H v S - [2010] QDC 416

DISTRICT COURT OF QUEENSLAND

CITATION:

H v S [2010] QDC 416

PARTIES:

H (as litigation guardian for M)

(Applicant)

v

S

(Respondent)

FILE NO/S:

D122/09

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Toowoomba

DELIVERED ON:

4 November 2010

DELIVERED AT:

Toowoomba

HEARING DATE:

1 November 2010

JUDGE:

Rafter SC DCJ

ORDER:

1. The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of maintaining a sexual relationship with a child under 12 years and indecent treatment of a child under 16 with a circumstance of aggravation which led to the conviction of the respondent in the District Court at Brisbane on 16 September 2004.

2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until he attains 18 years.

3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

4. The Public Trustee pay to the solicitors for the applicant’s Litigation Guardian (whose receipt shall be sufficient discharge) the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex gratia payment made by the State of Queensland pursuant to this assessment order.

5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of this trust fund as may be advised.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – mental or nervous shock - adverse impacts of sexual offences – assessment of compensation

Criminal Offence Victims Act 1995 (Qld), s 20, s 22, s 24, s 25

Criminal Offence Victims Regulation 1995 (Qld), s 1A, s 2, s 2A

Public Trustee Act 1978 (Qld), s 67

Victims of Crime Assistance Act 2009 (Qld), s 149, s 155

JI v AV [2002] 2 Qd R 367; [2001] QCA 510

R v Ward, ex parte Dooley [2001] 2 QdR 436; [2000] QCA 493

RMC v NAC [2009] QSC 149

COUNSEL:

K Parry, solicitor for the applicant

No appearance by or for the respondent

SOLICITORS:

Clewett Lawyers for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for emotional injuries caused by sexual offences committed by the respondent. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.

On 16 September 2004 in the District Court at Brisbane, the respondent was convicted of, inter…

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 H v S

Details

AGLC: H v S [2010] QDC 416
Case: [2010] QDC 416
Decision Date: 4 November 2010

CaseChat Overview and Summary

In this case, the applicant, identified as H, sought compensation from the respondent, identified as S, under the provisions of the Criminal Offence Victims Act 1995. The applicant, a victim of sexual offences, sought compensation for the mental and nervous shock caused by the offences committed against her. The respondent had been convicted in the District Court at Brisbane on 16 September 2004 for maintaining a sexual relationship with a child under 12 years and for indecent treatment of a child under 16, which included a circumstance of aggravation. The case was heard and decided in the Supreme Court of Queensland.

The primary legal issue before the court was to determine the appropriate amount of compensation to be awarded to the applicant for the injuries sustained as a result of the respondent's criminal offences. The court had to assess the extent of the adverse impacts of the sexual offences on the applicant's mental health and well-being, and to determine a fair and appropriate compensation amount that would address the harm suffered. The court also had to consider the statutory provisions of the Criminal Offence Victims Act 1995 and the relevant case law in making its decision.

The court, after considering the evidence and submissions presented by both parties, found that the applicant had suffered significant mental and nervous shock as a direct result of the respondent's offences. The court took into account the severity and nature of the offences, the impact on the applicant's mental health, and the statutory framework for compensation under the Criminal Offence Victims Act 1995. The court awarded the applicant $26,250 by way of compensation, to be paid to the Public Trustee of Queensland. The court also authorised the Public Trustee to advance funds for the applicant's maintenance, education, and treatment, including counselling, as appropriate. The court further directed that the Public Trustee pay the applicant's legal costs and outgoings from the compensation monies received.

In summary, the court ordered that the respondent pay the applicant $26,250 in compensation, with the monies to be held by the Public Trustee of Queensland until the applicant attains 18 years. The Public Trustee is authorised to use the funds for the applicant's benefit as necessary. Additionally, the court directed that the Public Trustee pay the applicant's legal costs and outgoings from the compensation monies received. The applicant and the Public Trustee are at liberty to apply to the court regarding the administration of the trust fund as may be advised.

Orders

Orders of the court

1. The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of maintaining a sexual relationship with a child under 12 years and indecent treatment of a child under 16 with a circumstance of aggravation which led to the conviction of the respondent in the District Court at Brisbane on 16 September 2004.

2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until he attains 18 years.

3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

4. The Public Trustee pay to the solicitors for the applicant’s Litigation Guardian (whose receipt shall be sufficient discharge) the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex gratia payment made by the State of Queensland pursuant to this assessment order.

5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of this trust fund as may be advised.

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:	H v S [2010] QDC 416
PARTIES:	H (as litigation guardian for M) (Applicant) v S (Respondent)
FILE NO/S:	D122/09
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court at Toowoomba
DELIVERED ON:	4 November 2010
DELIVERED AT:	Toowoomba
HEARING DATE:	1 November 2010
JUDGE:	Rafter SC DCJ
ORDER:	1. The respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of maintaining a sexual relationship with a child under 12 years and indecent treatment of a child under 16 with a circumstance of aggravation which led to the conviction of the respondent in the District Court at Brisbane on 16 September 2004. 2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant until he attains 18 years. 3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate. 4. The Public Trustee pay to the solicitors for the applicant’s Litigation Guardian (whose receipt shall be sufficient discharge) the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex gratia payment made by the State of Queensland pursuant to this assessment order. 5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of this trust fund as may be advised.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – mental or nervous shock - adverse impacts of sexual offences – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 20, s 22, s 24, s 25 Criminal Offence Victims Regulation 1995 (Qld), s 1A, s 2, s 2A Public Trustee Act 1978 (Qld), s 67 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 JI v AV [2002] 2 Qd R 367; [2001] QCA 510 R v Ward, ex parte Dooley [2001] 2 QdR 436; [2000] QCA 493 RMC v NAC [2009] QSC 149
COUNSEL:	K Parry, solicitor for the applicant No appearance by or for the respondent
SOLICITORS:	Clewett Lawyers for the applicant No appearance by or for the respondent