P v P[2007] QDC 31

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application brought under s. 663B of the Criminal Code, and s. 24 of the Criminal Offence Victims Act 1995, for compensation for injuries sustained by the applicant as a result of the commission of the offence of maintaining an unlawful relationship of a sexual nature with a child under the age of 16 years.  The indictment alleges that in the course of the relationship the respondent unlawfully and indecently dealt with the applicant, who to his knowledge was his lineal descendant.

2. [2]
   The respondent pleaded guilty to the charge on 16 February, 2001. He was sentenced to imprisonment for 5 years, to be served concurrently with sentences imposed on the same day with respect to a number of offences of indecency committed by him against another daughter.

3. [3]
   The applicant was born on 5 February, 1986. The period of the offending is stated in the indictment to be between 5 February 1992, and 30 April, 1998. The material, however, shows that the offending began in 1993, when the applicant was 7 years old, and in Grade 2 at school. It thus occurred during a period, as to part of which Chapter 65A of the Criminal Code applies to the assessment of criminal compensation, and as to the remainder of which the applicable legislation is the Criminal Offence Victims Act, 1995.  In effect, the provisions of s 663B of the Code apply with respect to conduct up to December, 1995, and thereafter the provisions of the 1995 Act apply.  However, only one compensation order can be made in respect of the injuries suffered by the applicant, and it is thus necessary to assess percentages of the total award under the different pieces of legislation, to reflect such things as the relative duration and seriousness of the offending conduct: KAB v. DJB [2000] QSC 498.  There was an escalation in the seriousness of the conduct over the total period, however the earlier period, from February 1993 to December 1995, a period of approximately 3 years, occurred when the applicant was aged between 7 and 10 years, whereas the later period from December 1995 to April 1998 was somewhat shorter and the applicant was a little older.  In all, I think it appropriate to award 50% of the compensation assessed under the Code, and 50% of the compensation assessed under the 1995 Act.  The claim is purely for mental or nervous shock.

4. [4]
   The first incident involved the respondent getting the applicant to “do the splits” while she was naked in the bathroom. She was only 7 years old at the time. She was told to raise one leg against a door, so that her legs were spread apart, and the respondent used the opportunity to inspect her vagina for several minutes. While she was still the same age, he told her to suck on his penis, which she did for several minutes, telling her that her big sister had done it, and that she was not to tell anyone or she would be put in a home, and never see her mother again. A further episode of the same thing occurred around Christmas of the same year, and she was again told not to tell anyone.

5. [5]
   Thereafter, up to about December, 1995, there was a course of regular sexual touching, sometimes twice a week. She would be woken by the prisoner, who would procure her to suck his penis. He would sometimes ejaculate, and she would be obliged to swallow it, at other times he would use a towel. On one occasion the applicant pretended to be asleep, but the respondent placed his hand over her nose so that she had to “wake up”. From about Grade 3 to Grade 6 this conduct occurred about twice a week, and there would be breaks of a couple of weeks from time to time.

6. [6]
   In her affidavit, the applicant states in relation to this-

“The respondent’s abuse became regular and more persistent when I was in Grade 3.  A couple of mornings a week I would be woken by the respondent pushing his penis into my face and forcing me to perform oral sex on him.  It was degrading and humiliating and I hated it. I became resigned to the situation and I endured it.  I had a paper run and the abuse was just something I had to get over and done with before I folded my papers and went out on my run.  This had become normality for me and I could do nothing about it.  I just learned to live with it.  Despite this each offence was revolting and disgusting and I hated the respondent and what he was doing to me but I could do nothing as I had no one to turn to for help.  I believed his threats about losing my mother and I loved her”

7. [7]
   From about Grade 7 on, the respondent continued to direct the applicant to suck his penis, and would also lick the applicant’s vagina. This would happen in her bedroom, on the bed. He would sometimes give her $20 afterwards. On one occasion mutual oral sex was performed. On another occasion the respondent attempted anal penetration on the bed, but the girl screamed, and he desisted. He attempted to persuade her to sit on his penis, but she pushed it away. He continued to offer her money to engage in sexual acts with him, until eventually, she refused to take it and told him that that behaviour was wrong and that she did not like doing it. After that, he did not approach her again. She would have been about 12 at that time.

8. [8]
   The applicant, in her affidavit, states:-

“ I can recall the abuse by the respondent against me when I was a child.  I feel the abuse affected my childhood and made my life hell.  I was only 7 years of age when the abuse by the respondent started.  The abuse continued until I was 14 years of age.  I found the abuse humiliating and degrading and I was disgusted by what the respondent did to me and made me do to him.  I feel the respondent violated my body and my mind and ruined my childhood.  I will never understand how the respondent who was my father could have treated me with such disregard for my welfare and development.

At the time the abuse was happening I felt helpless.  I felt that there was something wrong with the respondent but had no way of stopping it.  I did not feel comfortable and the abuse felt wrong.  The abuse started when I was very young, too young to know and understand sexual matters.  As a result of the abuse I always felt different and as if something was wrong.  I always felt I was outside the social groups at school.  I never felt as though I fitted in.  I felt I must be responsible for what was happening and I deserved punishment.  I often did things so I would be punished.  I became very rebellious and had no respect for authority.”

9. [9]
   Dr. Barbara McGuire is a psychiatrist, who examined the applicant. In the course of her report she states :-

“She has trouble with relationships.  She said the longest lasted 3 months.  She cannot be involved in sexual activity when she is sober. She said she doesn’t enjoy it.  She also has trouble with alcohol, drinking to write herself off on weekends and usually 1 or 2 nights a week.  She said that she used to be involved with marijuana and ecstacy and got involved with people similarly inclined when she was in year 10.

From Grade 5 and 6 she was involved with vandalism and stealing.  She said that she used to vandalise cars and wheelie bins.  She now feels very glad that she disclosed and believes that she prevented the abuse of her little sister which was imminent.  However at the time both her brother and sister hated her because she had taken their father away.  She said she has a good relationship with them now and they have a clear understanding of what happened.  She described feelings of ambivalence towards her father.

She has flashbacks particularly at night.  She had nightmares when she was younger.  She used to lie in bed and wait for him to come in and get it over with.  She started getting into trouble at high school and said that she didn’t care.  She expects the worst.

She has not been able to engage in therapy because she feels that she would be judged.  She said that she used kickboxing to distract her and her mother suggests that she is punishing herself.  She said that she likes things to be very clean.  Every morning when she wakes she says she can taste him and she has to go and brush her teeth.  She feels she is dirty.  She is not comfortable with men and has no trust in them.  She believes that her father was molested by a homosexual uncle and that makes her wonder what she would be like if she had children.  She would not have any trust in her partner.

She used to sleep with a knife under her bed and felt that that was safer.”

10. [10]
    Dr. McGuire considers that S fills the criteria for diagnosis of posttraumatic stress disorder. These are flashbacks, avoidant behaviour, irritability, lowered self esteem etc. In addition she considers that the abuse was responsible for developing an oppositional defiant disorder in adolescence which has had serious effects upon her educational level and her capacity to form interpersonal relationships. She considers that she suffers the posttraumatic stress disorder to a severe degree and that its effects will be chronic and probably lifelong. The oppositional defiant disorder has resolved.

11. [11]
    Section 663B(1) of the Criminal Code provides :

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 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 the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted.”

12. [12]
    Subsection (1B) of the section provides:

“Injury suffered by a person aggrieved  by reason of the commission by the person convicted of more than 1 indictable offence described in subsection (1) may, in respect of the person convicted, be the subject of 1 application only and 1 court order for the payment of a compensatory sum only.”

13. [13]
    It was submitted, in effect, that regardless of the number of offences of which an offender is convicted, compensation under these provisions is governed by the number of separate and not closely related courses of conduct in which the offender engaged against the applicant for compensation: so that if there were, say, 4 such offences, but only 1 such course of conduct, only 1 order for compensation could be made; but equally, if there were only 1 such offence but several such courses of conduct, several orders for compensation could be made up to the prescribed amount.

14. [14]
    With respect, I am unable to accept that submission. The provisions permit compensation to be assessed only in respect of an offence or offences of which the offender has been convicted. The effect of the provisions is to limit the number of offences (of which the offender has been convicted) which are relevant to the assessment of compensation by reference to relevant courses of conduct of the offender, in the sense that a number of offences may reflect only 1 course of conduct, so that only one award of compensation can be made in respect of those offences. The section does not provide, expressly or by implication, that if there is a conviction for one indictable offence, and that offence can be seen to have involved a number of courses of conduct, then compensation can be separately awarded in respect of each of those courses of conduct. Compensation is awarded under the Code, in respect of relevant offences of which the offender has been convicted, not in respect of courses of conduct in which the offender has engaged towards the applicant, but of which he has not been convicted.

15. [15]
    Under section 229B the offence of maintaining an unlawful relationship of a sexual nature with a child under 16, of which the respondent was convicted, involved, in effect, proof of the commission of at least 3 offences of a sexual nature in relation to the applicant during the period of the relationship, although there was a relaxation of the requirements of proof with respect to those offences. Evidence of the commission of such offences was necessary to sustain a conviction of the more general offence of maintaining an unlawful sexual relationship. It was not necessary that the offender be convicted of those offences, and, indeed, he was not. Section 229B made provision for the charging and conviction of the offender in respect of all such offences, but he was charged only with the maintaining offence, and convicted only of that.

16. [16]
    The respondent’s guilty plea to the charge may be taken as an admission that he committed the requisite number of specific offences, and perhaps all of the offences outlined by the prosecution at the sentence hearing, none of which were contested by the defence. But it remains the fact that he was not convicted of any of those offences, and in my opinion, it follows that compensation cannot be awarded in respect of any of them, no matter how many courses of conduct they may constitute.

17. [17]
    With respect to the portion of the offence of which the respondent was convicted, which occurred up to December 1995, the prescribed amount in respect of mental or nervous shock is $20,000. There is no doubt that in a civil action an amount much greater than that sum would be awarded by way of damages. The amount to be awarded under s 663B then is the sum of $20,000. Having regard to what I have already said above, in relation to the making of separate awards under that section and under the Criminal Offence Victims Act 1995, I award half that amount, i.e. $10,000.

18. [18]
    It was submitted that there were 3 courses of conduct which should attract an award of compensation under s.663B: HW v. LO (2000) QCA 377.  Essentially these were identified as the incident in about February 1993, the incident at about Christmas 1993, when the applicant was 7 years old, and the ongoing conduct occurring in the applicant’s bedroom in the early morning for some years, from when the applicant was 8 years of age.  The amount which might be awarded in respect of those courses of conduct before apportionment was suggested to be $15,000 for each of the first two, and $20,000 for the third.   Had I been able to agree that compensation should be awarded under s.663B in respect of those courses of conduct I would have awarded amounts of that order.   Unfortunately, in my view, the legislation prevents my doing so.

19. [19]
    With respect to an award under the Criminal Offence Victims Act, I agree that a figure close to the top of the percentage range in item 33 of the Compensation Table is appropriate, and I accept the submission that 30% of the scheme maximum represents an appropriate amount.

20. [20]
    With respect to adverse impacts under the Criminal Offence Victims Regulation 1995, I agree that the regulation applies, and that the applicant can be awarded up to 100% of the scheme maximum for such impacts as are established.  An adverse impact is defined to include an adverse impact on lawful sexual relations, and anything the court considers is an adverse impact of a sexual offence.  I consider that an adverse impact on lawful sexual relations is established in the material, as well as the following further adverse impacts – loss of educational and occupational opportunities, the effect of the offences committed against her and her sister on the family, a temporary souring of relationships with her younger siblings, criminal behaviour on the applicant’s part, the abuse by her of alcohol and drugs, at least to some extent, and a concern about having children for fear of what a partner might do with them.

21. [21]
    I consider that an assessment of 30% of the scheme maximum is justified in all the circumstances for adverse impacts. 60% of the scheme maximum of $75,000 is $45,000. For reasons earlier explained, this amount must be reduced by 50% to $22,500.

22. [22]
    In the result the applicant is awarded the sum of $32,500 by way of compensation and the respondent is ordered to pay that amount to the applicant. The respondent is also ordered to pay one half of the applicants costs, of and incidental to the application.