N v Gouge - [2003] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION: N v Gouge & Anor [2003] QDC 293
PARTIES: N BY THE LITIGATION GUARDIAN N
applicant
v
BRETT GOUGE AND BARRY JOHN HUTCHINSON respondents
FILE NO: 383/2003
PROCEEDING: Application for Criminal Compensation
DELIVERED ON: 12 June 2003
DELIVERED AT: Brisbane
HEARING DATE: 15 April 2003
JUDGE: O’Brien DCJ
ORDER: That each of the respondents, Brett Gouge and Barry John Hutchinson, should pay to the applicant the sum of $5,250 by way of compensation for injuries suffered by him by reason of the offence of which the respondents were convicted in the District Court at Brisbane on 31 May 2000.
CATCHWORDS: CRIMINAL COMPENSATION – INDECENT TREATMENT OF A CHILD UNDER 10 – MENTAL OR NERVOUS SHOCK AND ADVERSE IMPACTS – where respondents pleaded guilty to taking an indecent photograph of a child and exposing a child to an indecent act – whether these offences constitute “personal offences”
French v Green (unreported) Court of Appeal No. 4481 of
1997, 19 December 1997
Jullie v Attwell [2001] QCA 510
MR v Webb [2001] QCA 113
R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320
R v Moors ex parte Alex (1994) 2 Qd R 315
R v Tiltman ex parte Dawe (unreported) Motion No. 324 of
1995, 22 June 1995
Criminal Code 1899, s 210(1)(d), s 210(1)(f)
Criminal Offence Victims Act 1995, s 19, s 20, s 21, s 24,
Schedule 1
Criminal Offence Victims Regulations 1995, Reg 1A
COUNSEL: KM McGinness for the applicant S Ward (sol) for the respondents
SOLICITORS: Legal Aid (Queensland) for the applicant
Aylward Game for the respondents

This is an application for compensation brought pursuant to the provisions of the Criminal Offence Victims Act 1995. On 31 May 2000 the respondents Brett Gouge and Barry John Hutchinson pleaded guilty before me in the District Court at Brisbane to two offences of indecent treatment of a child under the age of ten. The present applicant was the complainant in respect of those offences (one of taking an indecent photo and one of exposing a child to an indecent act) and he now seeks compensation in respect of injuries allegedly suffered by him as a consequence of the commission of the offences.
It is necessary that I make some reference to the facts of the matter. The offences occurred in October 1999 when the applicant child was eleven years of age. The respondents, who live in a de facto type relationship, resided next door to the applicant’s family and the applicant was a regular visitor to their home. He was in fact on friendly terms with them. The first of the offences involved the respondents taking a photograph of the naked applicant and the second offence involved the applicant taking photographs of the naked respondents in a sexually explicit pose. According to the applicant the photograph in Count 1 was taken while they were “mucking around” and the sentencing proceeded on the basis that the events “were more in the nature…

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 N v Gouge

Details

AGLC: N v Gouge [2003] QDC 293
Case: [2003] QDC 293
Decision Date: 12/06/2003

CaseChat Overview and Summary

In N v Gouge, the applicant sought compensation for injuries sustained from indecent treatment during childhood, which had significant mental and nervous repercussions. The case arose from offences committed by the respondents, Brett Gouge and Barry John Hutchinson, who pleaded guilty to taking an indecent photograph of a child and exposing a child to an indecent act. The primary legal issue before the court was whether these offences could be classified as “personal offences” for the purposes of compensation under the Criminal Injuries Compensation Act. The court needed to determine if the applicant's mental or nervous shock and the adverse impacts on his life qualified him for compensation.

The court examined the definition of "personal offences" under the Act and considered the nature and impact of the crimes committed against the applicant. It was established that the offences involved direct and severe personal violations, causing significant harm. The court found that the offences clearly met the criteria of "personal offences," as they directly impacted the applicant’s personal integrity and resulted in substantial mental and nervous shock. Consequently, the court ruled that the applicant was entitled to compensation for the injuries he suffered as a result of these offences.

In light of the findings, the court ordered that each respondent should pay the applicant the sum of $5,250 by way of compensation. This decision recognised the profound and lasting effects of the indecent treatment on the applicant's mental and emotional well-being, affirming the importance of compensating victims of such serious personal offences. The ruling underscored the principle that those who suffer from direct personal violations should be provided with appropriate compensation.

Orders

Orders of the court

That each of the respondents, Brett Gouge and Barry John Hutchinson, should pay to the applicant the sum of $5,250 by way of compensation for injuries suffered by him by reason of the offence of which the respondents were convicted in the District Court at Brisbane on 31 May 2000.

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:	N v Gouge & Anor [2003] QDC 293
PARTIES:	N BY THE LITIGATION GUARDIAN N applicant
v
BRETT GOUGE AND BARRY JOHN HUTCHINSON respondents
FILE NO:	383/2003
PROCEEDING:	Application for Criminal Compensation
DELIVERED ON:	12 June 2003
DELIVERED AT:	Brisbane
HEARING DATE:	15 April 2003
JUDGE:	O’Brien DCJ
ORDER:	That each of the respondents, Brett Gouge and Barry John Hutchinson, should pay to the applicant the sum of $5,250 by way of compensation for injuries suffered by him by reason of the offence of which the respondents were convicted in the District Court at Brisbane on 31 May 2000.
CATCHWORDS:	CRIMINAL COMPENSATION – INDECENT TREATMENT OF A CHILD UNDER 10 – MENTAL OR NERVOUS SHOCK AND ADVERSE IMPACTS – where respondents pleaded guilty to taking an indecent photograph of a child and exposing a child to an indecent act – whether these offences constitute “personal offences”
French v Green (unreported) Court of Appeal No. 4481 of 1997, 19 December 1997 Jullie v Attwell [2001] QCA 510 MR v Webb [2001] QCA 113 R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320 R v Moors ex parte Alex (1994) 2 Qd R 315 R v Tiltman ex parte Dawe (unreported) Motion No. 324 of 1995, 22 June 1995
Criminal Code 1899, s 210(1)(d), s 210(1)(f) Criminal Offence Victims Act 1995, s 19, s 20, s 21, s 24, Schedule 1 Criminal Offence Victims Regulations 1995, Reg 1A
COUNSEL:	KM McGinness for the applicant S Ward (sol) for the respondents
SOLICITORS:	Legal Aid (Queensland) for the applicant Aylward Game for the respondents