W v W[2003] QDC 435

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation. The respondent is the applicant’s grandfather. On the 4^th of May 2000 the respondent was convicted of three offences of unlawfully and indecently dealing with the applicant, each offence with a circumstance of aggravation. Count one charged the offence between 1^st March 1983 and 31^st May 1984, count two charged the offence between the same dates. Count three charged the offence between 1 January 1984 and 31^st December 1985.

2. [2]
   The respondent was born on the 29^th December 1930.

3. [3]
   The applicant was born on the 26^th November 1977. She is 25 years of ago now. She made a complaint of these offences in December 2002.

4. [4]
   The activity which made up the offences comprised rubbing the applicant on the external genitalia both outside and inside her pants.

5. [5]
   According to the applicant’s evidence at the trial, the offences were committed when visiting her grandparents. The first occasion anything occurred was represented by count one, which she said occurred when she was five or six. She turned five on the 26^th November 1982 and six on the 26^th November 1983. It was about the Easter holidays, she and her siblings were staying with the respondent and his then wife (her grandmother). It was the children’s practice to go into their grandparent’s bedroom and wake them up by getting into bed with them. On the occasion of count 1, the respondent asked the applicant to help him make cocoa for everybody and they went into the kitchen. There he reached his hand around her and began to rub her external genitalia both outside and inside the panties she was wearing. It continued for sometime until someone called out enquiring about the cocoa. They then returned to the bedroom where they got into bed with the others. The respondent recommenced similar activity. This similar activity was the subject of count two. According to the applicant, count three occurred in another bedroom in the respondent’s dwelling. It was about the September holidays. She was uncertain of the year, saying it was the year she turned seven which would have been 1984. She also said she was still six but she agreed it could have occurred in the year she turned eight. In any event it occurred when she and her sister were cutting up coloured paper. The respondent entered the room, asked her sister to get him something from elsewhere in the house, and after she left touched the applicant in a similar way as he had on other occasions as described above.

6. [6]
   The application is to be dealt with under the now repealed provisions of chapter 65A of the Criminal Code.

7. [7]
   The provisions of chapter 65A were amended from time to time. Relevantly to this matter they were amended on the 1^st July 1984. Prior to the amendments of 1 July 1984, section 663B(1) provided that when a person was convicted on an indictment of any indictable offence relating to the person of any person the court could order the offender to pay to the aggrieved person a sum not exceeding the prescribed amount by way of compensation for injury suffered by reason of the offence.

8. [8]
   After the amendments, section 663B(1) provided that when a person was convicted on indictment of an indictable offence or more than one indictable offence relating to the person arising out of the one course of conduct or closely related courses of conduct, the court could order the offender to pay compensation. Only one order of compensation could be made when there was one course of conduct or closely related courses of conduct.

9. [9]
   Section 663A of the Code was also amended on the 1^st July 1984 to provide that where injury in connection with which an application was made was suffered before the commencement of the amendment, the prescribed amount remained at the pre-amendment amount of $5 000. In all other cases the prescribed amount was increased. In the case of mental or nervous shock it was increased to $20 000.

10. [10]
    The only injury in this case is that which may be encompassed in ‘mental shock’ or ‘nervous shock’.

11. [11]
    It is apparent that the offence in each of counts one and two preceded the 1984 amendments.

12. [12]
    I respectfully agree with the approach of Helman DCJ, as he then was, in R v Boughton Ex parte Holt (unreported District Court 124/93 13^th August 1993). With respect to any injury resulting from the offence the subject of the convictions on Counts 1 and 2 the relevant provision is section 663B (1) as it was before its amendment in 1984. The prescribed amount was $5 000. The effect of the section was to provide that up to $5 000 may be awarded as compensation for each offence of which the person was convicted.

13. [13]
    The conviction on count 3 is not so clear. The parameter dates charged encompass both before and after the amendments of 1 July 1984.

14. [14]
    In evidence the applicant said the offence the subject of count three occurred in the September holidays in the year she turned seven (1984) but it could have been the year she turn eight (1985) (her birthday was the 26^th November).

15. [15]
    In this proceeding the applicant exhibited to her affidavit a copy of her statement to the police in which appears that the event which underlay count 3 occurred either around Easter or Christmas of the year she turned seven, which if it were Easter would mean it would have occurred prior to the commencement of the 1984 amendments.

16. [16]
    The offences were committed 15 or so years prior to the provision of the applicant’s statement to the police, and sixteen or so years prior to trial. The parameter dates for count 3 were wide, covering a period of two years. It was clear at trial that the applicant’s recollection about when the events relating to count 3 occurred were not by any means precise. That is not surprising. There were another three counts in the indictment on which the respondent was acquitted and there was evidence from the applicant of similar conduct on other unspecified and uncharged occasions.

17. [17]
    The appropriate approach in the circumstances is to regard the prescribed amount for the count 3 conviction as $5 000.

18. [18]
    I have been provided with a lengthy report of Dr Cantor, a psychiatrist, dated the 19^th January 2001, apparently prepared for this application. He saw the applicant on the 14^th December 2000 and the 18^th January 2001. In her affidavit the applicant confirms the content of Dr Cantor’s report.

19. [19]
    Dr Cantor formed the opinion that the applicant has been substantially affected by the sexual abuse of the respondent, her grandfather. In terms of DSM IV she suffers from a moderate post-traumatic stress disorder, minor alcohol abuse and a minor unspecified personality disorder which has substantially impacted on her intimate relationships. An alternative description of the diagnosis is that she suffers either or both a dysthymic disorder and/or a major depressive disorder. She has relatively severe depressive symptoms. In his opinion these diagnoses are largely due to the sexual abuse experienced by the respondent. He considered the post-traumatic stress disorder arose during pre-adolescence and gradually altered the applicant’s psychological development, leading to the personality disorder she now displays. The alcohol abuse began later in her teenage years.

20. [20]
    Compensation is only assessable arising out of the offences of which the respondent was convicted. On an application such as this where there are allegations of more extensive similar indecent activity, the court must consider whether it is shown that the offences of which the respondent was convicted caused or contributed in a material way to the injury and if so to what extent. As Judge Robertson DCJ commented in Steinback v Steinback unreported District Court 27^th October 2000, a common sense approach is required.

21. [21]
    I accept Dr Cantor’s evidence. The three incidents the subject of the convictions, although in themselves relatively minor and committed on the applicant when she had relatively little understanding of the implications of the behaviour, invoked a sense of confusion and guilt which as time has passed has compounded. It has had a severe impact on her ability to develop a normal heterosexual relationship. She is distrustful of males in relation to sexuality and its potential effects on her well-being and on that of her child. Dr Cantor offered an opinion about the extent and cost of necessary treatment; about $7 000.

22. [22]
    Compensation under chapter 65A of the Code is to be assessed according to ordinary principals of assessment of damages for personal injuries in civil actions subject to the applicable maximum amount. R v Jones ex parte McClintock (1996) 1 QR 524.

23. [23]
    The maximum amount of compensation which I can award is $15 000, $5 000 for each offence. I think the three offences of which the respondent was convicted may be regarded as responsible for the effects described above. I have no doubt they were sufficient. I do not think other similar acts would have added much, if anything. They would have been just more of the same in the life of the young child.

24. [24]
    Considering the time since the offences and the effects the applicant has struggled with over that time, together with the cost of treatment opined by Dr Cantor, I think $15 000 is well within what would be awarded in a common law assessment of damages.

25. [25]
    With respect to each offence I order the respondent pay to the applicant the sum of $5 000 by way of compensation for injuries done to her by reason of the offences of aggravated unlawful indecent dealing of which he was convicted on the 4^th May 2000.

26. [26]
    I order the respondent pay the applicant’s costs of the application.