N v Gouge[2003] QDC 293

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation brought pursuant to the provisions of the Criminal Offence Victims Act 1995.  On 31 May 2000 the respondents Brett Gouge and Barry John Hutchinson pleaded guilty before me in  the District Court at Brisbane to two offences of indecent treatment of a child under the age of ten.  The present applicant was the complainant in respect of those offences (one of taking an indecent photo and one of exposing a child to an indecent act) and he now seeks compensation in respect of injuries allegedly suffered by him as a consequence of the commission of the offences.

2. [2]
   It is necessary that I make some reference to the facts of the matter. The offences occurred in October 1999 when the applicant child was eleven years of age. The respondents, who live in a de facto type relationship, resided next door to the applicant’s family and the applicant was a regular visitor to their home.  He was in fact on friendly terms with them.  The first of the offences involved the respondents taking a photograph of the naked applicant and the second offence involved the applicant taking photographs of the naked respondents in a sexually explicit pose.  According to the applicant the photograph in Count 1 was taken while they were “mucking around” and the sentencing proceeded on the basis that the events “were more in the nature of a skylarking escapade than anything else”.  I am however satisfied that there was no conduct on the part of the applicant which contributed in any way to any injuries which he may have suffered.

3. [3]
   The first matter that needs to be determined in this case concerns the applicant’s entitlement to compensation. Part 3 of the Criminal Offence Victims Act 1995 establishes a scheme for the payment of compensation to applicants in the circumstances set out in s 19 of the Act.  Relevantly s 19(1) provides for compensation “for injuries suffered by the applicant because of a personal offence committed against the applicant”.  “Injury” is defined in s 20 to mean bodily injury, mental or nervous shock, pregnancy or other injuries specified in the compensation table or prescribed under a regulation.  The term “personal offence” is defined in s 21 to mean an indictable office committed against the person of someone.  The operative provision of the Act is s 24 which provides that a person “against whom a personal offence has been committed” may apply to the court for an order that the convicted person pay compensation for an injury suffered because of the offence.

4. [4]
   The critical question for present purposes is whether the applicant was the victim of a “personal offence” for the purposes of the legislation, or, put another way, were the offences of which the respondents were convicted, indictable offences committed “against the person” of the applicant.

5. [5]
   In R v Moors ex parte Alex (1994) 2 Qd R 315 Mackenzie J, with whom Thomas J agreed, said at p 320:-

“The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property.  The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed.  The relevant offence is the offence referred to in the indictment.”

This decision was approved of and followed by the Court of Appeal in French v Green (unreported) Court of Appeal No. 4481 of 1997, judgment delivered 19 December 1997.  In that case the court refused an application for compensation in respect of psychiatric injury occasioned by an offence of dishonesty on the ground that the offence was not one which related to the physical person of the applicant.  After referring to the above passage from the judgment of Mackenzie J in R v Moors ex parte Alex the court said:

“The use of the expression ‘any indictable offence relating to the person of any person’ is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person.  The word ‘person’ is capable of bearing numerous meanings.  As appears from the Shorter Oxford English Dictionary it may mean ‘an individual human being;  a man, woman, or child’.  It is unlikely that the word, when first used in the section, is intended to have this comprehensive meaning as that result could have been achieved by referring to ‘an indictable offence relating to any person’.  The use of the expression ‘the person of any person’ is clearly intended to narrow the class of offences in question by requiring that they relate to some part of the human being less than the totality of his or her existence.”

There are some differences between the wording of the now repealed Criminal Code provisions relating to compensation and the wording used in the Criminal Offence Victims Act.  In particular, the class of applicant permitted under the Act (“a person against whom a personal offence has been committed”) would seem to be more restricted than that permitted under the Code (“the person aggrieved by the offence or offences”).  They share however a common requirement that the indictable offence the subject of the application should be one “relating to”, or in the case of the Act “committed against”, the person of someone.

6. [6]
   In the present case the two charges against the respondents were based respectively on s 210(1)(f) and s 210(1)(d) of the Criminal Code.  The first charge involves the taking of a photograph of the applicant who is standing with one of his hands attached by some form of manacle to a swing type device.  It is a posed situation with one of the respondents holding the applicant’s shorts which have been pulled down below his knees whilst the second applicant takes the photograph.  I am satisfied that the taking of a photograph in those circumstances amounts to a personal offence within the meaning of the legislation.  It is an offence against the person of the applicant.

7. [7]
   In my view however the situation with Count 2 is not so clear. The offence involved the applicant taking photographs of the two respondents who are posing in a sexually explicit position. It is not an element of an offence under s 210(1)(d) of the Code that anything be done or threatened to be done to the person of any person.  Neither is it suggested that any form of physical threat or violence or force of any kind was offered to the applicant to compel or induce him to take the photographs.  In my view, the taking of photographs of the respondents was not an offence against the person of the applicant within the meaning of s 21 of the Act.  It follows from the above that the applicant is entitled to be compensated only in respect of injury caused to him by the commission by the respondents of the offence contained in Count 1 on the indictment.

8. [8]
   The applicant has suffered no physical injuries as a result of the offence although there have been certain psychological consequences for him. I have an affidavit from the applicant’s mother and also a report from a social worker which suggests that the applicant’s self esteem has diminished and that his anxiety levels have increased following the incidents. He apparently experiences difficulties forming trusting relationships. It seems that he has received some counselling through the Child Abuse Therapy Team. Dr Maguire, a psychiatrist who has seen the applicant on two occasions, reports as follows:

“It was my view that whilst he doesn’t demonstrate post traumatic stress disorder at this stage the abuse seems to have reinforced considerable problems he’s had with social interactions with his peers, concerns about sexuality and worrying about his delayed puberty.  I note that the report from the Talera Centre indicates that he had problem behaviour which preceded the abuse but has become worse.  The major difficulties are aggression at home and social isolation from his peers.  The report also remarks upon his poor self concept, low self esteem and learned helplessness making him assume a victim’s role. 

Whilst [N] does not demonstrate post traumatic stress disorder at present it is in the nature of sexual abuse that there is a latent period in early adolescence where problems are not obvious.  I believe that when he starts upon sexual relationships there is a probability that he will experience some difficulties as a result of the offence and indeed he is to some extent predicting this by expressing his concern that he may be homosexual.  If this should occur it is likely that he will have life long symptoms.  I believe that he has had a prejudicial childhood in that he has had no contact with his father and experienced a year’s separation from his mother at the age of four in the context of a conflict between her and other family members.  His growth problems have contributed to his low self esteem and the abuse has probably reinforced behavioural difficulties which resulted from this. 

Whilst he is not obviously suffering from a diagnosable psychiatric disorder at present I believe that he has experienced as a result of the offence a sense of violation.  Low self esteem was present prior to the offence but has certainly been contributed and reinforced by the incident and the resultant bullying at school.  I believe that he has experienced increased fear and feelings of insecurity and this is probably confirmed by the fact that he wishes to sleep with his mother at night.  The mother describes hostility between him and his older sister [S] but it is speculative that the offences contributed to this.  As previously mentioned in the report I believe the probability is that he will experience considerable difficulties with sexual relationships which may take the form of either promiscuity or aversion to sexual acts.  I also believe that it is possible that he may become homosexual, not necessarily as a result of this experience.  However the fact that he himself has expressed concern about this may be an indication of homosexual feelings.  Were this to be the case the problems attended upon joining a minority group in society may add to the difficulties of his life.”

9. [9]
   In a subsequent report Dr Maguire has noted as follows:

“Again at this stage I don’t consider that [N] is suffering from a psychiatric disorder but is experiencing mental distress as a result of the offence.  The symptoms are behavioural problems within the home, difficulties with social skills, a preoccupation with homosexuality, low self esteem and a tendency to adopt the role of victim.  Although in the referral letter it was indicated that there had been a considerable deterioration it was not obvious at interview.  It may well be that as [N] enters a different developmental phase his problems may become more obvious as he attempts to individuate.”

10. [10]
    It would seem clear that the applicant’s problems as outlined by Dr Maguire have been caused, or at least contributed to, by a variety of circumstances, some of which are compensable and some of which are not. Aside from the matter referred to above, the material reveals that the applicant has suffered other difficulties in his life. He has had learning and growth problems, has experienced bullying at school and has had problems with self esteem. Dr Maguire notes that he has suffered a “prejudicial childhood” and it seems clear that problems in his upbringing and family life have had a detrimental effect upon him. Even on an application of the type of approach favoured by Lee J in R v Tiltman ex parte Dawe (unreported) Motion No. 324 of 1995, delivered 22 June 1995, I am unable to conclude that the one compensable incident can properly be said to have been a material cause of the applicant’s present difficulties.  It would in my view be unrealistic to attribute all of his problems to this one incident.

11. [11]
    The applicant has sought compensation for mental or nervous shock as specified in the Table that is Schedule 1 to the Act as well as for the adverse effects of the incident in terms of Regulation 1A of the Criminal Offence Victims Regulations 1995.  Although I accept that the applicant has suffered an injury which constitutes mental or nervous shock for the purposes of the legislation (see R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320).  I have some difficulty in accepting that the adverse impacts which he has suffered “are not otherwise an injury under s 20”.  See Jullie v Attwell [2001] QCA 510.  Rather those “adverse impacts” seem to be the very symptoms of his mental nervous shock that is compensable under the Table.  That the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim was recognised in M.R. v Webb [2001] QCA 113.  Ms McGinness for the applicant has contended for an award of $7,500 for mental or nervous shock and a further award of $11,250 for the “adverse impacts”.  I would consider an award of that total amount to be excessive given the matter referred to above.

12. [12]
    Doing the best I can in the circumstances of this case and allowing that the applicant may have suffered some additional adverse effects, I propose to make an award of 14 per cent of the maximum or $10,500. There is no real basis for distinguishing between the respondents so far as contribution to the applicant’s injury is concerned. I therefore order that each of the respondents Brett Gouge and Barry John Hutchinson should pay to the applicant the sum of $5,250 by way of compensation for injuries suffered by him by reason of the offence of which the respondents were convicted in the District Court at Brisbane on 31 May 2000.