DISTRICT COURT OF QUEENSLAND

1. [1]
   On the 5th of April 2006, in the District Court at Southport, the respondent to this application, BC, pleaded guilty before his Honour, Judge Shanahan, to a number of offences of a sexual nature. He was sentenced to a lengthy term of imprisonment.

2. [2]
   The applicant was the victim of those offences, and he now seeks compensation in respect of injury suffered by him as a consequence of the commission of those offences.

3. [3]
   The offences, of which the respondent was convicted, involved one offence of maintaining a sexual relationship with a child under the age of 16, one offence of sodomy, and nine offences of indecently treating a boy under the age of 16 years.

4. [4]
   The applicant is the grandson of the respondent. The offence of sodomy, and eight of the offences of indecent dealing, were all committed between the 1st of June 1992 and the 31st of December 1994. The final offence of indecent treatment was committed in or about July 1996.

5. [5]
   The 10 substantive offences all formed part of the maintaining offence, and there were other uncharged acts which also formed part of that charge. Importantly, for reasons which will become apparent, none of those uncharged acts were alleged to have occurred after late 1994 when the applicant was placed in foster care.

6. [6]
   On the sentencing occasion, the circumstances of the substantive offences were outlined by the Crown Prosecutor as follows:-

"Count 2 occurred when the boy was aged around about 11. It was shortly after that move to the Coomera address. He was residing at that address with his family. The boy and accused were sharing the bottom area of the house, with the accused having a small area cordoned off, which acted as his bedroom.

At the time of this offence, the complainant was being babysat by the prisoner. The prisoner came into the boy's room and asked the boy to suck his penis. The prisoner stated that he would take the boy out and give him money if he did so.

The boy had been grounded several times by his mother in relation to other matters, and stated that he sucked the penis in the hope of getting out of the house.

He said he felt sick and disgusted, and said to the prisoner that he wanted to stop, and he said to the prisoner that he wanted to stop but was too scared to say anything more.

In relation to counts 3 and 4, that offence was around about the same time in the same location. The boy was lying on the prisoner's bed facing the prisoner, after the prisoner had called him over to pick some race horses from a form guide. He began touching the boy on the genitals and the anus on the outside of the boy's shorts. He repeatedly asked the boy to play with his - with the - the prisoner frequently - repeatedly asked the boy to play with the prisoner's penis.

The prisoner then began inserting his fingers into the boy's anus. He relates that that was extremely painful. He asked the prisoner to stop, but the prisoner persisted. He then pushed the complainant child on to the bed on his hands and knees, and kept inserting his fingers into the child's anus. Then, in relation to sodomy, he then penetrated the complainant's anus with his penis.

The complainant says he felt immediate and excruciating pain in his anus and in his stomach. He tried to get away, but he was held on to by the prisoner. Shortly afterwards the prisoner ejaculated in the boy's anus. The boy ran away shortly afterwards, and felt something coming out of his anus. He checked his shorts and found fluid in his underpants, which a mature appreciation would have been consistent with ejaculation. He threw the underpants away so that his mother wouldn't be able to see them because of the embarrassment.

In relation to count 5 and 6 again, in this period he's aged about 13 to 14, as with the previous matters. The prisoner took the boy fishing on the Coomera River. While sitting in a parked car near the bank, the prisoner began to play with the complainant's penis and testicles on the outside of the shorts. The prisoner then removed the complainant's shorts and stroked the penis and testicles further.

Then in relation to count 6, the prisoner then lent over and sucked the boy's penis, and then eventually drove him home. During the course of this misconduct, the boy was repeatedly telling the prisoner to stop.

In relation to count 7 and 8, those offences occurred during a fishing trip during the same period in relation to count 5 and 6. These matters occurred while sitting in the parked car near a bank - near the riverbank and the prisoner began to play with the child's penis and testicles on the outside of the shorts. He then removed the boy's penis from the side of the shorts and lent over and sucked the boy's penis before driving home. Again, the complainant child repeatedly told him to stop during the course of these interludes.

In relation to counts 9 and 10, these offences occurring during a fishing trip during the time period of between 11 and 13 years of age. Again, in a parked car near the riverbank, he began to play with the complainant child's penis and testicles on the outside of his shorts. He then removed the child's penis from the side of his shorts and stroked his penis. Again, he was repeatedly told to stop by the child.

In relation to count 11, this was when the boy was aged between about 14 to 15. The prisoner had moved out of the family home and was residing with his partner at Coomera. The boy had been residing, or had been lodged at Boystown by his parents and was home for - but before going to Boystown he was put into foster care, and then spent about 12 months in Boystown.

It seems that he was very much a problem child for his parents ---. Anyway, he was home from Boystown. He visited the home where the prisoner was living with his wife. He felt that he would be safe because of the partner being there. Shortly after arriving, the partner went out to the shops. The prisoner then began to touch him on the genitals and anus. The accused then placed his hand on the complainant's penis. The complainant was under the impression that the prisoner was trying to make his penis erect but was not successful in that regard. The accused's partner was heard to be returning, and then this conduct, at that particular time, ceased."

7. [7]
   It is not suggested that the applicant has suffered any physical injuries as a consequence of these offences, but he has suffered certain psychological consequences. The applicant refers to these matters in his affidavit, and I have also the report of a psychologist, Mr Alan Chittenden, and a psychiatrist, Dr Barbara McGuire.

8. [8]
   I have found Dr McGuire's report to be of particular assistance. She considers that, as a consequence of the offending, the applicant has suffered a post traumatic stress disorder to a severe degree, and regards it as probable that he will manifest some symptoms of the condition for the rest of his life. He suffers also from the effects of substance abuse, which Dr McGuire considers to be attributable to the offences perpetrated by the respondent. Dr McGuire also notes that the applicant has suffered considerably as regards his education and his capacity to form sexual relationships.

9. [9]
   The applicant's entitlement to compensation falls to be assessed under the provisions of both the Criminal Code and the Criminal Offence Victims Act 1995 (COVA). The COVA legislation came into force on the 18th of December 1995. Part 3 of the Act provides for compensation for personal injury suffered in indictable offences committed after the commencement of the Act.

10. [10]
    Section 46 specifically provides that Part 3 does not apply to injuries suffered by anyone because of an act done before the commencement of Act. Injury caused by an offence committed before the 18th of December 1995 remains compensable under the terms of the repealed Chapter 65A of the Criminal Code. Thus, injuries suffered because of acts committed prior to the 18th of December 1995 must be assessed under the Code provisions, whilst the injuries suffered thereafter must be assessed under the provisions of the COVA legislation.

11. [11]
    In a case such as the present, the appropriate approach is that outlined by the Court of Appeal in HV v LN [2000] QCA 472, 118 ACR 53. In that case, Thomas JA, with whom Pincus JA and Byrne J agreed, said:-

"The scheme of section 46 is to preserve rights accrued before the given date, and to confine compensation under the new Act to the consequences of criminal activity after that date. The applicant does not lose either right. The applicant's accrued rights under the earlier regime cannot conveniently be swept aside to enable a single assessment to be made under the Criminal Offence Victims Act.

In the present situation, I consider that the applicant is entitled to be assessed in respect of each period in that the Courts must do the best they can in ascribing appropriate compensation in respect of each period.

Where there is a combined effect that is difficult to dissect, the most sensible way to proceed is to attempt to apportion between the effects attributable to each period, and if no better suggestion emerges, a length of the respective periods over which the offending occurred may be used.

In some cases, medical evidence may show that earlier offences had already produced a serious condition, so that the later offences would be regarded as having merely caused minor aggravation of an already established condition, in which case the greater part of the overall consequences would be properly ascribed to the earlier offending conduct, or vice versa.

I do not think it is beyond the ingenuity or experience of the Courts to make such assessments to meet the particular requirements of a particular case."

12. [12]
    The evidence in this case establishes that the applicant was placed in foster care at the end of 1994, and was placed with foster parents in northern New South Wales. There is no suggestion that he had any contact with the respondent during this time.

13. [13]
    Eventually, because of what he describes as his "rebellious behaviour", the applicant was relocated to Boystown, Beaudesert. One weekend, in July 1996, he returned to visit his mother, and it was on this occasion that the incident, set out above as count 11, occurred. This was the last incident of offending and the only occasion after 18^th December 1995 upon which any offending took place.

14. [14]
    In this case, the applicant's condition would seem to be the result of the entirety of the respondent's offending. It is not possible to dissect, with any measure of accuracy, the effect which any one particular act has had upon the applicant. What is clear, however, is that virtually all of the offending behaviour, including the offence of sodomy, and all of the uncharged acts, occurred prior to the introduction of the COVA legislation. As indicated above, count 11 provides the only incident of offending behaviour after that time.

15. [15]
    It follows, in my view, that the greater part of the overall consequences should be ascribed to that earlier period of offending which falls to be assessed under the repealed Chapter 65A of the Code. In my view, it would be appropriate to apportion compensation on the basis of 90 per cent under the Code, and 10 per cent under the COVA legislation.

16. [16]
    In assessing compensation under the Code provisions, it is necessary to determine whether the applicant should be compensated for individual offences, or for a course of conduct (see section 663B of the Criminal Code). Factors relevant in making that determination are discussed in cases such as HW v LO [2001] 2 QLR 45, and MAJ v KM [2000] QCA 10.

17. [17]
    In HW v LO, 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 interrelation, whether by nature, time, place or otherwise, display an aggregation; an identifiable overall pattern.

18. [18]
    His Honour referred to the need for an element of continuity and said:-

"It goes without saying that one cannot be proscriptive of the requisite extent of relationship. One obviously cannot, for example, specify a minimum duration for any separate course of conduct. Given a high level of regularity and consistency in 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 described 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 that was not enough to establish a 'course of conduct', sufficiently precise and limited for the purposes of the provisions."

19. [19]
    It should be noted that HW v LO was concerned with six offences committed over some six or seven years and committed on distinct occasions, separated substantially in time and place, and with the nature of the acts constituting the offences exhibiting some variety.

20. [20]
    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 acts relevant to the determination of the issues there were the similar but escalating nature of the respondent's conduct - the fact that the offences occurred in similar circumstances, that they formed a pattern of similar offences of at least weekly occurrence, and that they occurred over a period of a little under five months.

21. [21]
    His Honour considered it plain that those offences arose out of the one course of conduct, and observed "natural sympathy for the applicant should not sway the Court from giving effect to the provisions of the statute".

22. [22]
    Applying these principles to the circumstances of the present case, it seems to me clear that the conduct involving the applicant cannot be said to have all arisen out of the one course of conduct. Counts 2, 3 and 4, although involving conduct of escalating seriousness, all occurred at Coomera, and were all stated by the Prosecutor to have occurred "about the same time", when the applicant was aged about 11.

23. [23]
    On the other hand, counts 5 and 6 were said to have occurred when the applicant was older - perhaps as old as 13 - when the respondent took the applicant on a fishing trip. Counts 7 and 8, as well as counts 9 and 10, were also committed on a fishing trip, and occurred during the same time period as counts 5 and 6.

24. [24]
    All of these offences involved behaviour of a generally similar nature. In the circumstances, I am satisfied that the offending here represents two distinct courses of conduct, and that compensation should be assessed accordingly. It is, of course, clear that compensation under the Code provisions is to be determined in accordance with common law principles of assessment for 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 J [1996] 1 QLR 424).

25. [25]
    The maximum amount of compensation to which the applicant was entitled under the Code provisions was $20,000 in respect of each course of conduct, that being the relevant "prescribed amount" for the purposes of section 663B of the Code.

26. [26]
    In a common law action for damages, his entitlement would be much greater, and he should therefore receive the maximum amount which I can award, which, in the circumstances, would be 90 per cent of $40,000, or $36,000.

27. [27]
    With regard to the offence committed after the 18th of December 1995 (count 11), I am satisfied that the applicant has suffered an injury which amounts to mental or nervous shock, for the purposes of the legislation. This injury should be assessed as severe within item 33 of the schedule. In that regard, in respect of the post 1995 period, the applicant should receive an award of 10 per cent of 34 per cent of the scheme maximum, or $2,550.

28. [28]
    It was suggested that the applicant had also suffered certain adverse impacts within the meaning of Regulation 1A of the Criminal Offence Victims Regulations 1995. All of these matters were referred to by Dr McGuire, and it is not clear to what extent they are symptoms, and/or direct consequences of the post traumatic stress disorder. The medical evidence provides no assistance in that regard, and the Courts must be careful to avoid what would effectively be double compensating (see JI v AV [2001] QCA 510).

29. [29]
    Notwithstanding this, however, I accept that the applicant has suffered certain adverse impacts, particular, it would seem, with personal and sexual relationships, and in the circumstances I propose to make a further award of $1,500, that being 10 per cent of $15,000. This would result in a total award in favour of the applicant of $40,050.

30. [30]
    I have not found it possible to make any separate award in respect of the uncharged acts that form part of the maintaining charge. Those acts were not identified with any particularity on the sentencing occasion, and it is not possible to say that they constituted separate courses of conduct. The problem that arises is not dissimilar to that which existed in AT v FG [2004] QCA 295.

31. [31]
    On the sentencing occasion, the learned Crown Prosecutor made some reference to earlier sexual misconduct which occurred in New South Wales. Both Dr McGuire and Mr Chittenden also make reference to those events which began, it would seem, as early as 1988. However, those incidents, for obvious reasons, could form no part of the charge of maintaining a sexual relationship in Queensland "between the 1st day of June 1992 and the 31st day of December 1996".

32. [32]
    In the result:-

I order that the respondent, BC, should pay to the applicant, the sum of $40,050 by way of compensation for injuries suffered by the applicant by reason of the offences for which the respondent was convicted in the District Court at Southport on the 5th of April 2006.

Costs may be awarded under the Code provisions. They are not under the provisions of the COVA legislation.

I therefore order that the respondent should pay 90 per cent of the applicant's costs of and incidental to this application in such amount as may be agreed, or in the absence of agreement to be assessed.