S v D[2006] QDC 384

DISTRICT COURT OF QUEENSLAND

1. [1]
   These are two applications for criminal compensation which might conveniently be determined together since they involve the one respondent. On 28 May 2004, D was convicted before me in the District Court at Brisbane of some 35 offences involving the sexual mistreatment of four children. He was sentenced to a term of five and one-half years imprisonment. Two of the victims of those offences now seek compensation pursuant to the provisions of ch 65A of the Criminal Code in respect of injuries suffered by them as a consequence of the commission of the offences.

S

2. [2]
   The applicant, S, was the victim of five offences of indecent dealing which occurred between March 1966 and December 1971. At the time she was aged about 10 to 15 years and the respondent was aged between about 13 and 19 years. The first of these offences occurred in about 1966 or 1967 and involved the respondent inserting his finger into the applicant’s vagina. The second and third offences occurred on the one occasion at some time prior to 1971 and involved the respondent rubbing the applicant’s vagina and placing her hand on his penis. Counts 4 and 5 each occurred at the Mayne Football Clubhouse and each involve the respondent rubbing the applicant in the vaginal region. The circumstances of these offences are fully set out in the affidavit of the applicant and it is not necessary, for present purposes, that I should make further reference to them beyond observing that I find no conduct on the part of the applicant which contributed in any way to injury suffered by her.

3. [3]
   The applicant suffered no physical injury, but it is clear that the offences have had a considerable psychological effect upon her. She has been examined by Dr John McIntyre, psychiatrist, whose report I have found to be particularly helpful. Dr McIntyre considers that, although she does not suffer from any psychiatric disorder, she has, in the past, suffered a condition described as borderline personality disorder. This condition is characterised by unstable and intense interpersonal relationships, identity disturbance and an unstable self-image and sense of self, impulsivity in potentially self-harming areas such as sexual promiscuity and substance abuse, marked reactivity and instability of mood, recurrent feelings of emptiness and episodes of dissociation. Dr McIntyre reports:-

“The psychiatric literature discloses childhood sexual abuse is a potent factor evoking adult borderline personality disorder.  The effects of her personality disorder were most disadvantageous to her between the ages of 20 and 30 years approximately when the level of severity of that disorder was in the moderate range.  As commonly occurs, the maladaptive behaviours of her personality disorder have muted with time – for example, she has been able to control her alcohol and drug misuse – but other features of the disorder such as her poor self image and tendency to dissociate will more probably than not persist in the longer term.

Although I found not diagnosable axis one psychiatric disorder it is clear from her account that she has suffered a range of symptoms as a result of the offences including anxiety for her daughter’s welfare and safety, a self-recriminatory thought content and difficulty in sustaining mature sexual relationships.  These symptoms have fluctuated over the years, will more probably than not persist and have from time to time been of moderate severity.”

4. [4]
   I am satisfied that the applicant has suffered an injury which amounts to mental and nervous shock for the purposes of the legislation. The entitlement of the applicant S to compensation falls to be assessed under the provisions of ch 65A of the Criminal Code, specifically under s 663B. Although that chapter was repealed by the Criminal Offence Victims Act 1995, which came into force on 18 December 1995, s 46 of that Act provides that Ch 65A continues to apply to “injury suffered by anyone because of an act done before the commencement of the Act”.  Thus, injury caused by an offence committed before 18 December 1995 remains compensable under the Code provisions.

5. [5]
   The first of the offences of which the respondent was convicted occurred at a time prior to the introduction of Ch 65A in January 1969 and it is accepted that the applicant therefore has no entitlement to compensation in respect of that offence. The application is confined to the remaining offences, which all occurred at some time between 1969 and December 1971.

6. [6]
   In its original form, s 663B provides for an award, upon conviction on indictment for a personal offence, of a sum “not exceeding $2,000” by way of compensation for injury suffered by the person aggrieved by the commission of the offence. The Criminal Code and Justices Act Amendment Act 1975 however, amended s 663B such that, as of 1 July 1975, it provides as follows:-

“Where a person is convicted on indictment of an indictable offence relating to the person of any person, the court, on the application by or on behalf of the person aggrieved by the offence, may, in addition to any other sentence or order made, order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence of which the offender is convicted.  An order made under this subsection shall not, for any purpose, be taken to be part of a sentence.”

7. [7]
   “Prescribed amount” was defined as follows:-

“(a) Where the offence in connection with which the case arises is committed before the commencement of the Criminal Code and Justices Act Amendment Act 1975, $2,000;

2. (b)
   In all other cases $5,000.”

8. [8]
   The legislation was further amended by the Criminal Code Amendment Act 1984 and the following meaning then assigned to the term “prescribed amount”:-

“(a) Where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984, $5,000;

2. (b)
   In all other save those that are the subject of particular reference in s 663AA, the amount for the time being specified in section 14(1)(C)(a) of the Workers Compensation Act 1916-1983 as varied from time to time pursuant to section 14E of that Act.”

9. [9]
   In the present case the compensable injuries suffered by the applicant all occurred prior to 1975 and the first issue that needs to be determined concerns the maximum amount of compensation to which she should be entitled. Put another way, the question is whether the 1984 amendments, increasing as they do the maximum “prescribed amount” from $2,000 to $5,000, should have application to injury suffered as a consequence of an offence committed prior to 1 July 1975.

10. [10]
    It was argued for the applicant that the clear intent of the 1984 amendment was to increase to $5,000 the maximum amount of compensation in all cases where the relevant injury was suffered before 1 July 1984. Support for this argument is found in the fact that the 1984 amendment makes no distinction, as it might have done, between offences committed pre or post 1 July 1975. This was the view of the legislation taken by Atkinson J in R v Wilkinson, No. 9080 of 1998, judgment delivered 29 July 1999 and by Robin DCJ in M v W (2003) QDC 153, 13 June 2003.  The difficulty that confronts the applicant however, arises from the decision of the Court of Appeal in HW v LO (2001) 2 QdR 415.  In that case, de Jersey CJ, with whom Muir J agreed, commented at p419 that “if the offence was committed before 1 July 1975, the relevant maximum is $2,000; if after that date $5,000.”  McMurdo P said at p 423:

“The clear words of s 663A(a) and s 663A(4) support the conclusion that the scheme provides that compensation for injuries suffered before 1 July 1984 cannot exceed $5,000.  Similarly, compensation for injuries suffered before 1 July 1975 cannot exceed $2,000.”

11. [11]
    I consider that I should regard myself as bound by the decision in Llorente^[1] and proceed on the basis that, in respect of injuries suffered prior to 1 July 1984, the maximum amount of compensation that can be awarded is $2,000.

12. [12]
    The Criminal Code Amendment Act 1984 in fact amended the compensation provisions of the Code in two important respects.  Firstly, as noted above, the maximum amount of compensation was increased. Secondly, a restriction on compensation for multiple offences was introduced.  Prior to 1984 multiple offences had frequently attracted multiple awards of compensation.  See, for example, R v Wright and Dakon ex parte Fullerton (1980) QdR 582.  In 1984 however, a restriction on compensation for multiple offences was introduced, with s 663B now providing as follows:-

“(1) Where a person is convicted on indictment of an indictable offence relating to the person of any person or of more than one indictable offence relating to the person of any person (whether in respect of one indictment or more than one 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 injuries suffered by the person by reason of the offence or offences of which the offender is convicted.

(1A) For the purpose of determining whether courses of conduct are closely related regard shall be hard, 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 the other.”

13. [13]
    Ms Muirhead, who appears for the applicant in this matter, has argued that this provision should not apply to injuries suffered prior to 1 July 1984, when the above section came into operation. The real effect of this argument is that the applicant’s entitlement to compensation arises at the time the injuries were inflicted and that that right is one which cannot be abrogated by any subsequent Act not expressly declared to be retrospective. In my view, however, such an approach is not consistent with the decision of the Court of Appeal in such cases as Whyte v Robinson, CA No. 7292 of 1999, delivered 23 March 2000, and R v Chong ex parte Chong (2001) 2 QdR 301 wherein it was held that the right to compensation arises only when a person is convicted of an indictable offence relating to the person of the applicant.  Before conviction, there is no accrued right.  The date of conviction in the present case was 28 May 2004.  Although the provisions of the Criminal Offence Victims Act were then in force, as noted above s 46 of that Act invokes the application, in the circumstances of this case, of ch 65A of the Criminal Code.

14. [14]
    Although there has been some difference of judicial opinion^[2] in relation to this question, I consider that s 663B as set out above must govern the present application.  This was the manner in which the applications proceeded in MAJ v KM (2000) QCA 410 and HW v LO (supra), both of which involved applications for compensation begun after the commencement of the Criminal Offence Victims Act in respect of offences committed prior to 1984.  In that last mentioned case de Jersey CJ observed, at pages 416-417:-

“Reference to - course(s) of conduct’ was first introduced into the Code provisions of the Criminal Code Amendment Act by the Criminal Code Amendment Act 1984.  Following the 1999 convictions of the respondent, the applications for compensation fell to be determined by the scheme then delineated – by the Criminal Offence Victims Act 1995 but for its transitional provision section 46(2) which, because of the times at which these injuries were suffered, directs the court back to chapter 65A Code provisions, but in their form as at the hearing of the applications, subject to the specific limitations on amounts to which I refer below.”

15. [15]
    The question then, in the present application, is whether the offences arose out of one course of conduct or closely related courses of conduct within the meaning of s 663B.  Factors relevant in that regard are discussed in cases such as Llorente and MAJ v KM.  In Llorente the Chief Justice, with whom Muir J agreed, considered that the words “course of conduct” connote a succession or series of acts or omissions which, because of a sufficiently close inter-relation, whether by nature, time, place or otherwise, display an aggregation in identifiable overall pattern.  His Honour referred to the need for an element of continuity and said, at page 417:-

“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. … The events involved in these offences were far too distant and separate 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 affected by-guilty passion’ on the part of the respondent but were not enough to establish a ‘course of conduct’ sufficiently precise and limited for the purposes of the provision.”

16. [16]
    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 there were the similar but escalating nature of the respondent’s conduct, the fact that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrence, and that, although the indictment alleged a much longer period, they occurred over a period of a little under five months.  His Honour considered it plain that those offences arose out of the one course of conduct.  In that same case Chesterman J said:-

“In my opinion the question whether indictable offences in respect of which compensation is sought arise out of the one course of conduct or closely related courses of conduct is not to be answered by reference to the minutiae of the conduct which constitutes the offences.  A broader inquiry into the matters which are discussed in HW v LO is called for.  It is most unlikely that acts constituting indecent dealing involving the same complainant and accused would be identical in their mode of commission.  If that were a requirement of ‘a course of conduct’ it would hardly ever be satisfied.  There was here, as has been said, a marked similarity in the acts of indecency on the occasion of each offence.  That fact together with the other factors identified, make this a case in which the offences arose out of the one course of conduct.”

17. [17]
    Applying these principles to the circumstances of the present case, it seems to me to be clear that the conduct involving the applicant cannot be said to have arisen out of the one course of conduct. The events, the subject of Counts 2 and 3, are clearly separated substantially in terms of time, place and circumstances from the events which constitute Counts 4 and 5. In the circumstances, I accept the submission of Ms Muirhead, that the offending of the respondent here really represents two distinct courses of conduct, each of which is capable of attracting a maximum award by way of compensation. In the case of the first course of conduct this is an amount of $2,000. In the case of the second course of conduct an amount of $5,000. It is of course clear, that compensation in this case is to be determined in accordance with common law principles of assessment of damages in tort for personal injuries, provided only that the amount assessed does not exceed the prescribed amount. See R v Jones ex parte McClintock (1996) 1 QdR 424.  In a common law action for damages I am satisfied that the entitlement of applicant would have been greater than the prescribed amount and I am therefore satisfied that she should receive the maximum award in respect of each course of conduct.  This would result in a total award in favour of the applicant of $7,000.

D

18. [18]
    In relation to the applicant D, she was the victim of some five offences of indecent dealing, which were committed between May 1990 and April 1994. The applicant was the natural daughter of the respondent and the offending occurred when she was aged between about nine and 12 years. The circumstances of the offences are fully set out in the affidavit material and it is not necessary that I should repeat those matters in detail beyond again observing that I find no conduct on behalf of the applicant which contributed in any way to injury suffered by her.

19. [19]
    Again the applicant has suffered no physical injury, but there is clear evidence that she suffered certain psychological consequences. Dr Barbara Maguire, a psychiatrist, who has treated the applicant, reports as follows:-

“I consider that she suffers at this stage from post-traumatic stress disorder to a severe degree.  I consider that her initial response to the abuse was to develop behavioural problems which have compromised her education and employability.  I also think that it is probable that she became involved in drug abuse as a consequence of the abuses of her father.  I believe that she will suffer the effects of the post-traumatic stress disorder throughout her life, though the symptoms may diminish over time.”

20. [20]
    Applying the principles referred to above, I accept the submission of Ms Muirhead, that the offending of the respondent can properly be regarded as constituting five separate courses of conduct. There is, in my view, sufficient distinction in terms of time and circumstance between the various acts to justify the reaching of such a conclusion. In the circumstances I accept also the submission of Ms Muirhead, that an appropriate award of compensation in respect of these matters would be an amount of $45,000, that being comprised of $20,000 in respect of the first course of conduct, $10,000 in respect of the third course of conduct and $5,000 of the remaining courses of conduct.

21. [21]
    In the result my orders are that the respondent, D, should pay to the applicant, S, the sum of $7,000, and to the applicant, D, the sum of $45,000 by way of compensation for injuries suffered by those applicants by reason of the offences of which the respondent was convicted before me at the District Court in Brisbane on 28 May 2004. I further order in each case that the respondent should pay the applicant’s costs of and incidental to this application, in such amount as may be agreed between the parties or, in the absence of agreement, to be assessed.