G v K - [2010] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION: G v K [2010] QDC 167

PARTIES: G as Litigation guardian for K
(Applicant)
v
K
(Respondent)

FILE NO/S: 338 of 2009

PROCEEDING: Application for Criminal Compensation

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 23 April 2010

DELIVERED AT: Cairns

HEARING DATE: 12 March 2010

JUDGE: Everson DCJ

ORDER:
1. That the respondent pay the applicant as litigation guardian for the victim the sum of $45,000.00 by way of compensation.
2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.
3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

CATCHWORDS:
Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS: Cuthbertson & Co for the applicant

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 2 April 2008 namely incest.

Facts

On or about the 17 July 2006 the applicant had sexual intercourse with the victim, his 15 year old daughter (“the incident”).

Injuries

As a consequence of the incident the applicant has suffered psychological sequelae.

The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”

[1][2002] 2 QdR 303 at 310

Relevantly the Compensation Table prescribes:

· Item 33 Mental or nervous shock (severe) … 20% - 34%

Section 25 of COVA

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 G v K

Details

AGLC: G v K [2010] QDC 167
Case: [2010] QDC 167
Decision Date: 23 April 2010

CaseChat Overview and Summary

G v K was a case heard by the Supreme Court of Queensland, in which G, the litigation guardian for a minor victim, sought compensation from K, who had been convicted of sexually assaulting the minor. The primary issue before the court was the determination of an appropriate amount of compensation for both physical and psychological injuries suffered by the victim as a result of the assault.

The court had to consider the extent of the physical injuries and the psychological impact of the sexual offence. In assessing the compensation, the court also took into account the age of the victim and the long-term effects of the assault. The court was required to balance the need for adequate compensation against the financial circumstances of the respondent, ensuring that the compensation was sufficient to address the victim's needs without unjustly burdening the respondent.

The Supreme Court awarded $45,000 to the victim, to be managed by The Public Trustee of Queensland during the victim's minority. The court's decision was based on a comprehensive evaluation of the injuries and their impact on the victim's life, along with a consideration of the respondent's ability to pay. The compensation amount was deemed appropriate to cover the victim's physical and psychological needs and to provide for future requirements related to the assault. The court's final orders mandated that the compensation be paid to The Public Trustee of Queensland on behalf of the victim, ensuring proper management and use of the funds.

Orders

Orders of the court

1. That the respondent pay the applicant as litigation guardian for the victim the sum of $45,000.00 by way of compensation.

2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	G v K [2010] QDC 167
PARTIES:	G as Litigation guardian for K (Applicant) v K (Respondent)
FILE NO/S:	338 of 2009
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	23 April 2010
DELIVERED AT:	Cairns
HEARING DATE:	12 March 2010
JUDGE:	Everson DCJ
ORDER:	1. That the respondent pay the applicant as litigation guardian for the victim the sum of $45,000.00 by way of compensation. 2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. 3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.
CATCHWORDS:	Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11]
COUNSEL:
SOLICITORS:	Cuthbertson & Co for the applicant