Flatman v Sharpe[2001] QDC 73

JUDGMENT

HIS HONOUR: This is a matter of The Queen and Stephen Clive Sharpe ex parte Susan Helen Flatman. This is an application for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act of 1995.

On 2 February 1998 the complainant was assaulted by the respondent. He was a next door neighbour. He enticed her to a place near the dividing fence and when she approached he grabbed her, placed his hand into her swimsuit on a couple of occasions and said very suggestive things to her.

She protested, needless to say, and managed eventually to free herself and returned to her home. At the time that this occurred her husband was at work. It seems that he works shift work as an ambulance officer. That aspect of the matter caused her in later weeks to experience a good deal of insecurity.

The proximity of the respondent's home was an ongoing problem and eventually caused the complainant and her husband to shift their residence. That of course has assisted, it seems, to a large extent.

But she has continued to feel insecure in her home. She feels unsafe. She is now distrustful of males and it seems, from the expert opinion, that she has suffered what is described as an adjustment disorder.

It should be noted that prior to this event the complainant had suffered a depressive illness. There would seem to have been family stresses involved and this may well have predisposed her to the onset of the adjustment disorder to which I have referred.

The most substantial report which has been provided to me is a report of a Dr Pryor, a clinical psychiatrist. That report is exhibited along with other reports to the affidavit of Lorraine Penshaw. I think following a decision of the Court of Appeal in recent times it is now regarded as a preferable procedure to have expert witnesses actually swear to the opinions which are expressed in reports rather than simply have those reports exhibited to the affidavit of solicitors.

However I believe that that may have been said in the Court of Appeal in a case of Hendry and Llorente, spelt L-L-O-R-E-N-T-E, Queensland Court of Appeal number 377 of 2000. I merely mention that, I do not intend to do anything that might cause my findings to vary as a result of these reports not being formally sworn.

Dr Pryor spoke of an escalation of the complainant's anxiety levels and to the onset of significant levels of depression following this incident and then of course to the development of the adjustment disorder to which I have already referred.

It is nowhere suggested that the complainant in any way contributed to the commission of the offence that I have already spoken about. Consequently there is no thought of any contribution pursuant to the provisions of the Act.

I have been provided with some useful decisions. There is a decision of his Honour Judge Dodds in the District Court at Maroochydore which deals with an attack on a young woman in fairly similar circumstances and with of course consequent distress of the kind that I have been referring to here.

That applicant suffered an acute stress disorder which was slowly resolving at the time that Judge Dodds dealt with her application. The prognosis however was good. Judge Dodds assessed compensation at 15 per cent of the scheme maximum, which was an amount of $11,250.

The assessment of compensation is complicated somewhat by the provisions of regulation 1A of the Criminal Offence Victims Regulations 1995. That regulation refers to an injury to the extent that the impacts are not otherwise an injury under section 20 of the Act.

This dichotomy in approach was dealt with by his Honour Judge Robertson in a case of Ryan and Ziebarth and Judge Robertson's view in that particular case supported the construction that the mental shock suffered by the applicant fell within the Act and did not then require resort to the regulations.

He made recommendations that the legislature should consider the rather awkward dichotomy to which I have just referred. The matter was further considered in an indirect fashion in MR and Webb, a Court of Appeal decision, 113 of 2001. There there had been an appeal against a decision of the Judge at first instance on the grounds that the Judge had erred in awarding compensation under the heading of mental and nervous shock rather than under the heading of totality of adverse impacts of sexual offence.

The appeal was dismissed and Justice Wilson commented:

Now the applicant in the present case makes reference to some adverse impacts which would seem to fall within the regulation to which I have referred. I take the view along the lines of what was said by Justice Wilson that I am quite able to deal with this matter appropriately by having regard to the provisions of the Act proper.

The submissions that are made are in the outline which has been provided to me are that there should be an award - a small award - relating to the neck injury which the complainant suffered in the course of the assault and that mental or nervous shock of a moderate nature would support a further 17 percent of the scheme maximum or $12,750.

I note that this particular applicant had to move house as a result of the assault and she suffered fairly significant domestic problems which were a by-product to a significant extent of the assault. Consequently, I accept the submission that the figure of $12,750 under that head is appropriate.

I therefore assess compensation in the total of $14,250 and order that the respondent, Stephen Clive Sharpe, pay to the applicant that sum by way of compensation for the offence which he committed against her on 2 February 1998 and to which he entered a plea of guilty before Acting Judge Byrne QC on 15 October 1998.