R v Brown

[2006] QDC 240

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Brown [2006] QDC 240
PARTIES:	R
Applicant And
JAMES WILLIAM BROWN
Respondent
FILE NO/S:	No. 11 of 06
DIVISION:	Civil
PROCEEDING:	Criminal Compensation
ORIGINATING
COURT:	District Court Ipswich
DELIVERED ON:	25 May 2006
DELIVERED AT:	Ipswich
HEARING DATE:	18 April 2006
JUDGE:	Richards DCJ
ORDER:	I ORDER THAT THE RESPONDENT PAY THE APPLICANT THE SUM OF $15,000 TOGETHER WITH COSTS TO BE ASSESSED UNLESS OTHERWISE AGREED.
CATCHWORDS:	Criminal compensation – one course of conduct- mental and nervous shock
COUNSEL:	Mr S Lynch for the Applicant No appearance for the respondent
SOLICITORS:	Clewitt, Corser and Drummond for the Applicant

1. The respondent, who was at the time of the offending behaviour the applicant’s mother’s boyfriend, pleaded guilty in Ipswich District Court on 25 November 2004 to six counts of indecent treatment of a child under 12 and one count of attempted sodomy. The offences occurred over a 12 month period in 1991 when the applicant was 10 years old.

2. The applicant has applied for criminal compensation pursuant to section 663b of the Criminal Code, these offences having occurred before the introduction of a Criminal Offence Victims Act 1995. The maximum amount of compensation that can be awarded in this case therefore is $20,000 for mental or nervous shock where it involves one course of conduct. It is therefore necessary to examine the facts of the case.

3. The facts are as follows:

• Count 1 – the applicant’s mother was at TAFE and the respondent was looking after her. He was in one of the bedrooms in the house. He put her on the bed so she was lying on her back. He held her down with his hand on her chest and put his hand underneath her underwear and rubbed it over the top of her vagina for a long time. She tried to push him away but he was too strong and he told her not to tell anyone.

• Count 2 – Her mother was mowing the grass. Her sister was playing in the house and she was wearing swimmers. She went inside to her bedroom to change and when she turned around the respondent was standing in the doorway looking at her. He told her to take her swimmers off. He then pulled her onto the bed and held her down, took her swimmers off so that she was naked. He then rubbed his hand up and down on the outside of the vagina. She was scared. She got dressed. She didn’t tell her mother.

• Count 3- She was at hockey practice at East Ipswich State School. She started to go home and the respondent was waiting for her. She got in the car with him. He drove her to a little park next to the river at the back of Ipswich Girls Grammar. He made her lie down on a small towel near some bushes and held her on the chest. He put his hand under her underwear and started rubbing her vagina. He said “Don’t tell mum where you’ve been”.

• Count 4 – She was playing hockey at East Ipswich State School. When they got to the oval in the car, he unzipped his trousers and told her to masturbate him. He held her hand in his penis and moved her wrist up and down until he ejaculated and then he gave her $5 to pay for hockey.

• Count 5 – She went with the respondent to his house to feed the animals. No one was there. He took her into a bedroom, pulled her by the hand. He made her lie down on the bed. He used his body to hold her down and he then put his hand against her vagina and rubbed her on her skin.

• Count 6 – Again, at the respondent’s home she was there with her sister. He dragged her into a bedroom. Her sister was locked out of the house. He made her lie on the bed and again put his hand under her underwear and started rubbing her on the vagina.

• Count 7 – It was a Saturday morning. She was at home with the respondent. He took her into her mother’s bedroom and made her lie down whilst he took her clothes off, started rubbing her on the vagina and then he put his finger in and around her anus which caused her some pain. He then tried to put his penis in her anus but did not penetrate. That was the final time that she was alone with the respondent.

1. The meaning of the phrase ‘course of conduct’ was considered in the case of MAJ v KM 2000 QCA 410 which applied but distinguished an earlier case of R v Llorente Ex-parte Hendry 2001 2QdR415.

2. In MAJ v KM, Davies JA with whose reasons Ambrose J and Chesterman J agreed, said in paragraph 14

   “the question is whether the offences to which I have referred arose out of one course of conduct or closely related courses of conduct of the respondent. Factors relevant to the determination of that question appear to be dissimilar but escalating nature of the respondents conduct; and the facts that the offences occurred in similar circumstances, that they form part of a pattern of similar offences of at least weekly occurrences, and that, although the indictment alleges a much longer period, they occurred over a period of a little under five months. Given section 663b its ordinary meaning it seems to me plain enough that the offences arose out of one course of conduct or at least closely related courses of conduct to the respondent.”

3. It was concluded by the court that there was sound policy reasons for construing the phrase “one course of conduct and closely related courses of conduct” narrowly even though compensation in many cases would be inadequate as a result of the interpretation.

4. In this case, all offences occurred when the child was in grade 5. They occurred with regularity and involved escalating sexual behaviour leading to the attempted sodomy in count 7. Given the narrow construction applied by the Court of Appeal in MAJ v KM (supra) it seems to me that this must be considered as one course of conduct.

5. The effect of the assault or assaults on the applicant has been quite significant. She herself has deposed to ongoing difficulties with relationships with men and difficulties with the sexual relationship with her partner. she has had problems trusting people and keeping friends and as a result feels very lonely. She has trouble keeping jobs because of a lack of self esteem. She has been estranged from her family because she blames her mother for not protecting her. She overreacts and loses her temper easily. She has been attending counselling from time to time since

6. She was seen by Rachel Hampson, a psychologist in Toowoomba on 3 March, 5 April and 8 August 2005. Ms Hampson has prepared a report for the purposes of this appplication.

7. The applicant reported to Ms Hampson that:

• she had difficulty concentrating at school.

• she was having flashbacks to the abuse in 2001.

• she was having difficulty forming relationships since the abuse.

• She has found sexual relationships confronting and frightening.

• She describes as a turning point in her life when she began to talk about the abuse and complained to the police.

• counselling has helped her cope with the memories.

• She becomes tearful if she remembers her childhood.

• At times she becomes short tempered with her son because of the memories flooding back.

1. Ms Hampson says she is not suffering from any diagnosable psychiatric disorder. She says instead

   “Whilst Ms R has suffered a number of distressing immediate and now longer term consequences of Mr Brown’s predatory behaviour, in my assessment she is not suffering from any diagnosable psychiatric disorder. It is clear that Ms R has suffered from a great degree of helplessness and isolation at the time of Mr Brown’s assaults thus decreasing her ability to form appropriate relationships with others as been evidenced by her in our discussions about future attempts at relationships and friendships.”

2. The question is whether this amounts to a mental or nervous shock within the meaning of section 663B of the Criminal Code. The test of mental or nervous shock was considered by Thomas JA in R v Kazakoff Ex-parte Ferguson [2001] 2Qd R 320. His Honour said at 324, paragraph 17

   “clearly, the ordinary usage of the term (nervous shock) has been to describe situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event.”

3. Further at paragraph 21,

   “to limit compensation to cases where a diagnosable mental disorder or psychiatric illness results will give the term “mental or nervous shock” a limited meaning.”

4. An analysis of the Hampson’s report in my view, demonstrates that the applicant’s reaction to the abuse can be categorised as an abnormal condition of mind above that of a normal reaction following a stressful event because 15 years later she is still experiencing a significant degree of difficulty with relationships and helplessness and feelings of being out of control such that it necessitates continuing counselling. In those circumstances it can be said in my view that she has suffered from mental or nervous shock although not to a significant extent as it has not amounted to a diagnosable illness such as post traumatic stress disorder or depression.

5. She is entitled to compensation under the Act. She did not in any way contribute to her injuries.

6. She is entitled to compensation for mental or nervous shock. She has outwardly at least managed to live a reasonably normal life. She has had difficulty working but she has nonetheless managed to form and stay in a long term relationship and looks after her child adequately. In my view a sum of $15,000 is appropriate.

ORDER

I order that the respondent pay the applicant the sum of $15,000 together with costs to be assessed unless otherwise agreed.