CV v H [2009] QDC 116

DISTRICT COURT OF QUEENSLAND CITATION: CV v H [2009] QDC 116 PARTIES: CV (applicant) v H (respondent) FILE NO/S: 3550 of 2008 DIVISION: Civil PROCEEDING: Originating application ORIGINATING COURT: Brisbane DELIVERED ON: 12 May 2009 DELIVERED AT: Brisbane HEARING DATE: 3 February 2009 with further submission received on 16 March 2009 JUDGE: Rackemann DCJ ORDER: The respondent pay the applicant compensation in the sum of $50,000 together with the applicant’s costs of and incidental to the proceeding CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – AMOUNT AND CONDUCT AFFECTING – where respondent pleaded guilty to six counts – whether counts constituted separate courses of conduct – whether each course of conduct contributed to mental or nervous shock – where charged period straddles the commencement of the Criminal Code Amendment Act 1984 (Qld) – whether “prescribed amount” is $5000 or $20,000 – whether injury suffered after statutory change Criminal Code, s 663A, s 663AA, s 663B Criminal Code Amendment Act 1984 (Qld) Criminal Offence Victims Act 1995 (Qld), s 46 Cases considered: Hendry v Lorente [2000] QCA 377 ISJB v WJG [2005] QDC 430 M v C (unreported) Shanahan DCJ, 29 November 2007 MAJ v KM [2000] QCA 410 -- 1 of 7 -- 2 MMR v GMB [2009] QDC 30 Marsten v Kello [2000] QCA 410 P v B [2004] QDC 149 R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314 R v Holder; ex parte Jenner [1988] 1 Qd R 580 R v Jones; ex parte McClintock [1996] 1 Qd R 524 SAM v SAM [2001] QCA 12 V v H (unreported) Rackemann DCJ, 16 October 2008. COUNSEL: Janette Fadden, solicitor for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] On 31 March 2005 the respondent (who is the applicant’s older cousin) was convicted, on his own pleas of guilty, of 14 offences. The applicant is the complainant in relation to Counts 1 to 6 inclusive, which were constituted by five counts of unlawful indecent dealing and one count of carnal knowledge against the order of nature. The applicant now seeks compensation. [2] Compensation is claimed under the now repealed provisions of section 663B(1) of the Criminal Code which remain of relevance by reason of section 46 of the Criminal Offence Victims Act 1995 (Qld). Section 663B provided compensation in respect of offences “relating to the person of any person”. Each of the relevant offences related to the person of the applicant. [3] Section 663B provided for compensation for “injury” suffered by the applicant by reason of the offence or offences for which the offender is convicted. In this case, compensation is sought for mental or nervous shock, which is an injury for the purposes of the section. [4] Section 663B did not permit compensation which exceeds the “prescribed amount”. That expression was defined in section 663A to mean: “(a) where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 – $5,000; (b) in all other cases save those that are the subject of a particular reference to section 663AA – the amount for the time being specified in section 14(1)(c)(a) of the Workers’ Compensation Act 1916 as varied from time to time pursuant to section 14E of that Act.” [5] Section 663AA(1) prescribed the amount of $20,000 in the case of mental or nervous shock. The aggregate amount claimed for mental or nervous shock in this case exceeds $20,000, but the claim is made in relation to more than one offence. [6] As already observed, section 663B provided for compensation for injuries suffered by reason of “the offence or offences of which the offender is convicted”. The offence or offences referred to were those “arising out of the one course of conduct -- 2 of 7 -- 3 or closely related courses of conduct of that person so convicted”. Accordingly, it is relevant to identify the number of courses of conduct which the offences comprise. That is so whether or not the injury in connection with which an application is made was suffered before or after the commencement of the Criminal Code Amendment Act 1984 (Qld)1. [7] The relevant offences case may be summarised as follows: Count 1 Indecently dealing with the complainant at the respondent’s parents’ house at Churchill on a date unknown between 7 March 1983 and 5 April 1985. The respondent approached the applicant in a chook shed. They were both clothed. He pushed his waist against the front of the applicant and moved his waist up and down, rubbing his penis against the applicant’s stomach area. He did this until he ejaculated. The applicant remembers fluid being on his shirt. Count 2 Indecently dealing with the applicant at the same property on a date unknown between the same dates as for Count 1. Again the respondent ended up with the applicant in a shed. The respondent pulled his pants down, exposing his penis, and then held the applicant close to him. The respondent rubbed his penis against the applicant’s stomach until he ejaculated (although he did not ejaculate on the applicant). Count 3 Indecently dealing with the complainant on a date unknown in the same period as for Counts 1 and 2, but at Amberley. The respondent and applicant were having a “sleep out” in the back yard of the property. During the evening the respondent moved close to the applicant and again rubbed his penis on to the applicant’s stomach area as before. The applicant was unsure as to whether the respondent ejaculated. Count 4 Indecently dealing with the complainant on a date unknown in a later period, namely between 24 February 1989 and 3 July 1989 and at a different place, namely Withcott. The applicant accompanied the respondent to a property at Withcott to do some gardening. Once at the property, the respondent told the applicant that they would be staying overnight in a caravan on the grounds of the property. That evening the respondent got into his bed and manoeuvred the applicant on to his back. He climbed on top of him, and rubbed his 1 MAJ v KM [2000] QCA 410; P v B [2004] QDC 149; ISJB v WJG [2005] QDC 430; M v C (unreported) Shanahan DCJ 29 November 2007; and MMR v GMB [2009] QDC 30. -- 3 of 7 -- 4 penis against the lower part of the respondent’s stomach and above his own penis. Count 5 Indecently dealing with the complainant. This offence occurred shortly after Count 4. The respondent removed both his own and the applicant’s clothes. He applied some cream to the applicant’s stomach and penis. He then laid down, pressing his penis against the applicant’s stomach and penis. This was the first ever skin-on-skin contact. Count 6 Carnal knowledge of the complainant against the order of nature. This offence occurred a few minutes after Count 5. The respondent turned the applicant over, so he was laying face down. He then rubbed cream on the applicant’s backside up into the middle of the anus. He then started pushing his penis into the applicant’s backside. He penetrated the respondent’s anus and thrust backwards and forwards, before withdrawing and then ejaculating on the applicant’s back. [8] The identification of separate courses of conduct involves matters of fact and degree2. I accept the submission on behalf of the applicant that the offences constitute three courses of conduct. The first was comprised by Counts 1 and 2, which featured similar conduct at the same place within the same period. Count 3 constitutes a second course of conduct. Although the charged period was the rape and the conduct was similar, it occurred at a different location, after the respondents formerly had moved to Amberley. Counts 4, 5 and 6 occurred contemporaneously, at the same time and place as each other and properly comprised one course of conduct. That conduct is distinguishable from the other courses of conduct, which occurred at earlier times and in different places. Further, whilst Count 4 was similar to the earlier offences, this course of conduct also featured Count 5, which was the first skin-on-skin offence and Count 6, which was the only instance of penetration. [9] It is clear from the applicant’s statement to police and from the reports of Dr McGuire (a psychiatrist), that the offences of which the respondent was convicted were not the only instances of alleged abuse. I am however, satisfied, on the balance of probabilities that the offences of which the respondent was convicted each made a significant and material contribution to the mental or nervous shock which the applicant suffered. The applicant is entitled to have his compensation assessed in respect of the whole of that injury3. [10] Compensation for a particular injury is assessed, pursuant to section 663B, in accordance with the ordinary principles of assessment of damages for personal 2 See Hendry v Lorente [2000] QCA 377; Marsten v Kello [2000] QCA 410; and V v H (unreported) Rackemann DCJ 16 October 2008 at paras 8-10. 3 SAM v SAM [2001] QCA 12. -- 4 of 7 -- 5 injury in civil actions (economic loss is recoverable). The maximum amount prescribed should be awarded if it is less than the compensation assessed4. [11] The impact of the offences is described in the material deposed to by the applicant and also by Dr McGuire. I accept that evidence. It is unnecessary for me to repeat the detail of all of it. Dr McGuire first saw the applicant in 2005. At that time she diagnosed post-traumatic stress disorder to a severe degree. She again saw him on 12 August 2008. Her report of 15 August 2008 concludes: “In summary he still experiences nightmares, an exaggerated startle reflex, security fears, problems with trust, sexual difficulties and difficulties with alcohol. Whilst he has managed to maintain employment I don’t believe that the clinical symptoms have significantly improved and I also feel that the sexual abuse to which he was subjected is responsible for his symptoms”. [12] It was submitted, on behalf of the applicant, that, in accordance with the ordinary principles of assessment of damages for personal injuries in civil actions, general damages would be assessed at $35,000. I accept that is a reasonable assessment. [13] It was also submitted that an amount of $15,000 should be assessed for economic loss. The applicant says that, since leaving school, he has worked at a variety of jobs and has been employed for most of his adult life. His condition has however, had some impact. He quit one long held job at a retail grocery chain after the respondent visited the store. He also quit a job as a bar manager in circumstances where he had been experiencing panic attacks when left to work alone. It is not possible to assess economic loss with any precision in this case. I accept however, that his condition would have affected his capacity and performance and would place him at a disadvantage in the labour market. A global assessment is appropriate and the amount claimed is not excessive. [14] Accordingly, the amount of $50,000, as claimed, would be a reasonable assessment of damages on the application of common law principles. [15] The next question is as to the appropriate assessment of damages in relation to the injury suffered by each course of conduct. As I noted in V v H5, that can be a difficult exercise in relation to what is, in effect, a single condition to which a number of abusive events have contributed. The fact there is some difficulty however, will not dissuade a court from making an assessment to meet a particular case. [16] It was submitted, for the applicant, that compensation for the first and third courses of conduct should be greater than for the second. Each of the first and third courses of conduct involved multiple offences. The first was earlier in time, whilst the third escalated into the most serious conduct. I would assess compensation for the first and third courses of conduct at $20,000 and compensation for the second course of conduct at $10,000. [17] The remaining question is whether any of those amounts must be reduced on account of being more than the prescribed amount. That question arises in relation to the first two courses of conduct, which relate to offences which occurred on 4 R v Jones; ex parte McClintock [1996] 1 Qd R 524. 5 V v H (unreported) Rackemann DCJ, 16 October 2008. -- 5 of 7 -- 6 unknown dates in a period which spans the commencement of the Criminal Code Amendment Act 1984 (Qld). That difficulty was overcome in V v H6 because, it was possible that the relevant offence occurred towards the end of the charged period, after the statutory change. In this case, the indication as to when the offences occurred is not as strong. The applicant was born on 5 April 1976. In his statement to which he said that he thought the first offence happened when he was “about 6 or 7 years old” although “I can’t remember exactly what year it was”. The record count appears to have occurred at some point after the first. The third was later again, after the respondent’s parents moved to Amberley. At the respondent’s sentencing, the prosecutor said that the applicant was aged 6 to 8 years for Count 1 and 6 to 12 years for Counts 2 and 3. [18] The question however, is not when the offence occurred. Section 663A(a) focuses on when the injury was suffered. Often an injury, which is suffered by reason of an offence, will occur at the time of the offence. That will not necessarily always be the case. It is possible that an injury, including mental or nervous shock, might be suffered at some later point, even though it is caused by the offence. In M v C7, for example, the mentor or nervous shock injury was found to have occurred after 1 January 1969 even though all of the offences occurred in 1968. [19] A somewhat similar problem arose in ISJB v WJG8, where the first of five offences occurred on a date unknown in a period which straddled the statutory change. All other offences occurred after the change. McGill DCJ held that the first four counts constituted a single course of action, with the mental or nervous shock injury only having been suffered at the end of that course of conduct. The added complication in this case is that each of the offences which comprised the first two courses of conduct were committed on a date unknown during a period which straddles the statutory change. Nevertheless, the decision is useful in that it focuses attention on when the injury was suffered, rather than when the first offence was committed. [20] It is probable that, in this case, the mental or nervous shock injury was suffered after the statutory change. Not only does the vast majority of the charged period occur after that change, but the evidence also points to a delayed reaction to the initial abuse. The applicant’s evidence is that, when the offending began, he was so young that he had no knowledge of sex and was confused by the offences. It was only as he got older that he realised it was wrong and that he began to feel a sense of shame9. This is consistent with the statement which he made to police where, whilst reporting that he felt sick after the first offence, he said “I didn’t really understand what was happening at the time” and that “I had no idea what he was doing at the time”. [21] The 2005 report of Dr McGuire states that “Until two or three years ago he was not so badly affected”. Dr McGuire reports that “At the time that the first offences occurred he said he had no knowledge of sex and experienced some confusion about what was happening” and that it was when he was aged about nine or ten that he thought it should not be happening. Dr McGuire’s conclusion, at that time, was 6 Supra. 7 Supra. 8 Supra. 9 See Affidavit of CV filed 18 December 2008, para 7. -- 6 of 7 -- 7 that his condition appeared to have fluctuated, and was not so severe until 2002, when he had a chance encounter with his cousin. [22] While it is possible that the first three offences pre dated the statutory change, I am satisfied, on the balance of probabilities, that the injury in connection with which this application was made was not suffered prior to the statutory change. There is therefore, no need to reduce the above assessment from that already indicated. [23] The evidence does not support a conclusion that the applicant contributed, in any way, to his injury. [24] Accordingly, I assess compensation in the following amounts: 1. First course of conduct (Counts 1 and 2) – Mental or Nervous Shock - $20,000 2. Second course of conduct (Count 3) – Mental or Nervous Shock - $10,000 3. Third course of conduct (Counts 4, 5 & 6) – Mental or Nervous Shock - $20,000 TOTAL - $50,000 [25] It was pointed out, on behalf of the applicant, that although the relevant events happened some time ago, these proceedings were brought within the limitation period, since that period does not commence to run until the conviction of the respondent. That is, in any event, beside the point. The limitation period is not a bar to commencing proceedings. The respondent, for whom there is no appearance, did not seek to take the limitation point10. [26] Costs are at the discretion of the court in applications of this kind11. I order the respondent to pay the applicant’s costs of and incidental to the proceedings. 10 See R v Chong; ex parte Chong [2001] 2 Qd R 301; [1999] QCA 314. 11 See R v Holder; ex parte Jenner [1988] 1 Qd R 580. -- 7 of 7 --