WHYTE v ROBINSON [2000] QCA 99

Court of Appeal (Qld)|2000-03-28|Before: Demack J, Atkinson J, Pherson JA, Thomas JA

ATKINSON J: The appellant made application to the District Court for criminal compensation pursuant to part 3 of the Criminal Offence Victims Act 1995. The appellant had been a victim of a rape for which the respondent was convicted on 26 November 1997.

The appellant was raped at knife point while she was walking home from some shops during the daytime. The respondent pleaded guilty to the offences of rape and deprivation of liberty on 24 November 1997 and the allocutus was administered on 26 November 1997. Sentence was adjourned for a pre-sentence report and the respondent was sentenced in the District Court in Gympie on 17 February 1998.

His appeal on sentence is reported in R v. Robinson ex parte Attorney-General [1998] QCA 107; [1999] 1 QdR 670. Between the conviction on 26 November 1997 and the sentence, the Criminal Offence Victims Amendment Regulation (No 1) 1997 ("the Amendment Regulation") was passed on 19 December 1997.

That amendment cured what must be seen to have been an anomaly in the earlier legislation which did not allow a Judge deciding the matter of criminal compensation to take into account what is called, in the Amendment Regulation, the adverse impact on the victim of a sexual offence.

The adverse impact includes matters which might be regarded as pain and suffering such as a sense of violation or increased fear or increased feelings of insecurity,

physical injuries such as disease or loss of reduced physical amenity, and psychiatric sequelae such as post traumatic stress disorder. It is obvious, of course, that such effects are likely to follow sexual assault.

The learned Judge who decided the matter of criminal compensation made his award under the Criminal Offence Victims Act 1995 as in force before the Amendment Regulation and made an award of $12,000. It is not argued that that would not be the appropriate award if that were the appropriate legislation to apply.

The appellant argues that the Amendment Regulation does apply to this particular application. The learned trial Judge made an alternative assessment of $40,000, as his Honour said, "for the purpose of avoiding a rehearing in the event that a different view of the legislation should be taken elsewhere". That is of great assistance to this Court.

Subsequent to his Honour's decision this Court had occasion to consider the appropriate legislation in the matter of Chong v. Chong Appeal No 11658 of 1998, 13 August 1999. That case dealt with what was the appropriate date for the assessment of damages of criminal compensation. That matter has been considered by both the Supreme Court and the District Court in a number of cases which have led to a number of different results.

Some Judges have taken the view that the date for the assessment of compensation is the date of the offence,

R v. Anell; ex parte Anderson [1998] 2 QdR 174 at 184, some have taken the view that it is the date of the conviction, Re Hall (1999) 20 Qld Lawyer Reps 33, some have taken the view that it is the date of application for assessment. The legislature has not addressed this matter in the Criminal Offence Victims Act and it is by no means clear what the date should be.

However, in Chong v. Chong, Justice Demack with whom the Chief Justice and the President agreed held that it was the date of assessment that was the relevant date. In doing so he referred to a decision of Judge McLauchlan QC in

R v. Bartorelli and Hutton (1994) 15 Qld Lawyer Reps 57 and 59.

This case is indistinguishable from Chong v. Chong in any sense which affects the date of assessment and so, in my view, the appeal ought to be allowed. The legislation which should apply is the legislation which was in effect at the date of assessment, that is the legislation as amended by the Amendment Regulation. Accordingly, the amount of compensation awarded should be $40,000.00.

McPHERSON JA: I agree. The point in issue here seems, to me, now to be covered by the decision in Chong v. Chong to which Justice Atkinson has referred. Out of deference for the learned District Court Judge who heard this application it is right to say that Chong v. Chong had not been decided at the time at which the District Court Judge gave his decision in this matter. I agree that the appeal should be allowed.

THOMAS J: The question is which prescription for assessment under the Criminal Offence Victims Act 1995 should be applied to the applicant - those in force when the crime was committed, those when the offender was convicted or those when the application for compensation was made.

Chong v. Chong (11658 of 1998, 13 August 1999) is a case in which other views were reasonably open than the one that prevailed. The Court, however, chose one solution, namely, that the occasion to which the legislation refers for the purpose of determining the prescribed amount appears to be the making of the order rather than the suffering of the injury or the date of conviction. That view should now be followed. The inconvenience is apparent of a construction that firstly postpones liability beyond the date of the act in question, namely, to the date of conviction, and which then further postpones the manner of assessment of the compensation to that in force at a still later time, namely, the date when the application for compensation is made. It seems, to me, to be a strange result.

However, if the legislature does not like such a result it can readily amend the Act so as to crystallise the right to compensation and its quantum at the same time, namely, upon conviction of the offender. I endorse the remarks of

Mr Justice McPherson concerning the difficulty in which the learned Judge below encountered, the judgment in Chong not having been delivered when he gave his decision. I agree with the order proposed by Justice Atkinson.

McPHERSON JA: I think, perhaps, we should discuss the order a little bit. You need leave to appeal?

MR RAFTER: Well, we have got leave to appeal. That was granted last year on 6 September.

McPHERSON JA: The order is that the appeal is allowed, the order below is varied by substituting $40,000 for $12,000. It is also ordered that the respondent pay the appellant's costs of and incidental to this appeal.

Criminal Offence Victims Act 1995

At a glance

Court

Decision date

Before

Source

Judgment (23 paragraphs)

Parties

Legislation Cited (1)