TNM v WGD

[2006] QDC 272

DISTRICT COURT OF QUEENSLAND

CITATION:

TNM v WGD [2006] QDC 272

PARTIES:

TNM

Applicant

v

WGD

Respondent

FILE NO/S:

No 1499 of 2006

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Brisbane

DELIVERED ON:

4 August, 2006

DELIVERED AT:

Brisbane

HEARING DATES:

25 July 2006

JUDGE:

McLauchlan QC DCJ

ORDER:

That the Respondent pay to the applicant the sum of $70,000 by way of compensation.

CATCHWORDS:

COUNSEL:

Ms Fadden for the applicant

SOLICITORS:

Legal Aid Queesland for the applicant

1. This is an application for criminal compensation under s 663B(1) of the Criminal Code.  The respondent was the maternal grandfather of the applicant.  The applicant was born on 11 January 1975 and was aged between seven and 16 years during the time of the commission of the offences.  The respondent was born on 10 August 1922 and was aged between 59 and 70 during that period.  The offending behaviour occurred over a period of approximately 10 years.

1. The respondent pleaded guilty to 14 counts of unlawful and indecent dealing with the applicant on 11 October 2002 at the District Court at Toowoomba.  He was sentenced to imprisonment for a period of three years, wholly suspended with an operational period of five years in respect of each of the counts.  The period of the offending was between 10 January 1981 and 12 January 1992.

1. Counts 1 to 3 occurred when the applicant was aged 7 and 8.   Count 1 essentially related to the respondent touching the applicant in her vaginal area outside her clothing, following an episode of tickling her stomach, before moving his hand down to her private area.  Count 2 began in a similar fashion and again involved touching the applicant in the vaginal area outside her clothing.  Count 3 involved the respondent taking the applicant’s hand and pushing it down on his erect penis and rubbing her hand up and down until ejaculation.

1. Counts 4, 5 and 6 occurred when the applicant was nine and 10.  These counts involved the respondent placing his hand between the cheeks of the applicant’s buttocks and touching her anus either with his hand or on one occasion with a pen.  Counts 7, 8 and 9 occurred when the applicant was 11 and 12 years of age.  In Count 7 there was a repetition of the tickling and touching of the vaginal area on the outside of the applicant’s clothing.  Count 8 involved taking hold of the applicant’s feet and spreading her legs into a wide V-shaped position, then pulling her close to him so that the area of her buttocks was touching his groin area.  Count 9 involved similar facts, with the respondent standing between the applicant’s legs and squeezing her left breast.

1. Counts 10, 11 and 12 occurred when the applicant was 13 and 14 years of age.  Count 10 involved the respondent pushing his penis against the applicant’s vaginal area, whilst both were fully clothed.  Count 11 involved a similar action on his part in the area of the applicant’s bottom.  Count 12 involved an open-mouthed kiss between the respondent and the applicant.  Counts 13 and 14 occurred when the applicant was 16 years of age.  These offences involved the respondent pushing his erect penis against the area of the applicant’s vagina whilst they were both clothed.  He maintained this position on each occasion for approximately one minute.

1. These events had a considerable impact upon the mental health of the applicant.  There was a significant deterioration in her behaviour at the age of about eight years and as a child she made several suicide attempts which involved overdosing on medication, cutting her wrists and trying to hang herself in the garage.  She was examined by Dr Barbara McGuire, a psychiatrist.  Dr McGuire says in her report that she believes that as a consequence of the offences the applicant has a diagnosable psychiatric disorder, namely post-traumatic stress disorder, as characterised by recurrent intrusive thoughts of the incidents, experiences nightmares and flashbacks, avoidance of cues reminding her of the abuse, feelings of detachment from others, concentration difficulties, dissociative phenomena, etc.  She believes that the applicant suffers this to a severe degree and that it has been present since childhood and that her symptoms are likely to be life long.  She also believes that the applicant has developed personality traits which will hamper her capacity to cope with life.  There were consequential unpleasant impacts within her family and she felt that she was blamed for being the cause of all the family problems.  She experiences extreme pessimism about her life and has no hope that she will be able to have a reasonable life.  She said she could not have children because she would not be a fit mother.  She would not want to pass anything on.  She lives alone.

1. I think it is reasonable to conclude from the material that the applicant has been severely damaged by the offences committed upon her by the respondent.  It is also reasonably clear that there are likely to be lifelong consequences of that conduct.  Dr McGuire says that she believes that the emotional abuse suffered by the applicant as a result of the highly dysfunctional relationship with her grandfather has been responsible for extensive personality problems.

1. Compensation is to be assessed according to the ordinary principles of assessment of damages for personal injuries in civil actions, subject to the limit of the “prescribed amount” imposed under chapter 65A of the Criminal Code.  In my opinion, compensation would not be assessed at common law at a figure less than $70,000.

1. I take the view that the offences contained in Counts 1 to 5 of the indictment must be assessed for compensation on the basis that the prescribed amount was that provided before the commencement of the Criminal Code Amendment Act 1984, on 1 July 1984, and is therefore the sum of $5,000.  This is because it is impossible to say that even the offence alleged in Count 5 was committed on or after 1 July 1984.  As from 1 July 1984, s 663AA(1) provides that the prescribed amount in the case of mental or nervous shock is $20,000.

1. The authorities in relation to what constitutes a “course of conduct” under the relevant provisions of the Criminal Code place emphasis upon the time which has elapsed between different incidents, and the nature of the conduct occurring over a period. In some cases, in my opinion, the time interval between different incidents will preclude those incidents from being regarded as part of the one course of conduct, even if the conduct is essentially the same in all cases. In other cases the conduct may be so different that, even if it occurs within a relatively short period of time, it will be impossible to regard more than one incident as forming a part of the same course of conduct. Obviously, it is necessary to take a somewhat broad view of the matter to reconcile the differing aspects of the matter which need to be taken into consideration. My view is that the conduct covered by Counts 1, 2 and 3 of the indictment form one course of conduct and the maximum compensation which can be ordered in respect of those matters is $5,000. Counts 4, 5 and 6 form another course of conduct and the compensation that can be ordered there is a maximum of $20,000. This is because the conduct comprised in Count 6 attracts a maximum award of $20,000 and it is, in my view, clear that that conduct made a substantial contribution to the applicant’s injuries, to which the conduct in Counts 4 and 5 also made a contribution. Similarly, I consider that Counts 7, 8 and 9 form a discrete course of conduct, attracting a maximum award of $20,000 and the same can be said for Counts 10, 11 and 12, forming another course of conduct, and Counts 13 and 14 comprising yet another course of conduct. The result of this is that the maximum compensation which could be awarded under the legislation is $80,500. This does not therefore inhibit an award of compensation up to that amount.

1. For the reasons I have indicated above I think, taking into the account the prolonged period over which the incidents occurred, and the very serious effect which this has had upon the mental health of the applicant, an appropriate order for compensation is the sum of $70,000.  The respondent is ordered to pay this amount to the applicant.

1. The respondent is also ordered to pay the applicant’s costs of and incidental to the application.