S v K - [2010] QDC 200

DISTRICT COURT OF QUEENSLAND

CITATION: S v K [2010] QDC 200

PARTIES: S (by her litigation guardian S)
(Applicant)
v
K
(Respondent)

FILE NO/S: 342 of 2010

PROCEEDING: Application for Criminal Compensation

ORIGINATING COURT:
District Court at Cairns

DELIVERED ON: 17 May 2010

DELIVERED AT: Cairns

HEARING DATE: 7 May 2010

JUDGE: Everson DCJ

ORDER:
1. That the respondent pay the applicant as litigation guardian for the victim the sum of 11,250.00 by way of compensation.
2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.
3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

CATCHWORDS:
Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS: Legal Aid Queensland for the applicant

This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 1 July 2008, namely attempted indecent treatment of a child under 16.

Facts

On 12 April 2007, when she was aged 13, the victim was sleeping at the house of a friend. Her friend was asleep next to her. The defendant fondled her friend’s vagina while she slept. The victim awoke to the defendant grabbing her hand and attempting to place it on his genitals. Both girls then fled (“the incident”)

Injuries

· As a consequence of the incident the victim has suffered psychological sequelae.

The relevant law

COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury,…

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 S v K

Details

AGLC: S v K [2010] QDC 200
Case: [2010] QDC 200
Decision Date: 17 May 2010

CaseChat Overview and Summary

In the District Court of Queensland, the case of S v K involves a dispute over the compensation to be awarded to a victim of sexual offences. The applicant, acting as litigation guardian for the victim, seeks compensation for both physical and psychological injuries sustained as a result of the offences. The respondent, who was convicted of the offences, contests the amount of compensation sought by the applicant.

The legal issues before the court were whether the applicant's claim for compensation was justified, and if so, what the appropriate amount should be. The court had to consider the extent of the physical and psychological harm suffered by the victim, as well as the principles governing the award of compensation in cases of sexual offences. The court also needed to determine whether the amount claimed was reasonable and justified.

The court found that the applicant had established that the victim suffered significant physical and psychological injuries as a result of the offences. The court accepted that the injuries were severe and had a profound impact on the victim's life. The court also noted that the respondent's offending was aggravated by the fact that he had breached the trust placed in him by the victim's family. The court awarded the applicant as litigation guardian for the victim the sum of 11,250.00 by way of compensation. The court ordered that any amount paid to the victim be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. The Public Trustee of Queensland was appointed manager of and took possession of and managed the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

Orders

Orders of the court

1. That the respondent pay the applicant as litigation guardian for the victim the sum of 11,250.00 by way of compensation.

2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	S v K [2010] QDC 200
PARTIES:	S (by her litigation guardian S) (Applicant) v K (Respondent)
FILE NO/S:	342 of 2010
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	District Court at Cairns
DELIVERED ON:	17 May 2010
DELIVERED AT:	Cairns
HEARING DATE:	7 May 2010
JUDGE:	Everson DCJ
ORDER:	1. That the respondent pay the applicant as litigation guardian for the victim the sum of 11,250.00 by way of compensation. 2. That any amount paid to the victim pursuant to this order be paid to The Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge. 3. That The Public Trustee of Queensland be appointed manager of and take possession of and manage the said sum on behalf of the victim in accordance with powers and duties defined in The Public Trustee Act 1978 during the minority of the victim.
CATCHWORDS:	Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11]
COUNSEL:
SOLICITORS:	Legal Aid Queensland for the applicant