A v V [2004] QDC 29

DISTRICT COURT OF QUEENSLAND CITATION: A v V [2004] QDC 029 PARTIES: A Applicant v V Respondent FILE NO/S: BD 209/04 DIVISION: Civil Jurisdiction PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Brisbane DELIVERED ON: 20 February 2004 DELIVERED AT: Brisbane HEARING DATE: 19 February 2004 JUDGE: Judge Forde ORDER: 1. IT IS ORDERED THAT THE RESPONDENT V DO PAY TO THE APPLICANT THE SUM OF $15,000 FOR INJURIES SUSTAINED AS A RESULT OF THE OFFENCES WHICH LED TO HIS CONVICTION ON 28 NOVEMBER 2002; 2. 2. IT IS FURTHER ORDERED THAT THE RESPONDENT DO PAY THE APPLICANT’S COSTS OF AND INCIDENTAL TO THIS APPLICATION TO BE ASSESSED. CATCHWORDS: CRIMINAL LAW – PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION – QUANTUM – QUEENSLAND – application for criminal compensation pursuant to Part 65A Criminal Code – respondent convicted on six counts of unlawfully and indecently dealing with the applicant who was then under 14 years of age – pre 1984 offences – “prescribed amount” – discounting factors – pre-existing condition – other causes -- 1 of 5 -- 2 Criminal Code (Qld) , s663A Criminal Code Amendment Act 1984 (Qld) HW v LO (2000) QCA 377, applied COUNSEL: Mr David Gardiner for the Applicant Mr Damian Carrol Solicitor for the Respondent SOLICITORS: Palella Humphries & Venardos Macrossan & Amiet [1] The Applicant seeks criminal compensation pursuant to Chapter 65A of the Criminal Code for injuries suffered as a result of the offences which led to the conviction of the Respondent on 28th November 2002 upon indictment for six counts of unlawfully and indecently dealing with the Applicant who was then under 14 years of age. The offences occurred between 1 December 1975 and 4 January 1983. The acts which gave rise to the offences included oral sex, rubbing the pubic area with a hand and around the Applicant’s genitalia and touching inside her underpants. It also included touching her breasts. The offences occurred when the applicant was between the ages of 7 and 14 years. Nature of Quantum [2] These offences occurred prior to the commencement of the Criminal Code Amendment Act 1984. That Act commenced on 1 July 1984. The relevant provision for the purposes of this application was s 663A of the Criminal Code which provided as follows: “ ‘Prescribed Amount’ – -- 2 of 5 -- 3 (a) Where the offence in connection with which the case arises is committed before the commencement of The Criminal Code and the Justice Amendment Act 1975, $2000; (b) In all other cases, $5,000.” [3] Following the amendment of the Criminal Code Amendment Act 1984 the prescribed amount was as follows: “ ‘Prescribed’ means – (a) where injury in connection with which an application is made or is suffered before the commencement of the Criminal Code Amendment Act 1984 - $5,000; …” [4] It was contended by counsel for the Applicant that the amount which is referable to the present case is the sum of $20,000 for mental or nervous shock for each offence. First mention of that figure was in the 1984 amendment to s 663A(1). There seems to be no provision which makes that amount retrospective, quite the contrary given the provision of “prescribed amount” paragraph (a) in the 1984 amendment together with the earlier legislation. Consistent with the decision of HW v LO (2000) QCA 377, the proper approach in my view is to allow a figure of $5,000 per offence given that these offences occurred over a period of some eight years. The submissions for the Respondent support that view and so the maximum which can be allowed in the present case is $30,000. [5] A caveat must be mentioned in relation to a global approach. The Chief Justice said -- 3 of 5 -- 4 [6] in HW v LO (2000) QCA 377 at p7 para. 25 [7] “A difficulty will always arise in a case of this nature in attempting to make referable to each offence a particular quantum. The psychiatrist or psychologist may not have seen the particular victim until some many years later. That is of some concern in the present case. Also, as is submitted by the Respondent, the Applicant was subject to other sexual offences committed by another person at different times.” Nature of Medical Evidence [8] Dr Hogan, a psychiatrist, found that the Applicant was suffering from post- traumatic stress disorder and, major depression and bulimia. He makes reference to the fact that the Applicant was a victim of both the Respondent and also his son. The Applicant was vulnerable in that she had lost her father who had suffered a sudden cardiac arrest when she was quite young. The Applicant first saw Dr Hogan in 1996. Court proceedings had caused major psychological disruption to the family and that was very stressful upon her. Her symptoms had an impact on her sexuality and poor self esteem. Her personal relationship has been difficult throughout her married life. She weighed some 120 kilograms when she first saw Dr Hogan. At one stage her weight went as high as 150 kilograms. Her problem arises out of disgust and fear described because of the memory she has about the sexual offences. She suffers from major depression relating to the memories of the abuse. She has undergone psychotherapy which has attempted to allow her to deal in a practical way with her problems as a child. Medication has also been used to help her depression and psychotic symptoms. [9] It might be said that by 1996 all of the offences contributed to her having the condition from which she suffered together with the other offences committed by her cousin. -- 4 of 5 -- 5 Assessment\ [10] Having regard to the caveat given by the Chief Justice op cit and a need to discount the claim for factors other than those referable to the Respondent, the damages are assessed at $15,000. This quantum is consistent with the submissions by the Respondent having regard to those matters and reflects in my view a fair and just award in the circumstances. Order 1. It is ordered that the Respondent V do pay to the Applicant the sum of $15,000 for injuries sustained as a result of the offences which led to his conviction on 28 November 2002; 2. It is further ordered that the Respondent do pay the Applicant’s costs of and incidental to this application to be assessed. -- 5 of 5 --