DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, KSV, was the complainant in respect of five counts of indecent dealing with a child under 16 years, who was under 14 years, to which counts the respondent, RWB, pleaded guilty before me at the Southport District Court on 24 March 2006. In respect of those five counts, the respondent was sentenced to five years imprisonment with an eligibility for post prison community based release after two years.

Facts

2. [2]
   The applicant, KSV, was born on 14 October 1977. The five counts which are the subject of this application occurred on dates unknown between 14 January 1981 (when the applicant was still four years old) and 31 January 1982 (when the applicant was then five years old). This applicant was one of eight different complainants against whom the respondent had committed a range of sexual offences over a period between 1957 and 2003.

3. [3]
   The facts of the relevant offences, as set out in the Schedule of Facts^[1], are as follows:

Count 11

“The [applicant] was 4 or 5 years old at the time of the offence. The [respondent] was between 44 and 45 years old and is the [applicant’s] uncle by virtue of his son’s marriage to the [applicant’s] mother.

When the [applicant] was 4 years old turning 5 she went with the [respondent] in his vehicle to buy alcohol for a family Sunday dinner in RunawayBay. The [applicant] was the only other occupant and was seated in the front passenger seat. As they drove away from the house the [respondent] placed his left hand underneath the leg of the [applicant’s] shorts. He then moved his hand between her legs and touched her on the outside of her vagina on the skin. His hand remained on her vagina for about five minutes while they drove to the shop and he fondled the lips of her vagina both inside and out, but did not penetrate the vaginal orifice. He stopped when they arrived at the shops and removed his hand from inside her shorts.”

Count 12

“On the same trip as above, the [respondent] made purchases at the drive thru bottle shop and then began to drive back to the family home. He again placed his left hand underneath the legs of the [applicant’s] shorts and touched her vagina on the skin. He then fondled the lips of her vagina, both inside and outside with his fingers for a further five minutes until their arrival back home. The [respondent] had to remove his hands from the [applicant’s] shorts so that she could get out of the vehicle. The [applicant] did not make a complaint to anyone.

During the electronic record of interview the [respondent] admitted that he had touched the [applicant] on the vagina about three or four times. He stated that he knew he touched her but could not remember the particulars of the touching. He agreed that it was probably as the [applicant] described it.”

Count 13

“About one week after counts 11 and 12, the [applicant] was again driving with the [respondent] in his utility on the way to a family jet skiing outing. The [respondent] again placed his hand underneath the leg of the [applicant’s] shorts and fondled her between the lips of her vagina on the skin for about ten minutes while he was driving. The [applicant] said to the [respondent] ‘I don’t like this, this isn’t right’ to which he replied ‘It doesn’t matter anyway, because no-one will believe you’.

During the electronic record of interview, while admitting to touching the [applicant] several times but not remembering the details, the [respondent] denied saying that no-one would believe the [applicant]. He also stated that the [applicant] may have her details mixed up because he didn’t think he ever took the [applicant] surf skiing.”

Count 14

“About two months after the count 13 offence after the [applicant] had turned 5 years old, the [applicant] was at the home of the [respondent] watching television on a two seater couch in the lounge room. The [respondent] was sitting next to her and they were sitting under a blanket as it was cold. The [respondent] then took a hold of the [applicant’s] right hand and pulled it over to his lap. He then held her hand and moved it up and down over his erect penis over the clothing. He moved her hand up and down over his penis for some time, then pushed her hand away and got up and walked away.

During the electronic record of interview the [respondent] agreed that the [accused] did touch his penis once over his clothes.”

Count 15

“Another time on the same weekend, the [applicant] and the [respondent] were once again under a blanket on the couch watching television. The [respondent] took her left hand and pushed it down underneath his elastic waisted shorts and onto his erect penis. He then wrapped her hand around his erect penis, on the skin and moved her hand up and down over it. The [applicant] didn’t say anything during the offence and states that she was petrified. After some time, the [respondent] removed her hand and placed it back over to her side, got up and walked off.

During the electronic record of interview the [respondent] denied that the [applicant] had ever touched the skin of his penis. He stated that it was not possible because he would have remembered something like that. He stated that during all of the offences with [the applicant] (counts 11-15) the [applicant] never appeared frightened.”

Injuries

4. [4]
   The applicant, KSV, has suffered mental or nervous shock as a result of the offences committed by the respondent against her.

The law

5. [5]
   This application proceeds under the now repealed provisions of Ch 65A (ss 663A, 663AA, 663B and 663BA) of the Criminal Code^[2].

6. [6]
   At the relevant time, prior to 1 July 1984, Criminal Code s 663B(1) provided:-

“Where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, 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 injury suffered by him by reason of the offence of which the offender is convicted.”

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^[3]. 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.”^[4]  That “prescribed amount” of $5,000 applies to offences committed after 1 July 1975 (the commencement date of the Criminal Code and Justices Act Amendment Act 1975 (Qld)). In R v Jones; ex parte McClintock^[5] 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

7. [7]
   Ms Poriz, who appears on behalf of the applicant, relied on the report of Dr Barbara McGuire, psychiatrist^[6], who formed the view that the applicant “suffers from post‑traumatic stress disorder to a severe degree” and stated that “this condition will continue throughout her life although the symptoms may attenuate over time”. Dr McGuire expressed the opinion that “as an adolescent [the applicant] suffered a conduct disorder to a mild degree”, and that “both the post‑traumatic stress disorder and the conduct disorder were caused by the offences for which [the respondent] was convicted”. Dr McGuire further stated that the applicant would “continue to suffer symptoms of post‑traumatic stress disorder throughout her life of which the most significant may be related to [the applicant’s] dealing with her partner and with her children”.^[7]

8. [8]
   DrMcGuire formed the opinion that the applicant’s “education prospects were hampered and her capacity to perform satisfying sexual relationships permanently damaged”, that the applicant’s “parenting may be adversely affected by her own experience” and that the applicant’s “capacity for employment has been adversely affected.”^[8]  Dr McGuire also considered that the applicant would benefit from counselling on sexual abuse in the form of weekly or fortnightly attendance upon a counsellor for an indefinite period of no less than a year.^[9]

Courses of conduct

9. [9]
   Ms Poriz made submissions in respect of “courses of conduct” but that particular statutory provision, which was included in Criminal Code s 663B by the Criminal Code Amendment Act s 5, is not applicable to this application which relates to offences which occurred prior to 1 July 1984.

10. [10]
    It is clear the applicant has suffered mental or nervous shock, which is an injury as defined in Criminal Code s. 663A, and that mental or nervous shock occurred directly as a result of the actions of the respondent which constituted the five counts applicable to this applicant. In assessing the mental or nervous shock suffered by this applicant, based on common law principles of assessment of damages for personal injuries, I consider that the quantum of that assessment would significantly exceed the relevant prescribed amount (i.e. 5 counts at a maximum of $5,000 per count) given the offences occurred after 1 July 1975 and before 1 July 1984. Accordingly I award the applicant, KSV, criminal compensation in the amount of $25,000, plus costs to be assessed on a standard basis.

Contribution

11. [11]
    I do not consider that the applicant has in any way, directly or indirectly, contributed to the injuries which she suffered as a result of the offences committed by the respondent against her.^[10]

Order

12. [12]
    I order that the respondent, RWB, pay the applicant, KSV, the sum of $25,000 and costs to be assessed on a standard basis.