Patterson v Morgan

[2010] QDC 102

[2010] QDC 102

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3459 of 2009

SHELLEY PATTERSON	Applicant
and
CHRISTOPHER MORGAN	Respondent

BRISBANE

..DATE 25/02/2010

ORDER

HIS HONOUR: This is an application for criminal compensation to be assessed pursuant to the provisions of the Criminal Offence Victims Act 1995. On 29 November 2007, in this Court, the respondent pleaded guilty to one count of extortion. He was sentenced on that day by his Honour Senior Judge Skoien to a period of three years imprisonment to be released on parole after 12 months.

The application has been filed on 1 December 2009. The new Act commenced on 1 December 2009, however the provisions of the new Act, in particular section 155 sub-section 2, paragraph (b) provides for the application to be heard at the end of two months after the commencement of the new Act. Therefore I find the application is within time and is to be adjudicated upon pursuant to the provisions of the Criminal Offence Victims Act 1995.

The applicant was born on 10 March 1979 and was 28 years of age at the time the offence was committed.  The respondent was born on 9 December 1973 and he was 33 years of age at the time of the offence.  The applicant had been in a long-term de facto relationship with another man and they had a child.  During the beginning of March 2007 the applicant and the respondent had commenced a relationship.  At the beginning it involved flirting and sending of, at times, sexually explicit text messages to each other. 

In late May 2007 the relationship developed into a sexual relationship at the respondent's home and at their workplace.  On one occasion the respondent had filmed the applicant performing oral sex on him using his mobile phone.  On 4 June 2007 the respondent sent a text message to the applicant to the effect that he had pictures and a video recording of him performing oral sex on him and that he had saved them to disc.  He made a demand upon the applicant for the sum of $10,000 cash to be paid to him.  He also threatened to ruin the applicant's relationship with her de facto husband.

The applicant pleaded with the respondent by text messages not to proceed with these demands and threats.  Inevitably she made withdrawals of amounts which totalled $10,000 and paid these to the respondent. 

The offence in its long form is as follows: "That between the 1st day of June, 2007, and the 31st day of June, 2007, at Brisbane and elsewhere in the State of Queensland, the respondent, with intent to extort a sum of money from the applicant, and knowing its contents caused the applicant to receive a document demanding without reasonable or probable cause a sum of money, and containing threats of detriment to be caused to the applicant by the respondent if the demand was not complied with."

The respondent pleaded guilty to that charge.  Under the Act a personal offence is defined as an indictable offence committed against a person of someone.  The question arises whether extortion where there is no physical contact between the offender and the victim can constitute a personal offence for the purposes of the Act.  I have ruled in Banfield v Magagna [2007] Queensland District Court 28, that extortion can amount to a personal offence.  I consider the view I took of that is supported by the judgment of the Court of Appeal majority in RZ, by his litigation guardian, against PAE [2007] Queensland Court of Appeal 166. 

At paragraph 45 the majority of the Court of Appeal said "For an offence to be an offence committed against a person of someone it is not necessary that there be actual contact with the body of the person.  To return to an earlier example, the offence of robbery is frequently committed by pointing a weapon at victims and threatening them with violence in order to obtain property but with no actual physical contact with the person or body of the victims.  Such victims are commonly awarded compensation under the Act because the offence to which they were subjected is plainly an indictable offence committed against a person of someone within section 21 of the Act.  An attempted robbery involving threats alone is no less an indictable offence committed against a person of someone than a like offence involving some actual bodily contact." 

Here, although there was no physical - sorry, in that case, although there was no physical contact between the offender and the victim, it being an attempt to have the victim perform a sexual act, the court held that nevertheless it was a personal offence.  Therefore I find there is no impediment to the applicant bringing this application, even though the offence committed against her was one of extortion. 

The applicant has deposed to the impact this offence has had upon her.  She says following the days of the offence she was terrified for her life and the safety of her de facto partner and child.  This is based on an allegation by the applicant that the respondent made threats of physical violence against her and her partner and son. 

However, the reading of the material, including an affidavit of the respondent which was handed up to me by an agent for the respondent this morning, demonstrates that sentencing of the respondent, before his Honour Senior Judge Skoien, proceeded on the basis that what the respondent did was to make a threat of exposing the applicant for her sexual misconduct rather than threats to cause her and her partner and child harm.  I have marked the respondent's affidavit as Exhibit 1.  It proves a service and therefore I am satisfied that the application has been duly served on the respondent and that I can proceed to assess compensation in this case. 

But what it does do is highlight that sentencing proceeded on the basis that the sentencing judge saw the applicant as having some responsibility for the circumstances that arose.  For example, while he accepted that there was threats made which caused her fear, he could not help but feel that her self-loathing and so forth must relate back to her conduct with him which was bubbling along, and that she might feel guilty - that she might feel a bit guilty about it. 

But my reading of the trial judge's statements, though, indicates that he accepted in the end that the symptoms have been produced by more than just the threat of being exposed.  Nevertheless, he said that there had been a revelation to the applicant of what she had actually done willingly. 

Even so, the applicant has been examined by a psychiatrist and the psychiatrist has diagnosed the applicant as suffering a chronic post traumatic stress disorder and an adjustment disorder with depressed mood and disorder of conduct.  In the psychiatrist's opinion, these disorders both resulted from the offence.  She regards the disorders as being moderately severe.  Both disorders had their onset in mid-2007 and have persisted with some fluctuations in severity over time.  Clearly the applicant has had some pre-existing conditions but which had quietened down before the subject offence was committed. 

Even though the sentencing proceeded on a different basis than threats of physical harm, nevertheless the threats of exposure amount in any event to the offence of extortion.  This is a case where, in my opinion, some discounting must occur for the contribution made to her condition by the applicant's own conduct.  I do so because of the approach adopted by the sentencing judge.  That is, compensation is to be assessed on the basis of the sentencing.  I see no basis to digress from the basis of the sentencing. 

Therefore in this case I would, if it had not been for other factors, have assessed the applicant's compensation at 30 per cent of the scheme maximum which is a sum of $22,500.  But I would reduce that by 20 per cent for her contribution which is - leaves a sum of $18,000.  I order the respondent to pay the applicant the sum of $18,000.  I am not able to order the respondent to pay the applicant's costs because of the legislation. 

Yes, Mr Stevenson?

MR STEVENSON:  Thank you, your Honour.  I do have a draft order, your Honour, if that would assist.

HIS HONOUR:  Yes, if you want to hand up your draft order.

MR STEVENSON:  Thank you, your Honour. 

HIS HONOUR:  Yes, there'll be an order as per draft.

MR STEVENSON:  Thank you, your Honour.

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