Anm v HHG

[2010] QDC 461

[2010] QDC 461

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2929 of 2008

ANM	Applicant
and
HHG	Respondent

BRISBANE

DATE 15/06/2010

ORDER

HIS HONOUR:  This is an application for compensation to be

assessed pursuant to 663B of the Criminal Code.  Although that

section was repealed by the Criminal Offence Victims Act 1995,

which commenced on 16 December 1995, section 46 of that Act

provides that chapter 65A, in which section 663B is to be

found, continues to apply to injuries suffered by anyone

because of an act done before the commencement of the Act.

the Criminal Offence Victims Act 1995 has also been repealed

by the Victims of Crime Assistance Act 2009 which commenced on

1 December 2009.

The application before me was filed on the 21st of October

2008.  Pursuant to section 167 of the Victims of Crime

Assistance Act 2009, once an application is filed, even under

the repeal provision 663B, and the application has not been

finally decided before the commencement of the Victims of

Crime Assistance Act 2009, the Court must hear or continue to

hear and decide the application under the repealed provision.

One issue that does arise on the hearing of this application

is whether the period of limitation should be extended to

allow for the application to proceed.  That is, the respondent

was sentenced by the District Court on 19 July 1991.  The

applicant had six years from the time he turned 18 within

which to apply for criminal injuries compensation under the

Criminal Code or from the date of sentence whichever was the

later.  Therefore he had until the 19th of July 1997 to file

an application for criminal injuries compensation.

As I said the application was filed on 21 October 2008.

Therefore there is a need to look for an explanation for the

delay and any consequences of the delay in the filing of the

application.

Applying the provisions of the Limitations of Actions Act 1974

the circumstances indicate that the circumstances that have

been deposed to indicate that the applicant was only 18 or 19

at the time of the respondent's conviction.  At no stage

during the process was he told he could apply for criminal

injuries compensation, however, he remembers listening to the

public apology by the Prime Minister to the aborigines in 2008

when he realised that he himself had been significantly abused

and might be entitled to compensation.  He then sought advice

through Legal Aid Queensland and was granted legal aid in

2008.

He repeated his position to Dr Barbara McGuire; the

psychiatrist who has examined the applicant.  He told her he

never realised he could claim and did not like talking about

it.  Because he had disclosed it before and not been believed,

this has had a significant effect on him.  He decided to apply

for compensation after the public apology by the Prime

Minister when he'd realised that he himself had been

significantly abused.

The offences were committed upon the applicant when he was

between the age of eight and 13.  One of the offences of the

two that the respondent was convicted of was committed at

Eidsvold between 1 March 1978 and 1 March 1979.  The second

offence was committed between 1 January 1982 and 31 December

1983.

I come to the view that bearing in mind the applicant's age at

the time he was offended against that it is entirely

understandable, particularly if he was not believed when he

made the revelation of the abuse, that he would not take steps

to ascertain his position.  Again it is understandable that

something might trigger him, looking at his legal rights, and

that occurred in 2008, and he sought to bring the application

then when he realised what his rights were and that he could

do something about compensation.

Bearing in mind the requirements of the Limitations of Actions

Act 1974 I am satisfied those requirements are met in this

case, and that the period of limitation should be extended,

and I so extend that period of limitation to permit the

application to proceed.  I extend the time for the bringing of

the application to the 21st of October 2008 when the

application was filed.

I consider the application has moved with reasonable speed to

this point.  There's no prejudice to the respondent.  Searches

have indicated he has no assets, and it is likely any

compensation will be from the public purse.

Dealing with the impact on the applicant the facts of the two

offences are:  That the applicant was encouraged to stay

behind with the respondent on a farm to work a bulldozer, and

during the lunch break the respondent was masturbating himself

and requested the applicant to take hold of his penis and pull

on it.  The applicant did as he was requested, and the

defendant later had an orgasm.  That was the first offence.

The second offence involved the applicant when he was a little

bit older and the respondent visited his home.  The applicant

was lying on his bed reading a book, and he was touched on the

genital area by the respondent.  The applicant told his mother

and stepsister, but they did not take any notice of him.

Dr McGuire who has examined the applicant has come to the

opinion that the applicant is suffering from post traumatic

distress disorder as demonstrated by nightmares, flashbacks

and avoidant behaviour.  She considers his condition to be of

a moderate degree.  Nevertheless to the applicant's credit,

despite his condition, he is in a reasonably stable marriage,

and a stable employment history.

The applicant told Dr McGuire that he thinks of the sexual

abuse daily.  He experiences distressing flashbacks.  He has

had panic attacks, and he had one about two months before

seeing Dr McGuire.  He has been a chronically anxious person.

There are some other issues in the applicant's life, for

example, he found out that he was adopted, but I do not think

that in any way detracts from the impact that the offending

has had upon the applicant.  I do not think it can be assumed

because someone is adopted they therefore are going to suffer,

the way this applicant has suffered, because of the sexual

abuse.

The statutory allows for an award of compensation of up to
$5,000 per offence.  These were two separate offences and not
one course of conduct, and they are to be compensated
separately.

In my opinion, because of the applicant's age, it cannot be
taken that he directly or indirectly contributed to his
injuries.  He was a child, and the law is designed to protect
children from adults who offend against them.

Dr McGuire in her report expresses the opinion that the post
traumatic distress disorder diagnosed, which he exhibits to a
moderate degree, is attributable to the offences for which the
respondent was convicted.  The assessment is to be conducted
as if it were a personal injury matter.  See:  The Queen
v Jones ex parte McClintock [1996] 1 Queensland Report 524.

For each of those offences I would assess the applicant's
compensation at $5,000.  That makes a total of $10,000.  I
order the respondent to pay the applicant the sum of $10,000,
and the costs of and incidental to the application.  There
will be an order as per the draft which I have inserted the
amount of $10,000 in the draft.  Yes, order as per the draft,
initialled by me and left with the papers.

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