NRA v MSS - [2011] QDC 227

DISTRICT COURT OF QUEENSLAND

CITATION:

NRA v MSS [2011] QDC 227

PARTIES:

NRA

(Applicant)

v

MSS

(Respondent)

FILE NO:

34/2010

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

2 September, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

19 August 2011

JUDGE:

Dearden DCJ

ORDER:

The respondent MMS pay the applicant NRA the sum of $34,500.

CATCHWORDS:

Application – criminal compensation – taking a child under 12 years for immoral purposes – indecent treatment – serious assault – attempted indecent treatment – bruising/laceration – mental or nervous shock – adverse impact

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss. 24 and 40(1)

Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155

Criminal Offence Victims Regulation 1995 (Qld) s. 1A

CASES:

JMR obo SRR v Hornsby [2009] QDC 147

R v Smith [2001] QCA 417

SAY v AZ; ex-parteAttorney General of Queensland [2006] QCA 462

COUNSEL:

Ms J Fadden (solicitor) for the applicant

The respondent appeared in person

SOLICITORS:

Legal Aid Queensland – solicitors for the applicant

The respondent appeared in person

Introduction

The respondent, MSS, pleaded guilty (relevantly) to two counts of taking a child under twelve years for immoral purposes, four counts of indecent treatment of a child under twelve years, one count of attempted indecent treatment of a child under twelve years and one count of serious assault, all in respect of the applicant NRA. The respondent was sentenced by Judge Nase in the Beenleigh District Court on 7 June 2001 to various prison terms ranging between two and eight years in respect of the offences relevant to the current applicant. The respondent pleaded guilty to nine other counts in respect of other complainants, and on one of those counts (count 16) an indefinite sentence was imposed.[1] A period of 710 days was declared time served when the respondent was sentenced on 7 June 2001. Subsequently the respondent (unsuccessfully) appealed the original sentence.[2] The respondent was re-sentenced in respect of the indefinite sentence (count 16, which did not relate to this applicant) on 10 November 2008 when a concurrent sentence of eighteen years imprisonment was imposed with a declaration that the applicant was a serious violent offender (and therefore required to serve 80% of the sentence).[3]
[1] Exhibit SKB1 (Certificate of Indictment); Exhibit SKB2 (Sentencing Remarks), pp. 16-17, Affidavit of Shannon Breen sworn 25 January 2010.
[2]R v Smith [2001] QCA 417.
[3] Affidavit of Shannon Breen sworn 25 January 2010, para 7.

Facts

The facts relevant to this application were extracted from the remarks of the sentencing judge and set out by the Court of Appeal in R v Smith:[4]
[4] [2001] QCA 417, para 7 (per Chesterman J).

“The [applicant] was aged ten years. He was at a shopping centre at Woodridge with two other boys of similar ages. [The respondent] started following the boys. He spoke to [the applicant] at a car park and persuaded him to ride down to the bottom level by telling him…

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 NRA v MSS

Details

AGLC: NRA v MSS [2011] QDC 227
Case: [2011] QDC 227
Decision Date: 2 September, 2011

CaseChat Overview and Summary

The case of NRA v MSS involved a claim by the National Roads Authority (NRA) for criminal compensation against the respondent, MSS, following an incident where MSS was taken by an unknown person for immoral purposes. The incident resulted in MSS suffering serious physical and psychological injuries, including bruising, lacerations, and mental or nervous shock. The court had to determine whether MSS's injuries were severe enough to warrant criminal compensation under the applicable legislation.

The primary legal issue was whether the physical and psychological injuries suffered by MSS were severe enough to warrant criminal compensation. The court had to consider the extent of the injuries, the nature of the assault, and the impact on MSS's mental and physical health. The court also needed to determine if the injuries were a direct result of the alleged immoral purposes.

The court found that MSS had indeed suffered severe physical and psychological injuries that were directly related to the alleged immoral purposes. The court emphasised the seriousness of the injuries, including the bruising and lacerations, as well as the significant mental and nervous shock. The court concluded that the impact on MSS's mental and physical health was severe and warranted criminal compensation. The court awarded MSS the sum of $34,500 in compensation.

Orders

Orders of the court

The respondent MMS pay the applicant NRA the sum of $34,500.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	NRA v MSS [2011] QDC 227
PARTIES:	NRA (Applicant) v MSS (Respondent)
FILE NO:	34/2010
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	2 September, 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	19 August 2011
JUDGE:	Dearden DCJ
ORDER:	The respondent MMS pay the applicant NRA the sum of $34,500.
CATCHWORDS:	Application – criminal compensation – taking a child under 12 years for immoral purposes – indecent treatment – serious assault – attempted indecent treatment – bruising/laceration – mental or nervous shock – adverse impact
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss. 24 and 40(1) Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155 Criminal Offence Victims Regulation 1995 (Qld) s. 1A
CASES:	JMR obo SRR v Hornsby [2009] QDC 147 R v Smith [2001] QCA 417 SAY v AZ; ex-parteAttorney General of Queensland [2006] QCA 462
COUNSEL:	Ms J Fadden (solicitor) for the applicant The respondent appeared in person
SOLICITORS:	Legal Aid Queensland – solicitors for the applicant The respondent appeared in person