DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant SJH (formerly known as SJR) was the complainant in respect of 6 counts of indecent dealing with a girl under 14, and 6 counts of indecent treatment of a child under 16, which proceeded by way of a plea of guilty by the respondent WMR in the District Court at Beenleigh on 2 November 2000 before Senior Judge Hanger. The respondent was sentenced to imprisonment for 5 years with a recommendation for parole after serving 2 years in respect of Count 6 (indecent dealing with a girl under 14 years between 1 June 1989 and 31 July 1989), 4 years imprisonment in respect to Counts 7 – 11 (offences of indecent treatment of a child under 16 years with circumstances of aggravation), and the respondent was sentenced to 3 years imprisonment in respect of Counts 1 – 5 (counts of indecent dealing with a girl under 14 years) and Count 12 (indecent treatment of a girl under 16 years). The sentences were all ordered to be served concurrently and all carried a recommendation for parole after serving 2 years.

Facts

2. [2]
   The applicant was born on 25 March 1979 and was aged between 7 and 11 years in respect of Counts 1 – 11, and was aged 12 years at the time of the final count relating to her (Count 12), which occurred on 25 December 1991. Counts 1 – 6 each involved an allegation of indecent dealing with a girl under 14 and occurred on various dates between 1 January 1987 and 31 July 1989. Counts 7-11 occurred on various dates between 3 July 1989 and 1 January 1991. Count 12 occurred on 25 December 1991. The applicant was the younger sister of the respondent’s wife, KR.

3. [3]
   The facts in respect of each of the counts are drawn from the Schedule of Facts tendered on the sentence^[1].  Count 1 occurred when the respondent gave the applicant (then aged 7) a piggyback when she was walking back from the swimming pool and used the opportunity to insert two of his fingers in under the applicant’s swimmers and into her vagina while he was holding her in place on his back with his other hand.  This action was referred to by the respondent as a “high piggyback ride”. 

4. [4]
   Count 2 occurred when the applicant was 8 years old, and involved the respondent leaving his 11 month old son playing in the playground of a park while he lead the applicant to bushes at the edge of the playground, had her lie down on the ground, and then lay on top of her and kissed her on the mouth. Count 3 involved the respondent, during the course of the same incident in Count 2, pulling the applicant’s shorts and underpants to below her knees, lying on her, rubbing her vaginal area and inner legs for 5 to 10 minutes and also kissing her. Count 4 was also part of the same incident and was constituted by the respondent licking the applicant’s vagina.

5. [5]
   Count 5 occurred when the applicant was in Grade 5 (between 31 December 1988 and 4 July 1989 when the applicant was aged 9 – 10). The applicant was staying at her sister’s house, and when her sister went out, the respondent called the applicant into the main bedroom where he placed the applicant’s hand on his erect penis and had her masturbate him to ejaculation.

6. [6]
   Count 6 occurred in the June/July holidays of 1989 when the applicant was 9 years old and was staying with her sister and the respondent. The applicant’s sister was out of the house and the respondent took the opportunity to take the applicant to the main bedroom where he showed her a sex manual which included depictions of oral sex, then had the applicant perform oral sex on him, to ejaculation.

7. [7]
   Count 7 occurred between 3 July 1989 and 25 March 1990 and involved the insertion of the respondent’s fingers into the applicant’s vagina as he piggybacked her. She was aged 10 at the time.

8. [8]
   Counts 8 and 9 were a single incident which occurred when the applicant was also 10 years old. The applicant was staying with her sister and the respondent, and while the applicant’s sister was not in the house, the respondent pulled the applicant into the main bedroom where he had her masturbate him to ejaculation.

9. [9]
   Count 10 occurred when the applicant was 11 years old and had commenced wearing a training bra. The respondent touched the applicant on top of the bra, touching both breasts and rubbing around both nipples. Count 11 also occurred when the applicant was 11 years old and was wearing a tee shirt without a bra. The respondent rubbed each of her breasts and nipples underneath her tee shirt with his hand.

10. [10]
    Count 12 occurred on 25 December 1991 when the applicant was 12 years old. The applicant was at her sister’s house, together with other family members and the respondent. While the applicant was in the kitchen, the respondent approached her, grabbed one of her breasts, squeezed it and then pinched her on the bottom.

Injuries

11. [11]
    The applicant suffered mental or nervous shock as a result of the offences committed against her by the respondent.

The law

12. [12]
    This application proceeds under the now repealed provisions of Ch 65A (s. 663A, 663AA, 663B and 663BA) of the Criminal Code^[2].  Pursuant to Criminal Code s 663B(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… arising out of the one course of conduct or of 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… 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”.

13. [13]
    Criminal Code s 663A defines “injury” to include “mental and shock and nervous shock”, which includes any resultant psychiatric and psychological illness or injury flowing from the offence.^[3]  The relevant “prescribed amount” for offences which occurred after 1 July 1984, is an amount of $20,000^[4].  In HW v. LO [2001] 2 Qd R 415, de Jersey CJ noted that:-

“In determining whether courses of conduct are “closely related” [Criminal Code s.663B] invites analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them”. ^[5] 

14. [14]
    de Jersey CJ went on to indicate that:-

“essaying 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”.^[6]

15. [15]
    The Chief Justice cautioned, 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”.^[7]

16. [16]
    In R v Jones; ex parte McClintock^[8] 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.

Compensation

17. [17]
    Ms Fadden submits on behalf of the applicant that the twelve counts to which the respondent pleaded guilty occurred over a period of between 4 ½ and 5 years when the applicant was relevantly aged between 7 and 12 years old constitute five separate courses of conduct. Counts 1 and 7 both involved the insertion of the respondent’s fingers in the applicant’s vagina while he was piggybacking her. Although there is a period of approximately 1 year between each of these 2 offences, the conduct involved in the offences is very similar. On my view, the time frame is not so separate that they should be treated as other than a single course of conduct.

18. [18]
    Counts 2, 3 and 4 all occurred during the course of one incident at a park in Kingston and represent various different aspects of that particular incident.  These counts clearly constitute a single course of conduct.

19. [19]
    Counts 5, 8 and 9 are each strikingly similar in nature, consisting of the respondent making the applicant masturbate him in the main bedroom of the respondent’s house. Counts 8 and 9 were in fact part of the same incident which occurred when the applicant was aged 10. Count 5 occurred sometime within a few months before or after the applicant turned 10. I consider that these three counts clearly form a single course of conduct.

20. [20]
    Count 6 involved the respondent making the applicant perform oral sex on him after showing her photographs from a sex manual depicting couples involved in oral sex. The report of Dr McGuire^[9] notes that the applicant reported this as “the worst incident” which was “the most intrusive and disgusting”.  It represents another course of conduct.

21. [21]
    Counts 10, 11 and 12 occurred when the applicant was aged 11 and 12 and all involved similar acts of touching the applicant on her breasts and/or squeezing her breasts either on top or under clothing. These counts clearly form a single course of conduct.

22. [22]
    I therefore accept the submission that the twelve counts represent five courses of conduct which, following the decision in HW v. LO [2001] 2 Qd R 415, constitute distinct and separate acts on occasions clearly separated in time, place and circumstances.  I consequently accept that this court has the jurisdiction to award compensation of up to $100,000 (the prescribed amount of $20,000 per “course of conduct”) in respect of this application.

Limitation Period

23. [23]
    The originating application in this matter was filed on 6 September 2006, just under 2 months before the expiration of 6 years after the respondent was convicted on 2 November 2000. In Chong v Chong ^[10] it was held that “s 10 of the Limitation of Actions Act 1974 provides that the period of limitation starts to run from the time when the cause of action arose.  This happens when all of the events necessary to constitute the cause of action have occurred.  In a claim under [Criminal Code] s.663B that happens when the offender is convicted”.  The relevant limitation period is 6 years^[11] by virtue of ss.5 & 10(1)(d) of the Limitation of Actions Act 1974.

24. [24]
    Given the originating application in this matter was filed within 6 years of the respondent’s conviction on 2 November 2000, I consider that the application has proceeded within the applicable time limit.

Compensation

25. [25]
    The report of Dr Barbara McGuire^[12] diagnoses the applicant as suffering “from post traumatic stress disorder to a severe degree… characterised by flashbacks, intrusive thoughts which she cannot repress, security consciousness, avoidant behaviour etc”.  Dr McGuire considers that the applicant “suffers this condition to a severe degree and that it has been present since her childhood [and further that] the likelihood is that [the applicant] will continue to suffer from this condition for the rest of her life although counselling may mitigate some of her symptoms”.^[13]

26. [26]
    There are, however, issues of causation which need to be considered in this matter. As Dr McGuire outlines in respect to the applicant, she had a father who was diagnosed with schizophrenia and a mother whom she described as “cruel and neglectful”, with a gambling problem. The applicant was also sexually abused for 6 months by a man who used to drive an ice-cream truck and bribed her with free ice-cream.^[14]  The sexual abuse by the ice-cream man occurred when the applicant was aged about 11 and in grade 6 and involved the applicant agreeing to put her hand in the ice-cream man’s pocket on a number of occasions in return for ice-cream^[15]. Dr McGuire notes that “there are significant contributing factors [to the applicant’s psychiatric disorder]. [The applicant] had a highly dysfunctional childhood with an abusive mother and schizophrenic father.   She has also suffered other sexual abuse as a child.  In addition, she has recently been diagnosed with multiple sclerosis and has an adjustment disorder with depressed mood as a result of this.  Whilst all of these circumstances would have rendered [her] more vulnerable to the sexual abuse inflicted by [the respondent], it is my view that the offences committed by [the respondent] have made a substantial and material contribution to her clinical condition.  In fact it is probable that had they been the only offences committed against her, she would have suffered post traumatic stress disorder to a very severe degree”.^[16]

27. [27]
    It is also clear from the applicant’s police statement that the respondent put his fingers inside her vagina whilst giving her a piggyback “numerous times”^[17]; that there were at least 3 or 4 times (including the charged offence) when the respondent had the applicant masturbate him^[18]; and further that there were “quite a few occasions” when the respondent made the applicant lie down and he touched and licked her vagina^[19].

28. [28]
    Obviously, the applicant can only be compensated for injury which flows from the offences to which the respondent has pleaded guilty. As Lee J stated in R v Tiltman; ex-parte Dawe^[20]:-

“In a tortious action, if the defendant’s negligent conduct combines with other innocent causes to produce a single indivisible injury, it is sufficient to base a finding of causation if that conduct can be said to have materially contributed [my emphasis] to the total damage.  On this approach if I were to find that the offences of which the respondent was convicted made a material contribution to the applicant’s injury then, unless the respondent is able to separate the effects of the compensable and non compensable injury with some reasonable measure of precision, the applicant is entitled to have his compensation assessed in respect of his whole injury”. 

In my view, causation is “ultimately a matter of common sense”^[21] and it is clear in this case that the applicant should be entitled to be compensated for the whole of her injury which, in my view, was materially and significantly contributed to by the actions of the respondent, even though that injury may also have been contributed to by other factors including the dysfunctional childhood, the other sexual abuse that the applicant suffered and her current medical condition.  Given the report of Dr McGuire, I consider that any common law assessment of damages would exceed $100,000, and I assess damages for the applicant fixed at $100,000.

Contribution

29. [29]
    I do not consider what the applicant has contributed in any way directly or indirectly to her injuries^[22].

Orders

30. [30]
    I order that the respondent, WMR, pay the applicant, SJH, the sum of $100,000 and costs to be assessed on a standard basis.