DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, JT, claims compensation for injury sustained by her as a result of the criminal offences committed against her by the respondent to the application, PB.

2. [2]
   The respondent was convicted by this court at Beenleigh on 26 April 2005 of four counts of unlawful and indecent treatment against this applicant between 1 January 1984 and 1 March 1985 when the applicant was aged between 8 and 9 years.

3. [3]
   This application is made on the basis of a “mental or nervous shock” assessment by Dr Janis Carter, psychiatrist, in her report of 15 November 2005 which is Exhibit “A” to her affidavit filed 23 February 2006. There are no physical injuries to the applicant which form the basis of any claim for compensation before the court.

Relevant Legislation

4. [4]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.^[1] 

5. [5]
   Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted” (emphasis added).

6. [6]
   Under s 663A of the Code “injury” is also specifically defined and includes “mental or nervous shock”. This was inserted by the Criminal Code Amendment Act 1984 and commenced operation on 1 July 1984.

7. [7]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amounts” which applied at the times when the respective offences were committed.

8. [8]
   Under s 663A of the Code the maximum “prescribed amount” for compensation payable to an “aggrieved person” for injury suffered arising out of offences committed prior to 1 July 1984 (the date of commencement of the Criminal Code Amendment Act 1984) is $5,000.00.

9. [9]
   Under s 663AA of the Code as amended the maximum “prescribed amount” payable for injury described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

10. [10]
    The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.^[2]  Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.^[3]

11. [11]
    The offences which give rise to the “injury” suffered by the applicant in this claim overlap the 1 July 1984 date so that it is also necessary to have regard to what effect, if any, this may have on any assessment of compensation to be awarded to the applicant.

“Course of Conduct”

12. [12]
    Section 663B allows only one award of compensation for injury to be made “arising out of the one course of conduct or closely related courses of conduct” and goes on to provide:

“(1A) For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.”

13. [13]
    This application concerns sexual offending on various occasions over a period of time against the same complainant. The applicant has submitted that the four counts with which the respondent has been convicted and sentenced constitute four separate courses of conduct that may therefore attract four separate awards of compensation.^[4]  I have been directed to the relevant Court of Appeal authorities on the issue, being:

• R v Llorente ex parte Hendry [2001] 2 Qd R 415; and
• MAJ v. KM [2000] QCA 410

14. [14]
    Having regard to those cases it is clear that in determining whether the injury to the applicant arises out of separate and distinct courses of conduct, the Court must consider the details and particulars of each of the separate counts as charged. This is plainly stated by the Chief Justice in Llorente (supra) at 417:

“Assaying a definition of “course of conduct” for purposes of s 663B, the words connote in this context a succession or series of acts (or omissions) which, because a sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern.  The American cases provide assistance, pointing to the need for an element of continuity (Dyer v Dyer 166 Pa.Super. 520) and regularity (Aetna Cas. And Sur. Co. v Industrial Commission 127 Colo. 225).

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.  But even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct. (These observations are consistent with the approach which has been taken by a number of judges of the District Court.)”

Evidence of Offences

15. [15]
    The applicant’s evidence in respect of the offences of which the respondent was convicted is:

“I can recall the events that occurred between 1 January 1984 and 1 March 1985 at Marsden when the respondent sexually abused me.  I spoke to police and provided them with my statement on 8 December 2003”^[5],

and further:

“I can recall that the abuse by the respondent ended upon my parents separating and I was no longer sent to his home to be babysat.  The respondent would babysit for my parents when they went bowling once a week.  My parents separated in March 1985 before my tenth birthday.  The abuse started about a year before they separated.  I was eight almost nine when it started.”^[6]

16. [16]
    The applicant’s evidence therefore is that the offences were committed when the respondent “babysat” her and in her statement^[7] to police she described the offending conduct as occurring in the following circumstances:

“I know [PB] because he was a friend of my parents and he and his wife used to baby-sit my brother and sister and I.  I don’t remember exactly how often he baby-sat us, I think it may have been weekly at times.  I am not sure how my parents knew him.  It may have been through the Kingston 10-Pin Bowling Club.

I remember that [PB] did things to me during about a 12-month period when I was around 9 years old.  I remember that he did things to me prior to Mum and Dad separating.  In about January 1985, Mum left my father and she took my brother, sister and I to live with her parents in Coorparoo.

This was at the start of Grade 5, which was in 1985.  I remember that we were only a few weeks into the First Term when Mum took us away, because we had only just received our new books.  Mum then enrolled us in Coorparoo Primary School.

…

[PB] sexually molested me on approximately twenty different occasions.  It may have been more than that.  I remember that on nearly every occasion it was the same as the time before.  Because of this there are only a few specific times that I can clearly separate from the others.  I can remember the first time he ever did things to [KL] and I, the first time he did things to me when I was alone, the first time that it happened in the lounge room and the time that [IR] knocked on the door.

The very first time that I can remember [PB] doing things to me was when I was at his house being baby-sat.  I was in Grade 4.  My brother and sister were also there.  I am not sure where my parents were.  Also at the house was [IR], her daughters and the daughter of our next neighbour, [KL].”^[8]

17. [17]
    The applicant would have had her 9^th birthday on 18 August 1984 when she was in Grade 4 and her evidence is that the offending conduct was over a period of approximately 12 months “…when I was around 9 years old”.

18. [18]
    On this basis, I find on the balance of probabilities that the applicant’s injury was suffered substantially if not wholly post 1 July 1984 and that her assessment of compensation for the injury sustained falls within s 663AA of the Code as amended where the “prescribed amount…in the case of mental shock or nervous shock is $20,000.00”.^[9]

Finding on “Course of Conduct”

19. [19]
    From the evidence outlined in paragraphs [15] to [18] above it is quite clear that the offending conduct occurred continuously (“…on approximately twenty different occasions. It may have been more than that…”^[10] and “…I think it may have been weekly at times…”^[11]) over a period of not more that 12 months and more probably that not over a lesser period as “…in about January 1985, Mum left my father and she took my brother, sister and I to live with her parents in Coorparoo…”.^[12]

20. [20]
    After considering the authorities on point and the evidence relevant to each count as outlined above I find that the offending conduct by the respondent against the applicant constitutes one course of conduct in that the conduct justifies the description as being “…a succession or series of acts…” which bear a “close interrelation” to each other “…by nature, time (or) place” to use the words of de Jersey CJ in Llorente (supra) at 417.

The Injury

21. [21]
    As stated above, the basis for this application for compensation is the assessment of the applicant by Dr Janis Carter, psychiatrist, in her report dated 15 November 2005 which is Exhibit “A” to her affidavit of 23 February 2006.

22. [22]
    Dr Carter opines:

“[JT] suffers from post traumatic stress disorder and this, I believe, is a direct result of the injuries that occurred to her as a result of the offences for which [PB] was charged.  This has had bad effects on her emotional adjustment in her capacity to settle down and have meaningful relationships with the opposite sex.”^[13]

And further Dr Carter is of the opinion that:

• The applicant’s disorder is “severe”^[14];
• “The condition has been present throughout most of her life she can remember, and is likely to be ongoing without any formal psychological intervention.  Even intervention may leave her with residual symptoms that may be re-ignited, but she will have a lot better level of coping”^[15];

• the impact of the incidents is that it “…has interfered with her capacity to have normal sexual relationships within her marriage, and there are many arguments with her husband over the matters that may have similarities but in a totally different context”^[16];

• “She believes that her hole attitude towards life has been damages n the sexual area, where she cannot enjoy what she has learned is normal sexual behaviour between adult male and female”^[17];

• “She should attend an intensive post traumatic stress disorder program, and she should have individual counselling, with cognitive behaviour therapy and supportive psychotherapy over a period of 12 sessions”^[18]; and

• I estimate the costs of a psychologist to provide the individual therapy would be $150 a session for 12 sessions equals $1,700, and the Toowong Private Hospital program cost is $955 plus $8,925, which is $9,880”.^[19]

Contribution

23. [23]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury.

24. [24]
    I have referred to the circumstances of the incident in paragraph [15] to [18] above and I am of the opinion that the applicant’s behaviour at the relevant time did not in any way either directly of indirectly contribute to the injury complained of by her.

Assessment

25. [25]
    Assessment of compensation under the Code is carried out in accordance with the approach in McClintock v Jones (supra) at p 242 namely:

“…compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed.”

26. [26]
    The evidence reveals that the applicant continues to suffer from the diagnosed post traumatic stress disorder which “…has been present throughout most of her life…”. It is recommended that she undergo “formal psychological intervention…(and) have individual counselling…”. Generally the offending behaviour has had a serious debilitating effect on her.

27. [27]
    On the material before me I find that if the applicant’s compensation were being assessed in accordance with the ordinary principles of assessments of damages for personal injury in civil cases as they were at the relevant time the compensation to which she would be entitled would exceed the prescribed maximum sum of $20,000.00 and I therefore assess that the applicant is entitled to the prescribed maximum sum of $20,000.00 by way of compensation for the injury she has suffered arising out of the respondent’s offending conduct.

Orders

28. [28]
    In the circumstances I make the following orders:

1. That the respondent pays to the applicant the sum of $20,000.00 as compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 26 April 2005.

2. I further order that the respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.