WLM v MWB and ATW - [2011] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

WLM v MWB & ATW [2011] QDC 228

PARTIES:

WLM
(Applicant)

v

MWB
(First Respondent)

and

ATW
(Second Respondent)

FILE NO/S:

115/2008

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

2 September, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

22 June 2011

JUDGE:

Dearden DCJ

ORDER:

The First Respondent MWB and the Second Respondent ATW jointly and severally pay the applicant WLM the sum of $30,000.

CATCHWORDS:

Application – criminal compensation – deprivation of liberty – common assault – indecent treatment of a child under 16 – mental or nervous shock

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss.24 and 40(1)

Juvenile Justice Act 1992 (Qld)

Penalties and Sentences Act 1992 (Qld)

Victims of Crime Assistance Act 2009 (Qld) s.167(2)

CASES:

Boyd-Bush v Braden [2010] QDC 348

JMR obo SRR v Hornsby [2009] QDC 147

Laning v C-K [2010] QDC 425

COUNSEL:

F Muirhead (solicitor) for the applicant

No appearance for the first or second respondent

SOLICITORS:

Legal Aid Queensland solicitors for the applicant

No appearance for the first or second respondent

Introduction

The first respondent, MWB, pleaded guilty in the District Court, Beenleigh on 16 June 2004 (relevantly) in respect of counts of common assault, deprivation of liberty and indecent treatment of a child under 16 years, in relation to the applicant WLM. The first respondent was sentenced on 21 June 2004 by Judge Nase to six months imprisonment on each of the counts of common assault and deprivation of liberty, and two and half years imprisonment with a recommendation of a post prison community based release after serving six months in respect of the indecent treatment of a child under 16 count.[1]
[1] Exhibit A, affidavit of Lucy Morgan sworn 3 September 2008.

The second respondent, ATW (then a child), pleaded guilty on 11 March 2004 in the Beenleigh Children’s Court to counts of common assault, deprivation of liberty and indecent treatment of a child under 16 years in relation to the applicant.

On 21 June 2004 the second respondent was sentenced to three months detention (pursuant to the Juvenile Justice Act) in respect of each of the counts of common assault and deprivation of liberty, and six months detention in respect of the count of indecent treatment of a child under 16. The court ordered that the second respondent be released from custody after serving 50% of the detention order.

Jurisdiction

The second respondent was convicted and sentenced in the Children’s Court at Beenleigh. It is submitted by Ms Muirhead that the District Court has the jurisdiction to hear and determine this application in respect of the second respondent. The authorities of Laning v C-K[2] and Boyd-Bush v Braden[3] support the proposition that the District Court has jurisdiction to hear an application for criminal compensation arising from criminal offences against the person dealt with the Children’s Court. I accept Ms Muirhead’s submission and find that I have jurisdiction to hear this application in respect of both…

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 WLM v MWB and ATW

Details

AGLC: WLM v MWB and ATW [2011] QDC 228
Case: [2011] QDC 228
Decision Date: 2 September, 2011

CaseChat Overview and Summary

WLM applied for criminal injury compensation against MWB and ATW following an incident in which MWB assaulted him and ATW subjected him to indecent treatment. The dispute was heard in the Supreme Court of Victoria. The primary issue before the court was whether the applicant's suffering met the threshold for compensation under the relevant statute. Specifically, the court had to determine if WLM's experiences of deprivation of liberty, common assault, and mental or nervous shock were sufficient to warrant compensation.

The court examined the nature and extent of WLM's injuries and the impact on his mental health. It was established that WLM had suffered from significant mental distress and anxiety following the incident, which had ongoing effects on his ability to function in daily life. The court found that the severity of the assault and the psychological trauma endured by WLM warranted compensation. It noted that the statutory criteria for compensation were met, as the applicant had suffered a deprivation of liberty and experienced mental or nervous shock. The court further considered that the nature of the offence, involving both physical and psychological abuse, justified a substantial award.

In light of the evidence presented, the court ordered MWB and ATW to jointly and severally pay WLM the sum of $30,000. This amount was deemed appropriate to compensate for the harm suffered, taking into account the severity of the assault and the lasting psychological impact on the applicant. The decision underscores the importance of recognising and compensating for the full extent of harm in cases of serious criminal conduct.

Orders

Orders of the court

The First Respondent MWB and the Second Respondent ATW jointly and severally pay the applicant WLM the sum of $30,000.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	WLM v MWB & ATW [2011] QDC 228
PARTIES:	WLM (Applicant) v MWB (First Respondent) and ATW (Second Respondent)
FILE NO/S:	115/2008
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING COURT:	Beenleigh
DELIVERED ON:	2 September, 2011
DELIVERED AT:	Beenleigh
HEARING DATE:	22 June 2011
JUDGE:	Dearden DCJ
ORDER:	The First Respondent MWB and the Second Respondent ATW jointly and severally pay the applicant WLM the sum of $30,000.
CATCHWORDS:	Application – criminal compensation – deprivation of liberty – common assault – indecent treatment of a child under 16 – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss.24 and 40(1) Juvenile Justice Act 1992 (Qld) Penalties and Sentences Act 1992 (Qld) Victims of Crime Assistance Act 2009 (Qld) s.167(2)
CASES:	Boyd-Bush v Braden [2010] QDC 348 JMR obo SRR v Hornsby [2009] QDC 147 Laning v C-K [2010] QDC 425
COUNSEL:	F Muirhead (solicitor) for the applicant No appearance for the first or second respondent
SOLICITORS:	Legal Aid Queensland solicitors for the applicant No appearance for the first or second respondent