Rauch v Jones
[2002] QDC 99
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- Unreported Judgment
- Rauch v Jones[2002] QDC 99
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Rauch v Jones[2002] QDC 99
Rauch v Jones[2002] QDC 99
Issued subject to correction upon revision
DISTRICT COURT | No 21 of 2001 |
CIVIL JURISDICTION
JUDGE RICHARDS
SANDRA JOY RAUCH Applicant
and
JONATHON CARL JONES Respondent
IPSWICH
DATE 11/03/2002
JUDGMENT
HER HONOUR: The respondent was sentenced on the 15th of December 2000 in relation to seven counts of rape; three counts of indecent dealing and one count of attempted rape. The majority of those offences concern the applicant. The respondent was the brother of the applicant and the offences occurred when she was quite young and involved serious violence, including the threatening of her life, a large amount of persistence and quite a lot of planning.
The first time anything occurred, that the complainant can remember, was under her house with the respondent. The respondent pushed a large, wooden crate over the top of him and her and while she was screaming he hit her across the face, told her to shut up and had sex with her. He threatened her that she would have to shut up about it or he would get her. Afterwards she was bleeding. She said there were lots of other times this sort of thing happened. She said sometimes he would wear a condom.
She can remember another occasion when she was in the bath and he came in and pulled the curtain back. On that occasion she rubbed soap in his face to get away, but he held her under the water and told her to shut up and then raped her.
The other offences of rape were of similar violence and involved threats to the applicant not to tell. The respondent had sex with the applicant about four or five times a week from 1975 to about 1982.
Not surprisingly, the offences have had a significant effect on the applicant. She was very scared while the abuse was going on. She has attempted suicide because of depression. She has constantly felt like she is crazy and unloved. At the time of sentence she was on antidepressants and she has always felt like an unfit mother.
She has flashbacks during sexual intercourse. She has gone from one violent relationship to another. She has trouble making friends. She is worried that her sons will abuse their sister. She is unable to hold down a job because she is scared of male bosses.
She has been seen by a counsellor, James Stewart, who has seen her on approximately 30 occasions since November 1999. Stewart describes the emotional impact of the assault as follows:
“The history of the sexual assaults has had a serious and disturbing impact on Sandra's physical and mental health. She grapples with complicated feelings about herself as a result of the assaults, including guilt, shame and feelings of worthlessness, all common responses of victims of childhood sexual assault. Sandra has regularly presented with persistent and sustained symptoms common to the diagnosis of post-traumatic stress disorder. She continues to suffer from intrusive PTSD symptoms, such as nightmares, panic attacks, flooding, hyper vigilance, increased startled reflex and some auditory and visual disturbance. This has led her to feel out of control and question her own mental health.”
A report was provided by Dr Botvnink. He concluded that she has developed adjustment disorder, mixed emotions, anxious and is quite severely depressed. She has developed a depressive illness with frequent suicidal thoughts, with several suicide attempts. He said she requires long term treatment.
The offences occurred many years ago and the question in this case is what award is appropriate, given that the offences occurred back in 1975 to 1982. The relevant legislation is under chapter 65A of the Criminal Code. The Criminal Offence Victims Act 1995 preserves the compensation provisions under the Criminal Code, which have now been repealed by virtue of the transitional provision of section 46 of the Criminal Offence Victims Act, and indicates that injuries that occur prior to the Act should be awarded under that legislation.
The legislation, under section 663B, as it existed prior to repeal, stated that in relation to indictable offences the award can only be made as one injury where the offences amounted to a single course of conduct. Prior to 1982 the phrase “course of conduct” did not exist in the legislation, so the question arises as to which legislation should be applied.
In Chong v Chong, Court of Appeal unreported, 13th of August 1999, the Court of Appeal decided that the proper legislation to be considered in relation to the prescribed amount of compensation is the prescribed amount by reference to the date of the application. In Chong v Chong the Court cited with approval the words of McLauchlan QC DCJ in Bartorelli v Hutton, 1994 15 Queensland Reports 57 at 59:
“The entitlement of an applicant to compensation is purely statutory and the language of the legislation is not directly in terms of that entitlement but in terms of the power of the Court to make an order. The occasion to which the legislation refers for the purpose of determining the prescribed amount appears to be the making of the order rather than the suffering of the injury.”
That this is the case is confirmed in Marsden v Kellow, 2000 QCA 410, which held that the wording of the section must be read as at the time of the repeal of the section, namely:
“Any indictable offence relating to the person of any persons or if more than one indictable offence relating to the person of any person, arising out of one course of conduct or closely related courses of conduct of that person so convicted.”
Clearly, the offences in this case were of the one course of conduct continuing over a period of some years at very regular intervals.
Section 663A of the legislation at the time indicated that where the offences occurred before 1984 the relevant award was $5,000. Accordingly, although the injuries suffered by the applicant were very serious, and were this matter being assessed on principles applying to the civil law a significantly higher amount would be appropriate, the maximum amount that can be awarded in this case is $5,000.
Accordingly, I order that the respondent pay the applicant $5,000 and the respondent is ordered to pay the applicant's costs of this application, to be taxed unless otherwise agreed.