RJW v AJC - [2012] QDC 342

[2012] QDC 342

DISTRICT COURT

CIVIL JURISDICTION

JUDGE LONG SC

No 39 of 2010

RJW	Applicant
and
AJC	Respondent

MAROOCHYDORE

..DATE 13/11/2012

..DAY 1

JUDGMENT

HIS HONOUR: On 29 January 2010, this application for criminal compensation was filed. That occurred, consequently, to the respondent being convicted and sentenced on 27 November 2008, in the District Court at Maroochydore for six offences committed against the applicant; being an offence of maintaining an unlawful sexual relationship with a child in the period 1 January 2000 to 28 September 2002 and five offences of indecent treatment of a child in his care, also committed within that period.

The respondent was sentenced for these offences to a total period of five years' imprisonment, with a parole eligibility date fixed at 25 July 2010.

The applicant was the step-daughter of the respondent and in the period of the commission of the maintaining offence, she was aged 13 to 16 years (her date of birth is 29 September 1987). She is now aged 25 years.

The respondent was born on 28 February 1970 and therefore is now aged 42, and was aged between 29 and 32 years when the offences occurred.

This application is made pursuant to Part 3 of the Criminal Offence Victims Act 1995 ("COVA"), which provisions continue to apply to this application despite the repeal of COVA on 1 December 2009. This is because sections 154 and 155 of the Victims of Crime Assistance Act 2009 provide for the continued availability of these provisions because of the making of this application before the end of two months after the commencement of that Act.

Although the respondent is still subject to the sentence imposed on him on 27 November 2008, he has been released from prison and was, on 25 September 2012, served with the application and the supporting materials which were originally filed with the application, together with a notice of intention of the applicant to proceed with this matter at the hearing on 9 November 2012. The respondent, therefore, remains a prisoner for whom the Public Trustee has responsibility pursuant to section 91 of the Public Trustee Act 1978 (except if notification has been given pursuant to section 92 of that Act). It is not known whether any such notification has been given and if it has not, then the incapacity of the respondent is expressed in section 95(1)(b) of the Public Trustee Act in terms that:

“During the time when the public trustee is manager of the prisoner’s estate under this part, a prisoner shall be incapable, except with the consent in writing of the public trustee
…
(b) of bringing or defending any action of a property nature or for the recovery of any debt or damage.”

No such consent is before the Court and the Public Trustee has not been notified of this proceeding. In the affidavit of Ms Penshorn, she deposes to receiving a telephone call from the respondent at 2.45 p.m. on 8 November 2012,…

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 RJW v AJC

Details

AGLC: RJW v AJC [2012] QDC 342
Case: [2012] QDC 342
Decision Date: 13/11/2012

CaseChat Overview and Summary

In the District Court of Queensland, the case of RJW v AJC was presided over by Judge Long. The applicant, RJW, filed the application for criminal compensation against AJC, her former step-father, who had been convicted and sentenced for multiple offences committed against her between 2000 and 2002. The respondent was sentenced to five years' imprisonment, with a parole eligibility date of 25 July 2010. The application was made under the provisions of the Criminal Offence Victims Act 1995, which continued to apply despite its repeal on 1 December 2009.

The legal issues before the court were primarily concerned with the applicant's entitlement to compensation under the statutory scheme, the procedural issues regarding the delay in serving the application, and the appropriate assessment of the injuries suffered by the applicant. The court needed to determine the severity of the mental and nervous shock suffered by the applicant, as well as any other adverse effects of the crime that were not part of a diagnosable psychiatric disorder. The court also had to consider whether the respondent's absence and lack of defense could proceed without notification to the Public Trustee.

The court found that the applicant had a prima facie entitlement to compensation and that the absence of the respondent did not impede the proceedings. The court granted leave to proceed under the Uniform Civil Procedure Rules, considering the applicant's lack of action in the proceeding and the respondent's disinterest in contesting the application. The court assessed the injuries based on the statutory methodology and the seriousness of the offences, concluding that the applicant suffered from post-traumatic stress disorder and other adverse impacts. The court determined an appropriate compensation amount, taking into account the totality of the adverse impacts, and decided on a total award of $33,750. The court made orders in accordance with the draft provided at the hearing.

Orders