difficult to conclude that it would very probably have been better than her actual situation. Some allowance for economic loss would have been appropriate, but this essentially related to the consequences of the more serious offending, which is part of the one course of conduct. Since an award of general damages in respect of that course of conduct would have been in excess of $20,000 in any event, there is no scope for any specific allowance for economic loss. [37] Overall, therefore, I order the respondent to pay to the applicant $47,500 compensation in respect of the injuries suffered by her as a result of the offences for which the respondent was convicted in this court on 5 April 2007. I order the respondent to pay the applicant’s costs of and incidental to the application to be assessed. 21 (Supreme Court, 8921/98, 19 October 1989, Wilson J, unreported). -- 10 of 10 --