Jackson v Keating

[2000] QDC 61

DISTRICT COURT OF QUEENSLAND

CITATION:

Jackson v Keating [2000] QDC 061

PARTIES:

Jason Craig Jackson              Applicant
And
Frank Terrence Keating        Respondent

FILE NO/S:

D2445 of 2000

DIVISION:

Civil

PROCEEDING:

ORIGINATING COURT:

District Court

DELIVERED ON:

8 August 2000

DELIVERED AT:

Brisbane

HEARING DATE:

8 August 2000

JUDGE:

Judge Robertson

ORDER:

(1)    Respondent to pay to the applicant, by way of  criminal compensation under the Criminal Code Scheme (now repealed), the sum of $15,000.

(2)    Respondent to pay the applicant's costs of and incidental to the application, to be assessed.

CATCHWORDS:

Criminal Compensation; Criminal Code Scheme; indecent treatment; assessing level of compensation; principles; whether further uncharged incidents can be taken into account when assessing level of compensation.

R v. Jones; ex parte McClintock (1995) 79 A Crim R 238
R v. Tiltman unreported judgement of the Supreme Court, delivered 22 June 1995
Commonwealth v. Introvigne (1981-82) 150 CLR 258

COUNSEL:

SOLICITORS:

1. The applicant seeks an order under the now repealed Criminal Code Scheme for compensation.  On 28 April 2000, the respondent pleaded guilty to two counts of indecent treatment of the applicant when he was a 14 year old school boy.  At the time of the offences the applicant was a student at the De La Salle College at Scarborough and the respondent was a De La Salle brother and deputy principal of the school.  The offences occurred in the respondent's study in the morning after swimming training.  On two occasions the respondent touched the applicant's penis through the pockets of his track pants.  On one occasion, the applicant was aroused which caused him considerable embarrassment.

1. The offences involved a very serious breach of trust and, not surprisingly, have had a significant adverse psychological effect on the applicant.  In considering an application such as this, I am bound by the relevant provisions of the Criminal Code that apply to the case and which provide that the court is empowered to order the respondent to pay the applicant "a sum not exceeding the prescribed amount by way of compensation for injuries suffered by the applicant by virtue of the crime or crimes committed by the respondent".  At the relevant time, the prescribed amount was $20,000.

1. In assessing the level of compensation to be awarded on applications of this type, a court is bound to assess compensation in accordance with the ordinary principles of assessment of damages for personal injuries in civil cases, and economic loss is recoverable.  However, that is subject to the upper limit applicable in all the circumstances, see The Queen v Jones; ex parte McClintock (1995) 79 A Crim R 238. In many cases of this nature, the victim of the offences alleges more extensive sexual abuse. However, the Crown for good reasons such as the need to particularise, only indicts for specific sexual offences that it thinks it can prove. In this case, by way of demonstration of the point, the crown conceded on sentence that, in fact, it could only have particularised one of the offences. So the respondent's pleas of guilty to the second offence was regarded as a factor in his favour on sentence. The introduction of section 229B into the Code in 1989 was an attempt by parliament to cover these situations by creating the offence of maintaining an unlawful sexual relationship.

1. These observations apply in this case.  In the applicant's police statement he states that the respondent touched him in a sexual way "over a period of months if not the whole of 1995 several days a week".  Similarly, in the history given to Mr Stoker, the psychologist, it is stated, "In essence between 1984 and 1985 (the applicant) was sexually abused by (the respondent)... the sexual abuse, which took form of genital touching, commenced with hugging followed by (the respondent) placing his hands in (the applicant's pockets and rubbing his penis, occurred three to give times a week".

1. In a case not dissimilar, in the sense of the offences of which the respondent was convicted were less than those alleged, Lee J in R v. Tiltman, an application by MJD, motion number 324 of 1994, unreported judgment of the Supreme Court delivered 22 June 1995 said:

"It seems to me clear that any compensation which may be ordered to be paid is limited in respect of the particular injury or injuries which resulted from the commission of the offences ... implicitly compensation cannot be awarded for injuries sustained as a result of conduct in respect of which there had been no conviction ... even though that conduct my be by the same respondent and may be related to the conduct in respect of which a verdict has been entered."

1. I respectfully agree with his Honour's analysis and reasoning.  In that case, his Honour referred to two alternatives.  The first is for the courts to assess an amount of compensation applicable to the total injury and then assess in a broad and perhaps somewhat arbitrary way the contribution which can be fairly said to have been made to that injury by the conduct involved in the offence or offences of which the respondent had been convicted.  As his Honour said, in Tiltman:

"Although it may be an approach which does not produce an entirely satisfactory solution, it is nonetheless one which may be seen to be supported by certain authorities in other jurisdictions touching upon analogous although not identical legislation".

His Honour then referred to a number of authorities. 

1. The second approach derives force from the position at common law.  In tortious action, if the defendant's negligent conduct combines with other "innocent"  causes to product a single indivisible injury, it is sufficient to base a finding of causation if that conduct can be said to have materially contributed to the total damage: The Commonwealth v Introvigne (1981-82) 150 CLR 258. It need not be the sole or even the effective cause.

1. His Honour in Tiltman adopted the second approach on the basis that the respondent had been convicted of 27 offences of a sexual nature against the applicant and other boys and had acknowledged responsibility for a large number of offences, namely, 62 counts in a schedule tendered pursuant to section 189 of the Penalties & Sentences Act 1992.  Those offences were taken into account when sentence was passed.  However, for the purposes of the compensation scheme in the Code those offences were offences for which no conviction had been recorded.

1. I think this case can be distinguished in that the respondent has been convicted of only two quite minor acts of sexual abuse in a context in which the psychologist's opinion is based on a history involving extensive sexual abuse, albeit of a similar nature, over a period of approximately 12 months involving abuse on several days each week.

1. In those circumstances I intend to adopt the first approach referred to by Mr Justice Lee in Tiltman.  It seems to me, therefore, that for the purposes of an award the amount has to be discounted by an appropriate percentage to notionally reflect the extent to which the offences contributed to his injury.  I accept the findings of both psychologists that the applicant suffers from a post traumatic stress disorder which I assess as being of moderate seriousness, however, the condition relates to a more extensive course of conduct that the very limited conduct contemplated by the offences.  Some discount also needs to be made to take into account the many obvious psychological stressors referred to in the report which were acting on this applicant independently of the respondent's conduct, for example, the break up of his parents' marriage and his difficulties in accepting his father's apparent indifference to him.

1. I also take into account that he has a pre-morbid mixed personality disorder which predated the sexual abuse, but which was seriously exacerbated by the respondent's conduct.

1. I also take into account the psychologist's finding that the applicant's prognosis is good and with therapy his stress disorder should remit.

1. Doing the best I can under the principles set out in McClintock and Jones I assess the damages at common law at $35,000.  The prescribed limit is $20,000, and in the circumstances and applying the discounting factors referred to above, I order the respondent to pay to the applicant by way of compensation under the Code Scheme the sum of $15,000.  I order the respondent to pay the applicant's costs of and incidental to the application to be taxed.