S v Harwood; S v Jones
[2006] QDC 320
•6 September 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
S v Harwood; S v Jones [2006] QDC 320
PARTIES:
S
Applicant
v.
David Simeon Jones
Respondent
S
Applicant
v.
Andrew Noel Harwood
Respondent
FILE NOS:
314 of 2005
356 of 2005
DIVISION:
Civil
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court
DELIVERED ON:
6 September 2006
DELIVERED AT:
Maroochydore
HEARING DATE:
1 September 2006
JUDGE:
K.S. Dodds, DCJ
ORDER:
The respondent David Simeon Jones pay the sum of $20,000.00 to the applicant by way of compensation for injury done to her by reason of the offences of which he was convicted on the 22 October 1993.
David Simeon Jones pay the costs of the applicant’s application for compensation against him.
The respondent Andrew Noel Harwood pay the sum of $16,000.00 to the applicant by way of compensation for injury done to her by reason of his convictions on the 7 December 1990.
Andrew Noel Harwood pay the costs of the applicant’s application for compensation against him.
CATCHWORDS:
Application for Criminal Compensation
Section 65A Criminal Code Qld (now repealed)
SOLICITORS:
R. C. Felmingham (Legal Aid Queensland) for the Applicant
These are applications for criminal compensation. The applications are required to be decided pursuant to the now repealed provisions of Chapter 65A of the Criminal Code.
The applicant was born on the 22nd December 1981.
On 21 December 2005 the applicant consulted Dr Samuels, a consultant forensic psychiatrist for the purposes of these applications. I have a report form Dr Samuels regarding the applicant’s psychological health and its causation.
The respondent Jones entered into a relationship the applicant’s mother when she was about five years of age. Shortly afterwards the respondent Harwood, who was a friend of Jones, moved into the home. He sexually interfered with the applicant and ultimately was convicted of offences against the applicant. After the interference became known he left the house. Shortly afterwards, the respondent Jones began to sexually interfere with the applicant. This interference went on for a longer period than that by the respondent Harwood, about four years. Ultimately, the respondent Jones was convicted of offences against the applicant.
The applicant’s perception is that her mother was not particularly supportive of her and played down what had happened. Despite Jones’ conviction, she continued in her relationship with him. The applicant was sent away firstly to stay with a family friend of her mother then with her maternal grandmother. Eventually her father took the children and they lived with him, the applicant until just before she turned 18.
In an affidavit filed in support of the application, the applicant says that the offences committed by the respondent Jones were worse than those committed by the respondent Harwood. The abuse by the Jones continued for much longer. It made her fearful and feel dirty. After she was sent away by her mother she felt rejected as if she was the one to blame for what had occurred. From about 13 years of age she began having thoughts of self harm. When she was 16 she burnt herself. Later she had thoughts of jumping off a cliff to kill herself. She experienced panic attacks and anxiety in her late teens and early twenties. She felt angry all the time. She was hyper vigilant. She had trouble sleeping only being able to sleep with the door to her room open. Over the years she has continued to have nightmares of the abuse mostly involving Jones but at times Harwood. She has found sexual relations difficult. Her relationship with her mother is poor.
The respondent Jones
Jones was charged with four offences against the applicant. A nolle prosequi was entered on one offence. On 22 November 1993 after a trial he was convicted of two offences namely, that on a date unknown between the 31st December 1992 and the 8th July 1993 at Peachester, he unlawfully and indecently dealt with S, a child under the age of 12 years with a circumstance of aggravation that he had her under his care; that on a date unknown between the 31st December 1992 and the 8th July 1993 he wilfully and unlawfully exposed the applicant, a child under the age of 12 years to an indecent act with a circumstance of aggravation that he had her under his care. According to the applicant there were many other occasions of sexual abuse not the subject of charges.
The offence of indecent dealing of which Jones was convicted occurred when she was about 11 years of age. Jones came into her bedroom one morning and brought his exposed penis into contact with her arm. She awoke to find that happening. He told her to get up. The other offence of which he was convicted occurred a couple of weeks before he was arrested. The applicant and he were in the lounge room of the house. The respondent was seated in a lounge chair in a bathrobe and shorts. He exposed his penis, masturbated in front of the child, ejaculating over his chair and onto the floor. He then wiped up the ejaculate with the bathrobe he was wearing.
The respondent Harwood
On the 7th December 1990, the respondent Harwood on his plea of guilty was convicted of four offences against the applicant, namely indecent treatment of a child under 12 years on a date unknown between the 3rd July 1989 and the 1st September 1989; unlawfully exposing a child under 12 years of an indecent act on a date unknown between the 3rd July 1989 and the 1st September 1989; unlawfully exposing a child under 12 years to an indecent act on a date unknown in August 1989; permitting himself to be indecently dealt with by a child under 12 years on a date unknown between the 3rd July 1989 and the 1st September 1989. The offences occurred when the applicant was about 7/8 years of age. The first charge occurred when he had been playing with the applicant, tickling her. He pulled down her pants pulled her labia apart looked at her internal genitalia and then kissed her in that area. The other three counts arose in a situation where he told the applicant he had an insect bite on his penis intending thereby to attract her attention to that part of him. The second and fourth charges involved him exposing his penis with the applicant looking for the insect bite. In the description of the third charge, the respondent’s penis was erect and the applicant touched his penis, moving it looking for the insect bite.
In an affidavit by the applicant filed in the application she speaks of liking the respondent Harwood because he would play games with her. She recalls when he would touch her it made her feel uncomfortable and she felt confused. She enjoyed having someone show an interest in her. Her mother was not particularly involved with her and seemed to be away a lot.
Dr Samuels
Dr Samuels has dealt with the effects and impact of the abuse upon the applicant. He felt unable to make a definite diagnosis of a psychiatric disorder but was of the view that the applicant suffered a number of psychological symptoms, centred around anxiety and depression which first manifested during the periods of sexual abuse and continued thereafter, seeming to worsen over time becoming particularly prominent in the applicant’s late teens and then seeming to settle over the year or so prior to him seeing her. He expressed the opinion the most significant after effect of the offences was that the applicant was forced to move away from her mother’s home initially living with strangers and essentially having to deal with all the issues facing her on her own. Ultimately she developed a relationship with her father which proved to be beneficial but longstanding difficulties in her relationship with her mother have continued. The applicant is still prone to feelings of anger, anxiety and fear and feelings she will never really ever put the events of abuse behind her. She still describes ongoing difficulties in her sexual relationship with her current partner. She has significant problems with anger and this can lead to difficulties with friends and employers. While her symptoms had been improving for a short period of time prior to the doctor seeing her, there remained a possibility that anxiety and depressive symptoms could re-emerge. He considered that her symptoms were quite severe at times, particularly during the periods when she felt actively suicidal. He considered she had quite severe panic and anxiety symptoms at times.
Discussion
I consider it clearly shown that the offences committed by the respondents have caused injury in the nature of mental and nervous shock to the applicant. Over the years since the offences were committed, symptoms have fluctuated. At the time of the applicant seeing Dr Samuels, they had seemingly improved to some degree. I consider however there remains a risk that they could worsen again in the future. I consider the offences have made a significant contribution to the spoliation of the applicant’s life.
An award of compensation pursuant to the now repealed provisions of the Criminal Code is limited to the “prescribed amount”. In the case of mental or nervous shock, the prescribed amount was $20,000.00.
There is no issue that any behaviour of the applicant contributed to the commission of these offences. Moreover, according to Dr Samuels the applicant had no pre-existing psychiatric, intellectual or other medical or psychological condition which may have contributed to the impact, severity or inevitability of the symptoms she suffered following the commission of the offences. The activity the subject of the offences impacted upon her. It was also causative of her being sent from her mother’s household to live firstly with strangers and then ultimately with her father. In the opinion of Dr Samuels, the most significant contributory factors to the mental or nervous shock she undoubtedly suffered and suffers from, was the abuse suffered at the hands of each of these respondents. I accept that opinion.
I have noted that the applicant says that other incidents of sexual abuse occurred on more occasions than the occasions the subject of convictions. Compensation can only be awarded for injury caused by the offences of which a respondent has been convicted.
As Robertson DCJ observed in Steinback v Steinback, 27 October 2000, what an applicant must establish on the balance of probabilities is that the conduct the subject of the convictions has made a material contribution to her mental or nervous shock, even if it is not the sole or even the effective cause. In that case the convictions were for two isolated offences in an alleged nine year period of sexual abuse. His Honour took the view that the accused had been convicted of two serious offences of a sexual nature against his own daughter on occasions some years apart. Causation was ultimately a matter of common sense and it defied common sense and logic not to infer that such actions by a natural father against his daughter, even in the context of long term sexual abuse would not have materially contributed to her total injury. His Honour’s approach was affirmed by the Court of Appeal. (2001) QCA 12.
In assessing compensation under the now repealed provisions of the Criminal Code, the Court’s approach is to make an assessment according to the ordinary principles of assessment of damages for personal injury in civil actions subject to the prescribed amount R v Jones Ex Parte McClintock (1996) 1 QR 524.
663B of the Criminal Code provided:
“(1) where a person convicted on indictment of any indictable offence relating to the person of any person or more than one indictable offence relating to the person of any person--- arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the Court on the application by or on behalf of the person aggrieved by the offence or offences, may in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender was convicted.”
(1A) For the purposes of determining whether courses of conduct are closely related regard should be had, in addition to any other relevant matter to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions one in relation to the other.”
I consider that the activity the subject of the convictions of each of the respondents materially contributed to the mental or nervous shock of the applicant which I have briefly described earlier in what I have said. Each has been convicted of offences against the applicant. A compensation order will be made against each of them.
The respondent Jones
Whilst it is clear the applicant says she was subjected to abuse by the respondent Jones over a four year period, he has been convicted of only two offences and it is in respect of those two offences that an order for compensation may be made. The first offence of which Jones was convicted occurred when the applicant was about 11 years of age when she awoke to find him with his penis touching her arm. The other offence occurred only a couple of weeks before the respondent was arrested and involved the respondent masturbating in front of her in the lounge room to ejaculation.
So far as the material discloses, the two offences were distinct and separated in both time and place. They involved different types of inappropriate sexual mistreatment of a child. They occurred in the context of ongoing regular sexual abuse by the respondent. In the final analysis, I do not think it can be shown that the offences were other than arising out of one course of conduct or at least closely related courses of conduct.
I assess compensation in the application against the respondent Jones in the sum of $20,000.00.
The respondent Harwood
Here also I think it should be concluded that the offences arose out of one course of conduct or at least closely related courses of conduct.
The respondent Harwood filed an affidavit in the proceedings. In it he provides details of his own life preceding and succeeding the commission of the offences. He appears to seek some explanation for what he did, expresses remorse and offers an apology. As noted earlier, he pleaded guilty to the offences. The applicant told Dr Samuels that she felt less threatened by Harwood because of his pleas of guilty and apparent willingness to seek treatment. She sees the abuse by Jones as the most significant and continues to fear him.
I asses compensation in the case of Harwood the sum of $16,000.00.
I order the respondent David Simeon Jones pay the sum of $20,000.00 to the applicant by way of compensation for injury done to her by reason of the offences of which he was convicted on the 22 October 1993.
I order the respondent Andrew Noel Harwood pay the sum of $16,000.00 to the applicant by way of compensation for injury done to her by reason of his convictions on the 7 December 1990.
I order David Simeon Jones pay the costs of the applicant’s application for compensation against him.
I order Andrew Noel Harwood pay the costs of the applicant’s application for compensation against him.
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