**_SM obo M-H v NK_

District Court of Queensland|2005-09-26

[1]

The applicant, SM (litigation guardian for the complainant, M-H ["the complainant"]), seeks compensation in respect of injuries suffered by the complainant arising out of an incident which occurred on 6 July 2002, resulting in the respondent, NK, pleading guilty before Judge O'Sullivan in the District Court, Southport on 17 June 2003 to one count of attempting to unlawfully procure a child under 12 years to commit an indecent act. The respondent was sentenced to six months' imprisonment and ordered to report his correct name and address to police within 24 hours of his release from prison for a period of three years.

[2]

The complainant is a child who was, at the time of the offence, 8 years old and then a resident at the Miami Caravan Park. On 6 July 2002 the complainant, together with two siblings and his mother, SM, were playing at a beachside park just north of the Miami Surf Club on Marine Parade, Miami, Gold Coast. The complainant and his brother were riding their scooters on a bike track south towards Burleigh while his mother and sister were playing on the swings in the park. About five minutes after the two brothers had set off, they returned separately. The complainant, who had a look of fright on his face, reported that a male person (subsequently identified as the respondent) had approached him and said, "I'm looking for a dick to suck on." The complainant identified the respondent to his mother, Ms Martinez, who then pursued the respondent and found him seated in the company of another young male child on the beach. With the assistance of bystanders and subsequently police, the respondent was taken into custody and in due course charged by police with the relevant offence to which he pleaded guilty on 17 June 2003.

[3]

This is an application under s 24 of the Criminal Offence Victims Act 1995 ("COVA"). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence. R v Ward ex parte Dooley [2000] QCA 493; [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the "most serious" case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.

[4]

It is clear that the offence committed by the respondent did not involve any physical contact between the respondent and the complainant. This, as well as the nature of the charge to which the respondent pleaded guilty, raises a number of issues under COVA.

[5]

An order for compensation can only be made if a "convicted person" is convicted on indictment of a personal offence[2]. An application for compensation can then be made to the Court for injury suffered by the applicant because of the personal offence[3]. COVA s 21 defines a "personal offence"[4] as "an indictable offence committed against the person of someone," and "injury" relevantly includes "mental or nervous shock"[5].

[6]

It would appear from the report of Steve Morgan, Registered Psychologist, dated 19 November 2004[6], that the complainant has (at some time subsequent to the commission of the offence) suffered from an Adjustment Disorder with Anxiety (DSM-IV), although that condition was no longer extant as at the date of Mr Morgan's report (19 November 2004)[7]. In the circumstances, I consider that the complainant has suffered an "injury", i.e. "mental or nervous shock" as defined by COVA s 20, and the issue remains as to whether that injury occurred as a result of a "personal offence."

[7]

In Summers v Dougherty & Anor [2000] QSC 365 the applicants (Mrs Summers and her two sons) sought compensation arising out of a home invasion which resulted in pleas of guilty to charges of housebreaking, armed robbery in company with personal violence and assault occasioning bodily harm whilst armed and in company. All three applicants were ordered into a shed at gunpoint and were the subject of threats, but none were physically assaulted. None of the three applicants were named in the indictment to which the assailants (Doyle and Summers) pleaded guilty. White J was satisfied in respect of the application that each of the applicants had suffered "injury" (as defined in COVA s 20) arising out of the commission of a "personal offence" against each of them, even though they had not been named in the indictment[8].

[8]

Mullins J considered the issue of what constituted a "personal offence" at some length in Pettingill v Minister for Justice and Attorney-General [2003] QSC 385. This was an application for judicial review of a decision of the Governor-in-Council refusing an application for an ex gratia payment of criminal injury compensation pursuant to COVA s 33. However, it did involve a consideration by Mullins J of aspects of the legislation relevant to the application before me. Importantly, Mullins J observed that, "In construing what is meant by a 'personal offence' under [COVA s 19(1)(a)...as defined further by COVA s 21]...it is relevant that [COVA] is remedial legislation and should be given a benign construction"[9].

[9]

In the case before me it is clear that the complainant was the subject of conduct which amounted to an attempt to procure a child to take part in a sexual act which the respondent, by his plea of guilty, accepted was an "indecent act". In the circumstances, therefore, I find that this amounts to "an indictable offence committed against the person of someone"[10] and therefore grounds an application for compensation, given that injury has been suffered by the complainant and was caused by a personal offence committed against him[11].

[10]

The report of Steve Morgan, Psychologist[12], indicates that the complainant suffered an Adjustment Disorder with Anxiety (DSM-IV) which had subsided over time and could best be described as "mild[13]." Accordingly, given the minor nature of the "mental or nervous shock" and the resolution of the symptoms, an award of 5% under item 31 (mental or nervous shock - minor - 2%-10% of scheme maximum) is appropriate.

[11]

Mr Taylor, on behalf of the applicant, submits further that an award should be made for "adverse impacts" pursuant to Regulation 1A of the Criminal Offence Victims Regulation ("COVR"). The possibility of compensation being ordered under COVR s 1A arises because the definition of "injury" in COVA s 20 relevantly includes "any injury...prescribed under a regulation." The application of COVR s 1A was examined in JI v. AV [2001] QCA 510; [2002] 2 Qd R 367. Chesterman J, at para 20, noted that the availability of an assessment of compensation under COVR s 1A is available only "to the extent to which the impacts are not otherwise an injury under [COVA s 20][14]" and went on to explain:

"Adverse impacts of a sexual offence are an injury and are to be assessed for compensation pursuant to the regulation unless they amount to an injury under [COVA] s 20, in which case they fall outside the scope of the regulation, and are to be assessed under [COVA]. This follows from the phrase. Impacts are an injury for the purposes of the regulation to the extent that the impacts are not an injury under s 20 (COVA). They will be such an injury if they are mental or nervous shock."

[12]

His Honour went on to state that COVR s 1A "makes compensation available to victims of sexual offences for a greater variety of consequences than was available under [COVA] s 20[15]." As Atkinson J explains in the same decision, "All of the adverse effects of a sexual offence not otherwise an injury under [COVA] s 20 constitute an injury prescribed under a regulation[16]" and therefore "only additional adverse effects of sexual offences [not amounting to mental or nervous shock] fall to be compensated under [COVR s 1A][17]."

[13]

In my view, the issue then is whether the complainant suffered any specific "adverse impacts" which are not symptoms of the diagnosed disorder of Adjustment Disorder with Anxiety (DSM-IV).

[14]

On the material placed before me, I am unable to identify any "adverse impacts" which are not (relevantly) symptoms of the diagnosed disorder, which in my view amounts to "mental or nervous shock" and is therefore compensable pursuant to item 31, schedule 1 of COVA. Accordingly, I make no assessment under COVR s 1A.

[15]

It is clear that the complainant child did not contribute in any way to the injury he suffered[18].

[16]

Accordingly I order that the respondent, NK, pay the applicant, SM as litigation guardian for M-H, the sum of $3,750.

[1] This summary of the facts is drawn from T 7 of the submissions on sentence

[6] Exhibit SM1 to the affidavit of Steven Morgan sworn 12 January 2005

[7] Exhibit SM1 Report of Steve Morgan at para 37.0

[8] Summers v Dougherty & Anor [2000] QSC 365 at para 15; and see also R v Callaghan & Fleming

ex parte Power [1986] 1 Qd R 457; R v Moors ex parte Alex [1994] 2 Qd R 315

[9] Pettingill v Minister for Justice and Attorney-General [2003] QSC 385 at para 23; and see also

R v Callaghan & Fleming ex parte Power [1986] 1 Qd R 457, 458

[12] Exhibit SM1 to the affidavit of Steven Morgan sworn 12 January 2005

[13] Report of Steve Morgan, paras 39.0 and 40.0

[15] JI v. AV [2001] QCA 510; [2002] 2 Qd R 367 at para 22

[16] JI v. AV [2001] QCA 510; [2002] 2 Qd R 367, 382 at para 62

[17] JI v. AV [2001] QCA 510; [2002] 2 Qd R 367, 382 at para 57

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