M v M[2006] QDC 259

[2006] QDC 259

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 856 of 2006

BRISBANE

DATE 24/04/2006

ORDER

HIS HONOUR. This is an unusual application for compensation under the Criminal Offence Victims Act 1995.

The respondent is still in custody, surprisingly, expecting to serve fully a sentence of two and a-half years imposed by Judge Hoath on the 11th of December 2003. He was declared entitled to credit for pre-sentence custody between the 4th of December 2003 and that date. He was convicted by a jury after having given evidence himself of unlawful carnal knowledge of the then fifteen and a-half year old complainant on the 23rd of December 2002 while the girl was in his care.

The circumstances, as outlined by the Sentencing Judge, were that Mr M had invited his daughter to come over to his unit for a Christmas drink. She came unexpectedly with the complainant, a school friend whom Mr M had met only once before. Mr M's daughter seemed intent on being supplied with alcohol. Of course, as things happened, unsurprisingly, the complainant was offered a beer too and the two of them continued to drink.

As the Judge said,

"The complainant had five or six beers and became quite adversely affected. She commenced to flirt with you and you responded to that flirting. Later that night when the complainant and your daughter were too adversely affected by the alcohol to go home, you suggested that they stay at your residence. Your daughter went to bed in the spare room. You went to sleep in the lounge room and the complainant in the double bed in your bedroom.

Shortly after the complainant got into bed, you came into the bedroom, got into bed with her and had sexual intercourse.

Whilst that sexual intercourse was not without the complainant's consent, that consent came as a result of her intoxicated condition."

Mr M has taken the line today that the conviction is wrong. He says he has attempted to appeal against it but without getting anywhere, which I take to mean that no appeal has come before the Court of Appeal. He has repeatedly suggested to the Court today that there was no alcohol on the 23rd of December 2002, no sexual activity between himself and the complainant/applicant; indeed, that no visit by the girls to his premises occurred on the 23rd of December 2002 at all.

He says, and may be right, that there was no medical evidence of sexual activity happening, that there was no physical evidence of alcohol at the premises. If there was to be such evidence, it would presumably have to have arisen on the 23rd of December 2002 and continued available to be noticed by police on the 26th of December 2002 when they went to Mr M's place. As I have explained to him, for today's purposes the Court must take the conviction as valid.

What requires consideration is the application for compensation which the Act authorises. The Court simply cannot go behind that conviction but it may, under s 25(7), and I think should, take into account the views expressed by his Honour. Those include the following statement:

"In her victim impact statement the complainant refers to the adverse psychological affects that she considers that the offence has had upon her. I take into account that she has suffered as a result of this offence but do not consider that all of the adverse impacts the complainant refers to in that statement are attributable to the offence that has been committed upon her."

The victim impact statement, which is a relatively brief document, is before this Court. His Honour had the advantage of seeing the complainant give her evidence to the jury.

A striking feature of this matter is that she takes the view that what occurred was rape. Unfortunately, that view was communicated to and uncritically accepted by the psychiatrist, Dr Byth, who has supplied a report to the Court exhibited to an affidavit. It is most unfortunate that it was not explained to the doctor that the conviction, and indeed the charge, was for unlawful carnal knowledge, a charge which does not require the prosecution to prove lack of consent.

Mr Byrnes has been unable to locate any authority that assists the Court in resolving this difficult situation where the applicant founds a claim on the basis of a description of offending behaviour which grossly overstates the seriousness and criminality of it. Perhaps analogous to the situation is Lewis [2005] QCA 314 where the conviction was assault occasioning bodily harm following earlier consideration being given to a charge of grievous bodily harm which might have been sustained given that the applicant for compensation lost his sense of smell. The Court of Appeal held that that loss could be taken into account in assessing criminal compensation on the charge of AOBH. Loss of smell would more than satisfy the definition of bodily harm.

In the same way, Mr Byrnes suggests the consequences of the offending in the present circumstances may be the same, however the offending be categorised. He invited the Court also to look at matters in the other way which involves what might be called a "gut feeling" that there ought to be some reduction in the seriousness to be placed on the consequences where the offending is in a less serious category. It is hard to formulate a theory for this. The lay view might be advanced that, if the applicant refuses to accept the nature of the conviction, which presumably she has the intellectual capacity to do, she is deliberately casting herself in the role of rape victim - which has all sorts of connotations in the community and it may well be for a particular victim.

Another complicating feature here is that the applicant has suffered other serious problems in her life. She says that she became dependent on alcohol and drugs after the incident and succumbed to a serious problem with heroin. As I understand the material, she formed a relationship with her dealer; the relationship produced a child who was taken from her by Family Services. A favourable development in her life in recent weeks has been the return of her son to her full- time care.

Dr Byth did not see her until the 20th of December last year, long after the conviction and sentence, and a year longer after the offence. He seems to have been generally aware of the applicant's other problems but accepting of her view that she had no psychiatric-type difficulties before what he calls "the sexual assault in 2002", a description necessarily importing that he viewed what happened as occurring without his patient's consent. He diagnoses the applicant as suffering a moderate to severe psychiatric condition.

Given the state of the evidence before the Court, which is all on one side, it seems to me the Court ought to accept his view - in particular his view that the psychiatric condition noted by him is attributable to the incident involving the respondent.

This would indicate an award where items 32 and 33 of schedule 1 of the Act intersect, that is at 20 per cent of the scheme maximum. There is also the question of the Regulation which, in a sexual offence such as the present, requires the Court to consider a whole range of reverse impacts over and above those covered in the schedule. It has the effect of potentiall. increasing the appropriate award. There is what might be called the usual range of other difficulties asserted here, and without challenge. So that, in my opinion, it is open to the Court to award something in addition to the 20 per cent indicated above by reference to the Regulation and other adverse impacts.

I have gained some assistance in this regard from the Court of Appeal decision in MR v Webb, [2001] QCA 113, which emphasises that the Court must be careful not to award double compensation. I am alert to that danger.

The last matter requiring comment concerns section 25(7) of the Act which provides:

"in deciding whether an amount or what amount should be ordered to be paid for an injury the Court must have regard to everything relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury."

If that provision is to have effect based on contributory conduct it must be, one would think, by way of reducing compensation.

Unlawful carnal knowledge is a curious offence for the purposes of the Act in that it is possible to regard the complainant as complicit in it. My view would be that there may well be circumstances where section 25(7) calls for or requires or makes appropriate a substantial reduction.

It may indeed make it appropriate to refuse any compensation, for example, where the offender was of similar age.

Today it does not seem to me appropriate to discount in this respect. The respondent was 46, the complainant 15 and a half, and she was at least technically in his care. The sentencing judge was alert to the repellent features of sexual relations occurring in the circumstances.

The complainant was clearly at a disadvantage. Advantage ought not to have been taken of her. I do not think she should be regarded in the circumstances as the author of her own misfortune. Even in going to bed, she had done that on the basis that she would have the double bedroom to herself.

The Court's order will be that the respondent pay compensation of $16,500 to the applicant.

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