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:

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 W makes this application under the now repealed Chapter 65A of the Criminal Code for criminal compensation for injuries she sustained on the 7 January 1988.

1. 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.

1. 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.

1. 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. 

1. 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

1. 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.

1. The applicant was only 14 years old at the time of the offence.  The respondents’ attack on her included depriving her of her liberty, dragging her violently to an isolated beach location, stripping her and gang-raping her in a prolonged attack.  During the attack she also endured continual physical assault including punching and kicking to her chest, as well as being continually struck with a piece of wood. 

1. Following the attack the applicant sought refuge at a nearby house and then returned to her mother’s house.  She then was taken to hospital where she was examined and also spoke to the police.

1. On 7 January 1988 the applicant was examined by Dr. Michael Joseph who observed that the applicant’s right arm was in a sling and that she appeared to be in pain and a little bit dazed.  The applicant had tenderness all over her scalp with no breaks in the skin.  She was also very tender over the lateral surfaces of both upper arms with 3 linear bruises running transversely across her right upper arm.  An abdominal examination revealed she was very tender over the spleen, moderately tender over the liver and slightly tender over the left, lower abdominal quadrant.  The applicant was very tender around the vulva and vaginal introitus.

1. The doctor opined that the tenderness on the scalp and bruising over the arms were consistent with blows from a piece of wood.  The tenderness in the abdomen was consistent with kicks to the area.  The soreness around the applicant’s vulva and vagina were consistent with forced intercourse.

1. Since the attack the applicant has suffered psychological damage manifested by a host of symptoms including:

• Nightmares and flashbacks of the event

• High anxiety and increases sense of insecurity, especially at night-time

• Feelings of sadness, depression and emptiness.

• A sense of violation and loss of identity.

• Feelings of guilt and shame.

• Loneliness and a loss of trust in people.

• Bad thoughts or feeling during sex.

1. The applicant’s psychological state has been appraised by Ms. Christine Richardson, psychologist.  She has diagnosed her as suffering from severe symptoms associated with a major depressive disorder and a psychological profile consistent with moderate post traumatic stress disorder.

1. The applicant’s recovery has been made difficult by the fact she frequently sees the respondents around where she lives, and they still approach her and make reference to the incident.  The applicant reports that she has received verbal abuse because she has made an application for compensation and that some people in her community are angry at her for making the original complaint.

Assessment of Compensation

1. The criminal compensation scheme applicable to injuries sustained as a result of the commission of a criminal offence prior to 18 December 1995 is governed by Chapter 65A of the Code.

1. Compensation under Chapter 65A is assessed on the same basis as an award for damages for personal injury in civil cases and economic loss is recoverable. The prescribed amount of upper limit is relevantly specified by s663A and s663AA of the Code to be:

(a) where an injury suffered by reason of the offence is the same or substantially the same as an injury specified in the table set forth in s14(1)(C) of the Workers Compensation Act 1916, the amount specified for that injury in the table: see s 663AA(2) of the Code;

(b) where it is not the same or substantially the same, the amount specified in s 14(1)(C)(a) of the Workers' Compensation Act 1916, as varied: see s 663A(b) of the Code;

(c) where there are more injuries than one, the amount specified in s14(1)(C)(a) of the Workers' Compensation  Act 1916 as varied: s 663AA(3) of the Code; and

(d) in the case of mental or nervous shock it is $20,000: see s 663AA(1) of the Code.[1]

1. The references to s14(1)(C) of the Workers Compensation Act 1916 are to be read as s167 of the WorkCover Queensland Act 1996 and Schedule 2 of the WorkCover Queensland Regulation 1997: see Whyte v Robinson [2000] QCA 99, 28/03/00; Ryan J in R v Hurle; ex Parte Anderson (1991) 2 Qld Rep 682.

1. Under Schedule 2 of the WorkCover Regulation 1997 there are no listed injuries which are directly analogous to the plaintiff’s. The physical injuries endured by the plaintiff are to be categorised as minor and were recovered from reasonably quickly.

1. An award of $2500 should be made to reflect the physical injuries suffered.  It is apparent that the first respondent, Darren Boughi inflicted most of the physical injuries on the plaintiff and thus should be liable to pay $1000.00 by way of compensation.  Marshall Robert Palmer, Brian Charles Neal and James David Andrews are to pay $500.00 each respectively by way of compensation for physical injuries inflicted on the plaintiff. Husted v Meizer[2001] QSC 323

1. I consider that an award for psychiatric problems suffered by this applicant as a result of the nature of the offence would exceed $20,000.  However where multiple accused is involved such as in this case different considerations arise.[1]  In Freeman v Grahame & Ors [2002] 2 Qd R 406 de Jersey CJ stated

   [1] Coconut v Coconut [2002] QSC 369 per Philippides J

“[1] It is well established that when joint offender inflicts injury upon a by victim of their crime, the court, may under s663B of the Criminal Code (if applicable), order each offender to pay, by way of compensation, an amount not exceeding the prescribed maximum”.

…

2.        What is not expressly established is whether, in the case, say, of equally culpable offenders, the court may legitimately order an amount equal to the prescribed maximum against each, where that maximum is less than the civil damages to which the victim would be entitled, but the aggregation of the amounts ordered would exceed the amount of those civil damages.

3.In Re Poore, supra, decided on comparable legislation, would suggest that the amount assessed for civil damages should in such a case be divided equally between the co-offenders, and the amounts so obtained ordered against each, provided that no amount so ordered exceeds the prescribed maximum.

4.         That is in my view the correct approach, acknowledging that the section provides for the payment of such sums “by way of compensation for injury suffered”.

5.         In other words, the total amount of compensation should be calculated by adopting the ordinary civil damages approach. The comparative degrees of responsibility of the respective joint offenders should then be assessed, and their respective "shares" of the compensation calculated accordingly.  If, in any case, the amount calculated exceeds a prescribed maximum amount, then only that maximum amount may be ordered against that offender. But otherwise the amounts ordered are those calculated in that way. That would result, were the orders met, in the applicant's being "compensated", subject only to the statutorily imposed limitation on the maximum amount for any one offender. This approach reflects the legislative intention implicit in the provision."

1. Following the principles of Freeman v Grahame & Ors, I propose to order payment for this case to be made against each offender.  In regards to the nervous shock component, it is clear that the first respondent, Darren Boughi was the instigator of the offence and was responsible for the initial abduction.  He inflicted the most violence and trauma on applicant by punching and kicking her, and by hitting her with a stick while she was being raped by the other respondents.   

1. Although there are no directly comparative cases involving multiple rape,  the decision relied upon by the applicant do demonstrate that courts are prepared to award maximum amount of $20,000 in cases involving a single offender and a single act of rape.  

1. In the current case, regard must be had for the particularly brutal, prolonged and degrading characteristics of this offence inflicted on a very young girl.  I assess the allowance for compensation to be $44 000.  It would be appropriate in this case to award the maximum amount of compensation of $20 000 against Darren Bounghi.  In regards to the other three respondents, an amount of $8000 should be awarded against each respectively. 

1. There is no suggestion that the applicant in any way contributed to her injuries [s 663B(2) ]

1. Orders: 

(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 Andrew  $8500

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