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MAV v ABA

 

[2007] QCA 124

Reported at [2008] 1 Qd R 171

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

MAV v ABA [2007] QCA 124

PARTIES:

MAV

(plaintiff/appellant)

v

ABA

(defendant/respondent)

ATTORNEY-GENERAL OF QUEENSLAND

(intervenor)

FILE NO/S:

Appeal No 10078 of 2006

DC No 457 of 2005

DIVISION:

Court of Appeal

PROCEEDING:

Application for Extension of Time / General Civil Appeal

ORIGINATING COURT:

District Court at Townsville

DELIVERED ON:

13 April 2007

DELIVERED AT:

Brisbane 

HEARING DATE:

21 March 2007

JUDGES:

Jerrard JA, Cullinane and Jones JJ

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDER:

1. Application for leave to appeal be granted

2. Appeal allowed with costs to be assessed

3. The order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO THE DISPOSAL OF PROPERTY – QUEENSLAND – where the appellant fell pregnant after being raped by the respondent – where compensation was awarded – whether the learned judge made inadequate assessment under the Criminal Offence Victims Act 1995 (Qld)

Criminal Offence Victims Act 1995 (Qld),  s 24

Criminal Offence Victims Regulation 1995 (Qld), reg 1A

HV v LN [2000] QCA 472, Appeal No 8149 of 200, 24 November 2000, applied

HW v LO [2000] QCA 377, Appeal No 3016 of 2000, 15 September 2000, applied

R v Atwell ex parte Jullie [2002] 2 Qd R 367, applied

R v Bridge and Madams ex parte Larkin [1989] 1 Qd R 554, applied

R v Tiltman; ex parte Dawe, unreported, Lee J SC No 324 of 1995, 22 June 1995

SAY v AZ ex parte Attorney-General (Qld) [2006] QCA 462, Appeal No 583 0f 2006, 10 November 2006, applied

COUNSEL:

D Honchin for the appellant

S Hinson SC for the intervenor

SOLICITORS:

Purcell Taylor Lawyers for the appellant

Crown Solicitor for the intervenor

  1. JERRARD JA:  I have read the reasons of Jones J in this matter and I respectfully agree with His Honour’s reasons and the orders that His Honour proposes.
  1. CULLINANE J:  I have had the opportunity to read the reasons of Jones J in this matter. I agree with his reasons and the orders he proposes.
  1. JONES J:  By these proceedings the applicant seeks an extension of time within which to seek leave to appeal and then to appeal against the order of the District Court at Townsville whereby she was awarded compensation in the sum of $55,500 against the respondent.  The extension of time is necessary because the order sought to be varied was pronounced in the District Court on 20 October 2006 but the application and Notice of Appeal were not in fact filed until 21 November 2006.  This short delay was caused by the late delivery of the documents in the ordinary course of post.  The respondent did not appear to argue the appeal and the Attorney-General, who intervenes, does not oppose the granting of the extension of time.
  1. The amount ordered to be paid exceeds the amount of $50,000 for which s 118(3) of the District Court of Queensland Act 1967 (Qld) determines that leave to appeal is necessary.  But that sum is essentially the aggregation of two separate claims neither of which exceeds this monetary limit.  Again, no issue is taken by the Attorney-General as to the granting of leave, the grounds for which are argued simultaneously with the grounds of appeal.  The application raises an important point in the manner of assessing compensation where a pregnancy results from criminal conduct.  In the circumstances it is appropriate that leave be granted.
  1. The application is for leave to appeal against the award of criminal compensation by the District Court at Townsville wherein a sum of $55,500 was assessed, made up as follows:-
Criminal Code Compensation $20,000.00
Criminal Offence Victims Act compensation
(a) Item 33 – Severe mental or nervous shock 34% $25,500.00
(b) Pregnancy   $10,000.00
      $55,500.00
  1. The applicant appeals against that assessment of compensation on the grounds that the learned primary judge erred in holding that the offences giving rise to Criminal Code compensation arose out of “one course of conduct or closely related courses of conduct”.  The applicant also seeks guidance as to the compensatory value of a “pregnancy” criminal conduct.

The offending

  1. The respondent was convicted of four offences as follows[1]:-
  1. Between 3 July 1989 – 12 July 1998 - maintaining a sexual relationship with a child with circumstances of aggravation (as corrected).[2]
  1. Between 1 January 1992 – 23 March 1993 - unlawful and indecent dealing with a child under 16 years.
  1. Between 27 July 1993 – 31 December 1994 - attempted rape.
  1. On 13 May 1997 - rape.

A further charge of carnal knowledge, said to have occurred in the first part of 1998 was the subject of a nolle prosequi.

  1. The complainant in each of these offences was the applicant. She was born on 13 July 1982 and thus was between the ages of seven years and 16 years for the period of offending. The respondent was her foster parent into whose care she was placed when she was three and a half years of age. She claims that the offending commenced soon after she came into his care.
  1. Her claim for compensation relates to the respondent’s conduct over a span of nine years between 1989 and 1998. Her claim for compensation requires assessment pursuant to s 663B of the Criminal Code (“the Code”) for conduct up to 18 December 1995, and thereafter pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) (“the Act”).  When the Act commenced on 18 December 1995, the conduct leading to the first of the above offences had been partially committed.  Some six and a half years of the nine year period of offending had then passed, although the evidence reveals that there was a two year cessation in the respondent’s criminal conduct between 1990 – 1991. 
  1. Prior to the Act coming into force, the second and third offences had been committed. Each of them is relied upon as a defining particular of the offence of maintaining a sexual relationship. The two specific offences and part of the maintaining offence clearly fall to be considered in accordance with the regime provided under the Code. The first question is whether the conduct prior to December 1995 is to be considered as giving rise to separate offences or whether it is part of a “course of conduct” for the purpose of the Code scheme.

Assessment under the Criminal Code

  1. The relevant Code provisions are in the following terms:-

“663B.(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person … arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, … may … order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences …

(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.

(1B) Injury suffered by a person aggrieved by reason of the commission the person convicted of more than 1 indictable offence described in subsection (1) may, in respect of the person convicted, be the subject of 1 application only and 1 court order for the payment of a compensatory sum only.”

  1. The learned primary judge relevantly found –

“The applicant was continually and regularly and consistently sexually abused by the respondent.  This involved a gross breach of parental trust and responsibility on his part.  This undoubtedly affected the applicant significantly. 

The applicant, in my view and, I think, that of the medical professionals who have been involved with her, was the victim of a systematic course of conduct consisting of a succession or series of acts which displayed an identifiable overall pattern, namely ongoing, continual and persistent sexual abuse.”[3]

  1. His Honour relied on the authority of HW v LO[4] where the Court of Appeal considered a question of this kind.  The Chief Justice said (at para 7):-

“Assaying a definition of “course of conduct” for the purposes of s 663B (the Code), the words connote in this context a succession or series of acts (or omissions) which, because of a sufficiently close inter-relation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern.”

In the same case McMurdo P held that whether such a pattern is established will be “largely a question of fact in each case”.[5]  The circumstances in HW v LO involved five separate counts of rape committed over a six year period, one of which results in the complainant falling pregnant.  There was no charge of maintaining and uncharged acts were confined to the latter part of the offending.  The Court of Appeal found that there was no such overall pattern but rather assessed the offences as being distinct and separated in time and place.

  1. Counsel for the applicant relied upon the circumstances in R v Bridge and Madams ex parte Larkin[6] as illustrative of what constituted a single course of conduct.  There the complainant was abducted, taken to a basement, sexually assaulted by the two offenders and released the same evening.
  1. Counsel for the applicant argued that the learned primary judge erred in his finding that the criminal acts “displayed an identifiable overall pattern” which he described as being “part of the grooming process”.[7]  Rather, counsel contended that the three charged acts of indecent dealing, attempted rape and rape should have been dealt with separately for their respective effects upon the applicant so as to lead to three separate awards under the Code scheme.  Each act made a material contribution to the applicant’s injury such that, in the absence of other causes, the applicant was entitled to full compensation for each act.  R v Tiltman; ex parte Dawe[8]; SAY v AZ .[9]  He contended that the charged acts each occurred at distinctly separate times and at different locations.
  1. Counsel for the Attorney-General pointed to the circumstances of the maintaining charge as involving proven continuity or habituality of sexual conduct as opposed to isolated incidents. In this sense the circumstances were distinguishable from those in HW v LO.  He referred also to the remarks of the President when deciding the respondent’s appeal against sentence, describing the evidence as establishing “a pattern of escalating corruptive behaviour”[10] as being the equivalent of his Honour’s term “grooming”.
  1. Two difficulties confront the applicant in this challenge to the award. Firstly, it is necessary to show that his Honour’s finding of fact is unsustainable on the evidence. Secondly, there is no direct evidence of what, if any, was the material contribution the specific charged act made to her injury. In circumstances where the offence was not well particularised and is, in any event, one act among many similar acts, notions of two distinct material contributions to injury prior to December 1995 and merged contributions after that date take on an air of artificiality. The approach to be taken under the Act in such circumstances is dealt with in SAY v AZ[11] where the crucial role of s 25(7) in defining the courts discretion was identified.
  1. The evidence shows that the location at which the conduct occurred changed only because the applicant and the respondent moved their place of residence. Relevant to count 2, the applicant detailed events at Bluewater to where her family moved in late 1989. Their house was near to the Council dump where the respondent had built a cubby house and furnished it with a mattress and pillow. The applicant described the indecent dealing as making her remove her clothes, exposing himself, placing his finger inside her vagina and rubbing his penis against her legs. She described visits to the cubby house and such conduct as happening “lots of times”[12].
  1. The family moved to an address at West End, Townsville during 1990-1991 when there was no complaint about the respondent’s behaviour.  In the following year, 1993, the family resided at an address in the suburb of Kirwan where the circumstances of count 3 occurred.  The applicant described the conduct of the respondent’s attempt to place his fingers into her vagina and his ejaculating onto her stomach.  This conduct occurred on occasions when the respondent’s wife was attending the Casino.  From the description the applicant provided to the police, this was a regular occurrence both when the family resided at Kirwan and at their next residence at the suburb of Vincent.[13]
  1. The family next moved back to West End where the respondent occupied a bedroom to himself.  The applicant was now 14 years old and the respondent commenced to have full vaginal intercourse with her.  The frequency with which these acts occurred again related to the occasions when the respondent’s wife went to the Casino.  The only inference to be drawn from the applicant’s statement to the police is that the criminal acts were persistent and occurring frequently.[14]
  1. Consequently the impact of the three offences - counts 2, 3 and 4 - must be viewed against a background of numerous uncharged acts at each of the residences occupied by the applicant and the respondent. The respondent’s offending between 1989 and 1997, save for the two year period referred to, has been continuous and escalating in its seriousness. Whether or not this conduct justifies the description of “grooming” as the learned primary judge found, it certainly represents a succession of acts inter-related by their nature, by timing of opportunity and by place of residence. These acts, in aggregation, depict an identifiable overall pattern such as to fall within the scope of s 663B(1A) of the Code.  As a consequence, it cannot be said that the learned primary judge erred in finding that in terms of s 663B(1B) there can only be one compensatory award. 
  1. Each of the medical practitioners who examined the applicant considered the consequence of her abuse only on a global basis. No attempt has been made to distinguish between specific acts. The reports of Dr Richards and Mr Wakeley were sought to explore the applicant’s own subsequent criminal offending. Only the report of Ms Dormer is specific to this application. The injury has been given different classifications by the three experts. Dr Richards in November 2002 diagnosed the applicant as suffering from a Conduct Disorder and at the same time Mr Wakeley opined that she suffered from Borderline Personality Disorder. A more detailed examination of all the circumstances by Ms Dormer, clinical psychologist, led to her conclusion that the applicant suffered a Complex Post Traumatic Stress Disorder. In none of their opinions is there any specific reference to a particular act, or acts within a particular period, being directly responsible for some identifiable aspect of damage. Ms Dormer attributed the development of this condition as 50 per cent contributed to by the abuse prior to 18 December 1995.[15] 
  1. In HV v LN [16] the Court of Appeal considered the approach to be taken when an injury occurs in a period which spans the two statutory regimes.  Thomas JA (with Pincus JA and Byrne J agreeing) said:-

“[17] 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.  In some cases medical evidence may show that the early offences had already produced a serious condition so that the later offences would be regarded as having merely caused minor aggravation of an already established condition, in which case the greater part of the overall consequences would be properly ascribed to the earlier offending conduct or vice versa.  I do not think it beyond the ingenuity or expertise of the courts to make such assessments to meet the particular requirements of particular cases.”

  1. Here the acceptable medical evidence has defined that part of the injury to be apportioned between the two schemes. The learned primary judge considered that assessment and concluded that the applicant’s entitlement under the Code scheme was the maximum sum permitted to be awarded - $20,000. Similarly, adopting Ms Dormer’s description of extremely severe psychological effects on the applicant he awarded the maximum entitlement permitted under the Act. In each instance I consider the learned primary judge was correct in so doing.

Assessing compensation for pregnancy

  1. The applicant carried a child conceived as a consequence of the respondent’s rape to full term. She was then 15 years old. The child was delivered by caesarean section resulting in her having to endure longer hospitalisation, the attendant recovery from surgery and some scarring. She was also forced to leave school in order to have the child and she never returned to formal schooling. Further, she was sent from her home to Townsville for the latter period of her pregnancy and for her confinement Thus she was isolated from other members of the family on whom she depended for support. As her child grew it came to resemble its father which engendered a feeling of antipathy towards the child adding to her emotional burdens. As a consequence the child was removed from her care by departmental officers. She has since given birth to another child in a wanted pregnancy but remains separated from the first child. She has also been found guilty of criminal offending resulting in a term of imprisonment
  1. The applicant contends that the learned primary judge took a too narrow view of the scope of pregnancy as an injury and the allowance made for it was inadequate. Alternatively, his Honour ought to have given consideration to adverse impacts associated with the pregnancy pursuant to Regulation 1A of the Criminal Offence Victims Regulation 1995 (Qld) (hereinafter “the Regulation”).
  1. The starting point is the meaning of “injury” as defined by s 20 of the Act:-

Injury is bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.”

  1. There is no amount for the injury of pregnancy specified in the Compensation Table or elsewhere in the scheme provisions. So the assessment of compensation for that injury is at large but limited by the requirement that the total for all injuries does not exceed the statutory maximum. Section 25(3).
  1. The “injury prescribed under a regulation”, is the totality of the adverse impacts of a sexual offence, to the extent to which such impacts are not otherwise an injury under s 20 (s 1A). That qualification of being compensable only to the extent that they are not included in another injury can be quite limiting. This is because the range of compensation for adverse impacts is the total of the statutory maximum whereas if the injury is diagnosed as a severe mental shock the highest allowance would be 34 per cent of the maximum.
  1. In R v Atwell ex parte Jullie[17], the Court of Appeal identified the difficulty which the words “to the extent to which the impacts are not otherwise an injury under section 20” have in achieving a just compensation for the victims of a sexual offence.[18]  Chesterman J said (at para 20):-

“The difficulty for the applicant appears in the phrase “to the extent to which the impacts are not otherwise an injury under section 20”.  There can be no doubt about its meaning.  Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the Regulation unless they amount to an injury under s 20, in which case they fall outside the scope of the Regulation and are to be assessed under the Act.  This follows from the phrase.  Impacts are an injury for the purposes of the Regulation to the extent that the impacts are not an injury under s 20.  They will be such an injury if they are mental or nervous shock.  I cannot see any escape from this conclusion.  The consequence is not that less seriously affected victims of sexual offences will receive more by way of compensation than the more seriously affected whose claims will be assessed under s 20.  That is a theoretical possibility but it is one likely to be avoided in practice by the court heeding the caution found in s 22(3) of the Act, that compensation is intended to help an applicant but is not intended to reflect the compensation to which an applicant would have been entitled by way of damages at common law.”

  1. The scheme of the Act provides a discrete remedy in addition to, and not in substitution for common law remedies. Section 22(1). The relief provided there is no relationship to common law entitlements. Section 22(3). The statutory scheme eschews any resort to common law principles relating to the assessment of damages. Section 25(8). The Compensation Table identifies injuries and allowances which clearly indicate that economic loss type claims are not within the contemplation of the scheme. The scope of the Compensation Table is limited to the physical and mental injuries consequent upon the offending behaviour.  It was because of the narrow scope of compensation available under the sections of the Act that the notion of injury was broadened by the promulgation of s 1A on 18 December 1997 to include “adverse impacts” of sexual offences within its scope.[19]
  1. Regulation 1A(2) sets out a non-exhaustive list of adverse impacts as follows:-

An adverse impact of a sexual offence includes the following –

  1. A sense of violation;
  1. Reduced self worth or perception;
  1. Post-traumatic stress disorder;
  1. Disease;
  1. Lost or reduced physical immunity;
  1. Lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;
  1. Increased fear or increased feelings of insecurity;
  1. Adverse effect of the reaction of others;
  1. Adverse impact on lawful sexual relations;
  1. Adverse impact on feelings;
  1. Anything the court considers is an adverse impact of a sexual offence.

The introductory terms of the subsection, and particularly the express terms of paragraph (k) demonstrate clearly that the scope of adverse impacts is not closed.  But in accordance with the general scheme of the Act, purely economic impacts would seem to be excluded.  Ultimately, the court’s discretion is derived from the terms of s 25(7) which requires the court in deciding whether an amount, or what amount, should be ordered to be paid for an injury, must have regard to everything relevant.  In SAY v AZ (supra) Holmes JA said (at para 20):-

“Section 25(7) as it seems to me, deals with both causation and quantification. In the first instance the court has to decide “whether an amount … should be ordered to be paid for an injury.  The issue there is whether, taking all relevant factors into account, the offence has materially contributed to the injury.  Assuming that it has, there remains the quantification question: “what amount … should be ordered to be paid” for that injury.  Again the court must have regard to everything relevant.”

  1. A number of the listed impacts in s 1A(2) overlap with various types of stress or anxiety disorders commonly diagnosed as psychological injuries, as has occurred the case for this applicant. There is also an apparent overlap between the applicant’s emotional consequences of pregnancy and the mental or nervous shock injury diagnosed by Ms Dormer. In this case that causes difficulty for the applicant in respect of such a claim because of the way in which Ms Dormer included the adverse impacts within the embrace of the injury she identified as the Complex Post Traumatic Stress Disorder.
  1. From her report the applicant has suffered from each of the listed adverse impacts in s 1A(2). Ms Dormer observed that all of the adverse impacts fall into the criteria essential for that diagnosis.[20]  She also dealt with the psychological effects of pregnancy in the following terms:-

“The child was born on February 13th 1998 when [MAV] was 16 years of age.  When asked her response when she realized that she was pregnant, [MAV] stated that she was ‘scared, frightened and felt desperate’.  She continued that she realized that this would disrupt her schooling and isolate her from her family.  Because of the abuse in her life, [MAV] would not have been equipped with the psychological tools needed to reach out to people for help…. The trauma of the awareness of the pregnancy would have been followed by the trauma of the birth and as [MAV] stated ‘not knowing how to care for my child’.  This was followed by the grief of having her child taken from her and that grief is still very evidence at this time …  The birth of Marika would have complicated and intensified [MAV]’s trauma responses to her abuse and is still heightening her grief, despair, hopelessness and depression.”[21]

  1. Where there is an overlap between the symptoms for the respective s 20 injuries, the court is required to make appropriate adjustment to avoid double compensation. So it is here, any separate allowance for “pregnancy” in this instance cannot take into account the psychological impacts which have been included in the mental and nervous shock injury. But there remains the need to distinguish between those psychological impacts and other adverse impacts of the pregnancy. The issue then is what are the impacts of the pregnancy which may be taken into account pursuant to s 20 of the Act.
  1. The learned primary judge made the following findings:-

“Compensation for pregnancy is to be assessed in accordance with s 25(6) of the Act which requires a comparison with injuries listed in the Compensation Table and the amounts that may be ordered to be paid for those injuries.  Notwithstanding that it may seem unfair and even somewhat illogical, in my opinion, compensation for pregnancy is limited to just that, including probably the birth of the child, and does not extend to economic costs associated with the birth of the child, costs of raising the child, effect upon the applicant’s schooling and education, employment and future capacity to earn an income.  If such matters were to be the subject of compensation, I would have expected them to be specifically mentioned in the Act.  Likewise, the fact that there being a scheme maximum militates against compensation under the Act including economic loss components.”[22]

His Honour went on to note that some of the adverse impacts of the pregnancy were taken into account in the assessment of the mental and nervous state.  In the end result, he assessed compensation for the pregnancy at $10,000.

  1. The concept of pregnancy as an “injury” is not the subject of any elucidation from the terms of either the Act or the Regulation. The quantification of the amount to be ordered for pregnancy is to be determined in accordance with s 25(6) of the Act which requires the court to decide the amount by –

“(a)comparing the injury with injuries to which subsections (4) and (5) apply; and

  1. having regard to the amounts that may be ordered to be paid for those injuries.”

Pregnancy is not readily comparable with the listed physical injuries in the Compensation Table.  This appeal raises the question as to the scope of the matters to which regard may be had in assessing the injurious effect of pregnancy.

  1. Counsel for the applicant argued that the scope of the allowances should be broadly encompassing so as to include all the physical and emotional impacts as well as other related adverse impacts. He concedes that there is no warrant for including any economic loss. He concedes that there can be no allowance for psychological damage already taken into account in the allowance for mental and nervous shock. But he argues that there remains a right to compensation for the pregnancy as a discrete physical injury and separately for adverse impacts pursuant to s 1A. He identifies relevant impacts as –

Temporarily reduced physical capacity and inconvenience prior to birth;

Pain and disability consequent upon the surgical delivery;

Loss of physical capacity whilst recovering from surgery;

Surgical scarring;

Breast feeding;

Loss of life’s potential from forced cessation of schooling, forced separation from family support and social stigma.

  1. On behalf of the Attorney-General it was argued that the state of pregnancy for the purpose of s 20 of the Act is to be narrowly construed. Firstly, because pregnancy is an identified injury under s 20 its adverse impacts cannot be considered as a separate injury under s 1A. Secondly, according to ordinary definitions pregnancy means “the condition of being pregnant” and the Australian Oxford Dictionary defines “pregnant” as “having a child developing in the uterus”. Consequently, the condition of pregnancy has a beginning and an end. The beginning is fertilisation, the end is birth or earlier termination by spontaneous abortion (miscarriage) or induced abortion. It follows therefore that disadvantages such as postnatal recovery, breast feeding and changes to life style and life’s potential because of pregnancy might be treated as adverse impacts under s 1A but only to the extent they have not been captured by the s 20 injuries as diagnosed. Counsel for the Attorney-General argued that, in this case, all of the adverse impacts had been taken into account in the mental and nervous shock allowance and that it had not been shown that the assessment below was wrong.
  1. In addition to the comments of Ms Dormer quoted in paragraph [34] above, it is apparent that she took into account the disruption to the applicant’s life and schooling. This is referred to in her report in the following terms:-

“There is also the added distress and trauma related to becoming pregnant to the perpetrator of the sexual abuse at the age of 15.  This event not only disrupted her life and her schooling but also caused her to become ostracized from her foster family and rejected by her biological mother who wanted nothing to do with the child.  From her accounts there was little or no support for her at this time and a child was eventually removed from her care.”[23]

  1. Considerations relevant to pregnancy as a physical injury would include:-
  1. its duration;
  1. its manner of termination – miscarriage (spontaneous or induced), natural delivery or caesarean section;
  1. the level of physical discomfort, inconvenience, incapacity during the term;
  1. physical consequences directly related to the pregnancy and its termination e.g. scarring, incapacity for further pregnancies;
  1. common emotional consequences related to pregnancy e.g. mood disturbance, fear of delivery, self-image loss;

Whilst this is not intended to be an exhaustive list of the physical and emotional effects of pregnancy, other consequences which are more related to the individual’s experience ought to be characterised as adverse impacts for the particular claimant and be more appropriately dealt with pursuant to s 1A if not already encompassed in another injury such as mental or nervous shock.  In this instance, but for the fact that Ms Dormer clearly took into account the adverse impact of the applicant’s disruption to schooling and her isolation from family, it may have been appropriate to include an allowance for those as adverse impacts separate to the injury of pregnancy. 

  1. In my opinion pregnancy as an injury should be viewed narrowly for the purpose of s 20. Such a conservative approach is in keeping with the manner in which other injuries are dealt with under that section. Thus compensation for pregnancy would be assessed mainly in terms of its physical, and the usual anticipated emotional effects. The adverse impacts which in an individual case flow from a pregnancy resulting from a sexual offence are more personal to the victim and thus would be more fairly, and more realistically assessed in terms of either mental or nervous shock or alternatively as a prescribed injury under s 1A to the extent to which the adverse impacts are not already included in the pregnancy injury.
  1. This was the approach adopted by the learned primary judge in the circumstances. Because of the comprehensive nature of Ms Dormer’s report there was left no other adverse impact referable to pregnancy which fell outside her considerations of the nervous shock injury.
  1. The only remaining consideration is whether in the circumstances an allowance of $10,000 can be said to be manifestly inadequate.
  1. Compensation in cases where pregnancy has been identified as an injury has often been rolled up with allowances either for mental shock or adverse impacts. Consequently, there is little guidance as to what is an appropriate range for compensation for full time pregnancy terminated by caesarean section. In H W v L O (supra) the judge at first instance assessed compensation for a pregnancy terminated early at $15,000 as well as $20,000 for nervous shock.[24]  Both the allowance for pregnancy and for nervous shock was higher than the prevailing maximum allowed at that time under Criminal Code applications and thus had to be re-assessed.  However, it is to be noted that the pregnancy in that case was apparently terminated soon after it became known because a further offence was committed in the same year.[25]
  1. Many assessments made in this field of compensation are not reported and it is difficult to establish whether there has been a common approach to the assessment of pregnancy as an injury. Some cases drawn to my attention suggests there is not. One assessment where pregnancy was terminated early is found in Amanda Kiss v Marland[26] where Nase DCJ awarded $11,250 which was the full amount sought by the applicant.  In other cases where pregnancy went for its full term allowances of $22,500 (30 per cent) were made.[27]  In some cases there has been overlapping of allowances for pregnancy with adverse impacts for nervous shock.[28]  As a consequence I could find no defined range within which an allowance for pregnancy as an injury might fall.  There is enough guidance however to show that $10,000 for a pregnancy ending with a caesarean delivery is too low and is closer to the allowance for a pregnancy terminated earlier.
  1. In the circumstances of this case where the applicant is very young and having her first child and required to undergo surgery, the allowance in my view is more appropriately fixed at $20,000 (26.6 per cent of the statutory maximum). I would make the following orders:-
  1. Application for leave to appeal be granted.
  1. The appeal be allowed with costs to be assessed.
  1. The order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500.

Footnotes

[1] Appeal record p 27

[2] The indictment particularises this offence as occurring between 26 July 1985 – 12 July 1998.  However as the offence of “maintaining” only came into existence on 3 July 1989 it could not relate to any conduct prior to that date.  The correction was subsequently made by the Court of Appeal.

[3] Appeal record at p 108

[4] [2001] 2 Qd R 415.

[5] Ibid at [55].

[6] [1989] 1 Qd R 554

[7] Appeal record at pp 108-9

[8] [1995] QSC 345

[9] [2007] 2 Qd R 363.

[10] R v A [2003] QCA 445 at [29]

[11] [2007] 2 Qd R 363.

[12] Appeal record at p 11

[13] Appeal record at pp 12-13

[14] Appeal record at pp 13-14

[15] Appeal record at p 81

[16] [2002] 1 Qd R 279

[17] [2002] 2 Qd R 367

[18] Williams JA referred to “an element of artificiality about the way in which criminal compensation is calculated, but that is a necessary consequence of applying the legislation” (para 2); Atkinson J spoke of the “entirely unsatisfactory consequence that a person with a less serious injury may receive more compensation than a person with a more serious injury.” (para 62)

[19] For the background to these changes see R v Atwell (supra) per Atkinson J

[20] Appeal record pp 78-80

[21] Appeal record p 80-81

[22] Appeal record at pp 110-111

[23] Appeal record at p 76

[24] [2001] 2 Qd R 415, paras [11], [44] and [52]

[25] Ibid, paras [60] and [61]

[26] Unreported No. D121 of 2001

[27] Dear v Pethybridge No. 4616 of 2004; Dagg v Carr No. 3048 of 2003

[28] Mitchell v Gilhcrist No.1333 of 2001

Close

Editorial Notes

  • Published Case Name:

    MAV v ABA

  • Shortened Case Name:

    MAV v ABA

  • Reported Citation:

    [2008] 1 Qd R 171

  • MNC:

    [2007] QCA 124

  • Court:

    QCA

  • Judge(s):

    Jerrard JA, Cullinane J, Jones J

  • Date:

    13 Apr 2007

Litigation History

Event Citation or File Date Notes
Primary Judgment DC457/05 (No Citation) 20 Oct 2006 Application for compensation pursuant to Criminal Offence Victims Act; applicant fell pregnant after being raped; assessed compensation at $55,000.
Appeal Determined (QCA) [2007] QCA 380 09 Nov 2007 Second amendment to cost order pursuant to slip rule on application by State of Queensland; State appeared as amicus curiae and not as intervener; respondent pay appellant's costs of the appeal but be granted an indemnity costs certificate under s 15 ACF Act: Jerrard JA, Cullinane and Jones JJ.
Appeal Determined (QCA) [2007] QCA 124 [2008] 1 Qd R 171 13 Apr 2007 Application for leave (extension of time) granted and appeal allowed; order made in the District Court on 20 October 2006 be varied by substituting for the amount of $55,500 the amount of $65,500; primary judge made inadequate assessment for compensation under Criminal Offence Victims Act; fell pregnant after rape: Jerrard JA, Cullinane and Jones JJ.
Appeal Determined (QCA) [2007] QCA 242 20 Jul 2007 Slip rule amendment to cost order in [2007] QCA 124: State of Queensland to pay costs: Jerrard JA, Cullinane and Jones JJ.

Appeal Status

{solid} Appeal Determined (QCA)