MCA as litigation guardian for BLA v Cheng
[2008] QDC 211
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- Unreported Judgment
- MCA as litigation guardian for BLA v Cheng[2008] QDC 211
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MCA as litigation guardian for BLA v Cheng[2008] QDC 211
MCA as litigation guardian for BLA v Cheng[2008] QDC 211
DISTRICT COURT OF QUEENSLAND
CITATION: | MCA obo BLA v Cheng [2008] QDC 211 |
PARTIES: | MCA as litigation guardian for BLA Applicant and Saul Matthew Cheng Respondent |
FILE NO/S: | D11/2008 |
DIVISION: | Civil |
PROCEEDING: | Application for criminal compensation |
ORIGINATING COURT: | Southport |
DELIVERED ON: | 29 August, 2008 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 28 July 2008 |
JUDGE: | Dearden DCJ |
ORDER: | That the respondent Saul Matthew Cheng pay the applicant MCA the sum of $22,500 to be held upon trust by the Public Trustee on behalf of BLA until BLA attains the age of eighteen years |
CATCHWORDS: | Application – criminal compensation – indecent treatment of a child under sixteen – carnal knowledge with a child under sixteen – sodomy – attempted indecent treatment of a child under sixteen – mental or nervous shock – adverse impacts |
Legislation: | Criminal Offence Victims Act 1995 ss 20, 22(4) 24, 25 25(7), s 26 Criminal Offence Victims Regulation s 1A |
Cases: | R v Attwell; ex parte Julie [2002] 2 Qd R 367 R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] QCA 148 |
COUNSEL: | Mr H Boyd (solicitor) for the Applicant No defence for the respondent |
SOLICITORS: | River Legal, town agents for Slater & Gordon, lawyers for the applicant No appearance for the respondent |
Introduction
- [1]The applicant MCA as litigation guardian for the complainant, BLA, seeks compensation in respect of injuries suffered by BLA arising out of offences committed against her by the respondent Saul Matthew Cheng on 11 July 2005 at Waterford, Queensland. The respondent pleaded guilty before me in the Beenleigh District Court on 18 May 2007 to five counts of indecent treatment of a child under sixteen, two counts of unlawful carnal knowledge of a child under sixteen, one count of sodomy and one count of attempted indecent treatment of a child under sixteen. In respect of the count of attempted indecent treatment, the respondent was sentenced to twelve months imprisonment followed by two years probation with a condition that he undertake the sexual offenders’ treatment program. In respect of the other eight counts, the respondent was sentenced to three years imprisonment, suspended after serving a period of twelve months imprisonment, with an operational period of four years.
Facts
- [2]The complainant was fourteen years old at the time of the offences. The respondent offered the complainant a lift in his car when she was on her way to soccer training. The respondent then touched the complainant on her vagina while he was driving, told the complainant to play with herself while he was driving and then, once the car was parked, the respondent played with each of the complainant’s breasts, licked her vagina, took part in two separate acts of intercourse (which were charged as unlawful carnal knowledge), followed by an act of sodomy in which the respondent desisted when the complainant said that it hurt, followed by the complainant fellating the respondent to ejaculation (including swallowing the ejaculate) immediately after the act of sodomy.
- [3]The respondent was, at the time, some 22 years older than the complainant. There was a subsequent meeting between the complainants and the respondent on 5 August 2005 at which the complainant was “wired”. During the course of that meeting the respondent repeatedly asked the complainant for sexual intercourse and oral sex, which she refused, and the respondent then offered the complainant the sum of five dollars. The complainant again refused. That conduct grounded a single count of attempted indecent treatment of a child under sixteen (count 9 on the indictment).[1]
Injuries
- [4]The applicant seeks compensation for the following compensable injuries arising from these offences namely:-
- Mental or nervous shock;
- Adverse impacts (see Criminal Offence Victims Regulation (COVR s 1A)).
The Law
- [5]This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.[2] Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.[3] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by COVA s 25 [which] is mandatory”.[4] In respect of sexual offences, the Court of Appeal in R v Attwell; ex parte Jullie [2002] 2 Qd R 367 determined that it was necessary in a proceedings under COVA to commence by compensating the victim of a sexual offence insofar as the impact amounted to an injury pursuant to COVA s 20, and to assess compensation pursuant to COVR s 1A only to the extent that any relevant adverse impacts of a sexual offence were not an injury under COVA s 20[5].
Compensation Involved
- [6]It is submitted on behalf of the applicant that compensation should be awarded under two heads as follows:
- (1)Item 33 –Mental or Nervous Shock (severe) 20%-34%.
Karen Chau, Psychiatrist, examined the complainant on 31 August 2007 and prepared a report also dated 31 August 2007.[6] The complainant was sixteen at the time of examination. The complainant was diagnosed by Dr Chau as suffering from post traumatic stress disorder, obsessive compulsive disorder (in the twelve months prior to examination) and (possibly) cyclothymia. Dr Chau assessed the complainant’s Global Assessment of Functioning (GAF) score to be 50, noting “serious academic impairment and mild social impairment.” Dr Chau considered the prognosis to be “guarded [as the complainant] was possibly predisposed to anxiety and mood disorders given her possible genetic loading and family issues…[but] promising prognostic factors [included] past improvement with anti-depressant treatment and reported supportive relationships with [the complainant’s] boyfriend and psychologist”. Dr Chau advised immediate recommencement of the complainant’s previous anti-depressant treatment (Zoloft), and cognitive behavioural therapy, preferably with a psychiatrist who would be able to manage her medication. Dr Chau assessed the complainant as having a Whole Person Impairment (WPI) of 17%.
- [7]It is submitted on behalf of the complainant that an award should be made at the bottom of the severe range in Item 33 namely 20 per cent of the scheme maximum ($15,000). In y view, an award of 20% appropriately recognises the serious consequences suffered by the complainant, amounting to mental or nervous shock, and I award 20% ($15,000) under Item 33.
COVR s 1A Adverse Impacts
- [8]In order to assess compensation under COVR s 1A, it is necessary to identify any relevant adverse impacts of a sexual offence which are not otherwise a compensable injury under COVA s 20[7]. The only “adverse impact” identified on behalf of the complainant is “serious academic impairment”[8]. The history taken by Dr Chau notes that the complainant “felt emotional numbness since the rape and was initially socially withdrawn at school”, and “had poor concentration and was more forgetful since the assault…[including being] more disorganised such as when packing the wrong text books for school”[9]. Dr Chau noted that at the time of the examination the complainant was in Grade 11, and had since the assault found it difficult concentrating in class and on assignments. Consequently the A and B grades that she had achieved prior to the assault had become C and Fail grades “quite often”. The complainant found it difficult to complete assignments, and no longer cared about school and randomly walked out of classes as she did not want to be around anyone, although it appears that the school authorities were continuing to be supportive[10].
- [9]It is submitted on behalf of the complainant that an award of $10,000 should be made pursuant to COVR s 1A(2). The serious academic impairment does not, on my reading of Dr Chau’s report, appear to be part of the symptomology of the diagnosed mental or nervous shock injury and accordingly is capable of being compensated under COVR s 1A. In these circumstances I consider an appropriate award to be 10 per cent of the scheme maximum ($7,500).
Contribution
- [10]There is in my view no question the complainant has in any way contributed to her own injury.[11]
Conclusion
- [11]Accordingly I order that the respondent Saul Matthew Cheng pay the applicant MCA the sum of $22,500, to be held upon trust by the Public Trustee on behalf of BLA until BLA attains the age of eighteen years.
Footnotes
[1] MCA4 (sentencing remarks) pp2-3, Affidavit of MCA sworn 24 January 2008.
[2] Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25].
[3] Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29].
[4] Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22].
[5] per Chesterman J at p372; per Atkinson J at p382.
[6] Exhibit KC1, Affidavit of Dr Karen Chau sworn 16 October 2007.
[7] R v Atwell; ex parte Jullie [2002] 2 Qd R 367.
[8] Exhibit KC1, p.8, Affidavit of Dr Karen Chau sworn 16 October 2007.
[9] Exhibit KC1, p.3, Affidavit of Dr Karen Chau sworn 16 October 2007.
[10] Exhibit KC1, p.6, Affidavit of Dr Karen Chau sworn 16 October 2007.
[11] COVA s 25(7).