S v S[2009] QDC 340

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation. Because the offending giving rise to the application occurred between March 1974 and January 1977 it is brought pursuant to the new repealed s 663B of the Criminal Code[1].  As a consequence of the time during which the offending occurred the maximum amount that can be awarded for an offence is $5,000.^[2]

2. [2]
   The respondent pleaded guilty on 17 October 2005 to three counts of indecently dealing with the applicant. During the period of the offending she was aged between two and five years. The three counts nominated three discreet incidents on unspecified dates. The transcript of the sentencing hearing shows that each incident involved the respondent rubbing his penis on the outside of the applicant’s vagina and the respondent ejaculating. The second and third incidents also involved the applicant masturbating the respondent. The applicant’s account of the three incidents exhibited to her affidavit filed on 16 October 2008 is slightly different and alleges more serious offending on the part of the respondent.

3. [3]
   The applicant alleges that the first two counts involved vaginal rape of her by the respondent and the third count occurred when the respondent forced her to perform felatio upon him. These accounts are at odds with the basis upon which the respondent was sentenced. Indeed, had the applicant’s account of the first two incidents been the basis for the sentencing of the respondent, the first two counts would presumably constitute offences of rape rather than indecent dealing. In the circumstances it is appropriate to have regard to the facts put before the court upon the sentencing hearing as constituting the factual basis for assessing compensation.

4. [4]
   In determining the correct course to adopt to the question of compensation in this instance, regard must be had to s 663B which was relevantly in the following terms:-

“(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person or more than 1 indictable offence relating to the person of any person…arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court…may… 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 for which the offender is convicted.

(1A) For the purpose of determining whether the 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.”

5. [5]
   The first count occurred in a bushland setting, the second count occurred on the back seat of a motor vehicle and the third account occurred in the respondent’s bedroom. Given the age of the applicant when the criminal conduct occurred and the time that has passed, it is not surprising that precise details of the dates of the offending were not provided to the court.

6. [6]
   The question arises whether the offences arose out of one course of conduct or closely related courses of conduct, such that the applicant should only receive one award of compensation as opposed to a separate award for each offence. Having regard to what de Jersey CJ stated in HW v LO[3] I am of the view that on the limited information placed before the court the offences were sufficiently “distinct and separated in time and place” for them not to arise out of the same course of conduct or closely related courses of conduct.  The applicant should therefore receive an award of compensation in respect of each offence.

7. [7]
   In R v Jones ex parte McClintock[4] the Court of Appeal held that compensation pursuant to s 663B should be assessed in accordance with the ordinary principles for the assessment of damages for personal injury in civil cases.  In his report dated 8 November 2008, Mr Kirk, psychologist, concluded that the applicant was suffering from Major Depression and Post Traumatic Stress Disorder “as a result of her childhood sexual abuse”.  Not surprisingly, no attempt is made to identify the distinct contribution of each incident referred to above.

8. [8]
   In all of the circumstances before me, I am satisfied that the applicant could expect to be able to demonstrate that each offence caused her an injury to an extent that justified an award of damages in excess of $5,000 in the event an action for damages was brought by her against the respondent.

9. [9]
   I therefore order that the respondent pay the applicant $5,000 in respect of each offence in the total sum of $15,000. I further order that the respondent pay the applicant’s costs on the standard basis.