R v Tiltman; ex parte Dawe [1995] QSC 345

Supreme Court of Queensland|1995-06-22|Before: Lee J

This is an application for criminal compensation pursuant to s. 663B of the Criminal Code ("the Code"). The applicant is one Michael John Dawe, an infant who appears by his next friend and mother, Lynette Mary Sullivan. The respondent is one Thomas Richard Tiltman. No appearance was made either by or on behalf of the respondent at the hearing of the application, although the material reveals, and I accept, that he was given proper notice of it. He is presently in custody. In accordance with Practice Direction No. 24 of 1994 the Public Trustee was advised of the application but disclaimed any interest in appearing on it.

On 11th April 1994 the respondent was convicted before me of 27 counts of a sexual nature against a total of twelve young boys. The ages of the children ranged from three to sixteen at the time of the offences. The charges included 1 count of sodomy, 2 counts of maintaining a sexual relationship with a child under twelve years, 2 counts of maintaining a sexual relationship with a child under sixteen years and 22 counts of indecent treatment of a child under sixteen years. He was then also convicted of 3 counts of supplying a dangerous drug, namely cannabis sativa, to a minor, which supplies it was alleged took place in the course of and for the purposes of committing the sexual offences outlined. At the same time, the respondent pleaded guilty to a further 62 counts of a sexual nature against young boys which were contained in a schedule tendered pursuant to s. 189 of the Penalties & Sentences Act 1992. Those offences were taken into account when passing sentence on the counts contained in the indictment.

On 6th June 1994 the respondent was sentenced to an effective term of imprisonment of 17 years for his crimes. The present applicant was the victim identified in Counts 2 and 3 of the indictment and Counts 4 to 6 inclusive in the schedule. Two of the offences, Count 3 on the indictment and Count 6 in the schedule, related to acts of indecently dealing with the applicant. The remaining three, related to acts of exposing the applicant to indecent publications, namely pornographic video tapes. In respect of each offence contained in the indictment in relation to the applicant, the respondent was ordered to serve three years' imprisonment. Those sentences were, however, made concurrent with those imposed in respect of the other charges.

Before turning to the facts said to constitute the offences, it is necessary to say something of the applicant's background and circumstances.

The applicant was born on 25th November 1979 making him between 12 and 13 at the time of the offences. He is now 15 years of age. Sadly, in September 1991, he was diagnosed as having a terminal brain tumour. At the time of my sentencing remarks, his life expectancy was considered possibly to be as short as three years, although obviously no accurate prediction could then or can now be made in that regard. No updated evidence of life expectancy was put before me on this application.

As a result of his illness, the applicant was able to and did in fact come to participate in the activities of an organisation known as Camp Quality, a charitable institution whose purposes include the most commendable aim of organising activities designed to increase the enjoyment of life of terminally ill children. Unfortunately, however, it was through that organisation that the applicant came to know the respondent. In fact the respondent, between March 1992 and October 1993 when the commission of these offences first came to light, took on a significant role as the applicant's mentor within the organisation, a role encouraged by Camp Quality no doubt to provide support and companionship to persons in the position of the applicant in their time of need and to relieve some of the burden that would otherwise be placed on their families. Through his position, the respondent was also able to develop a friendship with the applicant's mother, so cementing his position of trust and respect in the applicant's life. In hindsight though it has become patently obvious that any apparent acts of charity on the respondent's behalf were at least partially inspired by his desire to ensure the satisfaction of his own sexual urges. Indeed it appears that this was a method often used by the respondent of entering into the lives of young boys and gaining the confidences of them and their families. Unfortunately the vulnerability of his victims only served to increase the effectiveness of his methods.

At the time of the commission of the offences, the respondent was living in a caravan at the rear of the local soccer club's grounds. As their relationship matured, the applicant was allowed to and did in fact stay with the respondent overnight and on weekends. In all, the applicant and his mother estimated that this occurred on six or seven occasions. It was during these visits that the applicant was exposed by the respondent to various pornographic videotapes. The general pattern of abuse was the same. The applicant and respondent would share the respondent's bed. When watching the videos the applicant, at the respondent's request, would lie naked on top of the bed whilst the respondent would lie under the covers. Sometimes the positions were reversed. For the most part the videos were "R" rated. It appears, however, that one video, of an "X" rated variety, was supplied by the applicant's mother to the respondent for his own use. This video was in fact shown to the applicant by the respondent on more than one occasion. The applicant's mother, of course, had no reason to suspect that the video would be used for such a purpose.

On one further occasion, after inquiry by the applicant into sexual matters, the applicant's mother and the respondent hired a legitimate sexual education video and returned to the mother's house to watch it. Apart from that one occasion, however, it was not suggested that the respondent had been given permission to undertake the applicant's sexual education.

On the occasion of the first indecent dealing, the applicant was again staying with the respondent. Whilst watching a pornographic video the respondent reached over and touched him on the penis. He then put his fingers around the applicant's penis and began moving them up and down. The applicant immediately protested but it was not until he began screaming that the respondent desisted.

The second indecent dealing occurred in similar circumstances. Whilst watching a pornographic video, the respondent reached over and placed his hand on the applicant's testicles. He rubbed his testicles for about one minute then desisted with nothing being said between them. The respondent requested the applicant to reciprocate, but he did not.

The effects which this conduct has had on the applicant might be thought to have been obvious. Nonetheless the applicant has been examined by a psychiatrist, Dr Tucker, whose report was placed before me. Dr Tucker is of the view, which I accept, that the applicant is currently suffering from a severe, chronic post- traumatic stress disorder, which manifests itself in the applicant's life in several debilitating ways. The applicant suffers from a lack of self-esteem and self-confidence, he is shameful and embarrassed about his experiences and is concerned that others, especially his peers, will discover that he has been abused. His sleep patterns have been greatly disturbed and he is often awakened by nightmares concerning his experiences. He is constantly plagued by memories of the episode, which affect his concentration, mood and general demeanour. Quite understandably, he finds if difficult to form trusting relationships, particularly with men of the respondent's age and general appearance, and he lives in fear of retribution by the respondent and of further abuse. Bouts of anxiety, depression, irritability, hypervigilence and exaggerated response are not uncommon. Finally, he has also expressed concern over his own sexuality, despite what Dr Tucker opines to be his obvious heterosexual orientation. All of these factors have greatly impacted upon the applicant's quality of life, quite apart from the natural decline which has occurred and will continue to occur at the hands of the applicant's disease as it progresses. As I have alluded to, however, the precise rate of that decline is anyone's guess. For pain and suffering and loss of amenities, past and future, I allow the sum of $15,000.00.

The respondent's conduct has also, quite understandably, had effects on other members of the applicant's family, particularly his mother but it was not suggested that compensation could be recovered for those matters in these proceedings.

As at March of this year it was thought that the applicant would require fortnightly counselling over a two year period, at a cost of $160.00 per session. That would produce a figure of $8,320.00 for future treatment. Under this head I allow the sum of $8,000.00. The applicant is not on medication, apart from the occasional use of panadeine forte for his headaches. No claim was made for the cost associated with this.

A claim has also been made for private tuitional fees to assist in the applicant's secondary education. Because of his illness, the applicant has been granted permission by the Board of Secondary School Studies to complete his senior certificate over three years instead of two. He is currently in his first year of those studies.

Whilst there is some evidence that the disruption to the applicant's routine and his diminished memory capacity caused by his brain tumour have contributed to the decline in his scholastic results, I accept that his lack of ability to concentrate in class and the frequency with which he experiences episodes of recall in respect of these occurrences have also done so. His school guidance officer is of the opinion that tutorial assistance of four hours per week would be effective to combat this. On the evidence it seems that a rate of $14.00 per hour is reasonable for this. The applicant currently has two and one half years of schooling left. There is no evidence that he has incurred this expense in the past. Four hours per week over two and one half school years, or ninety weeks, totals $5040.00. Taking into account the factors which I have mentioned by way of discount I allow the sum of $4,000.00 for this.

A claim has also been made for the cost of a home computer. The applicant is currently undertaking a computing subject at school. The only evidence on this point is again from the applicant's school guidance officer who is of the opinion that the procurement of a home computer "would be a considerable advantage in improving his results in that subject." No doubt the same could be said of any student undertaking the subject. In my opinion it has not been demonstrated that the separate need for a computer has been caused by the respondent's conduct.

Accordingly, I assess the applicants compensation, based on his entire injury, as follows:

I do not consider it appropriate to calculate interest on the past component of the applicant's general damages. Interest is a creature of statute, not an invention of the common law. In the absence of specific statutory authority it can form no part of the applicant's compensation. I turn now to consider the relevant legislation.

"Where a person is convicted on indictment of any indictable offence relating to the person of another person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than one indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted."

Despite the relative longevity of the provision, however, it was not until recently that the approach to be adopted in determining the level of compensation to be awarded on applications of this type was authoritatively settled by the Court of Appeal: R. v. Jones; ex parte McClintock (unreported, App. No. 41/1994, 7th April 1995). The ratio of that decision can be taken from the following summary appearing at p. 6 of the President's reasons for judgment:

"In my opinion, compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases and economic loss is recoverable; however, there is an upper limit applicable in all circumstances; that amount should be awarded if it is less than the compensation assessed."

Mr Justice Davies delivered separate concurring reasons. His conclusions were, for present purposes, identical to those of the President. Mr Justice Pincus dissented. At first glance, it is difficult to see what debate remains around the method of assessing compensation under the statutory scheme: the Court is to act as nearly as possible as if it were making an assessment of damages for personal injury and, if that assessment exceeds the prescribed maximum, it is to award that maximum.

Before me, however, counsel for the applicant sought to raise two further arguments: firstly that as the applicant's condition has matured into a recognisable psychiatric illness it has gone beyond mere "mental shock or nervous shock" as those terms are to be understood in s. 663AA(1) and secondly that, if contrary to the first proposition, I should hold s. 663AA(1) to be applicable to the facts of the present case then I should only consider the prescribed amount to be the maximum which may be awarded for what at common law might be described as the pain, suffering and loss of amenities component of the assessment. In relation to the other components of the award it was said that the applicable limit was that prescribed by s. 663A. This second contention was first raised by supplementary written submissions forwarded after the hearing. The applicant did not originally contest that his injury was solely in the form of mental or nervous shock. Having said that, I shall deal with each of these propositions in turn.

In advancing a narrow construction of the phrase "mental shock or nervous shock", counsel for the applicant sought to rely upon a distinction, apparently favoured by some Judges of District Courts, between mere shock on the one hand and psychiatric illness on the other. The result of accepting such a proposition of course would be that the $20,000.00 maximum prescribed by s. 663AA(1) would not restrict the power of the Court to make an award exceeding that amount in the present case. With respect to those who hold that view, however, I cannot accept it. At the time of the introduction of Chapter LXVA into the Code in 1969 the term "nervous shock" had acquired an undoubtedly technical meaning within the common law, which meaning extended to cover, and indeed was confined to cases involving, recognisable psychiatric illness: Victorian Railways Commissioners v Coultas (1887-88) 13 App. Cas. 222; Chester v Waverley Corporation [1939] HCA 25; (1939) 62 C.L.R. 1; and see generally Jaensch v Coffey [1984] HCA 52; (1983-84) 155 C.L.R. 549. I cannot think that by including the same term within the statute the legislature intended to give it other than its technical meaning. Certainly, by including the term "mental shock" it may arguably have been intended that a wider class of claims would be allowed than, for example, the common law may presently permit but that is a question which I need not decide. Whatever the precise scope of the concept of mental or nervous shock it clearly, in my opinion, was intended to cover a case where the sole injury to the applicant is psychiatric in nature. This is such a case. Prima facie, therefore, the prescribed maximum is the figure of $20,000.00 identified in s. 663AA(1).

The complete answer to the applicant's second proposition is that there is simply no warrant for reading into the section the implication that the statutory ceiling is to apply to part only of the damage suffered in respect of the relevant injury. To explain why this is so, I can do no better that quote the words of McPherson J. in R. v. Bridge & Madams; ex parte Larkin [1989] 1 Qd. R. 554 at 556:

"So far as material here, the amount that a person may under s. 663B(1) be ordered to pay by way of compensation is now a sum not exceeding 'the prescribed amount', which, 'in the case of mental or nervous shock', is fixed by s. 663AA(1) at $20,000. I do not think that it can be doubted that, whether it represents compensation for pain, suffering and loss of amenities, or for loss of earnings or earning capacity, past or future, any sum that may be awarded to the applicant in the circumstances of the present case will constitute compensation for injury in the form of mental shock or nervous shock. In committing the offences the respondents inflicted no other form of bodily harm to or upon her. It is therefore solely on account of, or 'for', mental or nervous shock that the assessed sum may be ordered to be paid by way of compensation. It follows that for the purposes of this case the 'prescribed amount' is $20,000."

Moreover, such an approach accords with the President's proposition that "compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases", a proposition for which the decision in R. v. Bridge & Madams was earlier cited by his Honour as authority. Although at common law an individual's damages are assessed under various heads, it is the total award which is intended to compensate for the injury suffered. Clearly then the relevant prescribed maximum is to apply to any and all loss sustained as a result of the particular injury or injuries to which it applies and in respect of which compensation is sought.

As authority for his contention on this point, counsel for the applicant sought to rely on the second sentence of the paragraph quoted above from the reasons of the President in R v. Jones. But, viewed correctly, I cannot see how that comment can in any way be said to support the conclusion which he draws from it. The paragraph which I have quoted was merely a summary of His Honour's opinion in relation to four issues earlier identified in His Honour's reasons as uncertain on the then existing authorities. It cannot, for that reason, be viewed in isolation. In particular, His Honour's reference to the proposition that "there is an upper limit applicable in all circumstances" was an expression of opinion as to the debate emerging from such cases as R. v. Castle and Hughes; ex parte Hansen [1990] 1 Qd.R. 560 and R. v. Hurle; ex parte Anderson [1991] 2 Qd.R. 682. The nature of that debate should be briefly outlined, although for reasons which I will express, I consider it under the current legislation to be essentially otiose.

As I have mentioned, under s. 663B(1) of the Code, on an application of this type, the Court is empowered to order the respondent to pay to the applicant "a sum not exceeding the prescribed amount by way of compensation for injury suffered by the" applicant by virtue of the crime or crimes committed by the respondent. In respect of applications relating to injury suffered after the commencement of the Criminal Code Amendment Act 1984, the prescribed amount is, in cases other than those specifically falling within s. 663AA, defined in s. 663A as:

"[T]he amount for the time being specified in section 14(1)(C)(a) of the Workers' Compensation Act 1916 as varied from time to time pursuant to s. 14E of that Act."

But s. 14(1)(C)(a) of the 1916 Act only purported to prescribe a maximum amount in respect of certain injuries specifically mentioned in the table set out at the conclusion of s. 14(1)(C). The result, on one view, was that in the case of an injury which was neither mentioned in nor similar to any mentioned in either s. 663AA or the workers' compensation table, damages were at large, i.e. that there was no applicable limit. That was the view adopted in R. v. Castle and Hughes. The alternative view, and the view for which the President expressed preference in R. v. Jones, was that the limit specified in s. 14(1)(C)(a) applied to all injuries not otherwise covered by s. 663AA: R. v. Hurle, 684. By expressing preference for that view all that His Honour was saying was that in no case will the power of the Court to award criminal compensation be unlimited; for those cases which do not fall within s. 663AA the prescribed maximum will always be the amount specified in the Workers' Compensation Act. So viewed there is simply nothing in his Honour's comment which would throw doubt on the proposition that that limit, whatever it may be, applies to the entire loss flowing from the injury suffered.

As I have mentioned though, the debate referred to by His Honour is one which I consider under the current statutory scheme to have been superseded. In particular, when one searches the Workers' Compensation Act 1990 for an equivalent to s. 14(1)(C)of the 1916 Act one finds the workers' compensation table now incorporated into s. 8.6(1) and the prescribed maximum set out in s. 8.3(1): see generally the reasons of Davies J.A. in R. v. Jones at p. 2. The differences between the old provision and the new ones, however, are not merely cosmetic. Unlike the old s.14(1)(C)(a) which confined its attention to those injuries set forth in the relevant table, the new s. 8.3(1) purports to apply to "all injuries suffered". The reasoning, therefore, which led Connolly J. in R. v Castle and Hughes to conclude that in some cases there may be no applicable limit, has no current relevance.

That is enough to dispose of the applicant's argument on both points raised by him. There is, however, one further difficulty which might be said to arise on the current application.

The power to award criminal compensation under s. 663B(1) is conditioned on the respondent having first been convicted on indictment of a relevant offence or offences. But that circumstance bears not only on the jurisdiction of the Court, it also defines the scope of its powers of award. It seems to me clear that any compensation which may be ordered to be paid is to be limited in respect of the particular injury or injuries which resulted from the commission of that offence or those offences: the section speaks of damage suffered "by reason of the offence or offences of which the offender is convicted". Implicitly, compensation cannot be awarded for injury sustained as a result of conduct in respect of which there has been no conviction on indictment of an offence relating to the person of the applicant, even though that conduct may be by the same respondent and may be related to the conduct in respect of which a verdict has been entered.

In the present case, of course, three of the five offences to which the respondent pleaded guilty were contained in a schedule tendered pursuant to s. 189 of the Penalties and Sentences Act 1992. But that schedule is clearly not an indictment, nor does the respondent's plea in respect of the offences alleged in it result in his conviction of them. Indeed sub-s. (8) of that section makes the position quite plain. It states that:

"Subject to section 35(4), an offence taken into account under this section in imposing sentence on an offender for another offence must not, because it was take into account, be regarded for any purpose as an offence of which the offender has been convicted."

The unfortunate, though no doubt unintended consequence for the present applicant is that no compensation can, in my opinion, be awarded in respect of any injury said to flow from the events which constituted the offences listed in the schedule. They must be ignored for this purpose. This is no doubt a somewhat curious result given firstly that the respondent has apparently accepted criminal responsibility for them and secondly that the course of proceedings on sentence was completely outside the control of either the applicant or his legal advisers. Nevertheless it is one which I consider to be forced by the current language of the legislation. It may be that the apparent artificiality of this conclusion is a question which should be examined by those responsible for the reform of the law in this area: cf s. 35(3) Penalties & Sentences Act 1992.

Equally, however, this is not a case in which the effects on the applicant of each of the offences to which the respondent pleaded guilty can be separated. As the evidence shows, they combined to cause a single indivisible injury. What then is the approach to be adopted by a Court faced with a case such as this, in which there is but one injury caused or materially contributed to by a multitude of circumstances, some of which are compensible and some of which are not?

One answer, it seems to me, is for the Court to assess an amount of compensation applicable to the total injury and then assess, in a broad and perhaps somewhat arbitrary way, the contribution which can fairly be said to have been made to that injury by the conduct involved in the offence or offences of which the respondent has been convicted. Although it may be an approach which does not produce an entirely satisfactory solution, it is nonetheless one which may be seen to be supported by certain authorities in other jurisdictions touching upon analogous though not identical legislation: see e.g. Application for Criminal Injuries Compensation No. 69 of 1989 (1991) 103 F.L.R. 297; C v. C [1993] NTSC 6; (1992-93) 111 F.L.R. 467, 471; LMP v. Collins [1993] NTSC 12; (1993) 112 F.L.R. 289, 310, although the two latter cases were concerned more with apportioning the assessed compensation amongst the separate offences than amongst separate causes.

The second possible approach derives some support from the position at common law. In a tortious action, if the defendant's negligent conduct combines with other innocent causes to produce a single indivisible injury it is sufficient to base a finding of causation if that conduct can be said have materially contributed to the total damage: Bonnington Castings Ltd v. Wardlaw [1956] UKHL 1; [1956] A.C. 613; The Commonwealth v. Introvigne [1982] HCA 40; (1981-82) 150 C.L.R. 258. It need not be the sole or even the effective cause. That test is, of course, but one manifestation applicable in some circumstances of the proposition that causation in fact "is ultimately a matter of common sense": Fitzgerald v. Penn [1954] HCA 74; (1954) 91 C.L.R. 268, 277-8; March v. Stramare (E. & M.H.) Pty Ltd [1991] HCA 12; (1990-91) 171 C.L.R. 506, 515-6. But unlike its alternative, on this approach if I were to find that the offences of which the respondent was convicted made a material contribution to the applicant's injury then, unless the respondent is able to separate the effects of the compensible and non-compensible conduct on the applicant with some reasonable measure of precision, the applicant is entitled to have his compensation assessed in respect of his whole injury: Middleton v. The Melbourne Tramway & Omnibus Co. Ltd [1913] HCA 45; (1913) 16 C.L.R. 572; Watts v. Rake [1960] HCA 58; (1960) 108 C.L.R. 158; Purkess v. Crittenden [1965] HCA 34; (1965) 114 C.L.R. 164. In a case such as this, however, that task would be nigh impossible.

On the whole, I think that it is the second approach which should be adopted. It is more in tune with tortious concepts of causation and therefore consistent with the principle that compensation should be assessed as nearly as possible as if one were assessing damages for personal injuries in a negligence action. Moreover, the first suggested approach is one which is necessarily reliant on a degree of speculation and guesswork by the court. In my opinion the arbitrariness and subjectivity of such an approach "would involve such a substantial departure from the usual judicial role that it ought not be preferred if another view is reasonably open, as it is here": R v. Jones at p.7 per Fitzgerald P. On that basis, I find that the conduct of the respondent involved in the offences of which he was convicted materially contributed to the applicant's psychiatric injury as I have found it to be. As the compensation which I have assessed exceeds the prescribed maximum, I award the applicant that amount. I should add that my conclusion on this point would be the same whether the non-compensible cause of the injury was criminal or not or at the hands of the respondent or not. The applicable principle would be the same.

In the end result, I order that the respondent, Thomas Richard Tiltman, pay to the applicant, Michael John Dawe, the sum of $20,000.00 by way of compensation for the injuries which he inflicted on the applicant and in relation to which he was convicted on 11th April 1994 of one count of indecently dealing with the applicant and one count of exposing the applicant to an indecent publication. The respondent is to pay the applicant's costs of and incidental to the application to be taxed.

Criminal Code Amendment Act 1984

Workers' Compensation Act 1916

Workers' Compensation Act 1990

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