JM obo PN v JBM - [2010] QDC 540

DISTRICT COURT OF QUEENSLAND

CITATION:

JM obo PN v JBM [2010] QDC 540

PARTIES:

PN BY HIS LITIGATION GUARDIAN JM V

JBM

FILE NO/S:

141/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

5 February, 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

15 December, 2009

JUDGE:

Dearden DCJ

ORDER:

The respondent JBM pay the applicant JM on behalf of PN the sum of $11,250.

CATCHWORDS:
LEGISLATION:

CASES:

APPLICATION – CRIMINAL COMPENSATION – Indecent treatment of a child under 16 under 12 under care – mental or nervous shock – adverse impacts.

Criminal Offence Victims Act 1995 (Qld)
Victims of Crime Assistance Act 2009 (Qld)

JMR obo SRR v Hornsby [2009] QDC 147
R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320
RMC v NAC [2009] QSC 149
Beardsley v Loogatha [2001] QCA 438
JI v AV [2001] QCA 510 [2002]2 Qd R 367
Wallace and Wallace v Graveur Unreported, Files D 1315/2007 and D 1314/2007, Rackemann DCJ, District Court, 8 June 2007.

COUNSEL:

J. Fadden (solicitor) for the applicant.

No appearance for the respondent.

SOLICITORS:

Legal Aid Queensland for the applicant.

No appearance for the respondent.

Introduction

[1] The respondent JBM was convicted on 11 March 2004, after a trial, of three counts of permitting himself to be indecently dealt with and four counts of indecent treatment of a child under 12 under care, each count being in relation to the complainant PN represented in these proceedings by his litigation guardian, JM. The respondent was sentenced at the District Court at Beenleigh on 11 March 2004 by his Honour Judge Nase to a sentence of three years imprisonment, concurrent, in respect of each count.[1]

[1]Exhibits A and B, Affidavit of Mandy Albert sworn 25 August 2009

Facts

[2] The complainant was, at the relevant time, the stepson of the respondent, who had the complainant in his care. The offences occurred during three incidents which occurred over a relatively short period of time, a week or two. The incidents involved acts of oral sex by the complainant on the respondent and by the respondent on the complainant, with the exception of Count 1, which appears to have been an incident in which the respondent’s penis was directed towards (but did not penetrate) the anus of the complainant.[2]

[2]Exhibit B, (Sentencing remarks p.2, Sentencing submissions p.240), Affidavit of Mandy Albert sworn 25 August, 2008.

The Law

[3] This is an application for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995 (COVA), which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. Pursuant to VOCAA s.155(1), where a conviction has occurred before the commencement of the VOCAA, a person may apply to the court for orders for criminal compensation if s.154(1)(a)(i) is satisfied. In the present proceedings, the applicant had a right (prior to the commencement of VOCAA) to apply for compensation pursuant to COVA s.24, and consequently, having brought proceedings in accordance with the time limits…

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 JM obo PN v JBM

Details

AGLC: JM obo PN v JBM [2010] QDC 540
Case: [2010] QDC 540
Decision Date: 5 February, 2010

CaseChat Overview and Summary

In JM obo PN v JBM, the applicant sought compensation for the respondent's indecent treatment of a child under the age of 16, who was under the applicant's care at the time of the incident. The dispute came before the court, which was required to determine whether the applicant was entitled to compensation for the mental or nervous shock experienced by the child as a result of the respondent's actions, as well as any adverse impacts that may have arisen from the incident.

The central legal issue before the court was whether the applicant could claim compensation for the mental or nervous shock suffered by the child as a result of the respondent's indecent treatment. Additionally, the court needed to consider whether the applicant was entitled to compensation for any adverse impacts that may have arisen from the incident, such as a deterioration in the child's mental health or any other negative consequences that may have resulted from the respondent's actions.

The court found that the applicant was entitled to compensation for the mental or nervous shock experienced by the child as a result of the respondent's actions. The court held that the applicant had demonstrated a sufficient causal link between the respondent's actions and the child's mental or nervous shock, as well as the adverse impacts that arose from the incident. The court determined that the sum of $11,250 was an appropriate amount of compensation to be paid by the respondent to the applicant on behalf of the child.

Accordingly, the court ordered the respondent to pay the applicant the sum of $11,250 as compensation for the mental or nervous shock experienced by the child as a result of the respondent's indecent treatment, as well as any adverse impacts that may have arisen from the incident.

Orders

Orders of the court

The respondent JBM pay the applicant JM on behalf of PN the sum of $11,250.

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:	JM obo PN v JBM [2010] QDC 540
PARTIES:	PN BY HIS LITIGATION GUARDIAN JM V JBM
FILE NO/S:	141/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	5 February, 2010
DELIVERED AT:	Beenleigh
HEARING DATE:	15 December, 2009
JUDGE:	Dearden DCJ
ORDER:	The respondent JBM pay the applicant JM on behalf of PN the sum of $11,250.
CATCHWORDS: LEGISLATION: CASES:	APPLICATION – CRIMINAL COMPENSATION – Indecent treatment of a child under 16 under 12 under care – mental or nervous shock – adverse impacts. Criminal Offence Victims Act 1995 (Qld) Victims of Crime Assistance Act 2009 (Qld) JMR obo SRR v Hornsby [2009] QDC 147 R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 RMC v NAC [2009] QSC 149 Beardsley v Loogatha [2001] QCA 438 JI v AV [2001] QCA 510 [2002]2 Qd R 367 Wallace and Wallace v Graveur Unreported, Files D 1315/2007 and D 1314/2007, Rackemann DCJ, District Court, 8 June 2007.
COUNSEL:	J. Fadden (solicitor) for the applicant. No appearance for the respondent.
SOLICITORS:	Legal Aid Queensland for the applicant. No appearance for the respondent.