HRM v Estate of NPH[2011] QDC 229

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   On 19 June 2008, NPH (now deceased) was sentenced by me at the Beenleigh District Court in respect of one count of incest committed by him on the applicant HRM (his daughter) between 31 December 1974 and 12 January 1975 at Greenbank. NPH was sentenced to five years imprisonment suspended after serving 12 months imprisonment, with an operational period of five years. On appeal the sentence was reduced to four years imprisonment suspended after six months, with an operational period of four years.^[1]

2. [2]
   The facts in respect of the matter are neatly summarised in R v NJ [2008] QCA 331 as follows:-

“[7] [The respondents] offending occurred during the Christmas/New Year period of 1974/5 … the [respondent] and the [applicant], his natural daughter then 14 years old, had been at a swimming hole on the family property at Greenbank with other members of the family.  When the others returned to the home, the [respondent] and the [applicant] lagged behind.  Whilst they were walking back to the house, the [respondent] pulled down her pants and said he wanted to show her something.  [The respondent] pulled out his penis, pushed the [applicant] to the ground and had sexual intercourse with her.  [The respondent] withdrew his penis and ejaculated on the grass to the side of her body.  [The applicant] had had no prior sexual experience.  [The applicant] said she felt soreness within the vaginal for several days afterwards but apparently had no other physical injury.  The [respondent] told her not to tell her mother.

[8] The [respondent] maintained her silence over this offence for the next two and half years until leaving the family home to reside elsewhere.  She first told a friend and then at her friend’s urging told her mother.  Both of them immediately confronted the [respondent] who admitted his offending not only to his wife but also to other members of the family.

[9] According to the [applicant] when initially confronted by her and her mother, the [respondent] responded in an off-hand way by saying “so what if I did”.  Whether that comment truly reflects the level of the [respondent’s] remorse may be open to question but it has coloured the [applicant’s] memory of the event.  She was hurt also by the fact that her mother returned to live with the [respondent] after separating for only three days.  The [applicant’s] mother and the [respondent] later divorced.  The [applicant] returned to the former family home to live with her mother for a period after the [applicant’s] first son was born but it seemed their relationship was never fully restored.  The [applicant] maintained what seems to have been cordial conduct with the [respondent] prior to her making her complaint to the police on 11 December 2003.

[10] For some reason, as yet unexplained the police did not contact the [respondent] about the matter until 24 January 2007.  He readily admitted his offending to the police which meant it was never likely that the [applicant] would ever be required to give evidence.”^[2]

Injury

3. [3]
   The applicant suffered mental or nervous shock as a result of the offence committed against her by the respondent.

The Law

4. [4]
   The application in this matter was filed on 6 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.  Pursuant to s 154(1)(a)(ii) and s 155(1)(b) the application proceeds pursuant to the repealed provisions of s 663B of the Criminal Code.

5. [5]
   I refer to adopt and my exposition of the relevant applicable law under Criminal Code s. 663B as set out in paragraphs 9 and 10 of TLK v JD [2007] QDC 132.

Compensation

6. [6]
   Mr Saggers, who appears for the applicant, seeks compensation for mental or nervous shock suffered by the applicant as a result of the relevant offence. The applicant attended on Frank Bergmann, clinical psychologist on 9 June 2010 and Mr Bergmann provided a report dated 20 July 2010.^[3]  Mr Bergmann noted that the applicant “experienced significant cognitive and emotional distress at the time of the incidents (my emphasis) and … she currently appears to experience post-traumatic stress symptoms and suffer from major depression.”^[4]

7. [7]
   Mr Bergmann noted that the applicant warranted a diagnosis of “major depressive disorder – severe chronic” and “post-traumatic stress disorder – chronic” … “of sufficient severity and duration so as to qualify as recognised mental illnesses and therefore constitute the presence of ‘nervous shock’.”^[5]

8. [8]
   The relevant prescribed amount, where the injury was suffered prior to 1 July 1984, is $5,000.^[6]

9. [9]
   The only issue which does arise is that the applicant, in relaying to Frank Bergmann the relevant history, advised that at the age of eight she had been required to perform oral sex on a friend’s father, and that subsequent to the charged offence in respect of the respondent, there was a further incident when the respondent returned from work early to find the applicant alone at home, and he then had sex with the applicant on the marital bed when she “just froze and blanked out”. In addition there was an occasion when the applicant’s father attempted to get at her in a caravan, and another occasion when her father requested sex after the applicant had moved in with “a lady down the road”.^[7]

10. [10]
    In my view, given the relevant maximum applicable of $5,000, it is clear that any assessment of damages on common law principles of assessment of damages for personal injury,^[8] even if reduced to account for difficulties with causation, would vastly exceed the relevant applicable limit of $5,000.  Accordingly I award the applicant $5,000 in criminal compensation pursuant to the repealed provisions of s. 663B of the Criminal Code, plus costs to be assessed on the standard basis.

11. [11]
    The applicant’s cause of action survives the death of the respondent, which occurred on 18 April 2010.^[9]  Such an application can proceed in the absence of any person representing the estate of the deceased respondent (there has been no representative in these proceedings) given that it has been established that the deceased left neither a will nor an estate of substantial value;^[10]

Order

12. [12]
    I order that the estate of NPH (deceased) pay the applicant HRM the sum of $5,000, and costs to be assessed on a standard basis.