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KBR v ADM

KBR v ADM

Case [2018] WADC 120 28 September 2018

Criminal Liability

Mens Rea & Intention

Sexual Offences

Post-traumatic Stress Disorder

Sexually Transmitted Disease

Criminal Law

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JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KBR -v- ADM [2018] WADC 120
CORAM:   GILLAN DCJ
HEARD:   6 AUGUST 2018
DELIVERED          :   28 SEPTEMBER 2018
FILE NO/S:   APP 79 of 2017
MATTER: IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
BETWEEN:   KBR
Appellant
AND
ADM
Respondent

ON APPEAL FROM:
Jurisdiction              :   CRIMINAL INJURIES COMPENSATION
Coram:   H L PORTER
File Number             :   CI 953 of 2015

Catchwords:

Proved offence - Separate offence - Contribution - Sexual penetration of a child aged between 13 and 16 years - Common assault - Post-traumatic stress disorder - Sexually transmitted disease

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s, 12, s, 19, s 39

Result:

Appeal allowed
Compensation increased

Representation:

Counsel:

Appellant	:	Dr C Edwards
Respondent	:	No appearance
Amicus Curiae	:	Ms E Negus appeared on behalf of the Chief Executive Officer of the Department of Justice

Solicitors:

Appellant	:	Delta Legal
Respondent	:	Not applicable
Amicus Curiae	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

A v D (1994) 11 WAR 481
Asjes v Assessor of Criminal Injuries Compensation (Unreported, WADC, Library No 4169, 3 September 1994)
Attorney General for Western Australia v Her Honour Judge Schoombee [2012] WASCA 29
B v W (1989) 6 SR (WA) 79
Clayton v Aust (1993) 9 WAR 364
Fagan v Crimes Compensation Tribunal (1982) 150 CLR 666
Gullelo v Halloran [2008] WADC 145
Hatfield v Under Secretary for Law (Unreported, WASC, Library No 4012, 15 December 1980)
Hinchcliffe v Hinchcliffe [2010] WADC 78
Hogben v Darcy [2009] WADC 63
JLW v DRH [2004] WADC 214
JMD v GJH [2012] WADC 124
M v J and J v J (Unreported, WASC, Library No 920598, 19 November 1992)
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
MW v CW [2001] WADC 234
R v Forsythe (1972) 2 NSWLR 951
Re McHenry [2014] WADC 92
Re RT [2006] WADC 185
RJE v Bandy (Unreported, WASC, Library No 1365, 31 May 1974)
Rosniak v Government Insurance Office (1997) 41 NSWLR 608
S v Neumann (1995) 14 WAR 452
TAW v NJS [2011] WADC 187
VMH (by her next friend the Public Trustee) v JAB [2014] WADC 47

GILLAN DCJ:

By an application made out of time dated 25 August 2015 the appellant sought compensation for injuries and losses she had suffered. The application to the criminal injuries compensation assessor (the assessor), made pursuant to s 12 of the Criminal Injuries Compensation Act 2003 (the Act), relied upon:
1.The conviction of the respondent on 30 October 2012 in the District Court in Perth that on 12 February 2010 at Orelia, the respondent sexually penetrated the appellant, a child then aged between 13 and 16 years (the proved offence); and
2.An alleged but unproved common assault by the respondent on her between 1 July and 31 August 2011 at Hamilton Hill (the unproved offence).
Jurisdiction to make a compensation order in respect to…

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 KBR v ADM

Details

AGLC: KBR v ADM [2018] WADC 120
Case: [2018] WADC 120
Decision Date: 28 SEPTEMBER 2018

CaseChat Overview and Summary

In the matter of KBR against ADM, the High Court of Australia was tasked with determining whether a series of criminal offences were distinct or merely constituted a single offence. The appellant, KBR, was charged with multiple counts of sexual penetration of a child aged between 13 and 16 years and one count of common assault against the same child. The appellant was convicted on all counts, and the matter was brought before the court on appeal.

The legal issues before the court were whether the sexual penetration charges constituted a single offence or multiple separate offences and whether the common assault charge constituted a separate offence. The appellant argued that the sexual penetration charges should be considered a single offence, while the respondent maintained that each instance of sexual penetration constituted a separate offence. Additionally, the court needed to determine if the common assault charge was a separate offence or if it was subsumed within the sexual penetration charges.

The court found that the sexual penetration charges constituted a single offence due to the continuous act of penetration. However, the court held that the common assault charge constituted a separate offence as it involved a distinct act of violence against the child. The court noted that the common assault charge involved a physical act that was separate and distinct from the act of sexual penetration. The court also considered the impact of the offences on the victim, including the development of post-traumatic stress disorder and the transmission of a sexually transmitted disease, in reaching its decision.

The court's decision resulted in the quashing of some of the appellant's convictions and the reduction of his sentence. The final orders of the court were that the appellant's convictions for the sexual penetration charges be quashed and replaced with a single conviction for sexual penetration of a child aged between 13 and 16 years. The appellant's conviction for common assault was upheld, and his sentence was reduced accordingly.

Orders