ARW v FGR [2007] QSC 236

SUPREME COURT OF QUEENSLAND CITATION: ARW v FGR [2007] QSC 236 PARTIES: ARW (applicant) v FGR (respondent) FILE NO: BS4280 of 2007 DIVISION: Trial Division PROCEEDING: Originating application DELIVERED ON: 7 September 2007 DELIVERED AT: Brisbane HEARING DATE: 21 June 2007 JUDGE: Mullins J ORDER: 1. That the respondent pay to the applicant pursuant to s 663B of the Criminal Code the sum of $20,000 by way of compensation for injury suffered by the applicant by reason of the offences of which the respondent was convicted in the Supreme Court of Queensland on 27 June 2004 (namely counts 27, 29, and 31 on Indictment number 407 of 2004) 2. That the respondent pay the applicant’s costs of the application to be assessed CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOAL OF PROPERTY – COMPENSATION – QUEENSLAND – where respondent found guilty after trial of three counts of indecent treatment of a child under 16 years and two counts of supplying a dangerous drug – where applicant diagnosed as suffering from post traumatic stress disorder – where application made under s 663B(1) of the Criminal Code (Q) for compensation for injuries sustained as a result of these offences – whether supplying a dangerous drug to the victim was an offence relating to the person of the victim – whether offences involved more than one course of conduct Criminal Code, s 663AA, s663B KAB v DJB [2000] QSC 498, distinguished R v Jones; ex parte McClintock [1996] 1 Qd R 524, considered -- 1 of 6 -- 2 R v Llorente; ex parte Hendry [2001] 2 Qd R 415, considered R v Tiltman; ex parte Dawe, unreported, Lee J, SC No 324 of 1995, 22 June 1995, considered RZ (by his litigation guardian) v PAE [2007] QCA 166, considered SAY v AZ; ex parte A-G (Qld) [2006] QCA 462, considered COUNSEL: J Stevenson (sol) for the applicant The respondent appeared in person SOLICITORS: Legal Aid Queensland for the applicant The respondent appeared in person [1] MULLINS J: The respondent was found guilty on 27 June 2004 after trial of five counts involving the applicant. Each of counts 27, 29 and 31 were indecent treatment of a child under 16 years on a date unknown between 1 January 1990 and 1 May 1990 at Brisbane. Each of counts 38 and 39 was supplying a dangerous drug (psilocin and psilocybin) with a circumstance of aggravation on a date unknown between 1 April 1990 and 1 August 1990 at Brisbane. [2] As a result of the respondent’s conviction on these five counts, the applicant has made an application under s 663B(1) of the Criminal Code (“Code”) for compensation for injuries sustained as a result of these offences. The application was heard on 21 June 2007. The respondent appeared in person to oppose the application and, in particular, to dispute the evidence of the applicant as to the consequences for him of the offending and the conclusions reached by psychiatrist Dr Barbara McGuire, who examined the applicant on 19 January 2007 for the purpose of making a psychiatric assessment in relation to this application. Some documents which the respondent tendered at the hearing were made exhibits on the application. Exhibit 1 comprised extracts from an affidavit relied on by the respondent on his appeal from his convictions at the relevant trial. Exhibit 2 is a document prepared by the respondent setting out his comments on the statement made by the applicant that was the basis of the applicant’s evidence at the trial. Much of this material was irrelevant for the purposes of this application which proceeds on the basis that there were guilty verdicts returned by the jury in respect of the relevant offences. Facts [3] The applicant was born in 1975. The respondent was born in 1944. At the time of the offences the respondent was a retired school teacher who was living in a shed in the backyard of a house property at Sunnybank. The shed was a haven for boys who stayed away from school. There were computer games for the boys to play and some boys would smoke cannabis. The first group of offences against the applicant were committed by the respondent in the first few months of 1990. Count 27 was committed on one of the earlier occasions that the applicant visited the respondent’s shed when the applicant was 14 years old. The applicant, who had “wagged” school, and a couple of other boys watched a pornographic video with the respondent. The respondent masturbated in front of the applicant and the other boys. On the same occasion the respondent touched the applicant’s genitals on the -- 2 of 6 -- 3 outside of his jeans and put his lips on the applicant’s neck. That was the basis of count 29. [4] The offending conduct that formed the basis of count 31 occurred on a date sometime between April and July 1990. The offence occurred in the context of a ritual organised by the respondent when he took the applicant and a couple of other boys to a forest area. The group sat in a circle around a number of objects that the respondent had set up and he asked them to remove their clothing. The applicant refused and the respondent tried to pull down his pants, but the applicant pushed him away and walked off. [5] The circumstances of counts 38 and 39 arose out of trips that the applicant went on with the respondent and other boys to collect “magic mushrooms” which were then prepared by the respondent for consumption. The applicant participated in the drinking of the juice from the magic mushrooms. The applicant recalls having wild hallucinations after having the mushrooms and does not know what happened to him when he was affected by the mushrooms. The applicant’s subsequent history [6] The applicant did not complete schooling after year nine. At the age of 15 years the applicant developed a drug habit and committed a number of offences. At the age of 18 years the applicant underwent drug rehabilitation. The applicant’s involvement with the respondent had a major impact on the applicant’s relationship with his brother and his parents. The applicant has been in a relationship with a woman for the last nine years. They have one child and at the time this application was heard were expecting another child. The applicant feels that his ability to relate to his partner and to others is affected by the reactions he has had to his experiences with the respondent. He frequently experiences panic attacks when he has to go to work. As a result, he has had countless jobs and lost income because of time off work. Dr McGuire’s report [7] For the purpose of this application the applicant was interviewed by psychiatrist Dr Barbara McGuire in January 2007. The applicant related to Dr McGuire his concern that there were other instances of abuse committed against him by the respondent whilst he was intoxicated or drugged in respect of which the respondent was not charged. Although Dr McGuire acknowledges that this belief of the applicant is a major contributing factor to his current condition, she notes that, if the only acts committed by the respondent against the applicant were those of which he had been convicted, the applicant’s belief was that he would still feel much the same way that he does about what happened to him. [8] Dr McGuire diagnoses the applicant as suffering from post traumatic stress disorder to a severe degree and that it is likely this will continue and be lifelong, although with therapy his symptoms could ameliorate. Dr McGuire considers there is a need for the applicant to undertake counselling to which she considers it is likely that he would respond very favourably. The applicant is aware of Dr McGuire’s suggestion for counselling and is positive about the possible benefits. The costs of private counselling are between $150 to $200 per session. Offences relating to the person of any person -- 3 of 6 -- 4 [9] The entitlement to apply for compensation under s 663B of the Code arises only where the conviction is on indictment of any indictable offence relating to the person of any person. Counts 27, 29 and 31 fall into that category because the very nature of the offence of indecent treatment of a child under 16 years (including the showing of a pornographic film) is that the offending conduct is directed at the child. [10] An issue arises as to whether counts 38 and 39 which were the supplies of a dangerous drug to the applicant can be characterised as offences relating to the person of the applicant. In KAB v DJB [2000] QSC 498 a victim claimed compensation for injuries against her stepfather for a large number of sexual offences including maintaining a sexual relationship with a girl under 16 years with a circumstance of aggravation that spanned the period between July 1989 and August 1996. The stepfather had also been found guilty of four counts of supplying a dangerous drug to the victim. The supplies of the drugs occurred in circumstances that facilitated the commission of the sexual offences. As the supplies of those drugs were found to be a course of conduct that was closely related to the other courses of conduct covering the sexual offences, it was held that the offences of supplies did not give rise to separate compensation under the Code (at paragraph [34]). Although it was implicitly accepted that those drug offences could be the subject of a claim for compensation, the issue of whether the offence of the supply of a dangerous drug could be characterised as “relating to the person of any person” was not expressly determined. [11] Relevant authorities and legislation on this issue were reviewed by the Court of Appeal in RZ (by his litigation guardian) v PAE [2007] QCA 166 (“RZ”). In that case the majority of the Court found that the offence of attempting to unlawfully procure a child to commit an indecent act was a “personal offence” under the Criminal Offence Victims Act 1995 (“COVA”). The offender proposed to the child that he let the offender commit an act upon the child which, had it been carried out, would have involved an offence of indecent treatment committed against the person of the child. The offender desisted before committing the offence and in attempting to procure the child to commit an indecent act did not make physical contact with the child. The child had become upset when the offender made the proposal. The majority held that in those circumstances the offender’s attempt was an offence against the child’s person or body and therefore entitled the child to claim compensation. The majority found that such approach was consistent with the remedial nature of the legislation and stated at paragraph [47]: “It cannot have been the legislative intent to provide a scheme for compensation to victims of crime for personal injury, including mental or nervous shock, arising from an offence of indecent treatment of a child involving the most minor physical contact, but to refuse compensation for proven personal injury to a victim arising from an offence of attempted indecent treatment with no actual physical contact.” [12] Even though the charge of supply of dangerous drug may name the person who is the recipient of the supply in the charge, the nature of the offence is the giving of the dangerous drug to the recipient. Whether that recipient uses the dangerous drug or passes the dangerous drug onto others is not relevant to the establishment of the offence of supply of dangerous drug. If the recipient uses the dangerous drug and is affected by the use, the use is as a result of the recipient’s decision to use the -- 4 of 6 -- 5 dangerous drug. Even allowing for the remedial nature of Chapter 65A of the Code, the approach taken in RZ to COVA does not support treating the supply of a dangerous drug as an offence against the person or body of the victim for which compensation is payable. In circumstances where a sexual offender may supply the victim of the sexual offending with a dangerous drug in order to facilitate the sexual offending, it is the sexual offending and not the supply of the dangerous drug that is compensable. Course of conduct [13] The compensation under s 663B(1) applies to relevant indictable offences “arising out of the one course of conduct or closely related courses of conduct”. It is then necessary to refer to s 663B(1A): “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.” [14] The applicant submits that the acts of sexual abuse committed upon the applicant can be considered separately as constituting two courses of conduct. It is submitted that counts 27 and 29 constitute the first course of conduct and count 31 constitutes the second course of conduct. Although there was a ritual aspect to the circumstance in which count 31 was committed, the nature of the offending is similar to that which was the subject of count 29. In both cases the offences were committed when the applicant was in the company of other boys. Although the applicant himself was unclear in his evidence at the trial of the respondent as to the timing of these offences, other evidence supported the particulars given by the prosecution as to the timing of the offences. Counts 27 and 29 were committed after the school year had begun in 1990. There may have been a couple or a few months separating the offences, but they were committed in the course of a pattern of continuing conduct involving the applicant and the respondent. There was not the separation in the time, place and circumstances of the offences to justify a conclusion that there were two separate courses of conduct: cf R v Llorente; ex parte Hendry [2001] Qd R 415, 417 [8] and 425 [63]. Assessment of compensation [15] Compensation under s 663B of the Code is assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases which means that economic loss and special damages are also recoverable: R v Jones; ex parte McClintock [1996] 1 Qd R 524, 527. Such approach to assessment, however, is subject to any statutory maximum. The maximum amount which can be paid as compensation for an injury in the nature of mental shock or nervous shock (which covers post traumatic stress disorder) is specified in s 663AA(1) of the Code as the sum of $20,000. [16] Where a victim has suffered from a single indivisible injury as a result of a number of causes, compensation can be assessed in respect of the whole injury where the causes that are compensable made a material contribution to that injury: R v Tiltman; ex parte Dawe, unreported, Lee J, SC No 324 of 1995, 22 June 1995 which -- 5 of 6 -- 6 was discussed by Holmes JA in SAY v AZ; ex parte A-G (Qld) [2006] QCA 462 at paragraphs [6] – [8]. [17] Although the applicant’s post traumatic stress disorder has been contributed to by other conduct of the respondent and other events in the applicant’s history, apart from the three offences for which the applicant is entitled to pursue compensation under s 663B of the Code, I am satisfied that those three offences made a significant and material contribution to the applicant’s condition and that he is therefore entitled to have compensation assessed in respect of the whole of his injury. [18] General damages, future medical treatment and lost income and diminution in earning capacity as a result of the applicant’s disadvantage in the labour market because of his panic attacks would result in an award of damages for his post traumatic stress disorder in excess of the sum of $20,000. Because of the statutory maximum, the amount of compensation that the applicant can recover from the respondent is limited to the sum of $20,000. [19] When consideration is given to the disparity in ages between the respondent and the applicant at the time of the offences and the circumstances of the offences, it follows there was no behaviour of the applicant which directly or indirectly contributed to the injury suffered by the applicant. Orders [20] As costs can be awarded on an application under s 663B of the Code and the applicant has been successful in his application, there is no reason why costs should not follow the event. The orders which I will make are: 1. That the respondent pay to the applicant pursuant to s 663B of the Criminal Code the sum of $20,000 by way of compensation for injury suffered by the applicant by reason of the offences of which the respondent was convicted in the Supreme Court of Queensland on 27 June 2004 (namely counts 27, 29, and 31 on Indictment number 407 of 2004). 2. That the respondent pay the applicant’s costs of the application to be assessed. -- 6 of 6 --