CRP v Hettrick [2005] QDC 125

DISTRICT COURT OF QUEENSLAND CITATION: CRP v Hettrick [2005] QDC 125 PARTIES: C R P Applicant v JUSTIN MATTHEW HETTRICK Respondent FILE NO/S: BD578/2005 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 26 May 2005 DELIVERED AT: Brisbane HEARING DATE: 18 May 2005 JUDGE: McGill DCJ ORDER: Application dismissed. CATCHWORDS: CRIMINAL LAW – Compensation – whether injury caused by “personal offence” – whether offence committed against the person of applicant. Criminal Offence Victims Act 1995 s 21. Bushell v Ryder [2001] QDC 328 – considered. Ferguson v Kazakoff [2001] 2 Qd R 320 – applied. R v Moors; ex parte Alex [1994] 2 Qd R 315 - considered. COUNSEL: S J Hamlyn-Harris for the applicant The respondent did not appear SOLICITORS: Woods Prince Lawyers for the applicant The respondent was not represented. [1] On 7 March 2003 the respondent pleaded guilty before me to the offence of attempting to procure a minor for a child abuse photograph contrary to s 18 of the Classification of Publications Act 1991. What he had done was enter into an agreement, initially oral but subsequently confirmed in writing, with the applicant for the applicant at some future time to pose naked for photographs in some scenic setting. Before that occurred the applicant drew the matter to the attention of his mother, and thereafter it came to the attention of the police. At the time the -- 1 of 6 -- 2 applicant was 13, and the respondent was 17. The respondent was a school friend of the applicant’s older brother and knew him in that way. Personal offence [2] The applicant has applied for compensation under the Criminal Offence Victims Act 1995 (“the Act”) on the basis that he has suffered injuries, namely psychiatric injury and the deemed injury under s 1A of the Criminal Offence Victims Regulation 1995, because of the offence of which the respondent was convicted. Whether he is entitled to do so depends on whether that offence was a “personal offence” for the purposes of s 24 of the Act, and whether it was committed “against” the applicant. By s 21, a “personal offence” is “an indictable offence committed against the person of someone.” [3] Mr Hamlyn-Harris who appeared for the applicant submitted that the word “person” in s 21 meant “body.” I agree. To satisfy s 21 there must be an indictable offence, which was an offence which involved the body of the person who goes on to be the applicant, and which was committed “against” his or her body. In my opinion the definition, by referring to an offence “against the person” of the applicant, refers to an offence where the respondent did something to, or did something which was directed against, the body of the applicant. It involves in my opinion the doing or threatening of some act, whether an act of violence against, or a mere touching of, the body of the applicant. [4] The use of the word “against”, and the first part of the definition of “victim” in s 5 of the Act, suggest that the legislature actually had in mind an act of violence against a person. However, there have been plenty of cases where compensation has been awarded which did not involve any actual violence to the applicant, or which involved no more than some touching which could not in any real sense be regarded as a violent act, so it may be accepted that the section has been interpreted as extending beyond offences which involve actual violence inflicted on the applicant. But it is still confined to those offences which can be said to have been committed against the person, ie the body, of the applicant. [5] The applicant’s submission was that, if the procuring had been carried out, it would have involved an offence under s 210(6) of the Criminal Code of taking an indecent photograph of a child under 16 without legitimate reason, and that this, because it involved photographing the child’s body, would be an offence committed against the person of the child. I have doubts as to whether merely taking a photograph of someone, in circumstances where it is an offence to take the photograph, is the sort of thing which the legislature had in mind when enacting the definition in s 21, so I am not at all sure that this argument would assist the applicant even if I were prepared to accept it. But I do not accept it. The respondent was not convicted of that offence, and compensation can only be awarded if the offence of which the applicant was convicted was a personal offence. The question is whether the offence created by s 18 of the Classification of Publications Act 1991 fits within the definition in s 61. [6] In my opinion it does not. Nothing was done in the course of committing the offence which involved any act against the body of the applicant, or even involved -- 2 of 6 -- 3 any threat of an act against the body of the applicant. There was simply an agreement between two individuals that something would be done on some future occasion. In my opinion in order to determine the nature of the offence for the purposes of s 21 it is necessary to look at the acts constituting the offence, not at what might have happened in the future. It follows that the respondent was not convicted on indictment of a personal offence, and therefore s 24 does not apply, and the application must be dismissed. [7] In my opinion it does not matter that an injury was suffered as a result of the offence. Obviously there could be injuries suffered as a result of offences which are not personal offences. A person may suffer psychiatric injury as a result of being defrauded. A person may suffer psychiatric, or even physical, injury as a result of that person’s home being broken into. Obviously neither of those are personal offences, and no compensation would be payable. There are no doubt numerous other examples. Plainly the legislature did not intend that the qualification for compensation under the Act be merely that the applicant had suffered an injury as a result of the commission of an indictable offence. Had that been the intention, it would have been easy enough to say so. [8] There is not much guidance on this question available in earlier decisions. There are cases under the Criminal Code, R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457 where a person against whom violence was offered in the course of an offence of armed robbery with violence was held entitled to apply for compensation even though she was not named in the indictment, and R v Moors; ex parte Alex [1994] 2 Qd R 315, where a person who suffered injury as a result of being in a car which had been shot at by the respondent, killing another occupant of the car, was held not entitled to compensation in circumstances where the offence of which the respondent had been convicted, manslaughter, related to the person only of the deceased. The comments by Thomas J as his Honour then was at p.319 about the decision in Callaghan are I think of some significance. Nevertheless, decisions under the Code must be approached with some caution, because the wording of the relevant provisions of the Code was different from the wording of the definition in s 21 of the Act. [9] In Bushell v Ryder [2001] QDC 328 Brabazon DCJ held that an applicant was not entitled to apply for compensation under the Act in circumstances where the respondent had been found guilty of one charge of burglary and one charge of attempted robbery while armed in company, in circumstances where no violence had been offered by the respondent to the applicant, who was simply another person who was present in the house at the time when violence was offered to the true victim of the offence. His Honour held that there was no evidence of an assault or any threat of violence against the applicant, and even if the respondent had also committed (although not been convicted of) the offence of going armed so as to cause fear contrary to s 69 of the Criminal Code, that was not a personal offence. I would respectfully agree. [10] One of the matters referred to by his Honour was the definition of “victim” in s 5 of the Act. That section identifies who is a “victim” for the purpose of the declaration of fundamental principles of justice for victims of crime as set out in Part 2 of the Act. The term “victim” does not appear in Part 3 of the Act dealing with -- 3 of 6 -- 4 compensation, except in the example given in the Act in s 33(3), which may well be a different usage anyway. Section 19 at the beginning of Part 3 refers to the person for whom compensation is to be payable under the scheme established by that part as the applicant. [11] Nevertheless, a consideration of the explanatory note to the Bill which became the 1995 Act suggests the legislature had in mind the concept of “victim” to some extent in relation to the whole Bill. The provisions for the making of compensation claims were said to be one of the ways for the Bill “to advance the position of victims of crime in the criminal justice process.” Under the heading “criminal compensation” the note referred to the right of access “by the victim of personal violence or sexual offence to a criminal injuries compensation scheme” and, after referring to certain reforms, noted that the purpose of the system was to provide some measure of compensation “to the victim of a crime.” Later it was said that the reforms would ensure that “compensation to victims of personal or sexual violence is paid according to a compensation table …” The detailed notes in relation to the clauses in Part 3 use the term “victim” twice in relation to clause 22. In addition the notes to clause 24 include a statement: “The application can be made by the person against whom the personal offence is committed. It is intended to retain the effect of the decision in R v Moors; ex parte Alex [1994] 2 Qd R 315.” [12] In Schmith v Nolan [2002] QDC 257, the respondent was convicted of the offence of entering premises and stealing, and I held that there was no entitlement to compensation. The Court of Appeal refused leave to appeal from that decision: [2003] QCA 93. In that case the proposition that the offence of which the respondent had been convicted was not a personal offence was described by Davies JA, with whom Jerrard JA agreed, as undoubtedly correct, although in that case the contrary had not been contended and the issue was whether some other offence against the applicant had been taken into account on sentence, so that s 24(1)(b) was satisfied. That issue does not arise in the present case. Precautionary finding [13] In case a different view may be taken elsewhere, however, I will assess the compensation which would have been payable had I accepted that the respondent had committed a personal offence against the applicant. The applicant claims to have suffered psychiatric injury in the form of post-traumatic stress disorder. After the matter was reported to the police the applicant became very anxious and upset. He had what he described as weird nightmares for about two years after the incident, and was anxious about crossing paths with the respondent. He said that after he saw him some time after sentencing he experienced flashbacks of the incident again. He also said that for about one year after the offence he smoked cannabis to help relieve his anxiety. He complained of an adverse effect on his school grades, although I suspect that that had more to do with the use of cannabis than the anxiety directly. [14] From November 2002 he had a series of ten sessions of counselling with a psychologist, who provided a letter to his parents in March 2003. I suspect that I saw a copy of this letter at the time of sentencing; a copy is exhibited to the affidavit of Mr Bear which was filed by leave at the hearing. The psychologist -- 4 of 6 -- 5 referred to anxiety resulting in sleep disturbance, tiredness, irritability, fears, lack of motivation and negativity in the applicant’s thinking. He noted the adverse effect that the events had produced within the applicant’s family, and expressed the opinion that the applicant had been experiencing feelings of guilt as a result of feeling responsible for this. He noted considerable family conflict in the home since this incident. The psychologist was of the opinion that the applicant had suffered a significant level of psychological harm as a result of the offence. He also expressed the opinion that the use of cannabis was attributable to the offence. That may be so, but in my opinion on principle compensation should not be allowed for the consequences of the use of illegal substances even if it was brought about by the offence. The psychologist did not refer to any specific psychiatric condition other than anxiety. [15] The applicant was seen by Dr McGuire, a psychiatrist, in March 2004 for the purposes of a report. She confirmed the level of anxiety, particularly in connection with the court proceedings, although noted that after court he felt very relieved. She also referred to his use of cannabis to relieve his anxiety, over a period of one year. Apparently during the year after the offence he was quite upset about the offence, but by the time he was seeing Dr McGuire he reported he was now starting to forget about it. He was involved in sport, and socialised, and had friends at school, although he had said he was much quieter than he used to be. He said he had not been bullied about what had happened. [16] Dr McGuire expressed the opinion that the applicant had sustained a psychiatric disorder, namely post-traumatic stress disorder, characterised by nightmares, flashbacks, avoidance of cues reminding him of the incident, hyper-vigilance and wariness. He may well have had those symptoms, but I cannot accept the diagnosis of post-traumatic stress disorder. Counsel for the applicant helpfully provided me with a copy of the diagnostic criteria for that condition. The first of these was: “The person has been exposed to a traumatic event in which both of the following were present: 1. The person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others. 2. The person’s response involved intense fear, helplessness or horror. Note: In children, this may be expressed instead by disorganised or agitated behaviour.” It may be that the second of these was satisfied in the present case, but it seems to me clear the first was not. Indeed, I have difficulty in seeing how the incidents constituting the offence could amount to a traumatic event. They certainly did not involve actual or threatened death or serious injury, or any threat to the applicant’s physical integrity or that of anyone else. In my opinion the diagnosis of post-traumatic stress disorder is clearly wrong, so clearly that I reject the evidence of Dr McGuire on this basis. [17] Nevertheless, I consider that the applicant has suffered some mental or nervous shock. There was some discussion of what is required to establish mental or nervous shock for the purposes of the Act in Ferguson v Kazakoff [2001] 2 Qd R 320. There is in the present case no acceptable diagnosis of a specific psychiatric disorder, but the psychologist spoke of significant levels of anxiety for a significant period of time. Although it does appear that the applicant’s anxiety has now diminished somewhat, and he is returning to something more like a normal life, in my opinion on the approach adopted in Ferguson the applicant has suffered mental or nervous shock. Indeed, it may be that the error of Dr McGuire lay not in -- 5 of 6 -- 6 concluding that the applicant was suffering from a diagnosable mental disorder, but in identifying the wrong disorder. [18] The applicant was sufficiently adversely affected for him to receive some counselling, and for it to produce some temporary disruption in his life, although it appears that by April 2004 his difficulties were abating. In the light of all the evidence, I would assess the applicant’s injury as lying within item 31, but towards the upper part, and I would allow eight percent for it. [19] The applicant also claims to have suffered the injury constituted by the adverse effects of the sexual offence, pursuant to the Criminal Offence (Victims) Regulation. Section 1A identifies as an injury “the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under s 20.” For the purposes of this section “sexual offence” means a personal offence of a sexual nature. On the view that I take the applicant did not suffer a “personal offence” for the purposes of the Act; assuming I am wrong about this the offence, if it was a personal offence, it was of a sexual nature. The Classification of Publications Act defines “child abuse photograph” as “a photograph … that depicts … a person who is or who looks like a child under 16 years … in a way that is likely to cause offence to a reasonable adult person …” It occurs to me that this definition would not necessarily correlate with photographs which were offensive because of their sexual nature, since I suppose a photograph could fulfil that definition if it were likely to cause offence for other reasons.1 If this was an offence of a sexual nature, it follows that adverse impacts of the offence, to the extent that they are not part of the mental or nervous shock,2 would amount to an injury. [20] The adverse effects relied on on behalf of the applicant were the effect on family relationships and his relationship with his peers, an adverse effect on his academic achievement, and the reaction of others in that the mother’s anxiety had been stimulated and the parents had drifted apart somewhat threatening the stability of the household. I accept that there have been these problems to some extent, and that they are capable of amounting to adverse impacts for the purposes of the regulation, although I think they justify only a small award on this basis, and I will allow two percent. That produces a total assessment of 10 percent, or $7,500. [21] Although the applicant was to some extent participating in the activities involved in the offence, in that he did enter into the agreement with the respondent, in view of his age and the way in which the agreement came about I do not think that he should be treated as having contributed to his injuries for the purpose of s 25(7). Accordingly I would not reduce the compensation payable on this basis. [22] For the reasons given earlier however, the application is dismissed. 1 On the other hand, it also seems to me that not necessarily any photograph of a naked 13 year old boy would satisfy that definition. I suppose by his plea of guilty the respondent is taken to accept that his intention was to create a photograph which would. 2 Atwell v Jullie [2002] 2 Qd R 367. -- 6 of 6 --