DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The first respondent, MWB, pleaded guilty in the District Court, Beenleigh on 16 June 2004 (relevantly) in respect of counts of common assault, deprivation of liberty and indecent treatment of a child under 16 years, in relation to the applicant WLM. The first respondent was sentenced on 21 June 2004 by Judge Nase to six months imprisonment on each of the counts of common assault and deprivation of liberty, and two and half years imprisonment with a recommendation of a post prison community based release after serving six months in respect of the indecent treatment of a child under 16 count.^[1]

2. [2]
   The second respondent, ATW (then a child), pleaded guilty on 11 March 2004 in the Beenleigh Children’s Court to counts of common assault, deprivation of liberty and indecent treatment of a child under 16 years in relation to the applicant.

3. [3]
   On 21 June 2004 the second respondent was sentenced to three months detention (pursuant to the Juvenile Justice Act) in respect of each of the counts of common assault and deprivation of liberty, and six months detention in respect of the count of indecent treatment of a child under 16.  The court ordered that the second respondent be released from custody after serving 50% of the detention order.

Jurisdiction

4. [4]
   The second respondent was convicted and sentenced in the Children’s Court at Beenleigh. It is submitted by Ms Muirhead that the District Court has the jurisdiction to hear and determine this application in respect of the second respondent. The authorities of Laning v C-K^[2] and Boyd-Bush v Braden^[3] support the proposition that the District Court has jurisdiction to hear an application for criminal compensation arising from criminal offences against the person dealt with the Children’s Court. I accept Ms Muirhead’s submission and find that I have jurisdiction to hear this application in respect of both the first and the second respondents.

Facts

5. [5]
   Judge Nase summarized the facts of the offending relevant to this application when sentencing the first and second respondent on 21 June 2004.

“All the offences occurred on the evening of 13 January 2003.  The incident during which the offences were committed occupied a period of about two hours from around about 9 pm to around about 11 pm.

The ages of the complainant boys were as follows.  One was 12, two were 13, and one was 15.  The complainant boys were together when one of them threw a rock at a passing car.  You two [a reference to the first and second respondents] and another man named DDS were in the car.  The car was being driven by you, MWB, when it was struck by the rock.

On being struck, you stopped the car.  The four boys were soon located and detained and made to line up.  You, MWB, physically assaulted the boys at this time.  At least two of the boys were crying at that stage.  After some time, you said something about taking the boys out to the bush – you, MWB.

While at that location, a bag from one of the boys was searched.  The boys were then abducted by driving them away in the car.  At that stage, all four boys had been placed in the back seat.  While driving the boys, they were threatened by you, MWB.  One of the threats placed before the court, for example, was that you asked if they were circumcised and said they soon would be.

You, MWB, obtained their home addresses and made a number of threatening statements to them while they were in the car.  The car was stopped.  Two of the boys were removed from the back compartment and placed in the boot.  With two of the boys in the boot, the vehicle was driven over speed bumps. 

After some time the car was driven to another location.  The four boys were taken some distance from the car and told to stand near a fence.  You, MWB, then said to them something to the effect that you were going to let skinhead – that being a reference to ATW - deal any way he liked with them.  The third offender, who was in the car, was not involved in the sexual offences. 

MWB, at around about this time, told one of the boys to go back to the car.  You, ATW, then ordered the three boys remaining to undress.  The boys were then forced to have oral sex with one another.  At different times during that activity, both of you were laughing and joking, making jokes to the effect that they had done it before.

You, MWB, at times left the area and at times returned.  At some stage, you, MWB, directed that another boy leave and go to the car.  The two boys remaining were then forced to commit further acts of oral sex on each other by ATW.  During the episode as a whole, when the sexual assaults occurred, you, ATW, assaulted different boys by a hit or by a kick.

You, ATW, then told one of the boys to commit sodomy on another of the boys.  The particular boy then pretended to have sex with the other boy.  They were then told to sit down.  You, MWB, then asked them to come, and both boys began attempting to masturbate but were unable to maintain erections. 

I have not endeavoured to state all of the facts placed before the court but that is, I think, a sufficient statement of the facts of the offences.  At the end of the incident, both of the two remaining boys were crying.

You, MWB, then told the two boys to get dressed and go to the car.  At the car, the boys were warned by both of you that ‘nothing happened ‘and that you knew were they lived.  The boys were subsequently dropped off.

At the time, you, ATW, were 15 years and 8 months.  You are now 17 years and about 11 months.  You are to be sentenced under the provisions of the Juvenile Justice Act. 

And you, MWB, were 23 at the time and you are now 25.  You are to be sentenced under the Penalties and Sentences Act.^[4]:”

Injuries

6. [6]
   The applicant suffered mental or nervous shock as a result of the offences committed against him by the first and second respondents.

The Law

7. [7]
   The application for compensation was filed on 3 September 2008 pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA). COVA was subsequently repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  Pursuant to VOCAA s. 167(2), the application proceeds pursuant to the repealed provisions of COVA.  The application was filed within the relevant time limit pursuant to COVA s. 40(1).

8. [8]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

9. [9]
   Ms Muirhead who appears for the applicant seeks compensation as follows:-

3. (1)
   Item 33 – Mental or Nervous Shock (Severe) – 20% - 34%

10. [10]
    The applicant was examined by Dr Barbara McGuire, psychiatrist on 15 May 2008 and a report dated 20 May 2008 was prepared.^[5]  The applicant was again examined by Dr Barbara McGuire on 15 December 2010 and a further report dated 17 December 2010 was prepared.^[6]

11. [11]
    Dr McGuire concluded that the applicant suffered from attention deficit hyperactivity disorder and conduct disorder preceding the incident (out of which the offences arise), but the incident had left the applicant with post traumatic stress disorder, leading to substance abuse which had reinforced and exacerbated the applicant’s anti-social personality disorder. Dr McGuire considered that the condition was likely to last indefinitely and was exhibited to a severe degree.^[7]

12. [12]
    When the applicant was examined by Dr McGuire on 15 December 2010, she concluded that at that time the applicant no longer filled the criteria for post traumatic stress disorder, largely because the applicant’s substance abuse was masking his symptoms. Dr McGuire diagnosed him at that stage as suffering from anti-social personality disorder and substance abuse with a “very poor” prognosis. Dr McGuire concluded that “it is not possible to say that [the applicant] would not have developed the condition had he not been sexually abused but certainly the incidents for which he is seeking compensation would have had the effect of reinforcing pre-existing vulnerabilities at least.”

13. [13]
    It is submitted by Ms Muirhead that in these circumstances, an order for compensation for mental or nervous shock pursuant to item 33 should be made at 25% of the scheme maximum ($18,750). It submitted that such an order could be made after discounting for the pre-existing contributory factors of attention deficit hyperactivity disorder and conduct disorder.

14. [14]
    I accept that submission and accordingly award $18,750 pursuant to item 33.

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

It is submitted on behalf of the applicant that, pursuant to COVR s. 1A(k), the following adverse impacts have occurred to the applicant:-

1. (a)
   Impact on family relationships – Dr McGuire observes that the applicant has become less close to his mother and sister.^[8]

2. (b)
   Disruption of moving from home – the applicant feared retribution because one of the offenders lived in his street and he and his mother were relocated by the Department of Housing causing disruption to their lives.^[9]

3. (c)
   Loss of educational and occupational opportunities – the applicant in his victim impact statement states “I do not go to school even though part of me would like to, but otherwise I would like a job but I don’t have the confidence to seek this out;”^[10] further that the applicant deposes that he was “kicked out of school” and has “never been able to hold down a job”.^[11]

4. (d)
   Involvement at substance abuse and criminal behaviour – the applicant has engaged in alcohol and drug abuse in order to mask the pain of his feelings, has developed a heroin habit and has been imprisoned on numerous occasions for drug related offences.^[12]

15. [15]
    In all of the circumstances I consider an appropriate award for the adverse impacts of the sexual offences to be an amount of 15% of the scheme maximum ($11,250).

Contribution

16. [16]
    I do not consider that the applicant has contributed in any way to his own injuries either direct or indirect. Although the applicant was with three other boys, one of whom threw a rock at a passing car containing the respondents, the responses were completely disproportionate to the triggering event (the throwing of the rock) and would not in any way justify a reduction of the orders.

Conclusion

17. [17]
    A third offender, DDS, was convicted of deprivation of liberty in respect of the applicant and sentenced on 13 May 2004 to 12 months imprisonment suspended after serving three months with an operational period of 15 months. As a result of the repeal of the Criminal Offence Victims Act 1995, the originating application was not able to be amended to include the respondent DDS.  However, in the circumstances I consider that the first and second respondents should be held jointly and severally liable for the entire order relating to the mental or nervous shock, and adverse impacts, suffered by the applicant.

Order

18. [18]
    I order that the first respondent MWB and the second respondent ATW jointly and severally pay the applicant WLM the sum of $30,000.