DISTRICT COURT OF QUEENSLAND

1. [1]
   On 31 March 2005 the respondent (who is the applicant’s older cousin) was convicted, on his own pleas of guilty, of 14 offences. The applicant was the complainant in relation to Counts 7 to 14 inclusive. The relevant offences were for unlawfully and indecently assaulting the complainant (including when he was a child) and attempting to procure the complainant to commit acts of gross indecency. The offences span a lengthy period dating back to the mid 1980’s. The applicant now seeks compensation.

2. [2]
   Compensation is claimed under the now repealed provisions of s 663B(1) of the Criminal Code, which remain of relevance by reason of s 46 of the Criminal Offence Victims Act 1995.  Section 663B provided for compensation in respect of offences “relating to the person of any person”.  Each of the relevant offences related to the person of the applicant.  That includes the offences of attempted procurement.^[1]

3. [3]
   Section 663B provides for compensation for “injury” suffered by the applicant by reason of the offence or offences for which the offender is convicted. In this case, compensation is sought for mental or nervous shock and for a physical injury constituted by the complainant’s bottom becoming torn and bleeding as a result of one of the offences. Each of those are injuries for the purposes of s 663B.

4. [4]
   Section 663B does not permit compensation to be ordered which exceeds the “prescribed amount”. That expression is defined in s 663A to mean:

1. (a)
   Where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 - $5,000;

2. (b)
   In all other cases save those that are the subject of a particular reference to s 663AA – the amount for the time being specified in s 14(1)(c)(a) of the Workers Compensation Act 1916 as varied from time-to-time pursuant to s 14E of that Act.

5. [5]
   One of the counts (Count 9) was charged as having occurred on a date unknown between 25 September 1983 and 27 September 1985. The applicant was born on 26 September 1974. His statement to the police claims that the offence occurred when he was 11 or 12 years old, while his affidavit says that the various offences occurred when he was aged 11 to 18 years. It is probable that count 9 occurred towards the end of the charged period and after the commencement of the Criminal Code Amendment Act 1984. The charged period for all other offences post-dated the Criminal Code Amendment Act 1984.

6. [6]
   Section 663AA prescribes the amount of $20,000 in the case of mental or nervous shock. The aggregate amount claimed for mental or nervous shock exceeds $20,000, but the claim is made in relation to more than one offence.

7. [7]
   It has already been observed that s 663B provides for compensation for injuries suffered by reason of “the offence or offences of which the offender is convicted”. The offence or offences referred to are those “arising out of the one course of conduct or closely related courses of conduct of that person so convicted”. It was submitted, on behalf of the applicant, that the eight relevant offences involved six courses of conduct and that compensation may be awarded for mental or nervous shock up to the prescribed amount of $20,000 for each course of conduct.

8. [8]
   The identification of separate courses of conduct involves matters of fact and degree. In Hendry v Lorente [2000] QCA 377 the court considered six offences (one of indecent dealing and five of rape) which were committed over a six to seven year period.  Jersey CJ said:

“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…

The events involved in these offences were far too distinct and separated in time and place to warrant the conclusion that they raise 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”.

9. [9]
   McMurdo P said:

“The facts of this case are not in that category.  Each charge was constituted by distinct and separate acts on occasions clearly separated in time, place and circumstance; the six offences were committed some time 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.”

10. [10]
    On the other hand, in Marsten v Kello [2000] QCA 410, Davies JA (with whom Ambrose and Chesterman JJ agreed) said:

“The question is whether the offences to which I have referred arose out of one course of conduct or closely related courses of conduct of the respondent.  The factors relevant to the determination of that question appeared to be the similar but escalating nature of the respondent’s conduct; and the facts that the offences occurred in similar circumstances, that they formed part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months.  Giving s 663B its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct of the respondent.

…Giving those phrases a narrow ambit will reduce the number of cases for which compensation is inadequate. But I do not think that is a sufficient reason for giving words in a statute a meaning narrower than they can ordinarily be.”

11. [11]
    The relevant offences in this case may be summarised as follows:

Count 7

Unlawfully and indecently dealing with the applicant, then under 14 years, at Churchill on dates unknown between 25 September 1985 and 26 September 1988.  The two were in a bird aviary when the respondent pulled the applicant’s pants down and his own pants down.  The respondent then stood close in front of the applicant and rubbed his penis on the applicant’s penis, until ejaculating over the applicant’s penis.

Count 8

Unlawfully and indecently dealing with the applicant, then under the age of fourteen, at Churchill between 25 September 1986 and 26 September 1988.  The respondent crawled into the applicant’s bed and rubbed his penis against the applicant’s penis, although they were both clothed.

Count 9

Unlawfully and indecently dealing with the applicant, then under the age of fourteen years, at Amberley between 25 September 1983 and 27 September 1985.  The two were catching yabbies at a property at Amberley.  The respondent lay on top of the applicant and rubbed his penis over the applicant’s penis until ejaculation.

Count 10

Unlawfully and indecently assaulting the applicant, then under the age of fourteen years, at Glenmorganvale between 25 September 1986 and 26 September 1989.  The two were in a shed when the respondent took down each of their pants, stood in front of the applicant and rubbed his penis over the applicant’s penis. 

Count 11

Unlawfully and indecently assaulting the applicant at Mount Tarampa between 25 September 1992 and 26 September 1993.  Each were in the lounge room of the respondent’s house watching television.  The respondent commenced to lie on top of the applicant.  The two then went to the respondent’s bedroom.  The respondent again lay on top of the applicant before inserting his penis into the applicant’s bottom and eventually ejaculating.

Count 12

Unlawfully and indecently assaulting the applicant at Rosewood between 25 September 1992 and 26 September 1993.  The respondent took the applicant and another male for a drive in his car before stopping on a dirt road.  The respondent got out of the car, got into the back seat, commenced to lie on top of the applicant and rub his penis against the applicant.  Both were clothed.

Count 13

Attempting to procure the applicant to commit an act of gross indecency between 25 September 1992 and 26 September 1993.  This occurred at the same time as Count 12 and involved the respondent asking whether the other male, in their company, could have sex with the applicant. 

Count 14

Attempting to procure the applicant to commit an act of gross indecency at Ipswich between 25 September 1992 and 26 September 1993.  The respondent visited the applicant at his house and repeatedly asked him for sex. 

12. [12]
    The offences arise out an abusive relationship over a number of years and a number of the offences are similar or somewhat similar in nature. As was pointed out in the submissions on behalf of the applicant however, the offences were committed at five different locations over a lengthy time period and included a range of conduct. It was submitted that there were six courses of conduct as follows:

13. [13]
    I accept the submissions that the eight relevant offences involved six courses of conduct. The plaintiff’s physical injury relates to Count 11 only. The claim for mental or nervous shock relates to each of the offences comprising six courses of conduct.

14. [14]
    Compensation for a particular injury is assessed, pursuant to s 663B, in accordance with the ordinary principles of assessment of damages for personal injury in civil actions (economic loss is recoverable). The maximum amount prescribed should be awarded if it is less than the compensation assessed (R v Jones; ex parte McClinock^[2]).

15. [15]
    The impact of the offences on the applicant is set out in the applicant’s affidavit and in the report of Dr McGuire, which is exhibited to her affidavit. The offending commenced when the applicant was still a child. Dr McGuire’s opinion, which I accept, is that the applicant now exhibits post traumatic stress disorder which has been present since adolescence. He suffers this to a moderate degree, but it is worsening. He also suffers depression and panic attacks and has fallen victim to substance abuse. McGuire’s opinion, which I also accept, is that the respondent’s abuse made a substantial and material contribution to his condition, although he has also been affected by an extremely poor relationship with his parents, which involved witnessing violence and being physically abused himself. It would seem from Dr McGuire’s report that the respondent’s abuse may have extended beyond the incidents for which he was charged and convicted, but I am satisfied that there is a sufficient causal connection between the offences (and each course of conduct) and the applicant’s condition to have warranted an award of damages, in accordance with the ordinary principles for assessment for personal injury claims, to compensate the applicant for his condition.^[3]

16. [16]
    It was submitted, on behalf of the applicant, that the mental or nervous shock injury, considered as a whole, would ordinarily warrant an assessment of general damages in the amount of $45,000 together with $20,000 for economic loss. I accept the applicant’s submissions with respect to general damages.

17. [17]
    The evidence in relation to economic loss is not very specific. The applicant, in his affidavit, says that:

“9. My ability to concentrate on my school work was affected and all through high school I obtained low marks.  I had to deal with the effects of the offences and I lacked self-confidence.  I never had friends at school and I used to get picked on a lot.  Those years were the worst years of my life.  I had trouble thinking while I was in class and I left school at the end of Grade 10.

10. I didn’t work until I was sixteen which would have been 1990.  My first job was at McDonalds but I only lasted three weeks.  I just couldn’t do the work or deal with people.  I didn’t work for about two years after that.  My next job was at a fruit shop and that also only lasted about three weeks.  I was using drugs just to get through it.  After that I didn’t work until 2002 and I have done part-time work ever since.  I find it hard some days to go to work but I have no choice.  It is just reality that I need to work at least part-time in order to survive.”

18. [18]
    Dr McGuire’s report records the applicant’s claim that he was bullied at school, had difficulty concentrating and has had interrupted employment, but does not examine, in detail, the link between the injury caused by the offences and the bullying (if that be the reason for his poor concentration and results at high school) or with his later employment. It is likely however that his ongoing and deteriorating condition, including post traumatic stress disorder, depression and panic attacks, would have had some effect upon his capacity and performance and would place him at a disadvantage in the labour market. The evidence does not permit anything other than a global assessment for damages in this regard. The amount of $20,000 is a reasonable global assessment.

19. [19]
    The difficulty, in relation to the mental or nervous shock component, lies in determining what is an appropriate assessment of damages in relation to the injury suffered by each course of conduct. That can be a difficult exercise in relation to what is, in effect, a single condition to which a number of abusive events have contributed. The exercise is not assisted by the fact that the events occurred many years ago and, as Dr McGuire’s report notes, the applicant “finds the negative influences on his life intertwined and he finds it very hard to disentangle them”. The fact that there is some difficulty however, will not dissuade a court from making an assessment to meet a particular case.

20. [20]
    It is clear, from the affidavit of the complainant and from the report of Dr McGuire, that the offence which affected the applicant the most was Count 11, during which the respondent penetrated the applicant’s anus. I assess compensation for mental or nervous shock for that course of conduct at $20,000.

21. [21]
    The next most serious course of conduct, in relation to its likely impact upon the applicant, is that which covers Counts 7 and 8. That course of conduct occurred when the applicant was a child and included two offences. I assess compensation for that course of conduct in the sum of $15,000. Count 9 is a single offence, but was earliest in time. I assess compensation at $10,000. I assess compensation for Count 10, being the other single count committed against the applicant when he was under 14 years of age, at $7,500.

22. [22]
    The other course of conduct which involved more than one offence is that which relates to Counts 12 & 13. It occurred when the applicant was an adult and the behaviour itself (rubbing him fully clothed / propositioning) is not as serious as some of the earlier conduct. I assess compensation for that course of conduct (covering the two offences) at $7,500. Count 14, which relates to an instance of propositioning when the applicant was an adult is likely to have had the least effect. I assess compensation for that at $5,000.

23. [23]
    I accept that the applicant suffered a mental or nervous shock injury by reason of each course of conduct and also suffered a physical injury in relation to count 11. I assess compensation in the following amounts:

24. [24]
    I do not consider that the applicant contributed to his injuries.

25. [25]
    It was pointed out, on behalf of the applicant, that although the relevant events happened some time ago, these proceedings were brought within the limitation period, since that period does not commence to run until the conviction of the respondent. That is, in any event, beside the point. A limitation period is not a bar to proceedings. The respondent, for whom there was no appearance, did not seek to take a limitation point^[4].

26. [26]
    Costs are in the discretion of the court in applications of this kind^[5].  I will order the respondent to pay the applicant’s costs of and incidental to the proceedings.