MAG v JRG[2007] QDC 337

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for compensation pursuant to s 663B Criminal Code.  Although that provision has been repealed, it remains applicable to cases where injury was suffered because of an act done before the date of commencement of the Criminal Offence Victims Act 1995 on 18 December 1995.^[1]

2. [2]
   The respondent was sentenced in the District Court at Rockhampton on 22 April 2005 to three years imprisonment for offences committed upon the applicant. He was sentenced to a cumulative term of two years imprisonment for other offences.

3. [3]
   The respondent was served with the application and supporting affidavits on 5 July 2007.^[2]

4. [4]
   The application was listed for hearing before me in the District Court at Emerald on 11 September 2007. There was no appearance by or for the respondent. The applicant was represented by Mr R F Peters. At the hearing I raised two issues with the applicant’s solicitor. The first concerned whether it was necessary for the Public Trustee to be served with the material. That step appeared to be necessary because the respondent is a prisoner serving a term of imprisonment of more than three years and the Public Trustee is therefore the manager of his estate by reason of s 91 Public Trustee Act 1978.  Mr Peters accepted that it appeared to be necessary for the Public Trustee to be served with the material.

5. [5]
   The other issue concerned whether the 12 offences of which the respondent was convicted should be viewed as a single course of conduct. The written submissions filed on behalf of the applicant stated that, “Compensation should be assessed on the basis of one unlawful course or courses of conduct”.^[3]  As the respondent was convicted of 12 offences committed upon the applicant over a period of four years between 1 January 1988 and 31 December 1991, it appeared to be arguable that at least some of the offences should be classified as separate courses of conduct, which might lead to a greater assessment of compensation.

6. [6]
   The matter was adjourned to afford the applicant the opportunity to serve the material upon the Public Trustee and to file further affidavits and written submissions in relation to the “course of conduct” issue.

7. [7]
   The additional affidavit material filed on behalf of the applicant indicates that the application, supporting affidavits and outline of submissions were sent by the applicant’s solicitors to The Public Trustee of Queensland on 14 September 2007. By letter dated 27 September 2007 the Official Solicitor of The Public Trustee stated that the respondent did not wish to participate in the proceedings and that The Public Trustee proposed to discontinue management of the respondent.^[4]  The Official Solicitor to The Public Trustee has filed an affidavit of Timothy Feely sworn 25 September 2007 stating that:

• The Public Trustee of Queensland is not actively managing the respondent’s affairs pursuant to Part 7 Public Trustee Act 1978; and
• The respondent has advised in writing that he wishes to take no part in the proceedings.

8. [8]
   The applicant filed an affidavit on 10 December 2007 setting out in further detail the impact of the offences upon him. The applicant’s solicitors filed supplementary submissions on 12 December 2007 in relation to the “course of conduct” issue. This is discussed at paragraphs [34] – [35].

Conviction of the respondent

9. [9]
   On 22 April 2005 in the District Court at Rockhampton the respondent pleaded guilty to the following offences:

• three counts of indecent treatment of a boy under 14;
• two counts of attempting to commit unnatural offences (attempted sodomy);
• one count of indecent treatment of a child under 12;
• one count of attempted sodomy with circumstances of aggravation;
• three counts of indecent treatment of a child under 12 whilst under care;
• two counts of indecent treatment of a child under 16.

10. [10]
    The offences as detailed in the certificate of conviction^[5] are as follows:

11. [11]
    The respondent was sentenced to three years imprisonment on each count. In respect of unrelated offences he was sentenced to two years imprisonment to commence at the expiration of the three year term. The effective sentence was therefore five years imprisonment. It was declared that 19 days spent in pre-sentence custody between 20 August 2003 and 8 September 2003 was deemed time already served under the sentence.

12. [12]
    The facts were not disputed.^[6]  The respondent had a relevant criminal history.  He was sentenced to 15 months imprisonment in the District Court at Townsville on 17 March 1999 for similar offences.  He was apparently released on parole after serving nine months.

13. [13]
    When sentencing the respondent on 22 April 2005 Judge Britton SC said:

“The 12 count indictment relates to offences committed apparently between 1988 and 1991. It is the same complainant in each case. The earliest of the offences was committed when he was 8 or 9. In respect of that offence – that is, count 1 – you sucked his penis. In respect of count 2, he was again aged 8 or 9. You went into his bedroom when he was asleep. You woke him up. You lubricated your penis and tried to penetrate his anus but were unsuccessful. In respect of count 3, immediately after that you put your penis in his mouth and he vomited. In respect of count 4 – this occurred immediately afterwards – you tried to get him to penetrate your penis (sic).  In respect of count 5, you masturbated in his presence to the point of ejaculation. In respect of count 6 – this occurred when he was in grade 6 – you performed oral sex upon him. In respect of count 7, he was 10 or 11 years of age. You sucked his penis and you masturbated. In respect of count 8, you attempted to penetrate his anus with your penis but you were unsuccessful. In respect of count 9, you asked him to suck your penis; he declined; you put a sheet over it and had him suck your penis through the sheet. In respect of count 10, you were in a park with him. You took him into a public toilet and you asked him to watch whilst you masturbated. In respect of counts 11 and 12, which occurred on the same occasion when he was 11 or 12, you masturbated in his presence and you made him suck your penis.”

Circumstances of the offences

14. [14]
    The applicant was born on 15 August 1979. Between 1989 and 1992 the applicant’s mother was in a relationship with the respondent. During that period the applicant resided with his mother and the respondent at various addresses in Townsville and Cairns.  It was during that time that the applicant was sexually abused by the respondent.  The applicant made a complaint to police on 16 July 2002 after seeing a counsellor at Emerald.^[7]

15. [15]
    The respondent was 37 years of age when sentenced. He was aged between 20 and 24 at the time of the offences.

16. [16]
    The applicant said in his statement to the police dated 17 July 2002 that shortly after the respondent commenced staying at the family home in Townsville that he commenced to sexually abuse him. The applicant said that he was aged 8 or 9 and in Grade 4. During that year he said that the respondent sexually abused him on at least 10 occasions.^[8]  Although the applicant could not specifically remember each instance of sexual abuse, he said that he was able to “vividly remember” a number of occasions.

17. [17]
    The applicant’s description of the offences is as follows:

Count 1 - This offence occurred in the spare room of the Council house at Rasmussen.  The applicant was aged 8 or 9.  He said that the respondent sucked his penis.^[9]

Counts 2, 3 and 4 – The applicant was again aged 8 or 9.  He was in Grade 4.  These offences occurred in the applicant’s bedroom on the same occasion.  The applicant was asleep and recalled the respondent waking him up.  The respondent placed Vaseline on his penis and attempted to penetrate the applicant’s anus.  The respondent then forced the applicant to suck his penis.  That caused the applicant to vomit.  The respondent also attempted to have the applicant penetrate his anus.^[10]

Count 5 – The respondent masturbated himself in the presence of the applicant.^[11]

Count 6 – When the applicant was in Grade 6 the family moved to Cairns where they lived at a caravan park.  On one occasion the applicant was sleeping on a mattress in the annex area of the caravan.  He said that the respondent lay next to him and sucked his penis.  He then masturbated the applicant’s penis and kissed him.^[12]

Counts 7, 8 and 9 – Shortly after the commission of Count 6, the respondent returned to Townsville.  The applicant continued to live with his mother at the caravan park in Cairns.  Sometime later the applicant travelled to Townsville by bus and stayed with the respondent for the weekend.  In his statement to the police dated 17 July 2002 the applicant said, “I don’t recall how it started but he [the respondent] pretty well sexually assaulted me all that weekend whilst I was there.  He did all the usual things that he would do.”  The applicant said that the respondent sucked his penis and masturbated him.  He then tried to penetrate the applicant’s anus with his penis but he was unsuccessful.  The respondent told the applicant that he wanted him to suck his penis but the applicant said that he did not want to do that.  The applicant said that the respondent then placed a sheet over his penis and made him suck it over the sheet.^[13]

Count 10 – This offence occurred during the same weekend in Townsville.  The applicant said that he was walking through a park with the respondent when they saw a public toilet.  The respondent went into the toilet and the applicant waited outside.  The respondent then called the applicant into the toilet and asked him to look over the top of a cubicle.  The applicant stood on the toilet in an adjoining cubicle and looked over to see the respondent masturbating himself.^[14]

Counts 11 and 12 – The applicant’s family moved from Cairns to an address in Palmer Street, South Townsville.  These offences occurred when he was in Grade 7 at the South Townsville State School.  The applicant said that the respondent sexually assaulted him regularly during the six months that they resided at Palmer Street.  The applicant said that because he was sexually abused so frequently he was unable to distinguish one occasion from the next.  However there was one specific occasion that he recalled occurring at Palmer Street.  He said that the respondent went to Julia Creek to work and that when he returned he was “all cashed up”.  On this occasion he said that the respondent gave him $20 after sexually assaulting him.  The applicant said “when he assaulted me this time he again did all the usual things including masturbating me, sucking my penis, kissing me and again he put the sheet over his penis and got me to suck his penis with my mouth over the sheet.”^[15]

The applicant’s injuries

18. [18]
    The applicant is 28 years of age. He was born on 15 August 1979. He is presently employed as a storeman.

19. [19]
    In his victim impact statement dated 21 April 2005^[16] the applicant said:

“These offences have had a hugh (sic) impact on my life.  I cannot connect to a relationship and am just promiscuous.  I have an anger problem that I can’t get rid of because I am just so angry about what he did to me and I blame everyone for it – I just hate the world.  Because of this anger I have been in a lot of trouble and have been in and out of jail.

A couple of years ago I (sic) after I broke up with my girlfriend (who is the mother of my daughter) I was just a real mess.  I realised that I couldn't be in a relationship because of what he had done to me.  I then went and had some counselling and they suggested that I go to the police which I did.  I continued counselling for a few months this only stopped because I went to jail.

I have been drinking since I was 8-9 years old and continue to drink heavily now.  I often go on drinking binges.  I find that this is the only way that I can relax and forget about things.

These offences destroyed my family because I felt that my mother should have stopped him doing these things to me – I feel she is as much to blame as he is.  I have no relationship with my mother and my four sisters because of him.  He has just ruined any chance of me having a normal life.”

20. [20]
    The applicant said in his affidavit filed 18 June 2007 that he has experienced problems with the consumption of excessive quantities of alcohol, has been unable to sustain stable relationships and depression. He said that he endeavoured to deal with his problems by the consumption of alcohol but that led to other difficulties. He attributes the difficulties and problems he has experienced to the sexual abuse committed upon him by the respondent.^[17]

21. [21]
    The applicant was assessed by Mr Louis Salzman, clinical neuro-psychologist on 20 March 2007. The applicant told Mr Salzman that he becomes emotional, sad and angry when he thinks about the sexual abuse. He believes that it has affected his relationship with others and as a result he has become anti-social. The applicant told Mr Salzman that he had approximately 10 sessions of counselling with a psychologist in Emerald which he found to be beneficial. The applicant said that he believed that he needed further counselling.

22. [22]
    As a result of his examination Mr Salzman concluded that:

• The applicant’s presentation was consistent with mild to moderate emotional distress characterised by brooding, dysphoria and anhedonia;
• The applicant is experiencing an adjustment disorder with mixed disturbance of emotions and conduct and his personality is consistent with that of people who have developed a paranoid personality disorder;

23. [23]
    Mr Salzman concluded that the applicant continues to suffer from severe psychological problems. He said that the likelihood of the applicant overcoming those problems without extensive psychological counselling is poor. He envisages that the applicant requires bi-weekly counselling sessions over the next couple of years at an estimated cost in the region of $9,672.

24. [24]
    Mr Salzman said that the applicant’s psychological and emotional problems are consistent with that of many others who have experienced sexual abuse. He says that it is more likely than not that the applicant’s psychological and emotional problems are directly related to the sexual abuse by the respondent.

Applicable legislation and the approach to assessment

25. [25]
    Section 663B Criminal Code provides:

“663B  Court may order payment for compensation

3. (1)
   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.

(1A) For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.

…”

26. [26]
    The “prescribed amount” provided by s 663AA(1) for mental shock or nervous shock is $20,000.

27. [27]
    In R v Jones; ex parte McClintock^[18] the Court of Appeal (Fitzgerald P and Davies JA, Pincus JA dissenting) held that compensation pursuant to s 663B is to be assessed in accordance with the ordinary principles of assessment of damages for a personal injury in civil cases.

28. [28]
    The respondent was convicted of 12 offences in relation to the applicant. However, the applicant alleged many other instances of sexual abuse. That does not affect the assessment of compensation provided that the offences of which the respondent was convicted made a material contribution to the applicant’s psychological injury: SAM v SAM,^[19] ARW v FGR.^[20]

Course of conduct

29. [29]
    Section 663B(1) provides for compensation to be awarded where a person has been convicted on indictment of an offence relating to the person “arising out of the one course of conduct or closely related courses of conduct …”. Section 663B(1A) states:

“For the purpose of determining whether courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.”

30. [30]
    In HW v LO^[21] the Court of Appeal examined the meaning of “course of conduct” in s 663B.  The respondent was convicted of one count of indecent treatment of a girl under the age of 17 that was committed in 1975 and five counts of rape committed between 1977 and 1981.  The learned primary Judge found that all offences arose out of “the one course of conduct” and therefore the maximum award for mental and nervous shock for all six offences was $20,000.  The Court of Appeal held that it was necessary for the primary Judge to assess compensation in respect of six sets of offences.  However, the material was deficient and the matter was remitted to the District Court for re-hearing.  In considering this issue de Jersey CJ said:

    “[5] In determining whether courses of conduct are ‘closely related’, those Code provisions invite analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them.  Subsection (1) refers to ‘the one course of conduct or closely related courses of conduct’.  Subsection (1A) requires that in determining ‘whether courses of conduct are closely related’, ‘regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.  This would assume, without expressly saying so, the existence of a relationship in time and subject matter between or among the events going to make up a course of conduct, and even though the provision focuses directly on courses of conduct inter se.

…

    [7] Assaying a definition of ‘course of conduct’ for 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.  The American cases provide assistance, pointing to the need for an element of continuity (Dyer v Dyer 166 Pa.Super. 520) and regularity (Aema Mr Cassidy. And Sur. Co. v Industrial Commission 127 Colo. 225).

    [8] It goes without saying that one cannot be prescriptive of the requisite extent of 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.  (These observations are consistent with the approach which has been taken by a number of judges of the District Court.)

    [9] The events involved in these offences were too far distinct and separated 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 provision.”^[22]

31. [31]
    In considering the facts of the particular case, McMurdo P said:

    “[63] … Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed sometimes years apart and over a six-year period.  Although the respondent perpetrated regular sexual abuse upon the applicant over a lengthy period, it is the conviction for the six offences that, upon application, leads to an order for compensation.  Each offence in this case is completely distinct in time, place and detail and cannot fairly be said to arise out of the one course of conduct or closely related courses of conduct.”^[23]

32. [32]
    The decision of the Court of Appeal in MAJ v KM^[24] illustrates that offences committed at the same place over a relatively short period of time should be viewed as “the one course of conduct”.  As Chesterman J explained in that case:

“In my opinion the question whether indictable offences in respect of which compensation is sought arise out of the one course of conduct or closely related courses of conduct is not to be answered by reference to the minutiae of the conduct which constituted the offences.  A broader inquiry into the matters which are discussed in HW v LO is called for.  It is most unlikely that acts constituting indecent dealing involving the same complainant and accused would be identical in their mode of commission.  If that were a requirement of ‘a course of conduct’ it would hardly ever be satisfied.”^[25]

33. [33]
    In my view, there are three distinct courses of conduct in the present case. The first course of conduct is comprised of Counts 1 to 5. Those offences were all committed at Townsville in the period between 1 January 1988 and 31 December 1988. Although there are some factual differences in counts 1 to 5, they should be viewed as a single course of conduct. The second course of conduct relates to Count 6. That offence was committed at Cairns in the period between 2 May 1990 and 31 December 1990.  The remaining offences, Counts 7 to 12 were all committed at Townsville between 22 May 1990 and 31 December 1991.  In my view, they form a third course of conduct.

34. [34]
    In his further affidavit filed 10 December 2007, the applicant said:

“[1] I am often unable to properly articulate how I felt when the offences occurred as it happened quite a long time ago. I have bottled this up for a long time that much of it is a blur. I view the four – five years during which the offences occurred as one long period of constant abuse. It is difficult for me to differentiate between the different occasions of abuse although there were significant breaks in time between when some of the indecent acts, the subject of the indictment presented against the Respondent were committed.

…

[11] I cannot remember what I felt when the offending ceased. I only know that I was angry. I cannot say that one set of offences affected me more than another. I know only that each episode of the respondent’s offending did affect me and have an impact on me in some way such that I have had the difficulties in my life which I have deposed to in detail in my earlier affidavit and my victim impact statement. The matters which I related to Louis Salzman in my interview with him on 20 March 2007 relating to my background, education, employment and how the offences have affected me and which are detailed in his report of 27 March  2007 are true and correct.”

35. [35]
    In the supplementary outline of submissions filed by the applicant’s solicitors on 12 December 2007, it is contended that although the applicant has been unable to identify any separate impact upon him arising from each “course of conduct” it is nevertheless reasonable to infer that each set of offences had “telling” consequences for him.^[26]  It is submitted that the maximum award of compensation of $20,000 should be made in respect of each “course of conduct”.

Compensation

36. [36]
    The assessment of compensation is made difficult by the applicant’s inability to isolate the impact upon him of each “course of conduct”. That is not surprising. The applicant was aged eight or nine when the offences commenced in 1988–1989. The offences spanned a three to four year period concluding in 1991. The report of Mr Salzman does not attempt to isolate the effect of each set of offences. In HW v LO^[27] de Jersey CJ referred to the importance of properly sworn, admissible evidence of the respective, and progressive, effect of the offences. His Honour said:

“Only then will a judge be able, confidently and responsibly, to assess the particular compensation warranted for the effect upon the appellant of the respective offences”.^[28]

37. [37]
    It is necessary to bear in mind that a global approach to the assessment of compensation is inappropriate.^[29]

38. [38]
    The applicant’s damages in respect of the first “course of conduct” comprising Counts 1 to 5 would significantly exceed the “prescribed amount” of $20,000. General damages would include treatment, lost income and diminution in earning capacity. The cost of counselling recommended by Mr Salzman is $9,672. In these circumstances, I would assess compensation at $20,000 for the first “course of conduct”. I consider that Count 6, an offence of indecent treatment which occurred at Cairns in 1990, aggravated the applicant’s condition.  I assess compensation for that offence at $10,000.  In respect of the third “course of conduct” comprising Counts 7 to 12, I assess compensation at $20,000.  This results in a total amount of $50,000.

Orders

39. [39]
    I therefore make the following orders:

1. That the respondent pay to the applicant, pursuant to s 663B Criminal Code the sum of $50,000 by way of compensation for injury suffered by the applicant by reason of the offences of which the respondent was convicted in the District Court at Rockhampton on 22 April 2005.

2. That the respondent pay the applicant’s costs of the application to be assessed.