Nah v DLW - [2010] QDC 505

[2010] QDC 505

DISTRICT COURT
CIVIL JURISDICTION

JUDGE R JONES No 39 of 2009 NAH	Applicant
and
DLW	Defendant
BRISBANE ..DATE 16/12/2010 ORDER

1-1

HIS HONOUR: This is an application for compensation pursuant

to section 24 of the Criminal Offences Victims' Act 1995.
That Act was repealed with the introduction of the Victims of

Notwithstanding the introduction of that Act, under the	10
transitional provisions of that Act, compensation is to be assessed under the former Act because the claim was filed before the commencement date of the new legislation, 1 December 2009. This application was filed on 28 August 2009.
20
The scheme of the Criminal Offences Victims' Act 1995 is that
the maximum amount of compensation provided for is reserved
for the most serious of cases. The maximum prescribed by regulation is $75,000. The amounts provided for in other cases are intended to be scaled according to their level of	30
severity. Certain percentages are to be applied depending on the level of severity. In this case the amount claimed is $31,500, made up as follows: Mental or nervous shock of 31 per cent - $23,250, adverse impacts at 11 per cent - $8,250.
40
The applicant was born on 19 March 1974. When he was aged 14
and 15, he was subject to three incidents of sexual abuse by
the respondent who, on 13 November 2008, was convicted on
three counts of indecent treatment of a child under 16. As a
result of the convictions, the respondent was imprisoned in	50
after serving a period of six months, with an operational period of three years.

Crimes Assistance Act 2009.

respect of each charge for 12 months imprisonment suspended the care of the Department of Family Services and had been placed with the respondent as a ward.

1-2

ORDER

The factual basis upon which the respondent was sentenced was	10
set out in the submissions of the Prosecutor appearing at the sentence hearing. In summary it included that, in respect of the first charge, the respondent would have the applicant do
exercises by gradually decreasing amounts of his clothing. He
would pay the applicant money to take off items clothing. The	20
respondent then massaged the applicant's shoulders, arms, stomach and legs whilst completely naked. The respondent then began to touch the applicant's penis and massaged his testicles. At the time of this offence the applicant was 14.
30
In respect of the second charge, it occurred later in the
evening when the respondent plied the applicant with alcohol.
The respondent placed the applicant in bed, where the
respondent undressed him and then put his face into the
applicant's genital area.	40
In respect of the third incident, the respondent straightened
one of the applicant's legs and bent the other at the knee.
The respondent left the applicant, then later returned,
placing a lubricant of some type on the applicant's buttocks.	50

The respondent squeezed the applicant's buttocks together. circumstances where the respondent had placed his…

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 Nah v DLW

Details

AGLC: Nah v DLW [2010] QDC 505
Case: [2010] QDC 505
Decision Date: 16/12/2010

CaseChat Overview and Summary

In the District Court of Queensland, the applicant, Nah, sought compensation for sexual abuse inflicted by the defendant, DLW, during his adolescence. The claim was brought under the transitional provisions of the repealed Criminal Offences Victims' Act 1995. The applicant claimed $31,500 in compensation, comprising $23,250 for mental or nervous shock and $8,250 for adverse impacts resulting from the abuse. The legal issues before the court were whether the adverse impacts claimed were distinct from the mental or nervous shock and warranted separate compensation, and if so, the appropriate percentage for the compensation.

The court examined the evidence and submissions, particularly the report by Dr. McGuire, who diagnosed the applicant with post-traumatic stress disorder, depression, and conduct disorder. The court noted that full recovery was unlikely, and the applicant would continue to demonstrate permanent disability. It was established that for an adverse impact to be compensable, it must be more than or in addition to the symptomology underlying the diagnosis of mental or nervous shock. The court found that the disease of hepatitis C and the effects of the assault, including alcohol and substance abuse, and self-destructive behavior, were adverse impacts that warranted separate compensation. The court determined that an allowance of 10% for adverse impacts was appropriate. For mental or nervous shock, the court concluded that the disorder extended beyond merely post-traumatic stress disorder and that an allowance of 30% was appropriate.

The court ordered the defendant to pay the applicant $30,000 by way of compensation under the Criminal Offences Victims' Act 1995. The court's decision balanced the evidence of the abuse's severity and its long-term effects on the applicant, ensuring that the compensation reflected both the mental or nervous shock and the adverse impacts caused by the abuse.

Orders