L v M[2002] QDC 325

DISTRICT COURT OF QUEENSLAND

These are two applications for criminal compensation which might conveniently be heard together since they involve the one respondent.  On the 27th of January 2000 M was convicted before me of several offences of a sexual nature and sentenced to a term of eight years imprisonment.

The victims of those offences were the present applicants.  In respect of the applicant Y the respondent was convicted of the offence of maintaining a sexual relationship with a child under the age of 16 with a circumstance of aggravation and in respect of the applicant L he was convicted of some 25 offences of indecent dealing with a girl under the age of 16 years.

The respondent is the natural father of both applicants.  The conduct which gave rise to the charges need not, for present purposes, be recited in detail.  It is enough to say that it included various acts of fondling, as well as acts of masturbation, oral sex and digital penetration.  The offences involving Y occurred over a period of about eight years between the 31st of July 1989 and the 30th of June 1997 and the offences involving L were committed between August 1988 and March 1989. 

The offence of maintaining a sexual relationship was not introduced until July of 1989 and this no doubt explains why such a charge was not brought in relation to the conduct involving L.  In any event these applications involve a consideration of both the Criminal Offence Victims Act which came into force on the 18th of December 1995 as well as the previously existing compensation provisions of Chapter 65A of the Criminal Code.

There is no doubt that these offences have had significant psychological and psychiatric consequences for the applicants and there can be no suggestion that any conduct on their part contributed in any way to those consequences.  Y deposes to her continuing sense of devastation, disgust and anger at the conduct of her father.  She has lost confidence and self esteem and her affidavit sworn in these proceedings includes the following:

8. “8.
   I try to avoid any type of sexual attraction by dressing in bagging clothes.  I find that I am not interested in my appearance and I have put on weight.  I am not comfortable in the company of men and feel that I do not trust them.

9. The offences started when I was seven years of age.  Whilst at primary school I was a good student and I liked school as it meant I was not at home I did not have to worry about what the respondent might do.  I can recall worrying that people at school might find out what was happening and I would get into trouble.  I tended to be a quiet student who tried to work hard.  Once I got to high school things started to change as things were getting worse at home.  I started to not care about school or anything and I was unable to concentrate and do the work.  My marks and performance at school suffered and I left school at the end of grade 10.

10. As a child I had wanted to become a nurse and even now I am interested in nursing and caring for others.  I would have liked to have gone on to further study.  I am angry at losing the educational and occupational opportunities that might have been available to me had the offences not been committed.  I am angry that my capacity to financially support myself has been effected.

11. I am angry at the affect that the offences committed by the respondent against my sister and I have had on our family.

12. I feel that I have lost out on having the support of a loving family particularly as the actions of the respondent have led to so much hurt and anger that I am estranged from relatives who would otherwise have been there to support and love me.

13. I have almost no relationship with my mother.  My mother was aware of the abuse and did nothing to help.  She is still in regular contact with my father and visits him in gaol.  I feel isolated by what has happened and I have been robbed of a family.  I do not have a family support network as my paternal grandmother is supportive of my father and I tend to have nothing to do with my mother's family.

14. I do not have a relationship with my older sister L as I think the abuse meant we were unable to have any sort of growing up together.  We tended to keep to ourselves.  I do visit my sister Z who lives with my mother.  If it were not for the fact that she lives with my mother I would never see my mother.

15. I feel that my father has torn the family apart and that each member is so busy trying to recover that they are unable to help and support each other.

16. I have lost the support and companionship with my faith.  As a child we were raised as Muslims and regularly attended a mosque.  I have lost my faith in God and I feel I have been denied the support of the Muslim community and the ability to practice my faith.

17. Since leaving home I have tried to form intimate relationships but have been unable to do so.  I am unable to enjoy or participate in sex and fear relationships with men.  I would like to get married and have children and have a loving stable relationship but I do not think I could maintain such a relationship."

The material, however, that I find to be of greatest use is that contained in a report from a psychiatrist Dr Barbara McGuire who interviewed Y on the 19th of March 2001.  Dr McGuire considers that Y is suffering from post traumatic stress disorder to a severe degree.  Her

symptoms are low self-esteem, nightmares, flashbacks, eating disorder, disassociate disorder, self-destructive behaviour, serious constraints and restrictions of her social life and her academic performance and alienation from her family.

It would appear from Dr McGuire's report that Y's symptoms were at their most severe for a period of about two months after the Court hearing although they have now settled somewhat.  It is likely that there will be improvement over time, though some symptoms will likely remain for the rest of her life.

Y's entitlement to compensation falls to be assessed under the provisions of both the Criminal Code and the Criminal Offence Victims Act (COVA).  Injuries suffered because of acts committed prior to the 18th of December 1995 must be assessed under the code provisions, whilst injuries suffered thereafter must be assessed under the provisions of COVA.

The relevant approach was set out in HV v LN 2000 QCA 472, 118 Criminal Reports 53 as follows:

"The scheme of section 46 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. 

An applicant does not lose either right.  The applicant's accrued rights under the earlier regime cannot conveniently be swept aside to enable a single assessment to be made under the Criminal Offence Victims Act.

In the present situation I consider that the 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 attributable to each period and if no better suggestion emerges the length of the respective periods over which the offending conduct occurred may be used.

In some cases medical evidence may show that earlier 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 experience of the Courts to make such assessments to meet the particular requirements of particular cases."

In the present case it is difficult, if not impossible, in my view, to dissect the effects which the respondent's conduct has had upon Y.  Dr McGuire considers that, although any one of the individual acts could have produced post traumatic stress disorder, it is not really possible to attribute particular symptoms to particular acts.

In such a case the approach suggested by the Court of Appeal, set out above, would seem appropriate.  That is to apportion between the effects attributable to each period according to the length of the respective period over which the offending conduct occurred.

In this case, according to the particulars provided by the Crown, 21 of the acts relied on by the Crown were committed in the six and one half year period between the 31st of July 1989 and the 18th of December 1995.  The remaining five acts were committed in the 18 months to 30th of June 1997.

I will therefore apportion compensation so that 80 per cent is assessed under the code provisions and 20 per cent under the provisions of COVA.

In assessing compensation under the Code provisions it is necessary to determine whether the applicant should be compensated for individual offences, or a course of conduct.  Factors relevant in that regard are discussed in cases such as the HW v LO [2001] 2 QdR 415 and MAJ v KM 2000 QCA 410.

In HW v LO the Chief Justice with whom Muir J agreed, considered that the words, "course of conduct" connote 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.

His Honour referred to the need for an element of continuity and said:

"It goes without saying that one cannot be prescriptive of the requisite extent of relationship.  One obviously cannot, for example, specify a maximum duration for any separate course of conduct.  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 there being regarded as arising out of the same course of conduct or closely related courses of conduct.....

The events involved in these offences were far too distant and separate in time and place to warrant the conclusion that they arose out of the same course of conduct.  They arose out of the same relationship affected by, 'guilty passion' on the part of the respondent, but that was not enough to establish a 'course of conduct' sufficiently precise and limited for the purposes of the provision."

It should be noted that HW v LO was concerned with six offences committed over some six or seven years and committed on distinct occasions separated substantially in time and place and with the nature of the acts constituting the offences exhibiting some variety.

In MAJ v KM the Court was concerned with six offences of indecent dealing committed over a period of about five months.  Davies JA, thought that the facts relevant to the determination of the issue there were the similar, but escalating nature of the respondent's conduct, the fact that the offences occurred in similar circumstances, that they form of a pattern of similar offences of at least weekly occurrence and that they occurred over a period a little under five months.

His Honour considered it plain that those offences arose out of one course of conduct and observed - relevantly, in my view - that

"natural sympathy for the applicant should not sway the Court from giving effect to the provisions of the statute."

Applying these principles to the circumstances of the present case it is clear that the accused engaged in regular sexual conduct with Y over the lengthy period to which I have referred.  It does not really appear that those individual acts were separated substantially in terms of time and place, but it does seem to me when one analyses the particulars provided by the Crown in the schedule that was tendered on the sentence, that there was an increase in the incidents of acts of fellatio committed by the accused from around about 1992.  It seems to me, therefore, that it is possible to regard the respondent's conduct behaviour as really constituting two separate courses of conduct and I consider that compensation should be assessed in that way.

The maximum amount of compensation to which the applicant was entitled under the Code provisions was 20,000 in respect of each act, or each course of conduct, that being the relevant "prescribed amount" for the purposes of s.663B. 

In a common law action for damages her entitlement would be much greater and she should therefore receive, in my view, the maximum amount that I can award which, in the circumstances, would be 80 per cent of $40,000, or $32,000.

With regard to offences committed after the 18th of December 1995 I am satisfied that the applicant has suffered a substantially single state of injury within the meaning of section 26(3) of the Act.  The applicant has undoubtedly suffered an injury which amounts to nervous shock and which should be assessed as severe within item 33 of the Schedule.

It was suggested that she had also suffered certain adverse impacts within the meaning of regulation 1A of the Criminal Offence Victims Act 1995. 

One may feel a degree of sympathy for the applicant but as Davies JA observed in MAJ v KM such sympathy should not sway the Court from giving effect to the provisions of the statute.

As I understand the evidence, in particular the evidence of Dr McGuire, she clearly indicates that the adverse affects suffered by the applicant are already included in the established diagnosis of post traumatic stress disorder.  Accordingly the applicant is entitled to no additional compensation in respect thereof.  See Jullie v. Attwell [2002] 2 Qd R 367.  In respect of the post December 1995 period the applicant should receive an award of 20 per cent of 30 per cent of the scheme maximum or $4,500.  This leads to a total award in the case of Y of $36,500.

L's application is much more straight forward involving as it does offences committed over a much shorter period of about six months prior to the commencement of COVA.  Having regard to the principles that I have set out above I am satisfied that those offences constitute the one course of conduct within the meaning of section 663B of the Code.  Her compensation falls to be assessed in accordance with common law principles of assessment of damages for tort for personal injury provided, of course, that the amount awarded does not exceed the prescribed amount referred to in the legislation.

The relevant prescribed amount for mental or nervous shock is $20,000 as it was, of course, in the case of Y.  Dr McGuire reports that L suffered a post traumatic stress disorder of an extreme degree and that will continue indefinitely, possibly for life.  In a common law action for damages her entitlement would far exceed the relevant prescribed amount.  In her case I have no difficulty in awarding the maximum amount that I can award, that being $20,000.

In the result I order that the respondent M should pay to the applicant Y the sum of $36,500 by way of compensation for inquiries suffered by her as a consequence of the offences of which he was convicted on the 27th of January 2000.

I further order that he should pay the sum of $20,000 to the applicant L by way of compensation for inquiries suffered by her by reason of the offences of which he was convicted on that date.  Costs may be awarded under the Code provisions though not under the Act.  I order that the respondent should pay the costs of and incidental to L's application in such amount as may be agreed or in the absence of agreement to be assessed.  I further order that he should pay 80 per cent of the costs of and incidental to Y's application in such amount as may be agreed or in the absence of agreement to be assessed.