HBC v DDS[2011] QDC 232

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The first respondent, DDS pleaded guilty on 26 February 2004 at the Beenleigh District Court to one count of deprivation of liberty. The first respondent was sentenced by Judge Nase at the Beenleigh District Court on 13 May, 2004 to 12 months imprisonment suspended after serving three months with an operational period of 15 months^[1].

2. [2]
   The second respondent MWB pleaded guilty to counts of common assault and deprivation of liberty in the District Court at Beenleigh on 16 June 2004. The second respondent was sentenced by Judge Nase in the Beenleigh District Court on 21 June 2004 to concurrent terms of six months imprisonment in respect of each of the counts^[2].

3. [3]
   The third respondent ATW pleaded guilty to common assault and deprivation of liberty in the District Court at Beenleigh on 11 March 2004. The third respondent was also sentenced by Judge Nase in the Beenleigh District Court (but pursuant to the Juvenile Justice Act) on 21 June, 2004 to three months detention to be released after serving 50 per cent of the sentence^[3].

Facts

4. [4]
   Judge Nase summarised the facts of the offending relevant to this application when sentencing the second and the third respondents 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 second and third 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]

5. [5]
   At the sentence of the first respondent on 13 May 2004 Judge Nase summarised the facts as follows:-

“The deprivation of liberty offences relate to four boys aged between 12 and 15 years. One of the boys had thrown a rock at a car in which you and two other men were travelling. The boys were apprehended and detained for about two hours by you and two other men. During the time they were detained they were repeatedly threatened by the man MWB who, once again, was an older man, and at one point two of the boys were locked in the boot and the car was driven about over speed bumps.

The boys became very frightened. At one stage during the offence, the two other men took three of the boy away from the  car where various sexual offences were committed in relation to the boys.

The sentence has proceeded on the basis you were unaware those offences were to be committed and did not participate in them.”^[5].

6. [6]
   The applicant at the time of the offence was 12 years old and the respondents were aged 21, 23 and 15 (respectively). The applicant was not subjected to any of the sexual offences described in the facts set out above.

Injuries

7. [7]
   The applicant suffered mental or nervous shock as a result of the offences committed against him.

The law

8. [8]
   The application in these proceedings was filed on 23 December 2009, 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. However, the application complies with the relevant transitional provisions of VOCAA s.154 and 155, and consequently the applicant is entitled to proceed pursuant to COVA s.24. The application was filed within the relevant time limit pursuant to COVA s.40(1).

9. [9]
   I refer to and adopt my exposition of the relevant applicant law under COVA as set out in paragraph 6 of Paterson v Chand  & Chand  [2008] QDC 214.

Compensation

10. [10]
    Ms Muirhead, who appears on behalf of the applicant, seeks compensation as follows:-

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

11. [11]
    The applicant was examined by Dr Barbara McGuire, psychiatrist on 31 January 2011.

12. [12]
    Dr McGuire diagnoses the applicant as suffering “from post traumatic stress disorder to a severe degree and also from substance abuse which is probably secondary to the trauma. Post traumatic stress disorder is characterized by nightmares, flashbacks, avoidant behaviour, irritability, hypervigilance etc”.^[6]Dr McGuire expresses the view that although the applicant grew up with a violent father, the applicant’s symptoms (PTSD) are (in Dr McGuire’s view) “entirely due to the incident [involving the first, second and third respondents]”.^[7]

13. [13]
    In this context, the submission is made by Ms Muirhead that the mental or nervous shock suffered by the applicant was of such a nature, given both its severity and its chronicity, that an award should be made at 28% of the scheme maximum, namely $21,000. I accept this submission, and award $21,000 pursuant to item 33.

Contribution

14. [14]
    I do not consider that this applicant has contributed in any way to his own injuries^[8]. Although the applicant was with three other boys, one of whom threw  a rock at a passing car, the  responses was completely disproportionate to the triggering event (the throwing of the rock) and, in any event, it does not appear that the applicant was the child who threw the rock which triggered the criminal offending.

Order

15. [15]
    I order that the first respondent DDS, the second respondent MWB and the third respondent ATW, jointly and separately pay the applicant HBC compensation in the amount of $21,000.