AT v FG [2004] QCA 295

SUPREME COURT OF QUEENSLAND CITATION: AT v FG [2004] QCA 295 PARTIES: AT (applicant/appellant) v FG (respondent/respondent) FILE NO/S: Appeal No 588 of 2004 DC No 1 of 2003 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Ipswich DELIVERED ON: 13 August 2004 DELIVERED AT: Brisbane HEARING DATE: 16 June 2004 JUDGE: Williams and Jerrard JJA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed CATCHWORDS: CRIMINAL LAW – ORDERS FOR COMPENSATION, REPERATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – respondent convicted of two counts of indecent dealing, three counts of carnal knowledge, one court of exposing to indecent videotape, one count of procuring and one count of maintaining an unlawful relationship – where particulars of offence committed over period both before and after Criminal Offence Victims Compensation Act 1995 – whether appropriate compensation awarded in respect of maintaining count – whether compensation awarded manifestly inadequate Criminal Offence Victims Act 1995 (Qld), s 19, s 20, s 25, s 26, Schedule 1 Criminal Code 1899 (Qld), s 229B, s 663A, s 663AA, s 663B Criminal Offence Victims Regulation 1995 (Qld), Regulation 1A, Regulation 2A B v B [2000] QSC 498, SC No 8509 of 2000, 22 December 2000, applied HW v LO [2000] QCA 377, Appeal No 3016 of 2000, 15 -- 1 of 12 -- 2 September 2000, followed HV v LN [2000] QCA 472, Appeal No 8149 of 2000, 24 November 2000, considered JI v AV [2001] QCA 510, Appeal No 6491 of 2001, 23 November 2001, followed MAJ v KM [2000] QCA 410, Appeal No 6042 of 2000, 6 October 2000, followed COUNSEL: D Gardiner for the appellant No appearance for the respondent SOLICITORS: Bradley Munt & Co Solicitors for the appellant No appearance for the respondent [1] WILLIAMS JA: This is an appeal from an assessment of criminal compensation. Particulars of the relevant offences are set out in the reasons for judgment of Philippides J. [2] The first specific charge was said to have occurred between 14 October 1988 and 15 October 1990. No date can be discerned from the material with respect to the commission of the last specific charge (count 7) though it would appear to be in late 1996. The final count (count 8) was a charge of maintaining a sexual relationship with the appellant from 3 July 1989 (the date when s 229B of the Criminal Code came into force) and 15 October 1996 (the appellant’s 16th birthday). [3] The assessment of compensation is complicated by the fact that s 663A, s 663AA, and s 663B of the Criminal Code applied with respect to the assessment of quantum of compensation for offences prior to 18 December 1995 when the Criminal Offence Victims Act 1995 (“the Act”) came into force. The problems with assessing compensation in those circumstances were discussed by this court in HV vLN [2000] QCA 472. The following extracts from the reasoning of Thomas JA (with whom Pincus JA and Byrne J agreed) are instructive for present purposes: “The fact that the assessment of damage or compensation may be difficult or necessarily imprecise has never been regarded as a reason for the court failing to make the best assessment it can in the circumstances. ... The scheme of s 46 [of the Act] is to preserve rights accrued before the given date and to confine compensation under the new Act to the consequences of criminal activity after that date. ... In the present situation I consider that an applicant is entitled to an assessment in respect of each period and that the courts must do the best they can in ascribing appropriate compensation in respect of each period. Where there is a combined effect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the effects attributed to each period and if no better suggestion appears, the length of the respective periods over which the offending conduct occurred may be used.” Because of the infinite variety of situations which may arise one cannot lay down an inflexible approach which must be adopted regardless of the factual situation. -- 2 of 12 -- 3 [4] Here it would seem that all but the last of the specific offences (count 7) occurred before the Act came into force. The maintaining charge covered a period of more than six years during which the Code provisions would have applied and some 10 months during which the Act was applicable. [5] It was in those circumstances that the learned District Court judge assessed total compensation in the sum of $65,000.00 by means of the calculation particularised in the reasons of Philippides J. The first ground of appeal taken was that the learned judge erred in failing to award any compensation for the offence of maintaining a sexual relationship throughout the specified period. [6] The court must be careful in situations such as that present here to avoid awarding double compensation. (Section 663B(1) and (2) of the Code and s 26 of the Act recognise that problem.) That was obviously a concern of the learned judge at first instance and largely explains why no additional compensation was allowed for the maintaining charge. In situations such as this there is good reason for basing the assessment on the all embracing charge, that of maintaining a sexual relationship, rather than only assessing compensation with respect to the specific counts. As is clear from the sentencing remarks and the material relied on in support of the claim for compensation the sexual abuse, particularly acts of sexual intercourse, occurred regularly and frequently throughout the period specified in the maintaining charge and such acts were not limited to those the subject of a specific charge. It is clear from the reports of the psychiatrist and psychologist that the appellant’s psychiatric injury is as a result of the totality of the abuse and not confined to the consequences of the specific charged acts. [7] Further, it seems clear from the reports that the psychiatric damage became greater as the appellant became older and was more aware of the consequences of the offending behaviour. The psychiatrist, Dr Persley, noted that the appellant’s “main recollection of the abuse are scenes from when it first occurred (nine years of age) and towards the end (sixteen years of age).” The psychologist, K R Owen, noted an increasing fear of getting pregnant after the appellant attained menarche. After attaining 14 years of age the appellant raised with her stepfather her fear of becoming pregnant on a number of occasions. Owen also noted in his report: “Most noteworthy is the fact that she was still being abused by her step father even after she started her first heterosexual relationship.” That relationship occurred when she was aged about 16. Also it would appear from the statements of the appellant that intercourse became more frequent as she got closer to her 16th birthday. [8] It follows that though only 10 months of the period covered by count 8 fell within the period covered by the Act the offending conduct during that period probably had a greater effect on the appellant than conduct prior to December 1995. [9] If the court was to approach the assessment of quantum more in the way suggested in HV v LN and concentrating on the maintaining charge, as contrasted with the approach taken by the learned District Court judge, one would not arrive at a figure in excess of $65,000.00. It is sufficient to say that approaching the calculation in that way $65,000.00 would be at the top of the range. [10] As the court on the hearing of this appeal is only concerned with a submission that an assessment of $65,000.00 was too low is not necessary for the court to undertake a precise calculation of quantum on that alternative basis. -- 3 of 12 -- 4 [11] It is sufficient to say that the appellant has not demonstrated an entitlement to an award of compensation in excess of $65,000.00. [12] For those reasons, and the reasons advanced by Philippides J, the appeal should be dismissed. [13] JERRARD JA: In this appeal I have had the advantage of reading the reasons for judgment of Williams JA and Philippides J, and respectfully disagree with the implication in their judgments that this appellant was able to receive under the COVA any more than an amount ordered in accordance with Item 33 of Schedule 1 to that Act. That is, I respectfully disagree that this appellant could have obtained up to $75,000.00 under the COVA. I consider that outcome unfortunate but unavoidable for the reasons now explained. [14] It derives from the drafting of the COVA and Regulation 1A of the Criminal Offence Victims Regulation 1995, considered by this court in JI v AV [2001] QCA 510. Section 19 of COVA declares that that part of it establishes a scheme for the payment of compensation to an applicant for, inter alia, injury suffered by the applicant caused by a personal offence committed against the applicant. Section 20 defines injury to mean “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”. Section 25(2) restricts a court to ordering a total amount of not more than the prescribed amount (the scheme maximum); now $75,000.00. Section 25 contains other provisions which limit a court hearing an application to ordering as compensation an amount within the listed range of percentages of the scheme maximum, provided in respect of an injury, and specified in the compensation table which appears in Schedule 1. Section 26 relevantly provides that only one compensation order may be made in favour of an applicant where there is a “substantially single state of injury suffered from a series of incidents of personal offences”.1 [15] The mental or nervous shock which constitutes injury is not separately defined, but has been held to include post traumatic stress disorder. This occurred, for example, in MAJ v KM [2000] QCA 410; and the judgments in JI v AV, particularly that of Atkinson J at [57], recognised that disorder as falling within that definition of injury. Schedule 1, setting out the Compensation Table, includes within it three separate categories of mental or nervous shock, those being minor, moderate, or severe. These respectively entitle an applicant to orders for 2%-10% of the scheme maximum for minor, 10%-20% for moderate, and 20%-34% for severe cases. Thus when post traumatic stress disorder is diagnosed, constituting an injury pursuant to the definition in s 20, the maximum compensable amount which can be ordered for a severe disorder is 34% of the scheme maximum. [16] On the other hand there is Regulation 1A of the Criminal Offence Victims Regulation 1995. 1A(1) provides that: “For section 20 of the Act, the totality of adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.” 1 Reading s 26 and s 46 together probably has the result that the “substantially single state of injury” must result from personal offences all committed after 18 December 1995, but it is unnecessary to decide this point -- 4 of 12 -- 5 1A(2) lists matters which include adverse impacts of a sexual offence, and the matters listed, which understandably include: “(a) a sense of violation; (b) reduced self worth or perception; (c) increased fear or increased feelings of insecurity; (d) adverse effect of the reactions of others; (e) adverse impact on lawful sexual relations; (f) adverse impact on feelings;…” are also matters which experience shows may be relied upon to diagnose a post traumatic stress disorder, or other disorder or psychiatric condition. [17] Regulation 2A has the effect that the prescribed amount provided for by s 25(5) of COVA can be ordered, in an amount equal to an amount not less than 1% but not more than 100% of that scheme maximum, as compensation for the prescribed injury created by Regulation 1A. The problem that regulation has created for applicants is that Regulation 1A(2)(c) includes, as an adverse impact of a sexual offence “post-traumatic stress disorder”. This court held in JI v AV that the drafting of the regulation meant that adverse impacts were an injury for the purposes of the regulation to the extent that those impacts were not an injury under s 20; and that they would be such an injury if they were mental or nervous shock; and that there was no escape from that conclusion.2 The judgment in that case recognises that post traumatic stress disorder would only be capable of description as an “adverse impact” constituting the prescribed injury under Regulation 1A when that condition did not amount to mental or nervous shock, which would rarely, if ever, be the case. Accordingly, establishing the existence of post traumatic stress disorder and therefore of mental or nervous shock, can result in limiting the maximum compensation available to that provided in the schedule to COVA, which is considerably less than the scheme maximum available where the Regulation 1A prescribed injury is established. This will particularly affect those who suffer what is judged to be a substantially single state of injury suffered from a series of incidents of personal offences. [18] The COVA legislation applies only to injury suffered because of a personal offence happening after it commenced on 18 December 1995. The otherwise applicable provisions are those of s 663B of the Criminal Code, in force still for injury suffered from offences committed before that date. That section permitted the courts to order compensation to applicants where an offender was convicted on indictment of any indictable offence relating to the person of the applicant, or of more than one indictable offence relating to the person of the applicant and “arising out of the one course of conduct or closely related courses of conduct” of that offender. The section was construed to permit the ordering of what would otherwise have been that scheme maximum, in respect of injury resulting from different offences and which did not arise “out of the one course of conduct or closely related courses of conduct”. The application of that section can mean a victim is entitled to orders for compensation which would not be available to that victim under COVA and the Regulations. [19] In this matter, which provides an example of the differing effects of the two schemes, I agree that the learned trial judge was justified in regarding the offences 2 JI v AV at [20] per Chesterman J -- 5 of 12 -- 6 committed by the respondent before the COVA came into effect as not being ones “arising out of the one course of conduct or closely related courses of conduct” within the meaning of s 663B. That approach was consistent with the construction of that section by this court in HW v LN [2000] QCA 377 at [7]–[9], and in MAJ v KM at [14]-[15]. Accordingly, the learned judge was entitled to award the appellant separate sums of $20,000.00 in respect of three separate courses of conduct, those being the offences represented in counts 1 and 2 on the indictment (committed between 1 October 1988 and 15 October 1990), the events in counts 3, 4 and 5 on the indictment (committed between 15 October 1990 and 1 January 1992), and those in count 6 on the indictment (committed between 15 October 1993 and 16 October 1995). [20] Different considerations apply when considering the period of the respondent’s offending conduct which occurred after 18 December 1995 and under the COVA regime. The medical evidence upon which the learned judge acted was the opinion of a psychiatrist, Dr Persley, who diagnosed the appellant as suffering from a chronic post traumatic stress disorder. The same disorder had been identified and diagnosed by a psychologist, Mr Owen. However, Mr Owen also diagnosed two other conditions, which he described as secondary diagnoses, those being Major Depression and a Generalised Anxiety Disorder. Mr Owen had diagnosed the latter disorder by reason of the appellant’s phobic reactions to crowds of people, her work supervisor, and her general withdrawal. He did not describe the symptoms he relied upon for the diagnosis of a Major Depression, remarking that the appellant “does not report symptoms like most people would due to having never experienced a significant period of no depression since her childhood.” [21] Mr Owen’s diagnosis of post traumatic stress disorder had relied upon a very large number of matters, which he said fell within the three clusters of conditions that must be met for that diagnosis. The spread of symptoms Mr Owen relied upon to demonstrate the existence of the criteria and symptoms justifying the diagnosis of post traumatic stress disorder included all of the matters upon which the appellant might have relied as “adverse impacts”, as described in Regulation 1A(2), but did not include the phobic reactions Mr Owen relied upon to diagnose the existence of a Generalised Anxiety Disorder. [22] However, Dr Persley disagreed with Mr Owen’s diagnosis of there being both an additional existing Major Depression and a Generalised Anxiety Disorder. He considered that the reported symptoms of depression and anxiety were best understood in terms of the post traumatic stress disorder, which he agreed existed. The learned judge accepted and proceeded upon Dr Persley’s opinion, and the appellants have not seriously challenged on this appeal the judge’s acceptance of the psychiatrist’s diagnosis in preference to that of the psychologist. The appellant put written opinions from each before the learned judge, and no oral evidence was called from either. In those circumstances the judge cannot be criticised for preferring and acting upon one of two differing assessments of the appellant. [23] The consequence of accepting Dr Persley’s opinion is that the appellant thereby established that she suffered from an injury, namely mental or nervous shock, as described in s 20 of COVA. Since all of the matters the appellant might have otherwise described as “adverse impacts” upon her of the respondent’s offending behaviour were considered by Dr Persley as supporting the diagnosis of post traumatic stress disorder, the appellant’s own material put before the judge -- 6 of 12 -- 7 produced an unfortunate result for her. This is that this court’s decision in JI v AV means that her injury, being within the description “mental or nervous shock”, is compensable in accordance with the provisions in s 20, s 25(4), and Schedule 1 of the COVA, rather than as a variety of the “prescribed injury” described in Regulation 1A(1) of the 1995 regulation. It would only be if it was assessed as a prescribed injury under that regulation that there would be a maximum compensable amount of $75,000.00; her injury, considered as mental or nervous shock, which Dr Persley opined gave her a 25% impairment, would only be assessable as “33. Mental or nervous shock (severe)” in Schedule 1 to COVA; and thus to only 25% of the maximum of $75,000.00 allowable under that Act. That figure is $18,750.00. [24] This is an unfortunate consequence of the drafting of Regulation 1A, which consequence was adverted to and discussed in Jl v AV, particularly by Atkinson J at [58] and [61]. It will occur whenever a practitioner diagnosing the existence of a disorder relies for that diagnosis on all of the symptoms and experiences described to the practitioner by an appellant for compensation; and particularly where there is a “substantially single state of injury”. There is then likely to be no room left for the separate operation of adverse impacts experienced as a “prescribed injury” under Regulation 1A. [25] This will certainly effect victims of long term sexual abuse where all of that abuse occurs after 18 December 1995. It results both from including in the list of “adverse impacts” matters which support a diagnosis of post traumatic stress disorder, as well as from listing that condition itself as an adverse impact. Applicants for compensation who are diagnosed as suffering from post traumatic stress disorder, or from depression, or from an anxiety or other disorder, will benefit from having their legal representatives insist upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts. Courts hearing those applications should be astute to make enquiries about that point, to ensure an applicant is not being denied by oversight compensation for an injury. [26] It is obvious that this appellant was fortunate in the way in which the learned trial judge was able to proceed in this matter, and apply s 663B, where the application of the COVA provisions would work to deny her any significant compensation for the injury she suffered from the respondent maintaining a sexual relationship with her from when she was nine years old, which involved regular sexual intercourse, and which relationship was enforced by threats. That result is completely unjustified, and amendment of the Regulation is obviously necessary. [27] In this matter I respectfully adopt the view taken by Williams JA that although only 10 months of the period covered by the offence of maintaining a sexual relationship fell within the COVA regime, the offending conduct during that period probably had a greater effect on the appellant than conduct prior to December 1995. Treating 60% of the effect on the appellant as happening after that date would entitle her to an award under COVA of (60% x $18,750.00) $11,250.00. She has already received an award of $5,000.00 for conduct occurring in that period, and accordingly I would order that her award be increased by an amount of $6,250.00, and that the respondent pay her costs of the appeal. [28] Since the majority are against that result, I would order only that the appeal be dismissed, and make no order as to costs. -- 7 of 12 -- 8 [29] PHILIPPIDES J: The appellant appeals against an order of the District Court that the respondent pay the appellant $65,000 by way of compensation, together with 90% of her costs by way of criminal compensation. The appeal proceeded in the absence of any appearance by the respondent who had given his written indication that he did not wish to be heard. The circumstances of the offences [30] On 28 July 2000 the respondent (the appellant’s step father) pleaded guilty to eight counts of sexual offences involving the appellant. The appellant was born on 15 October 1980 and at the time of the offences the appellant was living with her mother, sister and step father. This situation continued from the time the appellant was about eight until she was about 17. [31] Count 1 concerned a count that between 14 October 1988 and 15 October 1990, the respondent had indecently dealt with the appellant, who was then under the age of 14. The offence involved the respondent placing his hand inside her clothing and touching her in the area of her genitalia. The respondent then proceeded to lie on top of the appellant and attempted to insert his penis into her vagina. That conduct constitutes count 2, that between 14 October 1988 and 15 October 1990 the respondent attempted to have carnal knowledge of the appellant, then a girl under 10 years of age. It appears that the appellant was about eight or nine years of age at the time of these offences. [32] Counts 3, 4 and 5 concerned events which occurred about four weeks after the first incident when the appellant was alone at home with the respondent. The appellant recalls getting up during the night and going to the lounge room. The respondent was watching a pornographic video and told the appellant to sit beside him and watch the video (Count 3 – wilful exposure of a child under the age of 16 to an indecent videotape with circumstances of aggravation). He started to touch the appellant on the vagina with his hand on the outside of her clothes (Count 4 – indecent dealing with a child under the age of 16 with circumstances of aggravation). He then proceeded to undress and to undress the appellant and had sexual intercourse with her which she found painful (Count 5 – unlawful carnal knowledge of a girl under the age of 16 with circumstances of aggravation). The circumstances of aggravation involved in counts 3 to 5 were that the appellant was under 12 years of age and was under the respondent’s care at the relevant time. [33] When the appellant was about 14, the respondent drove the appellant to bushland where he had sexual intercourse with her. When the appellant initially refused, the respondent threatened that he would hurt her mother and thus obtained her compliance. This constituted count 6 – unlawful carnal knowledge of a girl under the age of 16 with a circumstance of aggravation in that the appellant was under the respondent’s care at the time. [34] Count 7 concerned an incident that occurred in the kitchen of the family home, while the appellant’s sister was at home. The respondent had asked the appellant to masturbate him. While the appellant was doing so, her sister walked into the kitchen, witnessing the incident. [35] Count 8 concerned a count that, during the period from 3 July 1989 to 15 October 1996, the respondent maintained an unlawful relationship with a girl under 16, and that, in the course of it on a date unknown between 15 October 1993 and 16 October -- 8 of 12 -- 9 1995, he had unlawful carnal knowledge of the appellant, then a girl under 16 years of age. It is clear that that offence included many more than the charged acts. [36] The appellant was seen by Mr Owen, a psychologist who treated her over a period and Dr Persley, a psychiatrist. The appellant reported that after the second incident of sexual intercourse she adopted the coping mechanism of “drifting off” so as not to be fully aware of what was happening. The psychiatric reports of Dr Persley and Mr Owen indicate that the appellant complied with the respondent’s demands out of “habit” in circumstances where the appellant remained impassive just waiting for the abuse to cease and attempting to block the events out of her mind. Consequently, as a result of the disassociation defence mechanism used by the appellant, specific incidents other that the charged acts were difficult for her to recall. [37] The learned trial judge proceeded on the basis that from about the time that the appellant was about 12, the respondent would frequently come to the appellant’s room after everyone was in bed, would touch her, have her masturbate him or have sex with her. That conclusion was borne out by the material before the court. The appellant reported to Mr Owen that the respondent would request that she engage in sexual intercourse and oral sex. She stated that the respondent performed oral sex on her and got her to participate in oral sex “on three or four occasions” when she was about 12. He also demanded that she perform oral sex on him. The appellant found these experiences repulsive. The appellant reported to Mr Owen that this abuse in similar patterns continued “on at least a weekly basis until [she] was about 17 years of age”. The appellant also reported to Dr Persley that intercourse occurred “up to a couple of times a week particularly during her teenage years.” [38] The psychiatric reports attest to the significant impact these acts have had on the appellant’s life. The report of Dr Persley notes that the appellant has been the victim of prolonged penetrative childhood sexual abuse. This was associated with threats of violence against her mother to enforce compliance. The appellant suffers from nightmares which most commonly involve being chased and/or sexually assaulted by the respondent. She is quick to lose her temper and particularly sensitive to criticism at work, has difficulty concentrating on completing fine tasks at work and suffers from periodic memory lapses. She has struggled with her sexuality and has developed an intense dislike and distrust of men. During her adolescence the appellant entertained suicidal ideation, performed poorly in her academic work and displayed conduct disordered behaviour at school. She has low self esteem and felt guilty, ashamed and emotionally confused over the abuse. He diagnosed her with chronic post traumatic stress disorder. [39] The appellant has had counselling over a significant period of time from Mr Owen, who also indicated in his report that the appellant has suffered quite significantly as a result of the offences. He also diagnosed her with chronic post traumatic stress disorder with major depression and a generalised anxiety disorder as a secondary diagnosis. His report indicated that the appellant has a serious underlying disorder that was having a significant impact on her functioning. [40] Dr Persley however concluded that the major depression and generalised anxiety disorder were merely symptoms of the post traumatic stress disorder and are not separate diagnoses. Dr Persley assessed the appellant’s impairment as within the moderate range, stating that she is vulnerable to developing severe depression -- 9 of 12 -- 10 should a significant event such as a loss of employment or a break-up of her relationship occur. The decision at first instance [41] The learned judge observed that the offences occurred over a period which attracts both the repealed provisions under the Criminal Code and the current scheme under the Criminal Offence Victims Act 1995 (COVA), although the majority of the offences occurred prior to the enactment of the COVA. [42] In relation to counts 1 to 6, the provisions of the Code apply. The compensation ordered was for psychiatric injury resulting from those offences. The claim for nervous shock, under the Code scheme (s 663B) attracted a potential maximum award of $20,000. [43] The learned judge had regard to the fact that under s 663B of the Code only one award was payable for offences which could be characterised as “arising out of the one course of conduct or closely related courses of conduct of that person so convicted.” The learned judge applied HW v LO [2000] QCA 377, where the meaning of that phrase was considered and particularly the following dicta at 417at para [7] – [8]: “…‘course of conduct’ for purposes of s 663B … 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. … …. Given a high level 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.” [44] The learned trial judge determined that, in relation to the counts 1 to 6, there were three separate “courses of conduct” covering firstly, the offences represented in counts 1 and 2, secondly, the events in counts 3, 4 and 5, and thirdly, the incident in count 6. As the medical reports did not address the effect the separate acts had on the appellant, the learned trial judge adopted the reasoning in SAM v SAM [2001] QCA 12 and in particular the approach that because causation is ultimately a matter of common sense, it defied common sense and logic not to infer that the actions by the appellant’s step father were a material contribution to the appellant’s psychological injury. The learned judge held that given the significant reaction the appellant had had to the abuse, it was appropriate to compensate the appellant in the sum of $20,000 for each of the three episodes of abuse covered by the provisions of the Code. [45] As to counts 7 and 8, which concerned a period which straddled both the provisions of the Code and the COVA, the judge at first instance adopted the approach to apportionment taken in B v B [2000] QSC 498. In respect of count 7, an amount of $5,000 was allowed under each of the Code and COVA provisions and in accordance with B v B, compensation was apportioned 50% for each legislative scheme, resulting in a total award of $5,000. As to count 8, the learned judge -- 10 of 12 -- 11 observed that while the charge of maintaining encompassed the acts which were specified in counts 1 to 7, there were other acts which were not particularly charged and which were part of the maintaining charge. However, the learned judge held that it was not possible to order additional compensation for that count. The first ground of appeal [46] The first ground of appeal raised was that the learned judge erred by failing to award compensation in respect of count 8. It was said that the failure to award any compensation for count 8 was inconsistent with the seriousness of the offence. In particular it was argued that once it was accepted by the learned judge that there were other acts which were not specifically charged, and given the frequency of the uncharged acts of intercourse, compensation should have been ordered in respect of the maintaining charge. It was contended that the appropriate award in respect of count 8, given that the offence was committed over a period which encompassed the provisions of the Code and the COVA, was an award of $72,750, comprising $10,000 under the Code (50% of the maximum of $20,000), $12,750 under the COVA (per item 33 of the COVA) and $50,000 under the Criminal Offence Victims Regulation 1995 (for the adverse impact per Regulation 1A). [47] The learned judge’s reasoning for making no additional award for compensation in respect of count 8 was that it was not possible to separately compensate for the uncharged acts from the charged acts. In reaching that conclusion the learned judge stated: “In my view given the nature of the information presented at sentence on the frequency of intercourse between the applicant and the respondent, it would be impossible to say that there were any separate effects of the unknown acts of intercourse given the unknown frequency of the intercourse. It is also impossible to say that those acts were not related courses of conduct. Accordingly I am of the opinion that there should not be any additional compensation for count 8 on the indictment.” [48] Prima facie the learned judge erred in failing to separately award compensation in respect of count 8 and thus to order compensation for the entirety of the conduct comprising the maintaining charge. However, had that approach been taken, it is difficult to see how, in the circumstances of this case, additional compensation would have been available in respect of the other specifically charged acts comprising counts 1 to 7. The reason for that is precisely the reasons referred to by the learned judge; that is, that those matters arose out of “the one course of conduct or closely related courses of conduct” in so far as the period governed by the Code is concerned. And in so far as the COVA applied the injury suffered by the appellant in respect of those counts would probably have been said to have resulted “from a substantially single incident, whether consisting of 1 or more than 1 personal offence” or to be “a substantially single state of injury suffered from a series of incidents of personal offences”. [49] Had that approach been taken, count 8 would have been treated as a continuing offence which spanned periods covered by both the Code and the COVA3 so that 3 The COVA covering the period after 18 December 1995 with injury caused by any act done before that period being compensable under Chapter 65A of the Code (s 46(2) of the COVA). -- 11 of 12 -- 12 compensation would have been apportioned over both the Acts (HV v LN [2000] QCA 472). I do not consider that the compensation available in those circumstances could have exceeded the quantum of the order made in this case. If an apportionment of 50% for each period was utilised (applying B v B), the most that the appellant could have obtained was $10,000 for the Code period (using the maximum of $20,000) and $37,500 for the COVA period (using the maximum of $75,000). Further, had the compensation fallen entirely to be considered within the COVA it is difficult to see how this case would have been one where greater than $65,000 could have been awarded, so that the figure of $37,500 may have been a generous allocation for the COVA period. Nor is a greater amount achievable if an apportionment is attempted so as to reflect the time period during which the offending occurred under each Act, as suggested in HV v LN. [50] In those circumstances, I consider that the award ordered reflected the maximum compensation which could have been awarded for the offences and I do not consider that any adjustment to increase the award is warranted. This ground of appeal therefore fails. The second ground of appeal [51] The second ground of appeal was that the awards of compensation made in respect of counts 3, 4, 5, 7 and 8 were manifestly inadequate. As to this ground of appeal, Counsel indicated that as regards counts 3, 4 and 5 the second ground of appeal was no longer being maintained. As to count 8 this has already been covered in respect of the first ground of appeal. [52] With respect to ground 7, it was contended that the award did not adequately reflect the degree of coercion implicitly involved in the appellant’s conduct and the continued impact of the conduct on the appellant. It was argued that the application of either items 32 or 33 of Schedule 1 of the COVA ought to have resulted in an award in the range of $7,500 to $10,000, together with a further $50,000 for adverse impacts. [53] Given what I have already said in respect of the first ground of appeal, it follows that I do not accept that the learned judge ought to have made any greater award than that which was made. This ground of appeal also fails. -- 12 of 12 --