MMR v GMB[2009] QDC 30

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 24.07.06 GMB was convicted on his own plea of guilty of 3 counts of indecently dealing with MMR, his natural daughter then a child, between the 01.10.81 and 30.10.83, and was sentenced to a term of imprisonment.
2. [2]
   The 3 offences described by the prosecutor at the sentence hearing occurred as part of a single course of conduct on one occasion around the time of MMR’s 14^th birthday. Her date of birth is 08.10.68, so her 14^th birthday was 1982.
3. [3]
   The prosecutor described the first offence occurring when GMB handed MMR a towel when she was naked after having a shower and he then had her masturbate him while he masturbated her. The second offence occurred when he ­­­­­­­procured her to bite his penis and then the third offence occurred when he procured her to perform oral sex on him. 
4. [4]
   As a result of the offending, and other matters, it is common ground that MMR has suffered a mental or nervous shock injury namely a severe PTSD and major depression. She has been assessed by Dr. Thomson, a clinical psychiatrist, who has provided a report dated 15.05.08. Dr. Thomson assessed MMR on 18.04.08.
5. [5]
   Her opinion is based on the history given to her by MMR of much more extensive sexual abuse of her at the hands of her father, commencing when she was 8 and including sexual intercourse. Mr. Crosby, who appeared for GMB at the hearing, did not suggest that she did not suffer from the illness described by Dr. Thomas but he argued that the many non-compensable causes of the injury (including the extensive sexual misconduct not covered by the convictions) would result in a significant reduction of her compensation. Compensation is to be assessed by application of the applicable common law principles of assessment of damages, and having regard to what was said in S v S [2001] QCA 12, I am satisfied on the balance of probabilities that the offences of which he was convicted were a material contribution to her present illness albeit not the sole or even effective cause of the injury.
6. [6]
   The real issue before me is a question of law.
7. [7]
   Mr. Crosby submits that the 1984 amendments to the Criminal Code Scheme apply retrospectively to compensation for injuries suffered prior to the commencement of those amendments on 05.04.84.
8. [8]
   Clearly as all offences occurred in 1982, the Code Scheme then applicable provided for a “prescribed amount” of $5000, which was interpreted as $5000 for each offence subject to the overall assessment.
9. [9]
   The 1984 amendments defined “prescribed amount” as meaning:

“(a) where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984, $5000”.

10. [10]
    At the same time, s.663B was amended to provide that where a person is convicted of one or more offences ‘arising out of the one course of conduct or closely related courses of conduct’, the court may order ‘a sum not exceeding the prescribed amount by way of compensation for injury suffered… by reason of the offence or offences…’
11. [11]
    If, as Mr. Crosby submits, the 1984 amendments apply to injuries suffered prior to commencement, MMR would be entitled to an award of $5000, as it is not suggested that the offences involved other than one course of conduct. He has endeavoured to persuade me that in holding that the 1984 amendments did not apply to injuries suffered before commencement in B v P [2004] QDC 149, I was wrong.
12. [12]
    In that decision, I relied on and followed the reasoning of Helman CJDC (as his Honour was) in R v Boughton ex parte Holt (unreported, D.C. No. 124 of 1993; 13.08.93) in which his Honour proceeded on the basis of s.20 (2) and (3) of the Acts Interpretation Act 1954 (Qld) (as the sections are now numbered) in holding that an applicant for compensation for injury suffered as a result of an offence or offences had a right to compensation “acquired when she suffered the injuries”, which was preserved notwithstanding the amendments. I referred in my judgment to the difference of opinion amongst judges of both the Supreme and District Courts on this issue which had, and has not been resolved by the Court of Appeal.
13. [13]
    I referred in my judgment to MAJ v KM [2000] QCA 410, in which it appeared that the Court of Appeal had proceeded on the basis that the 1984 amendments did apply retrospectively, but I distinguished the case on the basis that it did not specifically deal with the issue which had been considered in Holt v Boughton.
14. [14]
    Mr. Crosby’s argument is based primarily on (2) more recent decision of Judges of this Court; ISVB v WJG [2005] QDC 30 per Judge McGill SC; and M v C (unreported, District Court No. 640 of 2007, per Shanahan DCJ, 29.11.07); which reach a contrary conclusion to mine in B v P. In M v C, his Honour Judge Shanahan in effect followed the decision of Judge McGill SC. in holding that the 1984 amendments were retrospective, and in so doing declined to follow his own reasoning in (2) prior decisions involving the same respondent.
15. [15]
    Judge McGill SC, dealt with my judgment in P v B [2004] QDC and in particular my approach to the Court of Appeal decisions in MAJ v KM (supra) and HM v LO [2001] 2 Qd. R 415 in which the Court appeared to proceed on the basis of the retrospectivity of the 1984 amendments. At [28] – [29] his Honour said:

[28]I think it is also significant that the Court of Appeal, in considering HW v LO (supra) and Marsten (supra), made no reference to this point, even though, if it is correct, the crucial issue on which those decisions turn did not arise for decision, since in each of those matters all of the relevant offences were committed prior to the 1984 amendment. If the applicant in each of those matters had an accrued right which survived that amendment to compensation to a limit of $5,000 in respect of each of those offences, it seems extraordinary that none of the six experienced judges who constituted those two courts realised that, even if the point was not expressly raised in argument.

[29]It was said in P v B (supra) that Marsten (supra) is not authority in relation to the existence of an accrued right because this point was not expressly referred to in the reasons of any member of the Court of Appeal in that case. That may be right, but it was not a point of which they would have been unaware. That is because it was a point I dealt with expressly in my reasons in Marsten where I said at page 6:

“It may be that when the Act was amended in 1984 there was not an appreciation that cases could arise where the limitation of the prescribed amount for the injury would remain at $5,000, but the amendment would otherwise apply because the cause of action did not arise until conviction. If the right to compensation was treated as having arisen in 1977 or 1978 then the position might be different. However, it is now established, in a way which is binding on me, by the Court of Appeal in Chong v Chong (a judgment on 13 August [2004]) that there was no right to compensation until the date of conviction, and I think it must follow that the amendment act of 1984 applies to the entitlement to compensation, except for the time when the increase in the prescribed amount comes into force and that operates by reference to the date on which the injury was suffered, because that is made express in the terms of the amendment.”

16. [16]
    His Honour was uniquely in the position of having been the primary judge in MAJ v KM. His Honour’s decision at first instance is not reported and was not referred to me in argument in B v P.
17. [17]
    His Honour also deals at length with the accrued right argument relied upon by Helman CJDC in Holt v Boughton in holding, by reference to Chong v Chong [2001] 2 Qd. R. 301 and to other common law decisions, that as the right to compensation is entirely a creature of statute, and as the statutory conditions for such a claim are not made out until a person is convicted of an offence which causes injury, the applicant did not have an accrued right.
18. [18]
    Regrettably, I find myself persuaded (as did Judge Shanahan) by his Honour Judge McGill’s reasoning in ISJB v WJB that I was wrong in holding in P v B that the 1984 amendments were not retrospective.
19. [19]
    His Honour’s reasoning supports the observation that it was the clear intent of the legislature by the 1984 amendments to restrict compensation for persons who suffered injury prior to 05.04.84 and after the commencement of the 1975 amendments to $5000, and to overcome the approach of the Courts of awarding $5000 per offence. As Counsel for MMR observed, in the 1984 amendments the definition of “prescribed amount” specifically removed the words “where the offence” from the definition and substituted the words “where injury”. 
20. [20]
    As a result, this unfortunate woman is entitled only to a maximum award of $5000. If I am held to be wrong in that conclusion, I would have awarded her $15,000 i.e. $5000 per offence as I am satisfied, notwithstanding Mr Crosby’s arguments, that her award would have exceeded that sum if assessed at common law.
21. [21]
    I will hear the parties on costs.