KL v PB[2007] QDC 69

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant KL claims compensation for injury sustained by her as a result of 2 criminal offences of a sexual nature committed against her by the respondent to the application PB.

2. [2]
   The respondent was convicted by this court at Beenleigh on 26 April 2005 of two counts of unlawful and indecent treatment against this applicant between 1 January 1984 and 1 March 1985, when the applicant was aged between 6 and 7 years.

3. [3]
   This application is made on the basis of a “mental or nervous shock” disorder assessed by Dr Barbara Ann McGuire, psychiatrist, in her report of 23 November 2006, which is Exhibit A to her affidavit filed 14 February 2007.  There are no physical injuries to the applicant which form the basis for any claim for compensation before the court.

Relevant legislation:

4. [4]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Criminal Code (“the Code”) applies, as if not repealed.^[1] 

5. [5]
   Specifically, this application is made pursuant to s 663B(1) of the Code which relevantly 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” (emphasis added).

6. [6]
   Under s 663A of the Code “injury” is also specifically defined and includes “mental or nervous shock”. This was inserted by the Criminal Code Amendment Act 1984 and commenced operation on 1 July 1984.

7. [7]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amounts” which applied at the times when the respective offences were committed.

8. [8]
   Under s 663A of the Code the maximum “prescribed amount” for compensation payable to an “aggrieved person” for injury suffered arising out of offences committed prior to 1 July 1984 (the date of commencement of the Criminal Code Amendment Act 1984) is $5,000.00.

9. [9]
   Under s 663AA of the Code as amended the maximum “prescribed amount” payable for injury described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

10. [10]
    The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.^[2]  Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.^[3]

11. [11]
    The offences which give rise to the “injury” suffered by the applicant in this claim overlap the 1 July 1984 date so that it is also necessary to have regard to what effect, if any, this may have on any assessment of compensation to be awarded to the applicant.

Course of conduct:

12. [12]
    Section 663B allows only one award of compensation for injury to be made “arising out of the one course of conduct or closely related courses of conduct” and goes on to provide:

1. “(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.”

13. [13]
    This application concerns sexual offending by the respondent on the applicant “on several occasions” over a period of time for which the respondent was convicted on two counts as set out in paragraph [2] above.  The applicant has submitted that the two counts with which the respondent has been convicted and sentenced constitute two separate courses of conduct that may therefore attract two separate awards of compensation.^[4]  I have been directed to the relevant Court of Appeal authorities on point, being:

• R v Llorente ex parte Hendry [2001] 2 Qd R 415; and
• MAJ v KM [2000] QCA 410

14. [14]
    Having regard to those cases it is clear that in determining whether the injury to the applicant arises out of separate and distinct courses of conduct, the Court must consider the details and particulars of each of the separate counts as charged. This is plainly stated by the Chief Justice in Llorente (supra) at 417:

“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 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 (Aetna Cas. And Sur. Co. v Industrial Commission 127 Colo. 225).

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.)”

Evidence of Offences:

15. [15]
    The applicant’s evidence in respect of the offences of which the respondent was convicted is:

“I can recall the events that occurred between 1 January 1984 and 1 March 1985 at Marsden when the respondent sexually assaulted me.  I spoke to police and provided them with my statement on 12 December 2003”^[5],

The applicant further stated that she has “… memories of being babysat by P and I …” and the conduct the subject of the charges occurred during this time between the dates set out in the indictment before the court.^[6]

16. [16]
    The applicant would have had her seventh birthday on 26 November 1984 and her evidence is that the offending conduct by the respondent “… occurred when I was only 6-7 years of age.”^[7]

17. [17]
    On this basis, I find on the balance of probabilities that the applicant’s injury was suffered substantially if not wholly post 1 July 1984 and that her assessment of compensation for the injury sustained falls within s 663AA of the Code as amended where the “prescribed amount … in the case of mental shock or nervous shock is $20,000.00”.^[8]

Finding on “Course of Conduct”:

18. [18]
    Under s 663B(1A) of the Code as it was for the purposes of this application, to determine “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”. 

19. [19]
    The evidence in this application is that the offences against the applicant were of a sexual nature; were committed by the respondent in his bedroom at his home; were of a similar nature; involved the same modus operandi and occurred within a 14 month period as set out in the indictment.^[9]

20. [20]
    After considering the authorities on point and the evidence relevant to each count as outlined above, I find that the offending conduct by the respondent against the applicant constitutes one course of conduct in that the conduct justifies the description as having “… occurred in similar circumstances … [and] … formed part of a pattern of similar offences …” to use the words of Davies JA in MAJ v KM at paragraph [14] and which occurred over a relatively short period of 14 months as set out in the indictment.

The Injury:

21. [21]
    As stated in paragraph [3] above, the basis of this application for compensation is the assessment of the applicant by Dr Barbara McGuire, psychiatrist, in her report dated 23 November 2006, which is Exhibit A to her affidavit filed 14 February 2007.

22. [22]
    Dr McGuire concludes in her report:

“[The applicant] exhibits post traumatic stress disorder to a severe degree as characterised by nightmares, flashbacks and extremely socially limited life, security fears, low self‑esteem.  I consider that this condition has been present since the onset of the abuse, becoming more obvious in adolescence.  The likelihood is that the difficulties it causes her will be present throughout her life.^[10]

Contributing factors:

23. [23]
    While there is no question that the applicant herself did not contribute to the injury she has suffered the subject of this application within the terms of s 663B(2) of the Code, Dr McGuire has raised the question of other “contributing factors” on p 3 of her report where she states “the most significant contributing factor is that she was sexually abused by another person when she was aged 8 or 9.  This abuse she (the applicant) said was not so intrusive and she believes it was less significant than the abuse by the respondent because the respondent was the first person to abuse her and the abuse was more intrusive.  I believe that the psychiatric disorder she exhibits was mainly caused by the respondent, and his actions made a substantial and material contribution to her condition.”

Causation:

24. [24]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensible injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code.  The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants arising out of sexual offending.

25. [25]
    Further to this, her Honour’s comments at paragraph [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely:

“The court must have regard to the various limitations and procedural steps in s 25 in the arriving at the amount of a compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable.  If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done.  In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.”

26. [26]
    In paragraph [15] of the judgment in Nicholls, his Honour referred to the “test of causation in applications under the Code” [see R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported)] which was:

“…that if the conduct constituting the offences of which the respondent had been convicted could be said to have materially contributed to the total damage, the respondent was liable to pay compensation in respect of the total damage unless the respondent could separate the effects of the compensable and non-compensable conduct on the applicant with some reasonable measure of precision”^[11].

27. [27]
    This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12.

28. [28]
    His Honour finally concluded that the proper approach on causation under the Code should be that where the offence or offences “materially contributed” to the injury or condition there should be no apportionment on the basis of causation. The only exception is:

“… if it were possible to identify aspects of a psychiatric condition (or in principle any other injury) which were able to be specifically associated with something other than the conduct constituting the offences.  In such circumstances, these aspects of the injury would have to be disregarded.”

29. [29]
    In this application the evidence by the psychiatrist is that although the applicant was the subject of further sexual abuse some time after the index abuse, she concludes “… that the psychiatric disorder she exhibits was mainly caused by the respondent and his actions made a substantial and material contribution to her condition.”^[12]

30. [30]
    On the basis of all the evidence before me, I am satisfied that the applicant is entitled to an award of compensation against the respondent, as I find that the respondent’s conduct on 26 April 2005 for which he was convicted of the criminal offences set out in paragraph [1] hereof “materially contributed” to the applicant’s injury which arose out of that offending conduct.

Assessment

31. [31]
    Assessment of compensation under the Code is carried out in accordance with the approach in McClintock v Jones (supra) at p 242 namely:

“…compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, where there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed.”

32. [32]
    The evidence in this application is that “the effects of the abuse” include the following:^[13]

• She has problems with her memory and has difficulty recalling even good or neutral aspects of her childhood.
• She has flashbacks not every day but more when she was faced with coming to see (the psychiatrist).
• She can get them twice a day and some days does not have them at all. They can be precipitated by seeing abuse on television or hearing of it. She also gets flashbacks during sexual intercourse and she does not want to have sex.
• She has occasional nightmares largely of him being with her in a dark room and pictures of a house.
• She has trouble getting off to sleep and then wakes during the night ruminating on the abuse.
• She has security fears.
• She hears noises in the dark.
• She is constantly alert and vigilant.
• She cannot go out on her own at night.
• At times she has felt suicidal and has tried to jump out of the car, feeling that her son would be better off without her.
• She is pessimistic and depressed.

33. [33]
    On the material before me I find that if the applicant’s compensation were being assessed in accordance with the ordinary principles of assessments of damages for personal injury in civil cases as it was at the relevant time, the compensation to which the applicant would be entitled would exceed the prescribed maximum sum of $20,000.00 and I therefore assess that the applicant is entitled to the prescribed maximum sum of $20,000.00 by way of compensation for the injury she has suffered arising out of the respondent’s offending conduct.

Orders

34. [34]
    In the circumstances I make the following orders:

1. The respondent pay the applicant the sum of $20,000.00 as compensation for the injury suffered by her as a result of the offences of which the respondent was convicted and sentenced by this Court on 26 April 2005.
2. The respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale where the amount recovered is less than $50,000.