DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation. On 10 August 2000 the respondent pleaded guilty in the District Court at Brisbane to a number of counts, including four charges of indecent dealing with the applicant, a girl under the age of 14 years.  Count one alleged an offence between 16 September 1978 and 20 January 1979, count two, between 27 January and 27 June 1979, count three, on 10 October 1980, and count four, between 19 December and 24 December 1980.  It follows that all offences were committed before the commencement of the Criminal Code Amendment Act 1984.

Which is the correct Act?

2. [2]
   On 17 February 2000 the applicant filed an originating application seeking compensation from the respondent in respect of her injuries and loss as a result of the offences pursuant to s 24 of the Criminal Offence Victims Act 1995.  Section 46(1) of that Act provides that “Part 3 does not apply to injuries suffered by anyone because of an act done before the commencement”, that is the commencement of Part 3, which commenced on 18 December 1995.  It follows that an application cannot be made under the 1995 Act, but the provisions of Chapter 65A of the Criminal Code are preserved in relation to any injury the applicant has suffered. 

3. [3]
   On the hearing of the application it was submitted on behalf of the applicant that it followed from the decision of the Court of Appeal in Whyte v Robinson [2000] QCA 99, that it was appropriate to apply the 1995 Act because that was the Act in force at the time when the order for compensation would be made.  That decision however was concerned with the question of whether s 1A(2) of the Regulation applied to the application of the applicant in that case.  It was not concerned with the question of whether the 1995 Act or the Criminal Code applied to the application of the applicant.  In that case there was no doubt that the 1995 Act applied, so it was unnecessary for the Court to consider that question.

4. [4]
   The Court in Whyte followed the approach which had been adopted by the Court in Chong v Chong [1999] QCA 314.  In that case the application related to injuries suffered in 1990, and the application had been made under the Criminal Code.  Demack J discussed among other issues “the date on which the ‘prescribed amount’ of compensation is ascertained”, and concluded that it was “the prescribed amount as varied from time to time when the Court’s power is exercised.”  [para 27].  As the following paragraph makes it clear however his Honour was talking only about a case which arose under paragraph (b) of the definition of “prescribed amount” in s 663A.  There was no suggestion in Chong that that application was to be dealt with under the 1995 Act just because that was the Act in force at the time that the order was made.

5. [5]
   It follows that the originating application sought compensation under the wrong Act. Nevertheless, it made clear what injury it was for which compensation was sought and, had the respondent obtained legal advice on the application, it should have been obvious to a lawyer that there was on the face of it an entitlement to compensation under the Code. If the respondent did not receive legal advice of course it is unlikely that he would have appreciated the significance that the application referred to the 1995 Act instead of to the Code. The respondent did not appear when the matter came on before me, nor had he appeared when the matter had been mentioned earlier before another judge, and it appears from an affidavit of service on the file that he was served in a correctional centre. It is common for respondents to applications of this nature not to take any interest in the proceeding. In all the circumstances I thought it appropriate to allow the applicant to amend the application, and not to require the applicant to serve the amended application on the respondent.

6. [6]
   In my opinion it follows from the definition of prescribed amount in s 663A that the applicant’s injury fell within paragraph (a) of that definition.  In these circumstances, the prescribed amount is $5,000.  It follows that the appropriate procedure is to assess compensation which however cannot exceed the limit imposed by the prescribed amount, subject to the operation of s 663B in relation to multiple offences:  R v Jones;  ex parte McClintock [1996] 1 Qd R 524.

Facts

7. [7]
   The applicant is now 34 years of age, but was 10 years of age at the time when the sexual assaults began.  The applicant said that during the four years while they were continuing she became more and more withdrawn, she performed poorly at school, and she had difficulty obtaining employment.  She married when she was 27 but was uncomfortable with intimacy and the marriage has since broken down.  She has been receiving counselling in relation to these problems.  She is also particularly protective of her children and apprehensive when they are away.  She has had occasional flashbacks of the offending.

8. [8]
   The applicant was seen for the purposes of a report by a psychologist on 3 September 2002.  Psychometric testing indicated that at the time of the assessment she was not suffering from post-traumatic stress disorder, nor was she experiencing any abnormal levels of stress, depression or anxiety.  A personality assessment inventory produced results which the testing psychologist assessed as invalid.  She regarded her symptoms as being consistent with a sex dysfunction disorder, which was related to the assault she described, and continued to impact adversely on her ability to interact normally in an intimate relationship.  She had undertaken a significant amount of psychotherapy for this, and the prognosis was said to be good.

9. [9]
   Overall it appears that the applicant suffered some significant emotional reaction to the sexual assault to which she was subjected, and this has produced lasting psychiatric problems for her, which however she has recently been treating with some positive results.

Limit of award

10. [10]
    One issue which arises under s 663B is whether compensation to the prescribed amount can be awarded in respect of each of the four indictable offences, or whether all or any of them amount to offences “arising out of the one course of conduct or closely related courses of conduct” of the respondent.  As to this, there is no material to suggest that there was anything special about these four instances, and they appear to have been a sample of offences from a course of sexual abuse of a similar nature extending over a number of years.  The applicant in her affidavit described the assaults occurring when the respondent put his hands inside her clothing and touched her around her vagina, while at the same time exposing his penis.  She said this occurred on many occasions over a period of four years, while on other occasions while in his swimming pool he would touch her genital area while exposing himself, or walk around the pool naked in front of her.

11. [11]
    A similar history was given to the psychologist; it also does not contain any differentiation in relation to the four counts. The sentencing remarks of 10 August 2000 summarised the offences by saying that the indecent dealing “consisted of you touching her under her clothing and on the outside of her vagina.  On one occasion you were naked and on another occasion you exposed your penis to her.”

12. [12]
    The applicant, in written submissions provided after the hearing, relied on the decision of the Court of Appeal in HW v LO [2000] QCA 377.  That was a case where the respondent was convicted of six offences committed over a period of six to seven years.  The nature of the particular criminal conduct constituting each offence is set out in the judgment of the President, and it is clear from that description that there was a range of conduct involved in the offences although all involved sexual offences against the appellant, and most of them involved counts of rape.  They took place in a range of different places, and there was some variation in the circumstances of the offending.  What were charged were sample offences out of a course of conduct which had some degree of persistence over the whole period, although the court appears to have disregarded any unifying feature attributable to the position of the particular offences charged within the whole history of sexual abuse of the appellant.

13. [13]
    De Jersey CJ said in relation to the offences: “The offences were committed on distinct occasions, separated substantially in time and place, with the nature of the acts constituting the offences exhibiting some variety.” He referred to the terms of s 663B(1A) and said that this subsection assumed “The existence of a relationship in time and subject matter between or among the events going to make up a course of conduct.”  After some reference to the history of the legislation, he said that a course of conduct for the purposes of the section connoted “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.”  He noted that even with similar acts, substantial separation in time ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct.  He then concluded that all that could be said about these acts was that they arose out of the same relationship effected by guilty passion on the part of the respondent.

14. [14]
    His Honour went on to note in that case that it was not possible for the court to assess compensation because the relevant evidence was lacking, that is evidence “of the effect on the complainant of each set of offences, such as would have enabled the judge, or would enable this Court, to approach the issue in the manner held appropriate for this particular legislation, that is, in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.” [22]. He noted that there was no material to identify the particular effect of each offence, and that some offences may well have had relatively more or less effect on the applicant. The matter was accordingly remitted for rehearing with the opportunity of the applicant to provide additional evidence.

15. [15]
    There is nothing in the evidence in the present case to provide any indication of any particular effect of any of the four offences. Both the applicant and the psychologist speak in terms of the consequences of the offending as an undifferentiated course of conduct on the part of the respondent. The evidence is entirely consistent with the view that the applicant in the present case has suffered one injury as a result of the course of conduct of the respondent, and is quite insufficient in terms of the requirements laid down by the Court of Appeal in HW v LO.

16. [16]
    Shortly after the decision in that case the Court of Appeal delivered judgment in MAJ v KM [2000] QCA 410.^[1]  In that case the applicant sought compensation under Chapter 65A in respect of the consequences of six acts of indecent dealing which occurred over a period of a few months in 1997.  There was some variety in the conduct, although it did not involve penetration;  there was some gradual worsening of the conduct, which occurred on every occasion on which the applicant stayed at the house of the respondent’s parents.  In that case the court confirmed a conclusion that the offences arose out of one course of conduct or closely related courses of conduct.  Davies JA said at [14]:  “Factors relevant to the determination of that question appeared to be the similar but escalating nature of the respondent’s conduct;  and the facts that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months.  Giving s 663B its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent.” 

17. [17]
    His Honour also agreed with the remarks of Chesterman J, which included an analysis of the decision in HW v LO.  His Honour referred to the similarities of the place and circumstances and nature of the indecency, and that the offences occurred within a more extensive pattern of similar conduct, and said that it was not necessary that the acts involving the indecent dealing would be identical in their mode of commission to constitute a course of conduct. 

18. [18]
    The third member of the court, Ambrose J, delivered separate reasons in which he noted at [24]: “In my judgment had the same sort of conduct continued on a weekly basis over a period of years rather than over one of five months resulting in a number of convictions for offences extending through that period of years, all such offences would clearly have arisen out of the one course of conduct or closely related courses of conduct. If there were long intervals of time during which no acts of abuse occurred with regularity – for whatever reason, be it lack of opportunity or voluntary restraint on the part of the offender – then obviously one would need to consider whether psychiatric injury resulted from only one course of conduct or closely related courses of conduct and this of course would involve considering, inter alia, the length of any intervals between acts of abuse.”

19. [19]
    It seems to me clear that the court in Marsten placed much more emphasis on the significance of particular offending within an overall pattern of conduct between the parties as a fact which was relevant to showing whether or not the particular offences arose out of the one course of conduct or closely related courses of conduct.  That would be sensible.  If there has been a regular pattern of similar offending extending over a period of years, it would be absurd for the outcome of an application for criminal compensation to depend simply on how many sample offences the Crown chose to prosecute over that period.  The decision amounts to clear authority for the proposition that uncharged acts can and should be taken into account in assessing whether the conduct the subject of the offences in respect of which compensation can be awarded involves one course of conduct or closely related courses of conduct.

20. [20]
    In the present case the nature of the offending was similar, having no more variation than contemplated in the remarks of Chesterman J in MAJ v KM.  In addition the circumstances of the offending was similar;  it involved visits of the applicant to the respondent, in conjunction with the use of his swimming pool.  The evidence available as to the uncharged acts tends to support a conclusion that the offences in this case occurred within a broader pattern of essentially similar offending throughout the relevant period.  There is nothing in the material from the applicant to provide any differentiation or to suggest other than that there was consistency in the nature of the offending and the surrounding circumstances throughout the period.

21. [21]
    There is the further difficulty that, had I not reached this conclusion, the evidence presently available would be quite inadequate in terms of the requirements laid down by the Court of Appeal in HW v LO for a separate assessment of compensation in relation to the separate effects of each particular offence.  If I were not satisfied that the offences constituted one course of conduct or closely related courses of conduct, it would be quite impossible for me to award any compensation on the basis of the material presently available.

22. [22]
    Overall the material indicates to me that there was a consistent pattern of behaviour in relation to these four counts, and other related uncharged sexual acts. All involved touching around the genital area without penetration, but associated with exposure of the respondent’s genitals. This is a case of systematic and continuing sexual abuse, with similar conduct on each occasion, and in those circumstances in my opinion the actions of the respondent amount to one course of conduct or closely related courses of conduct for the purposes of s 663B.  It is also apparent from the psychologist’s report that there has been one injury which has arisen out of this behaviour.  It follows that in my opinion the prescribed amount is $5,000 in respect of the applicant’s injury.

23. [23]
    It is unnecessary for me to provide more information than I already have about the applicant’s condition in order to establish that an assessment of damages at common law would be in excess of $5,000. I should add that there was nothing in the material to suggest that the applicant in any way contributed to the injury suffered by her. I therefore order that the respondent pay the applicant $5,000 by way of compensation pursuant to s 663B of the Criminal Code in respect of the injury suffered by the applicant as a result of the offences committed upon her of which the respondent was convicted on 10 August 2000.  I order the respondent to pay the applicant’s costs of and incidental to the application to be assessed.