DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent Maurice Ernest Clark was found guilty on 26 October 1999 after a trial at the Rockhampton District Court of the following charges:^[1]

Count 1.  Maintain an unlawful sexual relationship between 13 August 1990 and 31 December 1994 at R and M;

Count 2.  Indecent dealing of a child under sixteen with the circumstance of aggravation between 13 August 1990 and 15 August 1991 at R;

Count 3.  Indecent dealing with a child under sixteen with a circumstance of aggravation between 13 August 1991 and 15 August 1994 at R;

Count 4.  Indecent dealing of a child under sixteen with circumstance of aggravation between 13 August 1993 and 31 December 1994 at M;

Count 5.  Indecent dealing of a child under sixteen with a circumstance of aggravation between 13 August 1993 and 31 December 1994 at M; and

Count 6.  Indecent dealing of a child under sixteen with circumstance of aggravation between 13 August 1993 and 31 December 1994 at M.

2. [2]
   The applicant, JG was the complainant in respect of each of the six counts. The respondent was sentenced to five years imprisonment in respect of count 1, two years imprisonment (concurrent) in respect of count 2, and two and a half years imprisonment (concurrent in each case) in respect of each of counts 3 to 6. The respondent was ordered to be eligible for parole after serving two years. On 28 April 2000, the applicant’s appeal against the conviction was dismissed and his application for leave to appeal against the sentence was refused.^[2]

Facts

3. [3]
   The Court of Appeal outlined the facts in respect of each of counts 2 to 6 (the individual particularised counts) as follows:^[3]

“Count 2 was described by the complainant as happening when she was six years old when she was living with her grandmother and the appellant at a place near the railway at R. It was a Friday night and her grandmother was at bingo. She was in the lounge room when her step-grandfather asked her if she wanted to play a little game. He told her to go and lie on her bed and pull down her pants. He came into her bedroom and started playing with her vagina with his finger, tickling it and licking it. Afterwards he said “don’t tell anybody, it’s our little secret”. This was the first time that anything of this nature had happened.

Count 3 occurred when the appellant took the complainant in his blue station wagon to the shops. He stopped his car a couple of blocks from where they lived near some old deserted shops which were around the corner from a “karaoke thing”. The appellant then made the complainant play with his penis using her hand and then suck his penis. This went on for about three or five minutes until he “peed in [her] mouth”. She got out of the car and spat out the urine. She got back into the car and they drove to the shop to get milk before going home. This was the only occasion on which he urinated in her mouth.

Count 4 took place after they moved to a community near R when the complainant was about nine years old. On this occasion after tickling and licking the complainant’s vagina he for the first time inserted his finger into her vagina. She said that it hurt and the appellant said to her “you like it, don’t you?” No one was at home when this occurred and after the incident the appellant said, “it’s our little secret”.

Count 5 related to an incident at the same place which began when the complainant was playing on the front lawn with her dog Dinah. It was daylight, going on dark, and there was no one else at home. The appellant asked the complainant to come into the shower with him where he got her to play with his penis, sucking it and playing with it using her hand. After this incident they got dressed and walked to the fish and chips shop. While walking there the appellant made the complainant hold his hand.

Count 6 was described as the last time anything happened. The complainant had a new room which was built onto the house. It was daylight and the appellant closed the blinds. She lay on her bed and the appellant played with her vagina. He then took out his erect penis and rubbed it over her vagina and said “Oh I’d better not put it in; you might get pregnant”. After the incident, the appellant told her to go and play and that it was “our little secret”.”

4. [4]
   The unlawful sexual relationship was maintained by the respondent with the complainant from the time the applicant turned six in August 1990 through until she left the respondent’s home to reside with her natural mother in D around Christmas 1994 (by which stage the applicant was approximately 10 years of age).^[4]

Injuries

5. [5]
   The applicant has suffered mental and nervous shock as a result of the offences committed by the respondent.

The Law

6. [6]
   These applications proceed under the now repealed provisions of Ch 65A (ss 663A, 663AA, 663B and 663BA of the Criminal Code^[5]).

7. [7]
   Prior to 1 July 1984, 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 the Justices Act Amendment Act 1975, $2,000;

2. (b)
    in all other cases, $5,000.”

8. [8]
   The “prescribed amount” was increased to $20,000 in respect of mental or nervous shock by s 663AA which commenced on 1 July 1984.^[6]  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.”^[7]  In R v Jones; ex parte McClintock^[8] it was held that the assessment of damages under (repealed) Criminal Code s 663B is on common law principles of assessment of damages for personal injury, provided that the amount does not exceed the prescribed amount.  Costs can be awarded.  Criminal Code s 663B(1) relevantly provides:-

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

For the purpose of determining whether such 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.”

9. [9]
   In HW v LO [2001] 2 Qd R 415 de Jersey CJ noted that:

“In determining whether courses of conduct are ‘closely related’, [Criminal Code s 663B] invite[s] analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them.”^[9]

10. [10]
    This application was brought within the relevant time limit of 6 years from the date the applicant turned 18.^[10]

Compensation

11. [11]
    It is submitted on behalf of the applicant that she has suffered severe mental or nervous shock, and that each of counts 2 to 6 constituted a separate “course of conduct” which, considered in the context of the prescribed amount of $20,000 per course of conduct, leaves open a maximum award of compensation of $100,000.

12. [12]
    The applicant was examined by Dr Lynette Arnoldus Lewis, psychologist, on 17 July 2006.^[11]

13. [13]
    Dr Arnoldus-Lewis expressed the following opinion in respect of the applicant:-

“In my opinion [JG] suffered severe ‘mental or nervous shock’ as a direct result of these abovementioned offences [a reference to the indicted offences] committed on her when she was a child under sixteen years (from age 6 to approximately 11 years old) by [the respondent] whilst in his and her maternal grandmother’s care at their places of residence.

The symptom range she described or demonstrated on presentation met the stringent criteria for a diagnosis of severe chronic post traumatic stress disorder (PTSD; 309.81) and a diverse range of associated disorders including depression, substance related disorder, obsessive compulsive disorder, generalised anxiety disorder, social phobia, panic disorder and agoraphobia, in accordance with the Diagnostic Statistical Manual of Mental Disorders (DSMIV-TR).  These associated disorders combined with her complex chronic PTSD was so severe and recalcitrant that they continued to negatively impact on every aspect of her daily adult life.  The psychiatric disorders have significantly impaired her development of functional social, familial or adult relationships as well as, her inability to achieve a rewarding occupation.  According to literature, children who were exposed to similar types of prolonged abuse, neglect or trauma that Ms JG was subjected to, over many years, were more likely to be at high risk of lifelong psychological disorders or dysfunction perceiving their experiences as life threatening. 

Ms JG’s psychiatric disorders were severe and chronic, due to compounding effects of repetitive exposure to traumatic sexual offences by Mr Clark, her step grandfather, over a long period of time (approximately six years) during an extremely vulnerable developmental stage in her life cycle (six to eleven years old) whilst living with him and her maternal grandmother…it is well documented the most critical phase for lifelong psychological injuries in a female’s life cycle is between eleven to thirteen years old.  The chronicity and severity of her PTSD was also exacerbated by the inescapability or proximity to the offender over many years.  The onset of Ms JG’s psychiatric disorders was delayed and their full development emerged, over the next few years and, as mentioned above, remains severe and chronic on presentation, at my clinic, possibly partly due to none or inadequate diagnosis or treatment, during the acute stage of her disorders^[12].”

Dr Arnoldus-Lewis goes on to conclude:

“In summary, [JG] sustained severe chronic PTSD and a diverse range of chronic associated disorders, as a result of being exposed to repetitive incidents of childhood sexual, physical and emotional abuse by her primary abuser [the respondent] from six to eleven years old, with one additional traumatic sexual incident when she visited his place of residence, at age thirteen.  She also sustained psychological injuries from prior, concurrent and post emotional and physical abuse from several other significant people, including her mother, stepfather, grandmother and foster mother, during her childhood.  In adulthood, Ms JG predictably embarked upon several emotionally and physically abusive relationships, as a result of these early childhood abusive relationships and her related psychiatric injuries.  However, the chronic psychological injuries arising from the chronic sexual, emotional and physical abusive acts perpetrated by [the respondent], during the most vulnerable period in a female’s life, were without doubt, the most damaging injuries she sustained.  It is difficult, if not impossible, to proportion a discrete empirical value or percentage to the psychological injuries she sustained from specific events committed by [the respondent], but collectively they impacted or compounded her initial traumatic injury, resulting in lifelong severe and chronic PTSD and associated disorders.  This initial unlawful sexual abuse was the most damaging psychologically because it was immediately after her mother’s perceived “abandonment”.  However, this “abandonment” would not have been a traumatic incident or stressor if it was not reinforced by the initial and subsequent sexually abusive episodes, or she was placed in the care of loving and protective grandparents (which is not uncommon) irrespective of the timeframe.

In my considered opinion, Ms JG requires lifelong therapy to help ameliorate her recalcitrant psychological injuries and assist her to cope with future life crises or possible trauma.  The rehabilitation program would involve intensive weekly therapy for eighteen months to two years, followed by fortnightly sessions for approximately six to twelve months, then monthly consultations for twelve months, at which time she would more than likely require maintenance therapy to provide a stable base and support.  This recommended rehabilitation program should be punctuated with regular assessments and modification where required, with the provision for resumption of intensive therapy if required at any stage of the submerging therapy program.

Countless examples of Ms JG’s psychological injuries were available from the transcript but this would require double the period I have spent on this report.  Because of the restricted timeframe under the interview (three hours) and time to analyse the data, I have only touched the surface.  In all my years of experience, professionally and personally, this case was one of the most tragic and psychologically damaging I have encountered.  I hope Ms JG finds people she can trust, and finds a path to healing her horrific injuries.

However, her prognosis is not favourable given the severity and recalcitrance of her untreated psychiatric disorders, and her deeply entrenched predilection to reinforce substance abuse, lack of familial or relationship support, lack of sufficient finances, and pressures of parenthood.

Again, it is difficult if not impossible to estimate the cost of counselling or therapy at the current recommended fee in accordance with my professional organisation, the Australian Psychological Society Ltd is $186 per hour.^[13]”

Courses of conduct

14. [14]
    It is submitted that there were five separate courses of conduct occurring at different locations, involving differing particulars, committed over a period of four years from August 1992 to December 1994.^[14]  The courses of conduct were particularised in the applicant’s written submissions as follows:

“First Course of Conduct (Count 2)

The offence occurred in the applicant’s bedroom of the house in R where she was living with her grandmother and the respondent.  She was aged six years.  The respondent told her to lie on her bed and take her pants down.  [The respondent] came into her bedroom and started playing with her vagina, tickling and licking it.  This was the first time anything of this nature had happened. 

Second Course of Conduct (Count 3)

The offence occurred in the respondent’s vehicle.  They were still living in R.  In her statutory declaration dated 15 April 1998,^[15] the applicant states that she was eight or nine years old.  [The respondent] made the applicant play with his penis using her hand and then sucked on his penis until he “peed” in her mouth.

Third Course of Conduct (Count 4)

This offence occurred when the applicant was aged about nine years after they had moved to M.  The respondent made [the applicant] lie on the bed with him and then tickled and licked the applicant’s vagina.  He then inserted his finger into her vagina for the first time. 

Fourth Course of Conduct (Count 5)

This offence occurred in the shower at the M house.  The respondent asked the applicant to come into the shower with him where he got her to play with his penis, sucking on it and playing with it using her hand. 

Fifth Course of Conduct (Count 6)

This offence occurred in a new room that was built onto the M house, after the applicant had turned ten.  The respondent told her to lie on her bed and he played with her vagina.  [The respondent] then took out his erect penis and rubbed it against her vagina.  He said words to the effect, “I had better not put it in, you might get pregnant.”

15. [15]
    The applicant’s submissions also make the point that the Court of Appeal at paragraph 11^[16] stated:

“Such incidents were discrete and specific.  The events (were) identified with sufficient particularity.  There was no possibility of latent ambiguity.”

16. [16]
    Although, the court was there talking about the issue of particularity in terms of a submission before the court relevant to the conviction appeal, the submissions made by the applicant in these proceedings are that the particularity identified there by the Court of Appeal is relevant to the “courses of conduct” requirements of the criminal compensation legislation, that is “that the identified courses of conduct fall into the HW v LO category, namely that each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance.”^[17]

17. [17]
    In my view, the submission made on behalf of the applicant is compelling. I find that there were five courses of conduct, and as a consequence the relevant maximum compensation available to the applicant in these circumstances is $100,000 ($20,000 per course of conduct).

Causation

18. [18]
    The issue of causation arises from the report of Dr Arnoldus-Lewis, who identified:

“Psychological injuries from prior, concurrent and post emotional and physical abuse from several other significant people including her mother, stepfather, grandmother and foster mother, during her childhood.”^[18]

19. [19]
    However, the issue of causation, in terms of other contributing factors to the injury, and in a situation where there is a history of sexual abuse extending beyond the matters the subject of the charges before the court, has been addressed by the Court of Appeal, which stated in SAM v SAM:^[19]

“The primary judge [adopted] a common sense approach to causation and concluded that the commission of two serious offences of sexual abuse by a natural father upon his daughter was a material contribution to her present psychological injuries.  This approach, with respect, appears to be plainly right.”

20. [20]
    Clearly, a “material contribution” to the applicant’s injury, as a matter of common sense, where the effects are unable to be separated, entitle the applicant to compensation in respect of the whole injury.^[20] In light of Dr Arnoldus-Lewis’s opinion that “the chronic psychological injuries arising from the chronic sexual, emotional and physical abusive acts perpetrated by [the respondent], during the most vulnerable period in a female’s life, were without doubt, the most damaging injuries she sustained,^[21]” it is a situation where I am persuaded that the applicant is entitled to receive compensation assessed in respect of the whole of her injuries.

21. [21]
    The applicant submits that an assessment on a common law basis would involve an assessment of $50,000 for pain and suffering and loss of amenities, $26,412 for 140 therapy sessions at $186 per hour, based on Dr Arnoldus-Lewis’s opinion for a requirement of lifelong therapy,^[22] and economic loss of $30,000 (the applicant having never had a permanent job or being able to maintain long-term employment).  In my view, these sums are a conservative submission in respect of the injuries suffered by the applicant, which clearly approaches the worse category of such injuries.  The sum submitted for exceeds the maximum which can be awarded based on five courses of conduct, and accordingly I award compensation in the amount of $100,000.

Contribution

22. [22]
    There is no evidence the applicant contributed in any way to her own injuries.^[23]

Costs

23. [23]
    The applicant is clearly entitled to her costs (for whatever value that may be in a practical sense).^[24]

Conclusion

24. [24]
    I order that the respondent Maurice Ernest Fitzroy Clark pay the applicant, JG the sum of $100,000 for criminal compensation and costs on a standard basis.