DISTRICT COURT OF QUEENSLAND

The Issues

1. [1]
   This is an application for criminal compensation, according to the Criminal Offence Victims Act.  There are two issues.  Is the applicant entitled to compensation?  If so, how much compensation should he be paid?

A Personal Offence?

2. [2]
   On 20 November 2003 the applicant was thirteen years old. He lived with his mother. She met Mr P, and he had become a visitor to their house, in the second half of 2003. He was 46 years old. He took a particular interest in the applicant, talking to him in his room and taking him on drives to Redcliffe. Mr P talked openly about the fact that he was gay and liked being with men. He would talk explicitly about his sexual encounters with men. Until the applicant’s mother asked him to stop, he would say such things when the applicant was present.

3. [3]
   On 20 November 2003 Mr P took the applicant fishing from the beach at Sandgate. It was about midday. Some men were nearby, working on the road. They sat on a park bench. Mr P told him that he was gay and that he went to gay clubs. He then said to him “I’ll give you $100 if you let me suck your dick”. He declined. Mr P drove him home shortly afterwards. There was no touching by Mr P.

4. [4]
   He was later charged with attempting to unlawfully procure the applicant, a child under sixteen years, to commit an indecent act. The charge was under the Criminal Code, s 210(1)(b). The charge was appropriate, as there was no evidence that Mr P attempted to commit an indecent act. He pleaded guilty to that charge on 26 November 2004.

5. [5]
   Compensation is payable for “an injury” suffered by an applicant caused by a “personal offence” committed against the applicant. See s 19 of COVA.

6. [6]
   “Injury” includes bodily injury, and mental or nervous shock, or any injury specified in the compensation table or prescribed under a regulation.

7. [7]
   A “personal offence” is an indictable offence committed against the person of someone. The right to ask for compensation arises upon the conviction on indictment for a personal offence. The person against who the personal offence has been committed may then ask the court for compensation, to be paid by the convicted person. See s 24 of COVA.

8. [8]
   While the expression “victim” is not used in the compensation provisions of COVA, it is used in the earlier provisions of the Act.  Section 5 defines a “victim” as a person who has suffered harm from a violation of the State’s criminal laws, because a crime is committed that involves violence committed against the person in a direct way.  See s 5.

9. [9]
   It will be apparent, that there is an issue whether or not Mr P committed a personal offence against the applicant. In his favour is a decision of Judge Dearden, in SM obo M-H v MK 2005 QDC 408.  The facts were, in effect, the same as the facts here.  There was a conviction for attempting to procure a child to commit an indecent act.  There was no physical contact.  The judge reached the conclusion that there had been “an indictable offence committed against the person of (the applicant)”.  He therefore awarded compensation.

10. [10]
    To the contrary is the decision of Judge McGill in CRP v Hettrick 2005 QDC 125.  There, the charge was attempting to procure a minor for a child abuse photograph, contrary to s 18 of the Classification of Publications Act 1991.  The child and the accused made an arrangement, at first oral and then in writing, that the child would pose naked for the accused to take photographs at some future time.

11. [11]
    The judge observed that the word “person” in s 21 meant “body”. In his opinion, the definition referred to an offence where the respondent did something to, or did something which was directed against, the body of the applicant. It involved, in his opinion, the doing or threatening of some act, whether an act of violence against, or in the touching of, the body of an applicant. In that case, nothing was done in the course of committing the offence which involved any act against the body of the applicant, or even involved any threat of an act against the body of the applicant. There was an agreement between two individuals that something would be done on some future occasion. As the judge put it:

“In my opinion, in order to determine the nature of the offence for the purpose of s 21 it is necessary to look at the acts constituting the offence, not at what might have happened in the future.  It follows that the respondent was not convicted on indictment of a personal offence, and therefore s 24 did not apply and the application must be dismissed”.

12. [12]
    In my opinion, Judge McGill’s approach to the matter was the right one. In a case where the charge is an attempt to procure, there will be no personal offence. The present case, in principle, is indistinguishable from his case. While Judge Dearden relied upon a benign construction of the Act, in my respectful opinion that does not allow compensation to be awarded if there is no “personal offence” as defined. That is this case.

13. [13]
    It follows that the application must be dismissed. However, it is appropriate to consider what compensation would be payable, if the application were allowed.

Compensation

14. [14]
    It is difficult to assess compensation. Mr P was not represented at the hearing. The evidence put forward on behalf of the applicant remains untested and uncontradicted. It is hard to separate out the various causes of his present condition. Other facts have contributed to his difficulties.

15. [15]
    The court’s task has recently been explained by the Court of Appeal in Say v AZ ex parte AG of Qld 2006 QCA 462.  In the reasons of Justice Holmes, adopted by the other members of the court, it is explained this way:

“The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable.  If as in Stannard & Lane 2000 QSC 86, is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done.  In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

Where there is a single state of injuries produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision.  Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski 2000 QSC 270 will be necessary.  The exercise may be one of discounting or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.  In that exercise, it is legitimate to consider the nature of the other contributing factors.  Given that the Acts scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.  Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred.  The basis on which any reduction in compensation is made must, of course, be clearly identified”.

16. [16]
    Two principles must be kept in mind. First, the convicted person has to pay compensation because of an injury suffered by an applicant, caused by the personal offence which has been committed against the applicant. The compensation is paid because of that injury. See COVA s 19(1)(a) and 24(3).

17. [17]
    Events before the time of the actual offence may influence the amount of compensation. For example, the relationship of the offender and the victim may affect the severity of the offence. However, it is difficult to see that the offender’s conduct, after committing the offence, can be considered. Compensation depends upon the commission of an indictable offence. Only injury caused by that offence is compensable.

18. [18]
    Secondly, compensation has to be awarded on a basis which is consistent with a jury’s verdict, or the facts on which a convicted person is sentenced. The compensation proceedings are ancillary to the sentencing process, in this case. As it was put by the Court of Appeal in Facer v Bennett & Anor 2001 QCA 395, at para 18:

“In considering an application for compensation, evidence cannot be permitted to be adduced which is inconsistent with the jury’s verdict in the criminal trial…    In a criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing;  to do otherwise would result in unfairness and would be incongruous.  However, since at a criminal trial the evidence must be restricted to what is relevant to the charges, there may be evidence not led at the criminal trial, which is relevant as a result of s 25(7) COVA to the issue of contribution.  Thus although additional evidence may be adduced at the compensation hearing, evidence which is inconsistent with the jury’s verdict or the view taken of the evidence on sentencing, should not be permitted.  This accords with principle and flows from the fact that the compensation proceeding is ancillary to the criminal trial.”

19. [19]
    In this case, the facts at sentence did not include anything after the day of the offence.

The Applicant’s Condition

20. [20]
    At the time, the applicant was a thirteen year old schoolboy. When interviewed by the police on 3 February 2004, he told them that he had not spoken with any of his friends about what happened, “cause I didn’t think it was a big matter or anything”. His mother recalls that he broke down crying when telling her about the incident shortly before that. She now attributes several of his difficulties to the offence – his refusal to travel alone, his fear of Mr P, and threats to harm himself and a refusal to talk about the incident.

21. [21]
    In his own recent affidavit, the applicant says that he has suffered in several ways, ‘as a result of the assault incident’. He has had nightmares and some flash-backs, he is nervous and anxious when he is around people of larger builds (like Mr P), he has lost interest in football and no longer plays the game, he has become very security conscious and checks all the locks in the house every night, he has become moody and angry and punches himself in the head and he feels dirty and ashamed by the incidents, showering three times every day.

22. [22]
    Before the offence, the applicant knew that Mr P was gay, and believed he had just got out of jail for murder (in fact, he had been sentenced to 10 years imprisonment for attempted murder). Mr P told him about parks in the city where “boys did stuff for money”. The offence at Sandgate Beach must have shown the applicant that Mr P was sexually attracted to him. Because of the time of day, in a public place with others nearby, and the absence of any attempt to touch him, it is unlikely that Mr P appeared ready to immediately carry out his desires. It can be accepted that the applicant found the unwanted sexual proposal to be upsetting and disturbing.

23. [23]
    It seems that the impact was made worse by the subsequent conduct of Mr P. As the applicant explained in his statement to police, Mr P came to see him “heaps of times” in the two months or so that passed before he told his mother what had happened. He would ask the applicant if he had changed his mind or say “You can make heaps of money off it”. He would visit the house and would walk in when the applicant was just lying down on his bed watching television and ask him such things and say such things to him. The applicant always refused. He told Mr P that he was not going to change his mind.  There is no evidence that Mr P attempted to commit any offence against him.

24. [24]
    According to Dr McGuire’s report, he feels very frightened of Mr P. He is lifting weights in an attempt to get strong. He described Mr P as a big man who was terrifying him. He was particularly upset that he had gone to jail for murder. He said that if he saw him he would be panic-stricken. Mr P had told him that he had a gun in the boot of his car. The applicant checks the locks at home every night, and is very security conscious.

25. [25]
    According to the psychiatric report, the applicant attributes a number of difficulties to this offence. He stopped playing football, as he became quite phobic about travelling. He will not even go to a nearby shop on his own. He returned to school, having had a long period away in 2005. He smokes marijuana to relax and stop him thinking about the incident. He said that he took up marijuana about two months afterwards.

26. [26]
    He had a history of nightmares, but they had apparently subsided until just before the recent visit to the doctor. He worries about homosexuality, and finds it disgusting.

27. [27]
    He attributes the deterioration in his behaviour to the time of this offence. He was suspended from school. He was referred to two programmes outside the normal school system. He said that such difficulties contrasted with his years at primary school, where he had lots of friends, was good at sport and used to have fun.

28. [28]
    The psychiatrist reports that he was having problems with anger management. He doesn’t like being with people who are bigger than he is (like Mr P). He has an exaggerated startle reflex. He has become very fearful and avoidant of other people, especially those older than himself. While he has been feeling rather negative about his life, there has been some improvement and he is now doing reasonably well at school. His mother confirmed that the date of the disclosure to her was followed by his running away for two weeks to a friend’s house. She attributed the change in his behaviour to this offence.

29. [29]
    Dr McGuire expressed the view that he was significantly disabled, probably more than 50%. She did not believe that his disabilities in relation to this incident would be permanent, but she thought that at present they are significantly disabling and may result in him not being able to undertake normal developmental tasks. In her opinion, he displayed the symptoms which fit the criteria for diagnosis of post-traumatic stress disorder. She found that he had markedly avoidant symptoms which had resulted in significant curtailment of his educational, sporting and social life.

30. [30]
    Dr McGuire mentions other contributing factors. He did not see much of his father, who lives at Stradbroke Island. He had not seen him for four months. He did not know if his father was employed. His parents had separated when he was about three months old. While he had a pretty good relationship with his mother, his mother had had quite a few boyfriends who had bashed both of them. There had been three or four such boyfriends. All of them were bad except her current boyfriend.

31. [31]
    Dr McGuire thought that such things were contributing factors to his present condition, as they resulted in an increased vulnerability. She believed that he had some attributes of a conduct disorder which would have preceded this offence. In her opinion, “to a large degree his disability may have preceded the incident”.

32. [32]
    Dr McGuire took into account, in making that remark, a report written in June 2004, by a teacher in the LASER programme. It seems that he was away from his usual school, while attending that programme. It is obvious that he had considerable difficulties. The report does not make clear how long-standing those difficulties were. There is nothing in the report to show that the teacher was aware of any impact of this offence. Dr McGuire believed that the report indicated pre-existing difficulties.

33. [33]
    A later report, in September 2004, showed considerable behavioural difficulties, including bullying teachers and students, and abusive language. His behaviour was obviously a concern.

34. [34]
    It is clear that Dr McGuire did not attribute all of his difficulties to this offence. As she put it “to some extent the degree of his condition appears to be inconsistent with the nature of the abuse which was only verbal and didn’t involve actual physical touching. I believe that there are contributing factors which have resulted in the increased vulnerability…”

35. [35]
    Some may think that this offence was unpleasant but not very serious. But it was committed by a rather frightening older man who had got friendly with him. The unwanted proposal of this man, whom he knew to be an active homosexual, showed that the man was attracted to him. It is understandable that such an offence might have a disturbing impact upon a 13 year old boy. However, it does not explain all of the behavioural difficulties which he now has. It is difficult to accept that it could result in a serious post-traumatic stress disorder. His condition appears to be inconsistent with the nature of the abuse. It is probable that he was a vulnerable boy, because of his age and family situation. Even so, there must be a probability that his present difficulties are largely the result of other factors.

36. [36]
    The maximum compensation is $75,000, in the worst cases. Mental and nervous shock is recognised in the compensation table, the range from minor to severe being 2%-34% of $75,000. If there are additional “adverse impacts”, they can potentially raise an award to $75,000.

37. [37]
    Here, it is submitted that he should receive 30% for nervous shock, and another 30% for various adverse impacts. That would total $45,000. However, it seems from Dr McGuire’s report that any “adverse impacts” are themselves the reason for the diagnosis of post-traumatic stress disorder (see para (1) on p 3).

38. [38]
    The appropriate award is $7,500, based on an overall finding of a minor mental or nervous shock, assessed at 10% of the scheme maximum.

The Order

39. [39]
    The order of the court is that the application is dismissed.