KMS v LJC - [2010] QDC 284

[2010] QDC 284

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

KMS	Applicant
and
LJC	Respondent

BRISBANE

..DATE 18/06/2010

JUDGMENT

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for physical and emotional injuries caused by the attack of the respondent upon her on 6 December 2006. The Act was repealed by section 149 of the Victims Of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.

The transitional provision in section 155(1)(a) of the 2009 Act, requires the application to be determined in accordance with the Act as it was made on 28 January 2010. This was before the end of two months after the commencement as required by section 155(2)(b), it being the earlier of the dates referred to in that subsection.

On 27 August 2009, the respondent pleaded guilty to one count
each of rape, sexual assault and assault occasioning bodily
harm committed upon the applicant. He was sentenced on
28 August 2009 to 25 years' imprisonment for the rape and to
three years' imprisonment for each of the other offences. All
of the sentences were to be served concurrently.

On 16 February 2010, the Queensland Court of Appeal set aside
the sentence of 25 years' imprisonment and substituted a
sentence of 16 years' imprisonment, otherwise the orders made
were confirmed. The success of the appeal against sentence to this extent is irrelevant to the determination of this application.

The Certifcate of Indictment details issued by the Deputy Registrar of the District Court, and exhibited to an affidavit of Ms Dunlop, incorrectly describes the count of assault occasioning bodily harm as a sexual assault. However, as is clear from my sentencing remarks and the judgment of the Court of Appeal, the count was one of assault occasioning bodily harm. I proceed on that basis.

The application, the supporting affidavit from Ms Tubaro and a
letter to the respondent dated 6 May 2010, were served on the
respondent at the Wolston Park Correctional Centre by a letter
addressed to the General Manager and mailed on 6 May 2010 by
ordinary prepaid post. This was in accordance with rule
110(c) of the Uniform Civil Procedure Rules 1999 (Qld) (the
UCPR) under which a document required to be served personally
on a prisoner must be served on the person in charge of the
prison in which the prisoner is imprisoned unless the Public
Trustee is managing the prisoner's estate or the prisoner has
Litigation Guardian. The affidavit of Mr Miles deposes that
the Public Trustee is not actively managing the affairs of the
respondent. There is no suggestion that the respondent has a
Litigation Guardian.

Both the letter to the General Manager and the letter dated
6 May 2010, which was addressed to the prisoner at the same
correctional centre and also sent by prepaid post, state it is
intended to rely on an affidavit of the applicant which would
be forwarded to him. The respondent…

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 KMS v LJC

Details

AGLC: KMS v LJC [2010] QDC 284
Case: [2010] QDC 284
Decision Date: 18/06/2010

CaseChat Overview and Summary

KMS applied to the District Court of Queensland for compensation under section 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained in an attack by LJC on 6 December 2006. The Act was repealed and replaced by the Victims Of Crime Assistance Act 2009 (Qld) on 1 December 2009, but the application was determined under the Act as it stood on 28 January 2010. LJC had pleaded guilty to one count each of rape, sexual assault and assault occasioning bodily harm and was sentenced to 25 years' imprisonment for the rape and three years' for each of the other offences, all to be served concurrently. On 16 February 2010, the Queensland Court of Appeal set aside the sentence of 25 years' imprisonment and substituted a sentence of 16 years' imprisonment, otherwise confirming the orders made. KMS claimed that the attack had caused her physical and psychological injuries for which she sought compensation. The court found that KMS had suffered abrasions, lacerations in the form of scratches, bruising and swelling, an injury to her chest associated with her eighth rib on the left side and mental or nervous shock. The court assessed compensation in terms of the compensation table as follows: Item 1 - bruising/laceration etc (minor) - three per cent - $2,250, Item 21 - neck/back/chest injury (minor) - two per cent - $1,500, and Item 32 - mental or nervous shock (moderate) - 12 per cent - $9,000. Therefore, the total assessment was $12,750. The court ordered the respondent to pay the applicant the sum of $12,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offences of rape, sexual assault, assault occasioning bodily harm.

Orders