CLE v Losch - [2004] QDC 414

DISTRICT COURT OF QUEENSLAND

CITATION:

CLE v. Losch [2004] QDC 414

PARTIES:

CLE

(Applicant)

-v-

TREVOR ALLAN LOSCH

(Respondent)

FILE NO/S:

11 of 2004

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

16 July 2004

DELIVERED AT:

Brisbane

HEARING DATE:

2 July 2004

JUDGE:

Tutt DCJ

ORDER:

That the Respondent make compensation to the Applicant in the sum of $18,000 for the injuries suffered by her because of the offences of which the Respondent was sentenced by this Court on 24 August 2000. I further order that she be entitled to recover two thirds of her total costs of this application to be assessed or agreed under the District Court Scale where the amount recovered is less than $50,000.

CATCHWORDS:

CRIMINAL LAW – Compensation – Sexual offences – where offences span over six years – where offences occur before and after the commencement date of the Criminal Offences Victims Act 1995 – how to apportion the assessment of the injuries under the appropriate legislation – course of conduct – mental or nervous shock.

Criminal Code of Queensland, ss. 663A, 663AA and 663B.

Criminal Offence Victims Act 1995, ss. 24, 25, 46

Criminal Offence Victims Regulation 1995 regs. 1A and 2A.

HW v LO (2001) 2 Qd.R. 415
HV v. LN (2002) 1 Qd.R. 279
KAB v. DJB (2000) QSC 498
LMW v. Nicholls (2004) QDC 118
MAJ v. KM (2000) QCA 410
M.R.. v. Webb (2001) QCA 113
JI v. AV (2001) QCA 510
R v. Kazakoff ex parte Ferguson (2001) 2 Qd.R. 320

COUNSEL:

Mr A West for the Applicant.

Mr S Barry for the Respondent.

SOLICITORS:

Bushnells Lawyers for the Applicant.

Ryan & Bosscher Lawyers for the Respondent.

CLE, the applicant, has applied for compensation for the personal injuries she has alleged she sustained arising out of the criminal conduct of the respondent Trevor Allen Losch.

The Offences

Losch was convicted on 28 July 2000 and sentenced on 24 August 2000 with respect to seven offences relating to the applicant, namely:

(a) Count 1 – Maintaining a sexual relationship with a child with circumstance of aggravation / Between 28^th day of October 1991 and 19^th day of February 1998 at Brisbane and elsewhere;

(b) Count 2 – Indecent treatment of child under 16 with circumstance of aggravation / Between 28th day of October 1991 and 2nd day of November 1992 at Brisbane;

(c) Count 3 – Indecent treatment of child under 16 with circumstance of aggravation / Between 1st day of February 1994 and 1st day of May 1997 at Bribie Island;

(d) Count 5 – Indecent treatment of child under 16 with circumstance of aggravation / Between 1st day of February 1994 and 1st day of May 1997 at Bribie Island;

(e) Count 6 – Indecent treatment of child under 16 / On 18th day of February 1998 at Brisbane;

(f) Count 7 – Attempted carnal knowledge of girl under 16 / On 18th day of February…

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 CLE v Losch

Details

AGLC: CLE v Losch [2004] QDC 414
Case: [2004] QDC 414
Decision Date: 16 July 2004

CaseChat Overview and Summary

CLE brought a claim against Losch in the County Court of Victoria for compensation for injuries she suffered as a result of a series of sexual offences committed by Losch over a period of six years. The offences occurred both before and after the commencement of the Criminal Offences Victims Act 1995, which made significant changes to the law relating to compensation for victims of sexual offences. The court was required to determine how to apportion the assessment of the injuries under the appropriate legislation, given the unique circumstances of the case.

The primary issue before the court was whether the course of conduct of the offences should be considered as a single event or as multiple incidents for the purposes of assessing compensation under the relevant legislation. The court also had to consider whether the Applicant was entitled to compensation for mental or nervous shock caused by the offences. The court needed to determine the correct approach to the assessment of compensation in cases where the offences occurred both before and after the commencement of the Victims Act.

The court held that the course of conduct of the offences should be considered as a single event for the purposes of assessing compensation, as the offences were part of a continuous and ongoing course of conduct. The court also found that the Applicant was entitled to compensation for mental or nervous shock caused by the offences. The court held that the appropriate approach to the assessment of compensation in cases where the offences occurred both before and after the commencement of the Victims Act was to apply the provisions of the Victims Act to the injuries caused by the offences occurring after the commencement date, and to apply the provisions of the previous legislation to the injuries caused by the offences occurring before the commencement date. The court ordered that Losch pay the Applicant compensation in the sum of $18,000, together with two thirds of her costs of the application.

Orders

Orders of the court

That the Respondent make compensation to the Applicant in the sum of $18,000 for the injuries suffered by her because of the offences of which the Respondent was sentenced by this Court on 24 August 2000. I further order that she be entitled to recover two thirds of her total costs of this application to be assessed or agreed under the District Court Scale where the amount recovered is less than $50,000.

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:	CLE v. Losch [2004] QDC 414
PARTIES:	CLE (Applicant) -v- TREVOR ALLAN LOSCH (Respondent)
FILE NO/S:	11 of 2004
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court, Ipswich
DELIVERED ON:	16 July 2004
DELIVERED AT:	Brisbane
HEARING DATE:	2 July 2004
JUDGE:	Tutt DCJ
ORDER:	That the Respondent make compensation to the Applicant in the sum of $18,000 for the injuries suffered by her because of the offences of which the Respondent was sentenced by this Court on 24 August 2000. I further order that she be entitled to recover two thirds of her total costs of this application to be assessed or agreed under the District Court Scale where the amount recovered is less than $50,000.
CATCHWORDS:	CRIMINAL LAW – Compensation – Sexual offences – where offences span over six years – where offences occur before and after the commencement date of the Criminal Offences Victims Act 1995 – how to apportion the assessment of the injuries under the appropriate legislation – course of conduct – mental or nervous shock. Criminal Code of Queensland, ss. 663A, 663AA and 663B. Criminal Offence Victims Act 1995, ss. 24, 25, 46 Criminal Offence Victims Regulation 1995 regs. 1A and 2A. HW v LO (2001) 2 Qd.R. 415 HV v. LN (2002) 1 Qd.R. 279 KAB v. DJB (2000) QSC 498 LMW v. Nicholls (2004) QDC 118 MAJ v. KM (2000) QCA 410 M.R.. v. Webb (2001) QCA 113 JI v. AV (2001) QCA 510 R v. Kazakoff ex parte Ferguson (2001) 2 Qd.R. 320
COUNSEL:	Mr A West for the Applicant. Mr S Barry for the Respondent.
SOLICITORS:	Bushnells Lawyers for the Applicant. Ryan & Bosscher Lawyers for the Respondent.