R v Mervyn Vincent Pershouse - [1999] QSC 96

IN THE SUPREME COURT
OF QUEENSLAND
No. 1 of 1999
Bundaberg
Before Justice Wilson
[R v Mervyn Vincent Pershouse]

IN THE MATTER OF Chapter LXVA of
the Criminal Code of Queensland
- and -

IN THE MATTER OF the
Application for Compensation
by CHRISTINA JUNE PERSHOUSE

REASONS FOR JUDGMENT - WILSON J.
Delivered 30 April 1999

This is an application for criminal compensation made by Christina June Pershouse.
The applicant was born on 22 February 1974. In 1980 and again in 1982 her father Mervyn Vincent Pershouse unlawfully and indecently dealt with her. He was convicted of those offences on 9 April 1990.
On the material before me I am satisfied that the respondent had been sexually interfering with the applicant from when she was 5 or 6. He interfered also with other members of the family and in September 1990 pleaded guilty to having raped her younger sister Venus in 1986, when Venus was 11.
The applicant’s evidence was that at the time the offences were committed she did not like what her father did to her and she was frightened. However, he was a very domineering father and she did not tell anyone about it until the police came to her school in 1989. The experiences of the police investigation and the subsequent court hearings had a very disruptive effect on her whole life. She was placed in foster care in early 1990. She consulted a psychiatrist for several months. She had one month’s employment as a nanny but the job was too far away and she missed her family. She also had a month’s work at a nursery. She commenced correspondence schooling in 1991 but could not cope with it. At that stage she was living in a hostel. Later she tried to complete her education as a mature age student, but was unable to do so. Sporadically she has had casual work in unskilled positions. She said:-
“I say that I still feel that I am suffering from what my father did to me. I have very mixed feelings about all of what happened. I feel angry and sad. I feel lonely. I do not have many friends and I do not make friends easily. I do not trust people. I am afraid of close relationships, especially with men. I feel betrayed by my father, but at the same time I feel very sad because I still feel some good feelings for my father and I feel guilty that he is an old man in jail.
I say that I have been told about counselling but I still feel too shy to go to counselling or to talk about my life. I live alone in a flat in Bundaberg where I have lived since 1993. Initially I lived with one of my brothers.
I say that I went back on to anti-depressants in 1997. I was very depressed during 1997 and I contacted one of the ladies from the Department of Family Services again. She told me about counselling and that I could bring an application for compensation.
I am apprehensive about more court proceedings and having to talk about things with people. I have been told that I will see a psychologist and talk about how my life has changed because of what happened to me. I try to imagine a future for myself that involves children. I feel very strongly that children should be protected. I have only ever had one boyfriend.”
Evidence of a clinical and forensic psychologist, Geoffrey Grantham, was placed before me. In his opinion she has some of the symptoms of post traumatic stress disorder.
The application for criminal compensation was not filed until 18 January 1999. It is to be dealt with in accordance with the legislation applicable at the time of the offences: see R v Annel, ex parte Anderson [1998] 2 Qd. R. 174 at 183-184 per Lee J. At that time s 663B(1) of the Criminal Code provided:-
“(1)Where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, may, in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence of which the offender is convicted. An order made under this subsection shall not, for any purpose, be taken to be part of a sentence.”
“Prescribed amount” was defined in s. 663A as follows:-
“(a)where the offence in connection with which the case arises is committed before the commencement of The Criminal Code and the Justices Act Amendment Act 1975, two thousand dollars;
(b)in all other cases, five thousand dollars.”
As Lee J observed in R v Annel ex parte Anderson the right to compensation arose at the time the injuries were inflicted. Even though psychiatric injury can develop later, an applicant has from the moment of the infliction of the injuries onward a prima facie right to compensation.
In the present case there were two offences and there should be a separate assessment of compensation for injury suffered by reason of each. Amendments introduced in 1984 restricting the right to one assessment where one or more indictable offence arose out of one course of conduct or closely related courses of conduct are not applicable to this case.
The legislation as it then stood contained no limitation period for the bringing of such an application. In R v Gudz ex parte de la Cruz (unreported 29 November 1995) de Jersey J said:-
“... there are dicta in the cases to the effect that delay in bringing an application may result in an order for compensation being refused. Where there has been delay or a long time, I should say, between the commission of the offence or the conviction and the application for compensation, one of course looks at two things in particular; one looks at any explanation for the delay first and second one looks at any consequences of the delay to the respondent in determining whether that prejudice should outweigh the benefit of making an award to an applicant.”
In the present case there has been an adequate explanation for the delay. Although the applicant was aged 6 and 8 years when the offences were committed, it was not until she was 15 that the police became involved with her family. She attained her majority in 1992. She was not aware that she could bring proceedings until several years later. Over the years she had occasional contact with social workers and in late 1997 one of them first told her about criminal compensation. She first sought legal advice in January 1998. The respondent was served with the application in prison. He did not appear. No question of prejudice to him has been raised. In the circumstances I would not refuse compensation because of delay.
Compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases, and then the statutory cap is to be applied. See R v Jones ex parte McClintock [1996] 1 Qd.R. 524 at 527 per Fitzgerald P. In this case the maximum compensation I can award is $10,000, being $5,000 for injury suffered in each offence. I am satisfied that her injuries would attract a far larger award of damages than that. However, that is the most I can award.
I order the respondent to pay the applicant $5,000 by way of compensation for the injury she suffered by reason of the offence of unlawful and indecent dealing with a girl under 16 years committed between 1 January 1980 and 31 December 1980 of which he was convicted on 9 April 1990
I order the respondent to pay the applicant $5,000 by way of compensation for the injury she suffered by reason of the offence of unlawful and indecent dealing with a girl under 16 years committed between 1 January 1982 and 1 December 1982 of which he was convicted on 9 April 1990.
I further order the respondent to pay the applicant her costs of and incidental to the application to be taxed. See R v Holder ex parte Jenner [1988] 2 Qd.R. 580.
IN THE SUPREME COURT
OF QUEENSLAND
  No. 1 of 1999
Bundaberg
Before Justice Wilson
[R v Mervyn Vincent Pershouse]
IN THE MATTER OF Chapter LXVA of
the Criminal Code of Queensland
- and -
IN THE MATTER OF the
Application for Compensation
by CHRISTINA JUNE PERSHOUSE
REASONS FOR JUDGMENT - WILSON J.
Delivered 30 April 1999
CATCHWORDS:                 CRIMINAL COMPENSATION - offences committed in 1980   and 1982 - right to compensation arose when the injuries inflicted - symptoms of post traumatic stress disorder - delay in bringing application - separate assessment of compensation for each offence
Criminal Code ss 663A, 663B
R v Gudz ex parte de la Cruz (unreported; de Jersey J; 29   November 1995)
R v Annel ex parte Anderson [1998] 2 Qd. R. 174
R v Jones ex parte McClintock [1996] 1 Qd.R. 524
R v Holder ex parte Jenner [1988] 2 Qd.R. 580
Solicitor for the Applicant:        Mrs C.A. Clements, Legal Aid Queensland
Hearing Date:  19 March 1999