H v Strohfeld[2004] QDC 299

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 2 June 1998, in the District Court at Beenleigh, the respondent, Steven John Strohfeld, pleaded guilty before me to a number of offences of a sexual nature. He was sentenced to a term of imprisonment.

2. [2]
   The victim of those offences, H, now seeks compensation in respect of injuries suffered by her as a consequence of the commission of those offences.

3. [3]
   It is necessary, in this case, that I should, at the outset, make some reference to the circumstances of the offences of which the respondent was convicted. Although they were eight in number, they related to five separate incidents.

4. [4]
   The first incident, which involved Count 2 on the indictment, occurred in 1995, some time “after September but before the school holidays.” The offence involved touching and licking of the applicant's vaginal area.

5. [5]
   The next incident occurred “during the 1995 Christmas school holidays, but prior to Christmas Day” (the indictment actually charged between 1 December 1995 and 25 December 1995), and is encompassed in Counts 3 and 4. Those offences involved digital penetration as well as an act of masturbation by the respondent.

6. [6]
   The next incident in time involved Counts 5 and 6 which occurred between 1 May 1997 and 1 August 1997. Those offences, which were perhaps the most serious of all, involved digital penetration and an attempt at penile penetration which gave rise to a charge of attempted rape.

7. [7]
   Count 7, which also occurred during the mid-part of 1997, involved an unwanted display of physical affection by the respondent, and Count 8, finally, occurred on or about 31 July 1997 and involved the respondent engaging in a sexual act with another female in the presence of the applicant.

8. [8]
   Count 1, it should be noted, was a charge of maintaining a sexual relationship, which involved the circumstances comprising Counts 2 to 8.

9. [9]
   Although I have set out the circumstances of the offences only briefly, it is clear that there was no conduct on the part of the applicant which can be said to have contributed in any way to any injury which she suffered.

10. [10]
    It is not suggested that the applicant has suffered any physical injuries as a consequence of these offences but she has suffered certain psychological consequences. The applicant has made reference to these matters in her affidavit, but of greater assistance is a report I have from Dr McGuire, a psychiatrist who saw the applicant in August of 2003.

11. [11]
    Dr McGuire reports as follows:

“She demonstrates the criteria for post-traumatic stress disorder, namely intrusive thoughts of the abuse including flashbacks, bad dreams, and sleep difficulties.  She has undertaken a very avoidant way of life.  She exhibits dissociative phenomena, in that she is unable to recollect large areas of her childhood.  She also has some obsessional traits and has experienced a depressed effect.  Her major diagnosis is post-traumatic stress disorder. 

There were contributing factors which have probably made an impact on her present condition, mainly her mother's lack of support and the dysfunctional childhood which resulted from the frequent moves of home.  As a result of the offences she experienced a feeling of disgust and helplessness, also guilt and shame.  These persisted after the offences.

The offences certainly contributed to the destruction of her family life, although the likelihood is that her relationship with her mother would have been distant had they not occurred.  She has a very pessimistic outlook on life in general, and, in my view, needs counselling, which would, however, have to come at a time of her choosing.”

12. [12]
    Dr McGuire considers that the post-traumatic stress will continue for an indefinite period, although the probability is that the intrusive thoughts, flashbacks, bad dreams and sleep difficulties will settle over time. She predicts that they will be present, however, for years.

13. [13]
    The applicant's entitlement to compensation falls to be assessed under the provisions of both the Criminal Code and the Criminal Offence Victims Act 1995 (COVA).  The COVA Legislation came into force on 18 December 1995.  Part 3 of that Act provides for compensation for personal injuries suffered in indictable offences committed after the commencement of the Act. 

14. [14]
    Section 46 specifically provides that Part 3 does not apply to injuries suffered by anyone because of an act done before the commencement of the Act. Injury caused by an offence committed before 18 December 1995 remains compensable under the terms of the repealed Chapter 65A of the Criminal Code (see s.46(2) of the Act).

15. [15]
    Thus, injuries suffered because of acts committed prior to the 18 December 1995 must be assessed under the Code Provisions, whilst the injuries suffered thereafter must be assessed under the provisions of COVA.

16. [16]
    It was argued for the applicant effectively, that the whole of her injuries were compensable under the provisions of the Criminal Code by reason of the offences committed prior to the 18th of December 1995 and some attempt was made to rely on the sort of approach referred to by Lee J in R v. Tiltman ex parte Dawe, Supreme Court Motion 324 of 1995, delivered on 22^nd June 1995.

17. [17]
    However, I would take the relevant approach to be that set out by the Court of Appeal in HV v LN [2000] QCA 472, 118 A.Crim.R. 53.  In that case, Thomas JA, with whom Pincus JA and Byrne J agreed, said:

“The scheme of s.46 is to preserve rights accrued before the given date and to confine compensation under the new Act to the consequences of criminal activity after that date.  The applicant does not lose either right.  The applicant's accrued rights under the earlier regime cannot conveniently be swept aside to enable a single assessment to be made under the Criminal Offence Victims Act. 

In the present situation I consider that the applicant is entitled to an assessment in respect of each period in that the Courts must do the best they can in ascribing appropriate compensation in respect of each period. 

Where there is a combined effect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the effects attributable to each period, and if no better suggestion emerges, a length of the respective periods over which the offending conduct occurred may be used.

In some cases medical evidence may show that earlier offences had already produced a serious condition so that the later offences would be regarded as having merely caused minor aggravation of an already established condition, in which case the greater part of the overall consequences would be properly ascribed to the earlier offending conduct, or vice versa.

I do not think it is beyond the ingenuity or experience of the Courts to make such assessments to meet the particular requirements of a particular case.”

18. [18]
    In the present case, I find it quite impossible to dissect with any measure of accuracy the effects which the respondent’s conduct has had upon the applicant. Dr McGuire considers that Counts 2 to 4 alone could have been sufficient to cause post-traumatic stress disorder. However this is not a case in which I would be prepared to conclude that the subject conduct, as referred to above, represented merely a minor aggravation of a condition already established prior to 18 December 1995.

19. [19]
    The matter is complicated by the fact that there were other uncharged acts which are not, of themselves, compensable. I do not regard the applicant’s injury here as being divisible. Its effects were continuing and cumulative, resulting from the conduct of the respondent over the period during which the offending conduct occurred.

20. [20]
    In those circumstances, the approach suggested by the Court of Appeal, as set out above, would seem appropriate. That is, to apportion between the effects attributable to each period according to the length of the respective periods over which the offending conduct occurred.

21. [21]
    In this case, the offending conduct, as encompassed by the maintaining charge, occurred over a period of 23 months, between 1 September 1995 and the 1 August 1997. Although there is scope for doubt in relation to Counts 3 and 4, I am prepared to conclude that Counts 2, 3 and 4 all occurred within the four month period prior to 18 December 1995. Counts 5, 6, 7 and 8 all occurred within the 19 months period thereafter, ending on 1 August 1997.

22. [22]
    On that basis, it might be possible to apportion compensation on the basis of approximately 18% under the Code Provisions and 82% under the provisions of COVA. This indeed was the approach adopted by Atkinson J in KAB v. DJB (2000) QSC 498, and by me in Y and L v. M [2002] QDC 325.

23. [23]
    Such an approach, however, would not truly reflect the fact that Counts 3 and 4 occurred within a relatively short time after Count 2. Similarly, Counts 5 to 8 all occurred in the mid-part of 1997. I therefore consider that the appropriate course in this case would be to apportion compensation such that 50% is assessed under the Code Provisions, and 50% under the provisions of COVA.

24. [24]
    In assessing compensation under the Code Provisions, it is necessary to determine whether the applicant should be compensated for individual offences or a course of conduct. Factors relevant in that regard are discussed in cases such as the HW v LO [2001] 2 QdR 415, and MAJ v KO [2000] QCA 410.

25. [25]
    In HW v LO, the Chief Justice, with whom Muir J agreed, considered that the words “course of conduct” denote a succession or series of acts or omissions which, because of a sufficiently close interrelation, whether by nature, time, place or otherwise, display in aggregation and identifiable overall pattern.

26. [26]
    His Honour referred to the need for an element of continuity and said:

“It goes without saying that one cannot be prescriptive of the requisite extent of relationship.  One obviously cannot, for example, specify a maximum duration for any separate course of conduct given a high level of regularity and consistency in the time, place and nature of the acts.  A course of conduct might persist over days, weeks, months, or even, with similar acts, substantial separation in time would ordinarily exclude there being regard as arising out of the same course of conduct or closely related courses of conduct.

... 

The events involved in these offences were far too distinct and separated in time and place to warrant the conclusion that they arose out of the same course of conduct.  They arose out of the same relationship effected by ‘guilty passion’ on the part of the respondent.  But that was not enough to establish a ‘course of conduct’ sufficiently precise and limited for the purposes of the provision.”

27. [27]
    It should be noted that HW v LO was concerned with six offences committed over some six or seven years and committed on distinct occasions, separated substantially in time and place and with the nature of the acts constituting the offences exhibiting some variety.

28. [28]
    In MAJ v KM, the Court was concerned with six offences of indecent dealing, committed over a period of about five months.  Davies JA thought that:

“The facts relevant to the determination of the issue, whether similar but escalating nature of the respondent's conduct, the fact that the offences occurred in similar circumstances, that they formed a pattern of similar offences of at least weekly occurrence, and that they occurred over a period of a little over five months.”

29. [29]
    His Honour considered it “plain that those offences arose out of one course of conduct”.

30. [30]
    Applying these principals to the circumstances of the present case, it is clear that there was some period of time separating Count 2 from Counts 3 and 4, although that period of time does not appear to have been great. Count 2 occurred before the school holidays; Counts 3 and 4 during those holidays.

31. [31]
    The incidents both involved the respondent approaching the complainant in her bed and engaging in some form of genital touching. It could not, however, be said that the incidents yet established a pattern of offending of regular occurrence and a clear distinction between the incidents is that Count 4 involved the respondent placing the applicant's hand on his penis and engaging in an act of masturbation.

32. [32]
    It seems to me therefore that it is possible to regard the respondent’s offending behaviour in relation to Counts 2 to 4 as really constituting two separate courses of conduct and I consider that compensation should be assessed in that way.

33. [33]
    The maximum amount of compensation to which the applicant was entitled under the Code Provisions was $20,000 in respect of each act or each course of conduct, that being the relevant "prescribed amount" for the purposes of s.663B.

34. [34]
    In a common-law action for damages, the applicant's entitlement would be no less than that amount and she therefore should receive 50% of $40,000; or $20,000.

35. [35]
    With regard to offences committed after 18 December 1995, I am satisfied that the applicant has suffered an injury which amounts to mental or nervous shock, which would ordinarily fall to be assessed under Item 33 of the Schedule. On the basis that an award of 25% of the maximum would be appropriate, the applicant would ordinarily receive 50% of that amount; that is 50% of 25% of the maximum, or $9,375.

36. [36]
    The applicant, however, makes no claim for compensation in respect of Counts 5 to 8, the reason being her acceptance that the effect of s.40(1) of the Act is that her right to apply for compensation expired on 8 November 2002. The present application was not made until after that date. No award can therefore be made under the COVA legislation.

37. [37]
    In the result, my order is that the respondent, Steven John Strohfeld, should pay to the applicant, H, the sum of $20,000 by way of compensation for injuries suffered by her as a consequence of the offences for which the respondent was convicted on 2 June 1998.

38. [38]
    Costs may be awarded under the Code Provisions, though not under the Act. That being so, I further order that the respondent should pay 50% of the costs of and incidental to the applicant’s application, in such amount as may be agreed, or in the absence of agreement, to be assessed.