LMM v DPG

[2010] QDC 59

DISTRICT COURT OF QUEENSLAND

CITATION:

LMM v DPG [2010] QDC 59

PARTIES:

LMM

(Applicant)

v

DPG

(Respondent)

FILE NO:

BD 3089 of 2009

DIVISION:

Civil Jurisdiction

PROCEEDING:

Criminal Compensation Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

8 March 2010

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2010

JUDGE:

Dorney QC DCJ

ORDER:

That the Respondent pay to the Applicant, by way of compensation for injuries sustained as a result of the offences which led to the conviction of the respondent on 5 December 1997 upon indictment, the sum of $23,250.00.(1)  

CATCHWORDS:

Criminal compensation – whether Regulation 1A has any scope for operation in circumstances.

COUNSEL:

A. Ashworth for the Applicant

M. Campbell for the Respondent 

SOLICITORS:

Woods Prince Lawyers for the Applicant

Potts Lawyers for the Respondent

Introduction

1. By Originating Application filed on 29 October 2009 the Applicant applies for compensation under the Criminal Offence Victims Act 1995. When this matter came on for hearing on 1 March 2010 the Respondent was represented.

1. Both the Applicant and the Respondent presented written submissions and made further submissions orally. The Applicant is rising 19 years of age.

Legislation

1. Although repealed by the Victims of Crime Assistance Act 2009, the Criminal Offence Victims Act 1995 continues to be applicable to claims such as this by reason of the transitional provisions of the later Act; in particular s 154 and s 155.

1. Under the Act s 24(2) permits a person against whom the personal offence is committed to apply to the court before which the person was convicted for an order that the convicted person pay compensation to the applicant for the injuries suffered by the applicant because of the offence.  Under s 24(3) the court may then make a compensation order for an amount to be paid by the convicted person to the applicant because of the injury. 

1. In turn, a “personal offence” is defined to be an indictable offence committed against the person of someone: see s 21 of the Act. Section 20 of the Act then defines “injury” to be bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation.

Personal offence

1. There is no doubt that the offence in question in this case was an indictable offence committed against the person of the Applicant.  As the Certificate of Indictment Detail states, the Respondent pleaded guilty to 11 counts of indecent treatment of a child under 16, with circumstances of aggravation, before the District Court.

Injury

1. In this particular case the injury which has been diagnosed by Dr Barbara McGuire, psychiatrist, in her report of 20 October 2009, is post traumatic stress disorder (“PTSD”).  Following, as I do, the decision in RMC v NAC [2009] QSC 149, since what has been diagnosed is a recognisable psychiatric illness or disorder, it falls within the meaning of “nervous shock” in the Act: at [38].

Judge’s remarks

1. Compliant with the decision in Chong v Chong [2001] Qd R 301, it is necessary for…