M v W[2003] QDC 153

DISTRICT COURT OF QUEENSLAND

REASONS FOR JUDGMENT

1. [1]
   This is an application for compensation under s 663B of the Criminal Code (now repealed) for compensation for injuries suffered by the applicant in sexual offences perpetrated against her by the respondent when she was a child and a member of his household.  The applicant was born on 18 December 1955.  Counts 1 to 4 were located on dates unknown between the applicant’s 10^th and 12^th birthdays.  Counts 1 and 4 four were rape, counts 2 and 3 indecent dealing.  The respondent pleaded guilty to one count of indecent dealing; the other 3 counts were not proceeded with.  No compensation can be awarded in respect of count 2, which occurred before the “criminal compensation” provisions first came into effect on 1 January 1969.  The remaining 6 counts in the indictment were placed in the four-year period between the applicant’s 11^th and 15^th birthdays.  Counts 5 and 8 were rape, the others indecent treatment of a girl under 16.  The Crown elected not to proceed with count 10 on the respondent’s pleading guilty to the others.  The plea and sentencing happened on 2 December, 2002.

2. [2]
   Essentially, there were convictions only in respect of matters the respondent had acknowledged to the police.

3. [3]
   The four-year period attributed to the five relevant convictions means there is an issue for the court (although the respondent has not appeared to raise any points on his own behalf, notwithstanding service of the application and supporting affidavits (other than the applicant’s) on prison authorities) whether it is satisfied that any of the offences occurred after 1 January 1969. Judge McGuire dealt with a similar situation in R v M (2 October 1998) as follows at p 13 of his reasons:

“Neither on sentence nor here was any evidence advanced suggesting that the commission of indecent dealing offence … was before 1 January 1969.  The respondent’s submission is that it is for the applicant to prove his entitlement.  Of course I cannot find dogmatically one way or the other on this issue there being no evidence on it.  The event occurred nearly 30 years ago.  However, I am not able to find that it is improbable that the event occurred before 1 January 1969.  In other words, I find that it is probable that it occurred after 1 January 1969.  I so find I think I am entitled to take into account the attitude adopted by the respondent.  See Jones v Dunkel (1959) 101 CLR 298.”

The approach of resolving such issues in favour of the applicant where the respondent does not appear to present a contrary view was adopted by Judge Shanahan in Parker 4940/00, 15.2.01 at [15] and Parker 4943/00, 15.12.01 at [10]. 

4. [4]
   In G (3509 of 1996) and P (3510 of 1996), a decision much relied on by the applicant, which I have found useful, Judge Brabazon QC resolved a similar difficulty on the basis that there was an “admission” in the plea in mitigation put forward for a convicted priest that “my instructions are that counts 1-16 (which include these counts) all occurred in a period of approximately 12 months, from mid-1969 to mid-1970 … there is no real evidence to the contrary of that.”  The period nominated in the indictment was 1 January 1968 to 31 December 1970.  The applicants were unable to be clear about dates, by reference to ages, grade at school, or other circumstances.  The plea in mitigation, I suppose, might have been calculated to present the victims’ ages has been higher, rather than lower.

5. [5]
   In this matter, the applicant places all events in a particular house, where the family moved in 1968. She has not sworn any detailed affidavit or made any specific statement for purposes of this application as to dates, a course the Court of Appeal required in R v Llorente, ex parte Hendry (2001) 2 Qd R 415, 419, 425, she having relied on her original statement to police.  I consider the material somewhat thin, but am prepared to act on the submissions made by the Crown prosecutor on the sentence, Mr Chowdhury, which are consistent with the old police statement.  These place the counts in question, with the possible exception of count 9, which was conceded to be out of chronological order, in the years when the applicant was in grades 7 and 8, aged 13 and 14, being 1969 and 1970 respectively.  In the absence of challenge from the respondent, the court, in my opinion, should proceed on the basis that s 663B applies.  It can by no stretch of the imagination be said the Court is positively persuaded by anything resembling evidence.

6. [6]
   It is plain that there are many “uncharged acts”, more correctly acts not the subject of any conviction, which must have played a part in bringing about the applicant’s present psychological state (there is no suggestion of physical injuries). It seems there were years of abuse before 1 January 1969.

7. [7]
   The application is supported by an affidavit and report of a psychologist, Mr Ryan, who recorded various “adverse impacts” as defined the purposes of the Criminal Offence Victims Act (which would not seem to have any application), namely involving a sense of violation, increased fear and increased feelings of insecurity, adverse impact on feelings, abuse at an earlier age, molestation by a perpetrator substantially older than the victim, the victim’s immediate sense of personal responsibility for the molestation, the victim’s feelings of powerlessness, betrayal and/or stigma at the time of the abuse, and other matters being sexual dysfunction, relational dysfunction, chronic depression, chronic anxiety (including panic attacks), chronic feelings of shame, guilt, etc.  It is perhaps unfortunate, in retrospect, that the applicant did not follow matters up when the respondent (who was staying with her at the time) apologised to her when she was aged about 20; it was many years after that before she was prepared to go to the authorities.  Mr Ryan says the applicant stated that at the age of 11 she was raped by her maternal uncle “on so many times that I can’t remember”.  She claimed that her uncle continued to rape her until she was 13.  She reported that the sexual abuse by her uncle “preceded her abuse by her stepfather (that is the respondent) by several months.”  He says that “each act of sexual abuse is likely to have had a very destructive and compounding traumatic impact … would have constituted a severe nervous shock in the upper extreme range of severe and have consequently contributed to a further and quite a dramatic diminishment in her ability to enjoy everyday life.”  His report continues:

“Diagnostically it is considered that (the applicant) was suffering from the following disorders prior to the commencement of the sexual abuse by her stepfather:

1. Chronic Post-traumatic Stress Disorder;

2. Panic Disorder;

3. Dysthymic Disorder;

4. Borderline Personality Disorder;

5. Depressive Personality Disorder;

These diagnoses are supported by the findings of the clinical interview in conjunction with the results of the DSI.  The sexual abuse by her stepfather would have exacerbated the abovementioned disorders.  However, it is considered that the sexual abuse perpetrated upon (the applicant) by her stepfather was alone of sufficient traumatic potency to cause the development of the abovementioned disorders if they were not already extant.”

8. [8]
   My understanding is that there may be some question regarding the competency of anyone other than an expert psychiatrist (from the point of view of the courts) to diagnose some or all those disorders. As a lay person I confess to some difficulty in accepting the proposition that the applicant’s situation might have been more or less the same had there been but one abuser, had there been but one incident of abuse.

9. [9]
   For present purposes, however, it is unnecessary to agitate such concerns. I feel comfortably satisfied that, assessing compensation on the appropriate basis, which treats the exercise as one of assessing civil damages, even on the basis of a lay person’s notions, appropriate assessments would exceed the statutory maxima. No basis appears for contemplating any award below the maximum, although the Court of Appeal contemplated that such a course might be appropriate for an indecent dealing count, as opposed to rape counts in Llorente, at 419-20.  On the same basis, namely, that the maximum amounts allowable are extremely modest, I have no concerns about any discounting that might be appropriate in respect of uncharged acts.

10. [10]
    The remaining matter, therefore, is identification of the relevant maximum amount(s). I am relieved from having to discuss the legislative changes that have happened since 1968, because I am content to accept the analysis of Judge Brabazon which he gave in the matters referred to in para [4] above on 13 December 1996, as urged by Mr Markwell, counsel representing the present applicant (who appeared uninstructed). The effect of it is that the approach indicated in Llorente, where it seems the matter was not considered in the same detail, or from the same perspective, requires some refinement.  There, it was stated at 419 that “if the offence was committed before 1 July 1975, the relevant maximum is $2,000; if after that date, $5,000.  This aspect will have to be clarified at the further hearing.”  It was stated at 423 that “the clear words of s 663A(a) and s 663AA(4) support the conclusion that the scheme provides that compensation for injuries suffered before 1 July 1984 cannot exceed $5,000.  Similarly, compensation for injuries received before 1 July 1975 cannot exceed $2,000.”  For reasons Judge Brabazon had given, since the 1984 amendments, effective 1 July in that year, the “prescribed amount” became:

“Where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984, $5,000.”

(The prescribed amount for purposes of mental shock or nervous shock became $20,000 after that date.)

11. [11]
    The other effect of the 1984 changes was to limit the existing practice of separate compensation awards for each offence so that there could be one award only for offences closely related or impacts upon a victim “arising out of the one course of conduct or closely related courses of conduct of (the) person convicted”. I think the better view, as taken by Judge Brabazon, is that, like the “beneficial” amendment which increased the former $2,000 limit to $5,000, the new limitation had retrospective effect. Although this is not universally so, the general rule in this area is that the law as to quantum of compensation awards is that applying at the date of the conviction rather than that applying as at the date of the offence.

12. [12]
    His Honour’s view was taken in the Supreme Court matter of R v Nigel Herbert Wilkinson (9080 of 1989, 29 July 1999).

13. [13]
    Just as in Judge Brabazon’s matter the effect of the provisions considered was to limit each of the applicants to a single award of $5,000 each, it is difficult here to avoid the conclusion that the applicant here faces the same limitation. The submission was made that were three separate “courses of conduct” that in count 5, those in counts 6, 7 and 8, and that in count 9. Reliance was placed on Llorente, which seems to me a very different case.  As was said at 425, there, “Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed sometimes years apart and over a six year period.”  That cannot be said here.  The matters the subject of convictions all occurred within the period 1969-1970.  They all occurred in the same house as part of a continuing pattern of abuse.  It ought to be noted that when the applicant told the respondent she wanted it to stop, it did; there was no more offending.

14. [14]
    It is recognised in Llorente at page 417 that a single course of conduct may persist over days, weeks or even “months”.  The actual decision rather tends against the notion of it extending for years, even though an abuser’s perverse sexual predation against a child may endure over years, manifesting itself in offences periodically.  The circumstances in such cases come near to giving the court a discretion.  Following the practice in this area, which appears to me to be to favour the applicant’s case where the respondent does not respond, I have concluded that there were two courses of offending here, the division occurring at the uncertain date in 1969-1970 when it seems that the respondent ceased to be resident in the relevant house, to become an occasional visitor there.

15. [15]
    In the circumstances the court will order that the respondent pay compensation of $10,000 to the applicant, together with the costs of the application to be assessed on the standard basis. As it happens, the outcome is the same in dollar terms whether the law at the (assumed) date of the offences is applied, or the law as it was from 1984. The costs should not include any costs for the appearance on 11 April 2003, at which time the respondent, who could have been easily served, had not been served. Nor should they include any costs for the filing of a second copy of Mr Ryan’s report, contrary to UCPR r 435(12).