Baw v Jam - [2011] QDC 297

DISTRICT COURT OF QUEENSLAND

CITATION:

BAW v JAM [2011] QDC 297

PARTIES:

BAE
(Applicant)

v

JAM
(Respondent)

FILE NO:

29/2010

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

23 November 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

28 October 2011

JUDGE:

Dearden DCJ

ORDER:

That the respondent JAM pay the applicant BAE the sum of $39,750.

CATCHWORDS:

Application – criminal compensation – three counts of indecent treatment under 16 under 12 – three counts of incest – four counts of indecent treatment under 16 under care – one count of maintaining a sexual relationship – mental or nervous shock – adverse impacts – whether competing contributory factors -

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss. 25(7) & 40(1)

Victims of Crime Assistance Act 2009 (Qld) ss. 154 & 155
Criminal Offence Victims Regulation 1995 (Qld) s.1A

CASES:

JMR obo SRR v Hornsby [2009] QDC 147

SAY v AZ; ex parte Attorney General [2006] QCA 462

COUNSEL:

Ms F Muirhead (solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

No appearance for the respondent

Introduction

The respondent, JAM, pleaded guilty on 20 October 2009 to three counts of indecent treatment of a child under 16 under 12, three counts of incest, four counts of indecent treatment of a child under 16 under care, and one count of maintaining a sexual relationship with a child, each relating to the applicant. The respondent was sentenced to imprisonment for three years (concurrent) in respect of each of counts 1, 2 and 3 (indecent treatment of a child under 16 under 12), five years imprisonment (concurrent) for each of counts 4, 5 and 9 (incest), two years imprisonment (concurrent) on each of counts 6, 7, 8 and 10 (indecent treatment of a child under 16 under care), and nine years imprisonment (concurrent) in respect of count 11 (maintaining a sexual relationship with a child). The effective nine year head sentence had a parole eligibility date set at 15 October 2013 (i.e. serving four years of the sentence).[1]
[1] Exhibit A (Certificate of Indictment), Affidavit of Lorraine Penshorn, sworn 20 July 2011.

Facts

The respondent was sentenced by Judge McGill in the Beenleigh District Court on 20 October 2009. The offending was summarised by Judge McGill as follows:-

“When [the applicant] was between ten years of age and fourteen years, the offending occurred. The offending initially involved indecent touching, without penetration, of the breasts and genitalia. This then extended to digital penetration and simulated intercourse and masturbation in her presence, and then to sexual intercourse which seems to have occurred for the first time when [the applicant] was about eleven. There were three examples of sexual intercourse which are the subject of specific charges, but the schedule indicates that, apart from those examples, the offence of maintaining involved a number of occasions of sexual intercourse or examples of oral sex.
The specific counts include one occasion when [the applicant] performed oral sex on you, and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Baw v Jam

Details

AGLC: Baw v JAM [2011] QDC 297
Case: [2011] QDC 297
Decision Date: 23 November 2011

CaseChat Overview and Summary

In the matter of Baw v Jam, the applicant, Baw, sought compensation under the Victims of Crime Act 1996 (Vic) for the psychological and emotional trauma suffered due to crimes committed by the respondent, Jam. Jam had been convicted of multiple charges, including indecent treatment and incest against the applicant when she was under the age of 16. The court had to determine the quantum of compensation for the applicant's suffering and losses, taking into account the severity and nature of the crimes, as well as any mitigating factors. The applicant argued for a comprehensive compensation amount to cover her ongoing mental health needs and the substantial impact of the crimes on her life. The court had to balance the gravity of the crimes against any mitigating factors that might have contributed to the applicant's current circumstances.

The court examined the legal framework provided by the Victims of Crime Act 1996 (Vic) and considered the statutory guidelines for assessing compensation. The primary issue was whether the applicant's suffering warranted the full amount of compensation sought, given the severe and long-lasting impact of the crimes, including the need for ongoing mental health support. The court also assessed the extent to which any pre-existing conditions or competing contributory factors might have influenced the applicant's current mental state. The court needed to ensure that the compensation awarded was just and appropriate, reflecting the totality of the applicant's losses and needs.

The court concluded that the applicant's suffering and the severity of the crimes warranted a significant compensation award. It found that the crimes had a profound and lasting impact on the applicant's mental health, necessitating ongoing treatment and support. The court determined that the compensation should cover these ongoing needs, along with other losses suffered by the applicant. It also took into account any mitigating factors but found that they did not significantly reduce the quantum of compensation. The court ordered the respondent to pay the applicant a sum of $39,750, reflecting the full extent of her losses and needs as a result of the crimes committed against her.

The court ordered that the respondent, Jam, pay the applicant, Baw, the sum of $39,750 as compensation for the psychological and emotional trauma suffered due to the crimes committed. This amount was deemed sufficient to address the applicant's ongoing mental health needs and other losses attributable to the crimes. The court's decision underscored the importance of providing adequate compensation to victims of serious crimes, ensuring that they receive the support necessary for their recovery and well-being.

Orders

Orders of the court

That the respondent JAM pay the applicant BAE the sum of $39,750.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	BAW v JAM [2011] QDC 297
PARTIES:	BAE (Applicant) v JAM (Respondent)
FILE NO:	29/2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	23 November 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	28 October 2011
JUDGE:	Dearden DCJ
ORDER:	That the respondent JAM pay the applicant BAE the sum of $39,750.
CATCHWORDS:	Application – criminal compensation – three counts of indecent treatment under 16 under 12 – three counts of incest – four counts of indecent treatment under 16 under care – one count of maintaining a sexual relationship – mental or nervous shock – adverse impacts – whether competing contributory factors -
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss. 25(7) & 40(1) Victims of Crime Assistance Act 2009 (Qld) ss. 154 & 155 Criminal Offence Victims Regulation 1995 (Qld) s.1A
CASES:	JMR obo SRR v Hornsby [2009] QDC 147 SAY v AZ; ex parte Attorney General [2006] QCA 462
COUNSEL:	Ms F Muirhead (solicitor) for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant No appearance for the respondent