Kimmich v Colameo
[2001] QDC 25
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- Kimmich v Colameo[2001] QDC 25
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Kimmich v Colameo[2001] QDC 25
Kimmich v Colameo[2001] QDC 25
DISTRICT COURT |
|
CIVIL JURISDICTION
JUDGE HOWELL
DEBRA LEA KIMMICH | Applicant |
and
RENATO COLAMEO | Respondent |
BRISBANE
DATE 09/02/2001
JUDGMENT
HIS HONOUR: On 4 December 2000 the respondent pleaded guilty to counts 2 to 7 inclusive, namely in 1971 two acts of attempted sodomy on the applicant, 1971 one act of sodomy, in the period of 1971/1972 one act of rape, in 1973 one act of rape and one of indecent dealing.
On the second day of the trial on 5 December 2000 the accused pleaded guilty to the said offences and the effective head sentence was eight years imprisonment.
The applicant was born on 29 January 1959. That means that she was aged between 12 and 14 for counts 2 to 7. In my sentencing remarks I stated the following, which I adopt:
“(In the period in the indictment), you sexually abused your young stepdaughter in a nauseating and shameful manner, including acts of some perversion. The complainant was born on 29 January 1959, which means that she was about (12) to about 14 when the offences (in counts 2 to 7) in the indictment occurred. You were living with her mother, and clearly in a position of trust.
You were in fact in loco parentis. You were the male father figure to whom she looked for guidance at a vulnerable stage of her development and you let her down badly indeed. This is certainly not an isolated offence. There are (6) acts, and as I said they occurred over a period of time.
The acts themselves were serious, involving not only unlawful carnal knowledge but such on (2) counts without consent were acts of rape. There were two counts of sodomy and a further count of attempted sodomy. There was the perverted act in count 7 of, after raping your young stepdaughter you put a small round white object into her vagina.
The object was the size of a pigeon egg, and you warned the complainant that it would sting, and it, according to her, certainly did. The acts of sodomy understandably caused certain excruciating pain. The acts discontinued when the complainant was 14...
A very serious matter of concern was the position of trust concerning the very person to whom she looked for guidance at a vulnerable stage of her development, and as I said, this was the very person who abused her shamefully.
The offences occurred either in her own home or at the business premises which she understandably dropped into regularly, and where on occasions she helped you out. Understandably and unsurprisingly the complainant has suffered quite a degree of emotional and psychological after-effect.”
The applicant, understandably, says:
“The abuse has had a tremendous effect on me both physically and mentally.”
The applicant has undergone, and is continuing to undergo, extensive counselling. She is also seeing a psychologist, a Mr Stoker.
On the sentencing process in the presence of the accused a victim impact statement was presented. The victim impact statement was also in the material filed in this Court. The applicant states inter alia:
“This abuse was not only physically painful while the abuse was taking place, but was also very damaging on my emotional and mental wellbeing, both as a child while this abuse was occurring and long after it ceased as an adult.”
By virtue of the grossly unsatisfactory maximum award I can make I do not propose to go into the usual detail I do on these matters. The applicant stated that:
“Even till now at the age of 40 I have suffered, experiencing a broad range of feelings and emotions.”
I do not propose to detail them. Unsurprisingly, the psychologist's conclusion is:
“As a result of the sexual abuse this woman endured she is distrustful of men, suffers depression, feels self-pity, has been robbed of a happy childhood, has suffered flashbacks, suffers insomnia/sleeping difficulties and hypnogogy and hallucinatory experiences, dissociates at times, suffers headaches daily”-
and I will not refer to the next part. The psychologist later says:
“This abuse has resulted in her developing a clinically significant post-traumatic stress disorder with nightmare imagery of the abuse, dissociation, high levels of emotionality and depression.”
There has been much criticism over the decades at varying stages of the unsatisfactory scale of compensation for victims of violent crime. Other criticisms relate to the inability of certain people to recover at all. Prior to 1 January 1969 there was no avenue at all for a victim of crime to make an application for compensation for criminal assault.
When the legislation came into operation on 1 January 1969 the maximum award that could be made was a paltry $2,000. In 1975 the maximum permissible that could be awarded was $5,000. That means in relation to counts 2 to 7 the maximum permissible award was $2,000, and the applicant has no remedy at all under such legislation for count 1.
One must take into account any effect the offence in count 1 may have had on a resultant condition, but on any view however much the effect of count 1 may have had in the ultimate result, when one makes allowance for that the award would be not insubstantially in excess of the maximum order I may make today. The Court of Appeal has stated that for offences that occurred in that particular period an award can be made for each individual amount.
Prior to the Criminal Offence Victims Act of 1995 coming into operation on 18 December 1995, section 663B(1), the legislation says:
“Where a person is convicted on indictment of any indictable offence relating to the person of any person, or of more than one 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...”
It is to be remembered in this case that the different offences were committed over different years, were a different type of sexuality, and in different circumstances. I repeat and rely on my number of rulings given at length in attempting to interpret the seemingly conflicting decisions of the Court of Appeal on this principle in Marsen v.Kello CA 410/00 and in Llorente CA 377/00.
...
HIS HONOUR: In Hendry v. Llorente, CA 377/00, de Jersey CJ was discussing “course of conduct or closely related courses of conduct” for the purposes of the section. His Honour said:
“It therefore falls to the learned Judge to assess compensation in respect of six sets of offences up to the applicable maximum amounts. This was not done by the Judge.”
The six sets of offences were referred to by McMurdo P, and my recollection is that the six offences were one that was clearly separated in time and place and by other identifying circumstances, whereas the other five were within a short period, a similar type of offence and in somewhat similar circumstances.
Her Honour says that the respondent was in fact convicted on indictment on 20 August 1999 of five counts of rape and one count of indecent treatment of a girl under 17 between 1975 and 1981. One would have little difficulty in any circumstance in saying the final act was clearly not part of the one course of conduct or closely related courses of conduct within the legislation.
The applicant is in a stronger position here than was the applicant in Hendry v. Llorente and following what de Jersey CJ said therein in law I may make, and should make, a separate award up to the maximum of $2,000 for each of the other six counts.
I am aware that in the other Court of Appeal decision Marsten v. Kello CA 410/00 Davies JA would come to a contrary conclusion. Counsel have a duty to not only refer the Court to authorities favourable to themselves, but authorities that are against them on the particular point. I don't have the authority of Marsten with me at the moment but I have on a number of occasions pointed out the distinction.
As I said in Marsten, the applicant was in a stronger position than the applicant in Hendry v. Llorente, but the Court of Appeal said that the applicant was only entitled to one sum for the number of counts because what was involved was closely related courses of conduct within the legislation.
My recollection of the cases is such that I regard the appropriate order in this case and an order which would meet also any fundamental notions or concepts of justice and would be, I am sure, the view of the community, is to make a separate award for each of the six separate counts. The maximum permissible for each count, for nervous and mental shock, is $2,000.
Accordingly judgment is entered for the applicant against the respondent in the sum of $2,000 for each of the said six counts, that is a total judgment of $12,000.
...
HIS HONOUR: I order that the respondent pay the applicant's costs of and incidental to the application, to be assessed.
...
HIS HONOUR: Just for completeness, I have had my memory refreshed in relation to what the rulings were on costs under the old legislation. In Re Gangemi [1971] QWN 19, Hanger CJ, and in Allsop [1972] QWN 34, Hoare J queried whether any power exists to order costs on an application for compensation for criminal assault on the then relevant legislation (and the relevant legislation here).
In Johnson Ex parte McLeod [1973] QdR 208, Kelly AJ, as he then was, held that there was no power to award costs to the applicant. There is the subsequent ruling by Connolly J that I have referred to which ruled that the Court did have the power to order costs.
In that conflict and in that doubt, I and many other Courts have followed the ruling of Connolly J. That was the one case I was looking for, I have not located it as yet, but I have followed it on many occasions as have many other Courts - and in my view, in the conflict, it is the appropriate order. I have already made the order as to costs, but I thought if you had those authorities on the record it might save a lot of time in the future if someone says there was some authority to the contrary. There was conflict. Connolly J's order was not the first one to say you could make an order for costs but that there was power, but his ruling covered the topic, and as I say, it was the one I have followed ever since, and as I understand, virtually every other Judge has followed since.
...
HIS HONOUR: You are entitled to your costs on my view of the law and on Connolly J's view of the law, which I said I followed.