G v Pratt[2007] QDC 223

[2007] QDC 223

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2135 of 2007

BRISBANE 

DATE 23/08/2007

ORDER

HIS HONOUR:  Pursuant to section 21A of the Evidence Act, because of the relationship of the applicant to the respondent in these proceedings arising, as it does, out of the conviction of the respondent for offences against the applicant, and the nature of the subject matter of the evidence and the applicant's solicitors request notified by email to me that the applicant wishes to have a screen erected, I order that when the applicant is giving evidence, as it is proposed that he be cross-examined, he be obscured from the view of the respondent by the erection of a screen.

...

HIS HONOUR:  Despite the applicant's age, those other matters I mentioned persuade me that a screen ought to be erected and also the Court will be closed during the cross-examination of the applicant.

...

HIS HONOUR:  This is an application by which the applicant seeks compensation to be determined by the Court pursuant to section 663B subsection 1 of the Criminal Code for personal injuries sustained as a result of offences which led to the conviction of the respondent on 18 December 2001 upon indictment for a number of offences.

The certificate of indictment shows the respondent was convicted of sexual offences with respect to the applicant during a period between 31 December 1991 and 1 January 1994.

The applicant was born on 23 December 1977.  He is currently 29 years of age.  The respondent is approximately 77 years of age at the present time.  When these offences were committed against the applicant, the applicant was 14 and 15 years of age.

I consider it is necessary to point out the nature of the offences in as brief detail as possible.  Count 1, the respondent sucked the penis of the applicant at a public toilet.  This was during 1992.  Count 2, the respondent penetrated the anus of the applicant, again in 1992.  Count 3, the respondent took photographs of the applicant when he was naked, again in 1992.  Count 4, the respondent penetrated the anus of the applicant, again in 1991.  Count 5, the respondent permitted his anus to be penetrated by the applicant, again in 1992.  And count 6, the respondent penetrated the anus of the applicant, again in 1992.

There were 11 counts on the indictment, two of which related to other boys.  But dealing with the offences that relate to the applicant, count 7 involved the showing of a pornographic video to the applicant by the respondent, and this occurred in 1993.  Count 9, the respondent penetrated the anus of the applicant, again in 1993.  And count 11, the respondent showed the applicant a pornographic video, again in 1993. Specifying the dates has some relevance to an argument advanced by the respondent that these offences occurred in one course of conduct or closely related courses of conduct.  There was a passage of time between when these offences were committed and the sentencing of the respondent.  There has also been a passage of time since his sentencing to when this application was filed.  The application was filed on the 30th of July 2007.

The applicant swore an affidavit in support of his application and has been cross-examined before me today by the respondent.  In his affidavit he confirms the truth of statements he made to the police and refers to a victim impact statement in which he prepared for the sentence.  The victim impact statement was not tendered on sentence.  At sentence, the prosecution put forward that it had limited information about the impact on the victims and did not propose to tender any statement, and it was not contended that the applicant had some sexual experience at a comparatively young age before the commission of these offences.

The prosecution also proceeded on the basis that it was impossible to quantify anything in relation to the applicant because of the activity he was carrying out at that time with others, both to a minimal degree before he met the respondent it would seem and then to a further degree after he met him.

This relates to the circumstances that it would appear the applicant has been offended against by four other men as well as the respondent.  One of these men, in fact, raped the applicant.  As between the five men, the applicant told the psychiatrist Dr Maguire, who has provided a report for the purposes of these proceedings, that the abuse by one of these men and the respondent was the worst.  Nevertheless, on what is set out in Dr Maguire's report and from the applicant's affidavit and his answers to questions in cross‑examination today, I am satisfied that all five men offended against him and offended against him in a way that produced a single state of injury.  That is, as Dr Maguire's report shows, the applicant was sexually abused when he was in Bundaberg at a time that would appear to have been when he was about nine. 

The applicant found it difficult to tell Dr Maguire what effect this had on him but said it definitely made him prematurely sexualised.  From then he had no sexual experience until he was about 13 and attending high school.  He was introduced to one of these men who is a well-known paedophile.  The respondent and this man were apparently associated.  However, the applicant was abused just by himself.

One complaint that the applicant seemed to make against the respondent is that he tried to get him to invite friends around.  In any event, the applicant has told Dr Maguire, and I accept this, that he had met the other men in about the same time-frame.  He believed he had been conditioned to sexual abuse by his original abuse in Bundaberg.  He experienced confusion about sexual boundaries.

From what is said in Dr Maguire's report, and what he said today, which I accept, the applicant was encouraged by gifts of money and alcohol, and he was able to access marihuana and came to these premises of the respondent for fun.  He said what the respondent offered him was fun.  He did not come there for the sex.  He abused alcohol to try and forget what happened.  These offences have had an impact upon his relationships and also interfered with his capacity to work.

Dr Maguire concludes that as a consequence of the offences, which are the ones with respect to which the respondent committed, the applicant suffered mental or nervous shock, and she believes it can be diagnosed with Post Traumatic Stress Disorder which he suffers to a severe degree.  She believes it has been present since on the onset of the sexual abuse and it is likely that his symptoms will be life-long.

She considers that he should benefit from counselling for a period of some months for weekly or fortnightly sessions.  She says it is difficult to estimate the length of treatment but in her view it is probable that it will go on for some years.  If obtained in the private sector, such counselling would cost between $150 and $200 per session but it is available within the public sector.

Dr Maguire considers that the first sexual abuse by the unspecified old man when he was nine caused him confusion with sexual boundaries and distorted his view of what was sexually appropriate and rendered him very vulnerable to the incidence of sexual abuse.

Dr Maguire also notes in her report something which the applicant also said in answers to cross-examination that he felt dirty, disgusted, and disregarded emotionally.  My view is that at the time the abuse was occurring he was having fun in that he did not appreciate what was happening, and he was being encouraged by gifts of money, alcohol, and access to marihuana, and able to use a common-day expression of "hanging out" with the respondent and with these other men.

However, as he matured, the feelings he had which he was suppressing to a large extent have come through, that is I accept the applicant as a credible witness and accept what he has said about these events and including his contact with the other men.  I accept this has hampered his relations, particularly with his female partner, and interfered with his work performance.  I accept that as a result of the multitude of offences committed by these various people he has a very negative self-concept.  I accept Dr Maguire's opinion that it is highly probable that he has under-achieved at school and that his incapacity to stay very long at a job is related to the abuse, and that it also has been the effect of his inter‑personal relationships.

I think Dr Maguire is correct that what happened was that very early in the piece he was robbed of his capacity to give informed consent because of these gifts.  She says the probability is that he experienced pleasurable physical effects of sexuality long before he had the capacity to relate this to rewarding emotional relationships.  The subsequent guilt that he has experienced has led to a negative self-view and he sees himself as stigmatised. 

As far as the point taken by the respondent that this application should be refused because of what has been submitted to be inordinate delay, in my opinion it does not necessarily follow because of the time taken to bring the application would in the exercise of my discretion disqualify the applicant.  I consider that on the evidence before me, it is understandable the applicant has taken time.  Quite bluntly, he has been young at various stages when these offences have occurred and he has the effects of these offences on his personal life, and I do not think he can be criticised for taking the time that he has to bring the application.

Further, I do not consider that his compensation ought to be discounted because of the delay.  In my opinion, he has acted within the time limits allowed by the legislation and there is nothing that I can see that can be said to disadvantage the respondent because of the time taken to bring the application and proceed with it.

However, I have come to the view, on the evidence before me, that this was a single course of conduct or related courses of conduct.  I am satisfied, however, that the applicant has done nothing directly or indirectly to contribute to his injury.  I should say I am satisfied he has suffered mental or nervous shock by reason of the offences for which the respondent was convicted.

The law is there to protect young children, and he had a need, as he said, to forget, and I accept Dr Maguire's opinion that he did not provide informed consent when he was offended against. 

The one course of conduct or closely related courses of conduct point is to be seen, in my opinion, in the context of when the offences were committed.  I appreciate that there can still be a number of offences committed over a period of time in different locations and in different circumstances which would not be considered to be a course of conduct.  I have had reference to HW -v- LO [2000] QCA 377 and MAJ -v- KM [2000] QCA 410 and the statements made by their Honours regarding what is involved in a course of conduct or closely related courses of conduct.

However, in this present matter, I have come to the view that six of the offences occurred in 1992.  They were all basically the same, involving sexual penetration except for where there was sucking of the penis at the toilets.  I think that is insignificant in terms of the course of conduct here.  There has also been the taking of a photograph but I do not think that alters what occurred.  There was three penetrations of the applicant and one penetration of the respondent during 1992, and this occurred at the respondent's home.  It occurred in similar circumstances of sexual contact.

Then in 1993 there is a pornographic video shown and then a penetration of the applicant's anus by the respondent and another pornographic video shown.  I do not think the fact that a penetration of the applicant's anus occurred in 1993 can be said to be a separate course of conduct just because it happened in 1993.  The respondent, in my opinion, is to be seen as having encouraged the applicant to participate in the offences in the context described by Dr Maguire.

I have already said this is a single state of injury and it is important to consider what impact the offences committed by the respondent has had upon the injuries suffered by the applicant.  In my opinion, the assessment of the compensation is to be in accordance with common law principles.  See The Queen -v- Jones ex parte McClintock, 7 April 1995.

The approach to the assessment where there has been a single indivisible injury suffered which, in my opinion, has occurred in this applicant's case, is to determine whether the conduct of the respondent has materially contributed to the total damage.  See R -v- Tiltman ex parte Dawe, decision of W C Lee J, 22 June 1995, motion number 324 of 1995.  In my opinion, the conduct of the respondent has materially contributed to the total indivisible injury suffered by the applicant.

As far as the quantum of the applicant's claim is concerned, in my opinion for pain and suffering loss of amenities in his life, he is to be allowed the sum of $60,000;  for counselling he is to be allowed the sum of $10,000;  for economic loss, past and future, he is to be allowed the sum of $50,000.  That is a total of $120,000.  Interest is not allowed as indicated in the judgment of Justice Lee in The Queen -v- Tiltman, as this is a creature of statute and not an invention of the common law.

As the maximum in this case is $20,000, I order the respondent to pay the applicant the maximum which is the sum of $20,000. 

...

HIS HONOUR:  I order the respondent to pay the applicant's costs of the application to be assessed on the standard basis. 

As there are other offenders, as I understand what I have done is to assess the compensation for the single indivisible injury suffered by the applicant.  Other applications that may be made will then have to be determined in light of that determination, and in light of the maximum that has been ordered against this respondent.

...

HIS HONOUR:  I think I have got to allow the applicant's solicitors, Mr Pratt, to take what course they think is proper, and I do not think I would stay the order in the circumstances.

...