NRA v MSS[2011] QDC 227

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, MSS, pleaded guilty (relevantly) to two counts of taking a child under twelve years for immoral purposes, four counts of indecent treatment of a child under twelve years, one count of attempted indecent treatment of a child under twelve years and one count of serious assault, all in respect of the applicant NRA. The respondent was sentenced by Judge Nase in the Beenleigh District Court on 7 June 2001 to various prison terms ranging between two and eight years in respect of the offences relevant to the current applicant. The respondent pleaded guilty to nine other counts in respect of other complainants, and on one of those counts (count 16) an indefinite sentence was imposed.^[1]  A period of 710 days was declared time served when the respondent was sentenced on 7 June 2001.  Subsequently the respondent (unsuccessfully) appealed the original sentence.^[2] The respondent was re-sentenced in respect of the indefinite sentence (count 16, which did not relate to this applicant) on 10 November 2008 when a concurrent sentence of eighteen years imprisonment was imposed with a declaration that the applicant was a serious violent offender (and therefore required to serve 80% of the sentence).^[3]

Facts

2. [2]
   The facts relevant to this application were extracted from the remarks of the sentencing judge and set out by the Court of Appeal in R v Smith:^[4]

“The [applicant] was aged ten years.  He was at a shopping centre at Woodridge with two other boys of similar ages.  [The respondent] started following the boys.  He spoke to [the applicant] at a car park and persuaded him to ride down to the bottom level by telling him there were puppies down there.  An offence of indecent dealing was committed at that time. [The applicant] tried to cycle away but was caught.

The [applicant] was then abducted from the car park by [the respondent] in his car.  [The applicant] was driven to a recreation reserve several kilometres from the shopping centre.  Another offence of indecent dealing was committed during the drive.  At the reserve [the applicant] was told to walk a short distance into the bush.  His hands were then bound with sticky tape.  The summary of facts proceeds as follows:-

• [The applicant] protested that it was hurting, but the [respondent] kept on applying the sticky tape and told [the applicant] he hoped it hurt.

• [The respondent] also tried to gag and blindfold [the applicant] with a nappy.  [The applicant] pulled the nappy off and started to try and bite through the sticky tape.  [The applicant] was also yelling and crying.

• [The respondent’s] response was to put [the applicant] on the ground and slap him across the face with an open hand five times.  [The applicant’s] nose started to bleed as a result.  [The applicant] continued to yell, cry and beg.

That assault is charged as a serious assault.  [The respondent] committed a further three offences of indecent treatment or attempted indecent treatment before ejaculating and returning [the applicant] to a Hungry Jack’s outlet near the shopping centre from which he had been abducted.  The [applicant] was told not to tell anyone and was given $3.”

3. [3]
   Further offences involving two unrelated boys aged ten and eight occurred 11 days later. Those offences included an offence of sodomy on one of the boys at knifepoint.

Injuries

4. [4]
   The applicant suffered bruising/laceration, mental or nervous shock, and adverse impacts.^[5]

The Law

5. [5]
   The application in these proceedings was filed on 27 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  Given the applicant’s age at the date of sentence (twelve years old), the proceeding was filed within the relevant timeframe pursuant to COVA s. 40(1).  The transitional provisions of VOCAA ss. 154 and 155 are satisfied, and accordingly, this application proceeds pursuant to COVA s. 24.

6. [6]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

7. [7]
   Ms Fadden, who appears for the applicant, seeks compensation as follows:-

(1)Item 1 – Bruising/laceration etc (minor/moderate)

At the sentence of the respondent, it was submitted by the prosecution that the applicant was bound with sticky tape which hurt, was gagged and the applicant was then blindfolded and slapped across the face with sufficient force to cause his nose to bleed.^[6]

Ms Fadden submits that despite the absence of any specific medical report or information, the applicant should be compensated pursuant to item 1, a submission which I accept.  Accordingly I award 1% of the scheme maximum ($750) pursuant to item 1.

(2)Item 32 mental or nervous shock (moderate)

The applicant was examined by Dr Barbara McGuire on 28 September 2010, and a report was provided dated 29 September 2010.^[7]

The report concludes that the applicant is suffering from post traumatic stress disorder (PTSD) which he exhibits to a moderate degree, with indicia of “nightmares, flashbacks, sleep disturbance, avoidant behaviour, hyper-vigilance [and] exaggerated startle reflex.”^[8]  It should be noted that Dr McGuire’s examination of the applicant took place some 11 years after the event.

It is submitted that an award should be made at the upper end of the moderate range.  In my view this is entirely appropriate and I award 20% of the scheme maximum ($15,000) pursuant to item 32.  I do not consider there should be any reduction of this award despite, the contributing factor of the applicant’s parents’ marital breakdown.^[9]

(3)Criminal Offence Victims Regulation s. 1A – Adverse Impacts

Relevant adverse impacts identified on the material placed before me by Ms Fadden include; 

1. COVR s. 1A(2)(f) – lost or reduced physical capacity (including the capacity to have children, whether temporary or permanent) – it is noted that the applicant wants to have children and has studied childcare but believes he will be over protective of a child;

2. COVR s. 1A(2)(h) – Adverse Effect of the Reaction of Others – It is noted that the applicant was initially not believed by police and his mother blamed him for the incident.^[10] 

3. COVR s. 1A(2)(k) – anything the court considers is an adverse impact of a sexual offence – Adverse impacts, including the effect on the applicant’s education, employment and relationship with his siblings.

In totality it is submitted that the adverse impacts should receive an award of 25% of the scheme maximum. I accept this submission.  Accordingly, I award $18,750 pursuant to COVR s. 1A.

Contribution

8. [8]
   I do not consider that the applicant has contributed to his own injuries in any way either direct or indirect.^[11]

Order

9. [9]
   I order that the respondent MSS pay the applicant NRA the sum of $34,500.