Osborne v Bennett[2000] QDC 67

CIVIL JURISDICTION

JUDGE HOATH

IRIS LYNETTE OSBORNE Applicant

and

WILLIAM ALFRED BENNETT Respondent

BRISBANE

DATE 11/02/2000

JUDGMENT

HIS HONOUR: This is an application by Iris Lynette Osborne for compensation under the now repealed section 663B of the Criminal Code for injuries sustained as a result of numerous sexual offences committed upon her by her father, the respondent, William Alfred Bennett.

The respondent was convicted of those offences on 13 October 1998 and on 19 January 1999 was sentenced to 13 years' imprisonment.

In sentencing the respondent, I described his conduct as constituting the vilest of defilement of a very young child.

It is unfortunately necessary for me to incorporate in my judgment some detail of the circumstances of the 20 offences of which the respondent was convicted in relation to the applicant.

Rather than now refer to them in detail, the schedule setting out the detail of those offences tendered on the sentencing of the respondent in January 1999 will be annexed to the typed copy of these reasons.

As can be seen from the schedule, these offences involved the rape, incest, attempted rape and incest, indecent treatment and indecent assault of the applicant over a 10 year period, culminating in her being impregnated by the respondent when she was 15 years of age.

The offences were committed between January 1966 and December 1975 when the applicant was between six and 15 years of age. She was first raced when she was only seven years of age.

All the offences were committed in an environment of fear as it was made plain to the applicant that any failure to comply with the respondent's desire to engage in this continued depraved conduct would result in violence to the applicant.

Apart from the apprehended fear of violence, the applicant also suffered some actual physical pain during the commission of the offences.

The sexual abuse of the applicant only ceased after the child she was bearing was born and given up for adoption. She then threatened to report the matter to the police if the respondent made any further sexual demands upon her.

The applicant is now 39 years of age and married, without children. The sexual abuse was first brought out in the open in November 1995. The applicant first consulted Dr John McIntyre, a specialist psychiatrist, in March 1996. Between March 1996 and March 1999, the applicant had some 40 consultations with Dr McIntyre.

In a report of 29 March 1999, Dr McIntyre states that when he first saw the applicant she was suffering from major depression and from post-traumatic stress disorder.

Since that time, treatment under Dr McIntyre has included psychotropic medication with a variety of anti-depressants, supportive psychotherapy, cognitive behaviour therapy and management by clinical psychologists.

During the three years she has been under Dr McIntyre's care, she has required three acute admissions to the psychiatric unit at Toowoomba Base Hospital as a result of increases in her suicidal ideation, intensifying distress and repeated self-mutilating behaviour.

As a result of bringing these offences to the attention of the authorities she has lost the support of her family with most members blaming her for the incarceration of her father and ostracising her as a consequence. In the victim impact statement tendered on the sentencing of the respondent the applicant poignantly sets out the all pervading traumatic effect that these offences have had on her, not only whilst they were occurring, but in her daily life up to the present time. A full appreciation of the devastating consequences of these offences can really only be comprehended by reading the victim impact statement itself.

Dr McIntyre summarises the applicant's present state and her outlook in life as being chronically depressed, mistrustful, with low self esteem, and having difficulty in forming close affectionate relationships with others. In addition to the emotional and psychological effects that these offences have had and will continue to have on the applicant, her and her husband have incurred substantial costs and loss of income for counselling, medication, and accommodation and travelling to attend counselling.

The first three offences of which the respondent was convicted were committed before 1 January 1969 when chapter 65A of the Criminal Code, providing for applications for criminal compensation to be made, was first introduced. At that time the maximum compensation payable was $2,000. That amount was increased in 1975 to $5,000 where the offence was committed after 1 July 1975. In 1984 the legislation was further amended to provide that where an injury in connection with which an application is made was suffered before 1984 then the maximum payable was $5,000. All these offences were committed before 1984, therefore, the maximum is $5,000.

Prior to the implementation of the Criminal Code Amendment Act 1984 it was possible for a separate compensation order to be made for each offence committed by an offender. The Criminal Law Amendment Act 1984 amended section 663B(1) of the Criminal Code to provide:

That legislation was introduced with the intention of precluding the making of multiple awards in respect of a number of offences if the offences arose out of one course of conduct or closely related courses of conduct. In this case there are two issues that arise as a result of the 1984 amendment to section 663(B)(1).

The first is whether that amendment applies to offences committed prior to 1984, and secondly, whether, if it does the numerous offences of which the respondent was convicted arise out of the one course of conduct. The issue of whether the amendment to section 663(B)(1) applies to offences committed before 1984 depends on when the applicant's cause of action accrued.

The recent Court of Appeal decision of Chong v Chong, Court of Appeal number 1168 of 1998, is now authority for the proposition that it is only after conviction, which in this case occurred on 13 October 1998, that a victim has a cause of action. The applicant's cause of action in this case came into existence after the 1984 amendments and is accordingly subject to that legislation.

The question then arises whether the offences of which the respondent was convicted arise out of one course of conduct or closely related courses of conduct. Whether offences arise out of one course of conduct or are closely related or not is a question of fact. It is, however, apparent that not dissimilar factual situations have produced conflicting answers to that question by different Judges of this Court.

It is seemingly impossible to reconcile many of those decisions and reference to the facts of other cases in an attempt to do so is not particularly helpful.

In this case the respondent was convicted on 17 separate offences committed against the applicant between 1969 and 1975. Although it could be argued that, as all the offences were of a sexual nature committed by the respondent against the applicant, they constituted once course of conduct or closely related courses of conduct I am satisfied because of the multiplicity of the acts, the different nature of the acts and the six year period over which they were committed they are not so related in time or circumstance as to be considered one course of conduct or closely related conduct.

It is a difficult and a somewhat arbitrary task, in this particular case where events occurred 30 years ago, to identify particular offences that warrant the making of a separate order for compensation as distinct from offences that may be seen as one course of conduct or closely related conduct.

In my view, however, there are a number of offences of which the respondent was convicted which can be identified and should be the subject of an individual order for compensation. Those offences are: one, the offences involving the respondent himself having intercourse with the complainant; two, the offences involving the respondent either placing his finger into the applicant's vagina or attempting to place his penis into her vagina; three, the offences involving the respondent forcing his son to have intercourse with the applicant; four, the offences involving the respondent making the applicant suck his penis; and, five, the offences involving the respondent taking photographs of the applicant whilst she was naked.

Each of the categories of offences I have just referred to should, in my view, be the subject of a separate order. Each category of those offences has caused and/or exacerbated an injury within the meaning or mental or nervous shock to the applicant.

In addition to those injuries the applicant was also made pregnant by the respondent and that pregnancy itself is an injury within the meaning of the term, “Injury,” in Section 663 (a) of the Criminal Code.

The result is that the applicant's maximum entitlement by reason of the injuries suffered by her as a result of the offences post-dating 1 January 1969, of which the respondent was convicted of on 31 October 1998, is $30,000.

Since the Court of Appeal decision in McClintock v. Jones it is settled that compensation applications under this legislation are to be assessed in accordance with the ordinary principles of assessment for damages for personal injury subject to the limits prescribed by the legislation.

In my view any assessment in accordance with the ordinary principles of assessment of damages in personal injuries cases of the applicant's entitlement in this case would exceed $30,000. Accordingly, I order that the respondent pay the applicant by way of compensation for the injuries suffered by her as a result of the offences of which the respondent was convicted on 13 October 1998 the sum of $30,000.

I further order that the respondent pay the applicant's costs of and incidental to the application.