TLK v JD; MTR v JD; RMT v JD[2007] QDC 132

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicants TLK (born 23 November 1983), MTR (born 5 August 1982) and RMT (born 13 February 1977) are sisters who were the complainants in respect of various indecent treatment charges dealt with by way of pleas of guilty by the respondent JD (who is the grandfather of each of the applicants) in the Beenleigh District Court before me on 2 December 2005.

Sentence re Applicant TLK

2. [2]
   In respect of the applicant TLK, the respondent pleaded guilty to 10 counts of indecent treatment of a girl under 14 and three counts of indecent treatment of a child under 12 who was a lineal descendant. The respondent was sentenced to concurrent terms of five years of imprisonment, with a recommendation for post-prison community based release after serving two years in respect of the 10 counts of indecent treatment of a girl under 14, and the respondent was sentenced to concurrent terms of six years imprisonment with a recommendation that he be considered for post-prison community based release after serving two years imprisonment in respect of the three counts of indecent treatment of a child under 12 who was a lineal descendant.

Sentence re Applicant MTR

3. [3]
   In respect of the applicant MTR, the respondent pleaded guilty to two counts of indecent treatment of a girl under 14 and two counts of indecent treatment of a child under 12 who was a lineal descendant. In respect of the two counts of indecent treatment of a girl under 14, the respondent was imprisoned for a period of five years (concurrent) with a recommendation that he be considered eligible for post-prison community based release after serving two years imprisonment. In respect of each of the two counts of indecent treatment of a child under 12 who was a lineal descendant, the respondent was sentenced to six years imprisonment (concurrent) with a recommendation that the respondent be considered eligible for post-prison community based release after serving two years imprisonment.

Sentence re Applicant RMT

4. [4]
   In respect of the applicant RMT, the respondent pleaded guilty to three counts of indecent treatment of a girl under 14, and on each count was imprisoned for a period of five years (concurrent) with a recommendation that he be considered eligible for post-prison community based release after serving two years imprisonment.

Facts

Applicant–TLK

5. [5]
   The counts involving applicant TLK occurred on dates between 31 August 1986 (shortly before TLK turned three years old on 23 November 1986) and continued until 23 November 1993, the night that TLK turned 10 years old. The offending behaviour commenced with the respondent first touching TLK’s vagina while she was sleeping (causing her to wake up), continued with rubbing of her vagina but also including the insertion of a finger in TLK’s vagina (and on occasions the insertion of two fingers), culminating with the final count on 23 November 1993 when the respondent, while drunk, tried to kiss TLK on the mouth, tried to remove her shorts, then rubbed and squeezed her breasts before she fought him off, scratching his face^[1].

Applicant-MTR

6. [6]
   The four counts involving the applicant MTR commenced on or about 4 August 1986 (the night before Rachelle’s fourth birthday) when  was woken up by the respondent, initially rubbing the outside of her vagina, then rubbing her clitoris and subsequently partially inserting a finger into her vagina. The subsequent offences involved the respondent rubbing Rachelle’s vagina and on one occasion inserting his finger in her vagina. The last of the four offences to which the respondent pleaded guilty occurred on a date unknown between 2 and 13 January 1990 when MTR was aged seven^[2].

Applicant-RMT

7. [7]
   The three counts involving applicant RMT commenced when RMT was about four years old (she turned four on 13 February 1981). The initial conduct involved the respondent moving his finger up and down and around between the lips of RMT’s vagina. The second count, which occurred when RMT was six years old, involved similar behaviour. The final count occurred when RMT was 10 years old and involved a touching of the outside of her vagina under her underpants when she was sitting on the respondent’s lap in a lounge-room in the presence of her father^[3].

Injuries

8. [8]
   Each of the applicants, TLK, MTR and RMT has suffered mental or nervous shock as a result of the offences committed by the respondent.

The Law

9. [9]
   These applications proceed under the now repealed provisions of Ch 65A (ss 663A, 663AA, 663B and 663BA) of the Criminal Code^[4].
10. [10]
    Prior to 1 July 1984, Criminal Code s 663A defined the “prescribed amount” to mean:-

“(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.”

The “prescribed amount” was increased to $20,000 in respect of mental or nervous shock by Criminal Code s 663AA which commenced on 1 July 1984^[5]. The “prescribed amount” of $5,000 applicable before 1 July 1984 “may be awarded as compensation for each offence of which the [respondent] was convicted.”^[6] In R v Jones; ex parte McClintock^[7] it was held that the assessment of damages under (repealed) Criminal Code s 663B proceeds on common law principles of assessment of damages for personal injury, provided that the amount does not exceed the prescribed amount and that costs can be awarded. Criminal Code s 663B(1) relevantly provides:-

“(1) where a person is convicted on indictment of any 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 him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injuries suffered by him by reason of the offence or offences of which the offender is convicted.

For the purpose of determining whether such 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.”

11. [11]
    In R v Llorente; ex parte Hendry^[8] de Jersey CJ noted that:

“In determining whether courses of conducted are ‘closely related’, [Criminal Code s 663B] invite[s] analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them.”^[9]

de Jersey CJ held that:

“Assaying a definition of ‘course of conduct’ for [the] purposes of s 663B, the words connote in this context 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, an identifiable overall pattern.”^[10].

de Jersey CJ went on to observe, however, that:

“It goes without saying that one cannot be prescriptive of the requisite extent of the 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.”^[11].

Compensation

12. [12]
    Mr Maher, who appears for each of the three applicants, notes that each was examined by Dr Barbara McGuire, psychiatrist, who formed the view that each of them was suffering from post-traumatic stress disorder to a severe degree, with lifelong effects^[12].
13. [13]
    Mr Maher in his outline of submissions highlights the following aspects of Dr McGuire’s reports in respect of each of the applicants.

14. [14]
    “In relation to TLK, Dr McGuire noted:

• the major effects are serious loss of self esteem;
• she suffered from anorexia and bulimia from the age of 12 to 13;
• she experienced self mutilation and suicide attempts;
• she started harming herself at 13, including cutting, drinking and drugs;
• she has persistent nightmares;
• she experiences flashbacks;
• she has doubts about her value and is scared of relationships;
• her parenting has been affected;

• there were no contributory effects which rendered her more vulnerable to the abuse;
• it has affected her work patterns and she changes jobs every six months.”^[13]

15. [15]
    “In relation to MTR, Dr McGuire noted:

• she has occasional nightmares;
• she did not like school;
• she experiences flashbacks triggered by sexual activity;
• she finds sex an ordeal and only participates for her partner’s sake;
• she feels depressed;
• she was suicidal when she was younger;
• she has trouble sleeping;
• she gets angry with her children and generally;
• the abuse has had a significant negative impact upon her capacity to parent her children, to have interpersonal relationships and has also had negative effects on her sexual life.”^[14]

16. [16]
    “In relation to RMT, Dr McGuire noted:

• she is very afraid of men;
• she has trouble changing nappies and cleaning her child’s vaginal region;
• she is very afraid of men;
• she deals with abuse by dissociation and cannot get angry;
• she has recurrent nightmares;
• she experiences flashbacks;
• she has difficulty trusting older men;
• she tends to do dangerous things;
• she has been suicidal.”^[15]

17. [17]
    I accept (as submitted by Mr Maher on behalf of the applicants) that in each case the condition diagnosed by Dr McGuire is a recognised psychiatric injury and amounts to “mental or nervous shock”, as recognised by Criminal Code s 663B and therefore an award should be made in each case.

Courses of Conduct

Assessment–TLK

18. [18]
    Mr Maher submits that all of the offences in respect of TLK fall within the period governed by Criminal Code s 663AA (i.e. with a prescribed amount of $20,000 for mental or nervous shock). He further submits that the offences in respect of TLK can be separated into three separate courses of conduct. The first course of conduct occurs in respect of Counts 2-11 commencing shortly before TLK turned three years old and concluding in 1989 when TLK was around five years old. The offending behaviour in each count was similar (touching and/or rubbing of the vagina, with an insertion of the finger in the vagina on occasions)^[16].

19. [19]
    The second “course of conduct” was constituted by Count 16 which occurred “some time later in 1989” (by reference to the previous offence, Count 13 which apparently occurred early in 1989). The third “course of conduct” was the final offence which occurred on 23 November 1993 (the night of TLK’s 10^th birthday) and some four years after the previous count. TLK was indecently treated by the respondent in an incident which involved her being pushed onto the bed, the respondent laying on top of her while drunk trying to kiss her mouth, rubbing and squeezing her breast while trying to remove her shorts. The incident only stopped when TLK pushed him away and scratched his face. Mr Maher submits (correctly, in my view) that this final offence “is in a different class and level of intensity” to the preceding offences^[17].

20. [20]
    I accept that the offences by the respondent in respect of the applicant TLK fall into three separate courses of conduct, and I further accept that the mental or nervous shock suffered by TLK would, if assessed on common law principles, result in an assessment well in excess of a sum of $60,000 (i.e. three courses of conduct of a maximum of $20,000 each). Accordingly I award the applicant TLK the sum of $60,000 in criminal compensation, plus costs to be assessed on a standard basis.

Applicant–MTR

21. [21]
    Mr Maher in his written outline of submissions argued that the four counts in respect of the applicant MTR each constituted a separate “course of conduct”, being offences that were similar in nature, but were separated in time and circumstances. However, in his oral submissions Mr Maher accepted that the last two counts (Counts 14 and 15) occurred within some 11 days of each other, immediately prior to and during the course of a caravan holiday and should therefore properly be regarded as being a “course of conduct” (in respect of those two counts). With that appropriate concession from Mr Maher, it is clear, in my view, that Count 1 (which occurred on or about 4 August 1986, the night before Rachelle’s fourth birthday) was the first “course of conduct”, Count 12 (which occurred in January 1989, when MTRwas six years old) was a second “course of conduct”, and Counts 14 and 15 (occurring, in respect of Count 14, on 2 January 1990, and in respect of Count 15, between 2 and 13 January 1990) were a third “course of conduct”.

22. [22]
    I am satisfied that the mental or nervous shock suffered by MTR would, on common law principles of assessment of damages for personal injury, have exceeded a total of $60,000. Accordingly I award the sum of $60,000 (being three separate courses of conduct of $20,000 in respect of each course of conduct), a total of $60,000 plus costs to be assessed on a standard basis.

Application–RMT

23. [23]
    The three separate counts involving RMT are all separated by significant intervals of time. Count 1 (an offence that involved the respondent moving his finger up and down and around between the lips of RMT’s vagina) occurred between 12 February 1981 and 4 August 1982. Count 2, which did involve similar conduct, did not occur until a date between 22 November 1983 and 13 February 1984. Each of those counts occurred prior to 1 July 1984 and therefore the relevant compensation applicable in respect of each count was a maximum sum of $5,000. Count 3 occurred (again a significant interval of time after Counts 1 and 2) on a date unknown between 12 February 1987 and 12 February 1988, when RMT was aged between 10 and 11 years. Count 3 involved significantly different conduct, namely the respondent placing his hand on the outside of RMT’s vagina under her underpants, in a lounge-room while she was sitting on the respondent’s lap, in the presence of RMT’s father.

24. [24]
    Again I am satisfied that the mental or nervous shock suffered by RMT, when assessed on common law principles of assessment of damages for personal injury, would have exceeded the relevant prescribed amount, which in the circumstances I consider to be amounts of $5,000 each in respect of Counts 1 and 2 and the maximum $20,000 in respect of Count 3 (which occurred after 1 July 1984). I therefore award RMT criminal compensation in the amount of $30,000, plus costs to be assessed on the standard basis.

Contribution

25. [25]
    I do not consider that any of the applicants in any way directly or indirectly contributed to the injuries which each of them suffered as a result of the offences committed by the respondent against each of them.^[18]

Orders

26. [26]
    I order that the respondent JD pay the applicant TLK the sum of $60,000 and costs to be assessed on a standard basis.

27. [27]
    I order the respondent JD pay the applicant MTR the sum of $60,000 and costs to be assessed on a standard basis.

28. [28]
    I order the respondent JD pay the applicant RMT the sum of $30,000 and costs to be assessed on a standard basis.