B v C
[2003] QDC 294
•28 March 2003
DISTRICT COURT OF QUEENSLAND
CITATION: B & Anor v. C [2003] QDC 294 PARTIES: B and D (Applicants) v. C (Respondent) FILE NO/S:
4663/02 4671/02
PROCEEDING: Application for Criminal Compensation DELIVERED ON: 28 March 2003 DELIVERED AT: Brisbane HEARING DATE: 20 March 2003 JUDGE: O’Brien DCJ ORDER:
That the respondent, C, pay to the applicant, D, the sum of $15,000 by way of compensation for injuries suffered by the applicant by reason of the offences of which the respondent was convicted in the District Court of Brisbane on 12 December 2001.
Further order that the respondent, C, pay the sum of $5,000 to the applicant, B, by way of compensation for injuries suffered by her by reason of the offences of which the respondent was convicted in the District Court of Brisbane on 12 December 2001.
In each case order that the respondent pay the costs of and incidental to the application in such amount as may be agreed or in the absence of agreement to be assessed.
CATCHWORDS:
CRIMINAL COMPENSATION – where sexual offences committed by natural father – where applicants suffered mental or nervous shock – whether offences arose out of one
course of conduct or closely related courses of conduct within
the meaning of s.663BMAJ v KM [2000] QCA 410
R v. Chong ex parte Chong [2001] 2 Qd.R. 301
R v. Llorente ex parte Hendry [2001] 2 QR 415
R v. Wraight & Dakon ex parte Fullerton (1980) Qd.R. 582
Whyte v. Robinson, D.C. applic. 2274 of 1999, delivered 16
July 1999
Criminal Code 1899
Criminal Code Amendment Act 1984
Criminal Offence Victims Act 1995COUNSEL:
Mr P Johns (sol) for the applicants No appearance for the respondent
SOLICITORS: Gilshenan & Luton for the applicants
These are two applications for criminal compensation which might conveniently
determined together since they involve the one respondent. On 12 December 2001
C was convicted before me of several offences of a sexual nature and sentenced to a
term of imprisonment. The victims of those offences were the present applicants
who now seek compensation in respect of injuries suffered by them as a
consequence of the commission of the offences.
Both applicants are the natural daughters of the respondent. The applicant D was
the victim of three of the offences of which the respondent was convicted. The first
such offence occurred some time during 1972 when the respondent removed the
applicant’s pyjama pants before manually stimulating her vagina with his finger.
The second, which involved digital penetration of the child’s vagina occurred
during 1975 and the third offence, an act of sodomy, occurred during 1976. The
offences involving B occurred on the one occasion in 1976 when she was in Grade
3. The respondent entered her bedroom at night and within a short space of time he
twice digitally penetrated her and then placed his penis in her vagina. I need say
nothing more about the circumstances of the offences beyond observing that there
clearly was no conduct on the part of either applicant which contributed in any way
to any injury which they suffered.
There is no evidence to establish that either applicant suffered physical injury,
although it is clear that each suffered significant psychological consequences as a
result of the respondent’s conduct.
In the case of D I have her affidavit and her victim impact statement tendered at
sentence which attests to those things. I need not here recite those matters, but I
should make reference to the report of Dr. Kevin McNamara, a consultant
psychiatrist, who considered that she suffers a post traumatic stress disorder which
is “severe and unremitting and has been caused solely by her father’s abuse”.
Similarly, B has set out fully in her affidavit and in her victim impact statement the
adverse effects which the respondent’s conduct have had upon her. Again, I need
not recite those matters in detail. I have also a report from a psychologist, Mr. Errol
Rodrigues, who considers that the applicant has suffered a post-traumatic stress
disorder as a result of the respondent’s conduct. Her condition has improved over
the years, but she continues to be symptomatic.
I am satisfied that each of the applicants has suffered an injury which amounts to
mental or nervous shock for the purposes of the legislation and the only matter that
remains to be determined is the amount of compensation to which they are entitled.
It is submitted on behalf of the applicants that they are entitled to be compensated
for each individual offence of which the respondent was convicted, the submission
being that the entitlement to compensation arose at the time the injuries were
inflicted and that the right then acquired cannot be abrogated by any subsequent Act
not expressly declared to be retrospective. This was in fact the approach adopted by
the judge at first instance in Whyte v. Robinson, D.C. applic. 2274 of 1999,
delivered 16 July 1999. However, on appeal (No. 7292 of 1999, delivered 23
March 2000), the Court followed the then recently delivered decision in R v. Chong
ex parte Chong [2001] 2 Qd.R. 301 wherein it was held that the right to
compensation arises only when a person is convicted on indictment of an indictable
offence relating to the person of the applicant. Before conviction, there is no accrued right. The date of conviction in the present case was 12 December 2001.
Although the provision of the Criminal Offence Victims Act were then in force, s.46
of that Act invokes the application in the circumstances of this case of Chapter 65A
of the Criminal Code. Prior to 1984, multiple offences frequently attracted multiple
awards of compensation. See, for example, R v. Wraight & Dakon ex parte
Fullerton (1980) Qd.R. 582. In 1984 however, the legislation was amended in two
important respects. Firstly, where injury in connection with which an application is
made was suffered before the commencement of the Criminal Code Amendment Act
of 1984, the maximum amount of compensation was increased from $2,000 to
$5,000. Secondly, and perhaps more importantly for present purposes, a restriction
on compensation for multiple offences was introduced. Section 663B as introduced
by the Criminal Code Amendment Act 1984 provided:
“(1) Where a person is convicted on indictment of any indictable
offence related to the person of any person or of more than one indictable offence relating to the person of any person (whether in respect of one indictment or more than one indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injuries suffered by the person by reason of the offence or offences of which the offender is convicted.
(1A) For the purpose of determining whether courses of conduct are closely related regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions,
one in relation to the other.”
These provisions, in my view, must govern this present application. That was the
manner in which the applications proceeded in MJA v. KM [2000] QCA 410 and in
R v. Llorente ex parte Hendry [2001] 2 QR 415, both of which involved
applications for compensation begun after the commencement of Criminal Offence Victims Act in respect of offences committed prior to 1984. In that last mentioned
case, de Jersey CJ observed at pp. 416-417:
“Reference to ‘course(s) of conduct’ was first introduced into the
Code provisions by the Criminal Code Amendment Act 1984. Following the 1999 convictions of the respondent, the applications for compensation fell to be determined by the scheme then delineated – by the Criminal Offence Victims Act 1995 but for its transitional
provision s.46(2) which, because of the times at which these injuries were suffered, directs the court back to the Chapter 65A Code provisions, but in their form as at the hearing of the applications, subject to the specific limitations on amounts to which I refer
below”.
The question then, in respect of each of the present applicants, is whether the
offences arose out of one course of conduct or closely related courses of conduct
within the meaning of s.663B. Factors relevant in that regard are discussed in cases
such as Llorente and MJA v. KM. In Llorente the Chief Justice, with whom Muir J
agreed, considered that the words ‘course of conduct’ connote a succession or series
of acts or omissions which, because of a sufficiently close interrelation, whether by
nature, time, place or otherwise, display in aggregation an identifiable overall
pattern. His Honour referred to the need for an element of continuity and said:
“It goes without saying that one cannot be proscriptive of the
requisite extent of relationship. One obviously cannot, for example, specify a maximum duration for any separate course of conduct. Given a high level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist over days, weeks, months, but even with similar acts substantial separation in time would ordinarily exclude their being regarded as arising out of
the same course of conduct or closely related courses of conduct …
The events involved in these offences were far too distant and separate in time and place to warrant the conclusion that they arose out of the same course of conduct. They arose out of the same
relationship effected by ‘guilty passion’ on the part of the
respondent, but that was not enough to establish a ‘course of
conduct’ sufficiently precise and limited for the purposes of the
provision.”
It should be noted that Llorente was concerned with six offences committed over
some six or seven years and committed on distinct occasions separated substantially in time and place and with the nature of the acts constituting the offences exhibiting
some variety.
In MJA v. KM the court was concerned with six offences of indecent dealing
committed over a period of about five months. Davies JA, thought that the facts
relevant to the determination of the issue there were the similar, but escalating
nature of the respondent’s conduct, the fact that the offences occurred in similar
circumstances, that they formed a pattern of similar offences of at least weekly
occurrence, and that they occurred over a period of a little under five months. His
Honour considered it plain that those offences arose out of one course of conduct.
Applying these principles to the circumstances of the present case, it seems to me to
be clear that the conduct involving the applicant D, cannot be said to have arisen out
of the one course of conduct. The events the subject of the charges were separated
substantially in terms of time, place and circumstance. On the other hand, the
events involving the applicant B, occurred within a very short space of time and in
my view can only properly be seen as constituting a single course of conduct. It
follows in my view that the maximum amount of compensation to which the
applicant D is entitled is the sum of $15,000, whilst in the case of B, the maximum
amount is $5,000. In a common law action for damages, I am satisfied that the
entitlement of both applicants would have been much greater and each should
therefore, in my view, receive the maximum amount which the legislation enables
me to award.
In the result, I order that the respondent C should pay to the applicant D the sum of
$15,000 by way of compensation for injuries suffered by the applicant by reason of
the offences of which the respondent was convicted in the District Court of
Brisbane on 12 December 2001. I further order that he should pay the sum of $5,000 to the applicant, B, by way of compensation for injuries suffered by her by
reason of the offences of which he was convicted on that same date. In each case I
order that the respondent should pay the costs of and incidental to the application in
such amount as may be agreed or in the absence of agreement to be assessed.
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