W v Bounghi and Other - [2004] QSC 101

SUPREME COURT OF QUEENSLAND

CITATION: W v Bounghi & Other [2004] QSC 101

PARTIES:
W
(Applicant)
v

Darren Lloyd Bounghi
(First Respondent)
Marshall Robert Palmer
(Second Respondent)
Brian Charles Neal
(Third Respondent)
James David Andrew
(Fourth Respondent)

FILE NO/S: 419 of 03

DIVISION: Trial

PROCEEDING: Application

ORIGINATING COURT:
Supreme Court at Cairns

DELIVERED ON: 23 April 2004

DELIVERED AT: Cairns

HEARING DATE: 1 December 2003

JUDGE: Jones J

ORDER:
(1) For their respective criminal offences against the Applicant the Respondents are to pay the Applicant by way of criminal compensation the following amounts:

(1)   Darren Lloyd Bounghi - $21 000

(2)   Marshall Robert Palmer - $8500

(3)   Brian Charles Neal - $8500

(4)   James David Andrews - $8500

(2) The respondents are to pay the applicant's costs of and incidental to the application to be assessed on the standard basis.

CATCHWORDS:
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDER FOR CRIMINAL COMPENDATION – where respondents convicted of multiple counts of rape and sexual assault – where applicant was raped multiple times and suffered minor physical injuries – where applicant sought compensation for pain and suffering and nervous shock – where compensation sought under s663B(1) of the criminal code – assessment of amount to be paid – joint offenders – whether maximum compensation payment may be ordered against each offender.

Criminal Code (QLD), Chapter 65A, s663A, s663A(b), s663AA, s663AA(1), s663AA(2) and s663AA(3), s663B(2)

Workers Compensation Act 1916, s14(1)(c), s14(1)(C)(a)
WorkCover Queensland Act 1996, s167, s167(1)

WorkCover Queensland Regulation 1997, Schedule 2

Freeman v Grahame & Ors [2002] 2 Qd 406

Husted v Meizer [2001] QSC 323

R v Hurle; ex Parte Anderson (1991) 2 QLd Rep 682

Whyte v Robinson [2000] QCA 99, 28/03/00

COUNSEL: Mr P Edson for the Applicant
No Appearance by or on behalf of Respondents

SOLICITORS: Legal Aid Queensland for the Applicant
No Appearance by or on behalf of Respondents.

JONES J:

W makes this application under the now repealed Chapter 65A of the Criminal Code for criminal compensation for injuries she sustained on the 7 January 1988.

On 6 June 1988, the first respondent Darren Lloyd Bounghi pleaded guilty in the Supreme Court of Cairns of five counts of rape and one count of indecent assault of the applicant.

On 6 June 1988, the second respondent Marshall Robert Palmer pleaded guilty in the Supreme Court, Cairns of one count of rape and one count of indecent assault of the applicant.

On June 6 1998, the third respondent Brian Charles Neal pleaded guilty in the Supreme Court, Cairns of one count of rape and one count of indecent assault of the applicant.

On 6 June 1988, the fourth respondent James David Andrews pleaded guilty in the Supreme Court, Cairns of one count of rape and one count of indecent assault of the applicant

All four respondents have been duly served with this application and the supporting material but have not appeared to make any submissions on the question of compensation.

The…

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.

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Details

Case: [2004] QSC 101
Decision Date: 23 April 2004

CaseChat Overview and Summary

The case of W v Bounghi and Others involved multiple respondents who had been convicted of various counts of rape and sexual assault against the applicant. The applicant, having suffered from multiple rapes and minor physical injuries, sought compensation for the pain and suffering and nervous shock she endured. This application for compensation was made under section 663B(1) of the criminal code, and the court had to determine the appropriate amount to be awarded to the applicant. A critical issue was whether the maximum compensation payment could be ordered against each offender, given that there were multiple joint offenders involved.

The court examined the legislative framework and relevant case law to assess the amount of compensation. It was noted that the compensation was intended to cover the pain and suffering and nervous shock experienced by the victim, but it was not to be punitive. The court took into account the severity of the offences, the number of offenders, and the impact on the victim. It was determined that while the maximum compensation could be awarded, it should be apportioned among the offenders in a manner that reflected the degree of their respective culpability.

The court concluded that the appropriate compensation for the applicant should be $21,000 for the primary offender and $8,500 for each of the other three respondents. This decision was based on the specific roles and contributions of each offender to the crimes committed. The court also ordered that the respondents pay the applicant's costs of the application, to be assessed on the standard basis. This outcome reflects the court's commitment to providing adequate redress for victims of serious sexual offences while also ensuring that the compensation is fairly distributed among the offenders.

Orders

Orders of the court

(1) For their respective criminal offences against the Applicant the Respondents are to pay the Applicant by way of criminal compensation the following amounts:

(1) Darren Lloyd Bounghi - $21 000

(2) Marshall Robert Palmer - $8500

(3) Brian Charles Neal - $8500

(4) James David Andrews - $8500

(2) The respondents are to pay the applicant's costs of and incidental to the application to be assessed on the standard basis.

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:	W v Bounghi & Other [2004] QSC 101
PARTIES:	W (Applicant) v Darren Lloyd Bounghi (First Respondent) Marshall Robert Palmer (Second Respondent) Brian Charles Neal (Third Respondent) James David Andrew (Fourth Respondent)
FILE NO/S:	419 of 03
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Cairns
DELIVERED ON:	23 April 2004
DELIVERED AT:	Cairns
HEARING DATE:	1 December 2003
JUDGE:	Jones J
ORDER:	(1) For their respective criminal offences against the Applicant the Respondents are to pay the Applicant by way of criminal compensation the following amounts: (1) Darren Lloyd Bounghi - $21 000 (2) Marshall Robert Palmer - $8500 (3) Brian Charles Neal - $8500 (4) James David Andrews - $8500 (2) The respondents are to pay the applicant's costs of and incidental to the application to be assessed on the standard basis.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDER FOR CRIMINAL COMPENDATION – where respondents convicted of multiple counts of rape and sexual assault – where applicant was raped multiple times and suffered minor physical injuries – where applicant sought compensation for pain and suffering and nervous shock – where compensation sought under s663B(1) of the criminal code – assessment of amount to be paid – joint offenders – whether maximum compensation payment may be ordered against each offender. Criminal Code (QLD), Chapter 65A, s663A, s663A(b), s663AA, s663AA(1), s663AA(2) and s663AA(3), s663B(2) Workers Compensation Act 1916, s14(1)(c), s14(1)(C)(a) WorkCover Queensland Act 1996, s167, s167(1) WorkCover Queensland Regulation 1997, Schedule 2 Freeman v Grahame & Ors [2002] 2 Qd 406 Husted v Meizer [2001] QSC 323 R v Hurle; ex Parte Anderson (1991) 2 QLd Rep 682 Whyte v Robinson [2000] QCA 99, 28/03/00
COUNSEL:	Mr P Edson for the Applicant No Appearance by or on behalf of Respondents
SOLICITORS:	Legal Aid Queensland for the Applicant No Appearance by or on behalf of Respondents.