DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, Nicole Vlug, seeks compensation in respect of injuries suffered by her arising out of the conviction of Victor Carrasco, after a jury trial, of one count of assault occasioning bodily harm which occurred on 7 July 2001, and counts of assault occasioning bodily harm and rape which occurred on 20 February 2002. The respondent went to trial before Hall DCJ and a jury at the District Court, Southport on a six‑count indictment which alleged three counts of assault occasioning bodily harm and three counts of rape^[1], but he was convicted only in respect of count 2 (assault occasioning bodily harm on 7 July 2001), count 5 (assault occasioning bodily harm on 20 February 2002) and count 6 (rape on 20 February 2002).  The jury verdict was returned on 18 August 2003 and the respondent was sentenced by Hall DCJ on 25 September 2003.  The respondent was sentenced to three years’ goal, suspended after serving six months’ imprisonment with a three-year operational period in respect of count 6 (rape) and was sentenced to one months’ imprisonment (concurrent) in respect of each of the charges of assault occasioning bodily harm.  A period of 35 days pre-sentence custody was deemed time served under the sentence.

FACTS & INJURIES

2. [2]
   In summarising the facts and injuries sustained by the applicant, I have accessed the trial transcript, which should have formed part of the material relied upon by the applicant’s counsel. It is clear that the evidence adduced at the respondent’s trial, and the conclusions drawn by the sentencing Judge in respect of that evidence (and consequent verdicts, as applicable) are the essential basis of the factual matrix on which the criminal compensation application is to proceed^[2].  It is not sufficient merely to rely on the sentencing remarks of the trial Judge^[3], particularly in this case, where the transcript reveals extensive submissions from both prosecution and defence counsel preceding those sentencing remarks.  However, given the provisions of the Criminal Offence Victims Act 1995 (“COVA”) s 30(3), I have been able to consider the application by accessing the relevant trial transcript as provided by the State Reporting Bureau.

3. [3]
   The assault occasioning bodily harm which occurred on 7 July 2001 (count 2) involved the respondent hitting the applicant to the head “on at least two occasions, [the applicant] then going to the ground and protecting herself, then being sat on a couch and … being hit again in the head by a fist”^[4] before being taken to hospital and treated for her injuries which comprised:

“Bruising over the upper, lower lid of the left eye, small sub-conjunctival haemorrhage present.  Tenderness over the left lower jaw.^[5]”

4. [4]
   The offences of assault occasioning bodily harm (count 5) and rape (count 6) occurred on 20 February 2002. The applicant and respondent “had been out to a restaurant … on the night in question. There had been a disagreement or an argument. They hopped in the [applicant’s] car, [and] driven to [the respondent’s] place. During the course of that argument [the respondent] had lashed out physically at [the applicant] and struck her to the face, certainly more than once. [The applicant] couldn’t say whether it was more than twice but certainly more than once. That caused some swelling around her left eye.^[6]”

5. [5]
   The conviction for rape (count 6) arose out of what followed between the applicant and the respondent. As the prosecutor outlined during the sentence proceeding^[7]:

“When [the applicant and the respondent] got back to [the applicant’s] unit there had been … discussion that there was not to be any sexual relations that evening.  The [respondent] had kissed [the applicant].  [The applicant] had reminded [the respondent] … that’s not occurring this evening.  [The respondent] continued, undressed [the applicant] … [who] had said that she didn’t want this and essentially [the respondent] engaged in sexual intercourse, which was the count of rape, in the en-suite with [the applicant] saying that she really wasn’t struggling [and that she] simply wanted it over and done with and that was partly in relation to what had happened earlier in the evening where she had been struck and she had been told that this is not a game and taken back to her place.”

 The only observable injuries on 21 February 2002 (the day after the assault and rape) were “slight swelling over the left cheekbone”^[8] and a “1 centimetre linear abrasion oozing sero-sanguinous fluid at the vaginal introitus on the left [which] … was tender and associated with tenderness and slight swelling”^[9].

THE LAW

6. [6]
   This is an application under COVA s 24. 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 [2001] 2 QDR 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.  Criminal Offence Victim’s Regulation (“COVR”) s 1A provides for a further assessment of compensation based on the adverse impacts of a sexual offence which are not otherwise an injury under COVA s 20. 

COMPENSATION

7. [7]
   Mr Smith, counsel for the applicant, seeks compensation as follows:

1.  Item 1 – Bruising/laceration etc (minor/moderate)

The submission of Mr Smith seeks (on a relevant scale of 1% - 3%) an assessment of 3% for each of the injuries suffered by the applicant in respect of count 2 (on 7 July 2001) and in respect of count 5 (on 20 February 2002).  In respect of the injury suffered on 7 July 2001 (count 2), Mr Smith concedes that it is appropriate to treat the soft tissue injuries to the face as a single state of injury^[10], but submits that the assessment should be at the top of the item 1 range (i.e. 3%).

8. [8]
   In the circumstances, and taking into account the assessment process mandated in R v Ward ex parte Dooley^[11], the injuries suffered on 7 July 2001 (count 2) are, in my view, appropriately compensated by an award of 2% ($1,500).

9. [9]
   In respect of the physical injuries suffered on 20 February 2002, I consider these also should be treated as a single state of injury, but in the circumstances I consider the appropriate award should be 2% ($1,500).

10. [10]
    2.              Item 32 – Mental or nervous shock (moderate)

Dr Andrew Byth, psychiatrist, provided a report dated 25 August 2005^[12].  Dr Byth diagnoses the applicant as suffering from “adjustment disorder with depressed mood (reactive depression)^[13].  Dr Byth specifically rejects the more substantial diagnoses of dysthymic disorder or major depression,^[14] or post-traumatic stress disorder^[15].  Dr Byth’s prognosis notes that the applicant’s “depressive symptoms seem to have partly improved since 2004, however her remaining symptoms are following a chronic course [and] she is likely to be left with chronic mild residual depression arising from the assault”^[16].  Dr Byth notes that the applicant would benefit from 12 months of specialist psychiatric treatment at a cost of $3,000^[17] but that this would be likely “to make only a partial improvement” and the applicant would be “left with chronic mild to moderate depression arising from the assaults” amounting, in Dr Byth’s opinion to a “permanent psychiatric impairment of 10 per cent – 20 per cent, or slightly greater”^[18].

11. [11]
    Mr Smith submits that an appropriate award, given the diagnosis of adjustment disorder with depressed mood, would be at the upper end of the range under item 32 (mental or nervous shock [moderate]) i.e. 20%.  However, in my view, a more appropriate assessment (bearing in mind Dr Byth’s conclusions, in particular that the diagnosis did not amount to any of the more substantial diagnoses of dysthymic disorder, major depression or post-traumatic stress disorder), and taking into account the pre-existing problems with dependent personality traits and grief over the applicant’s father’s death) would be an assessment of 15% ($11,250).

CRIMINAL OFFENCE VICTIMS REGULATION s 1A

12. [12]
    An applicant who suffers adverse impacts arising from a sexual offence is entitled to a further assessment pursuant to Criminal Offence Victims Regulation (“COVR”) s 1A “to the extent to which the [adverse impacts] are not otherwise an injury under [COVA] s 20^[19]”.

13. [13]
    As the Court of Appeal determined in R v Attwell ex parte Jullie [2002] 2 Qd R 367, it is necessary in a proceeding under COVA to commence by compensating the victim of a sexual offence insofar as the impacts amount to an injury pursuant to COVA s 20, and to assess compensation pursuant to COVR s 1A only to the extent that any relevant adverse impacts of a sexual offence are not an injury under COVA s 20^[20].

14. [14]
    The issue then, given that the applicant has suffered a recognisable psychiatric injury (“adjustment disorder with depressed mood”^[21]) for which she has been compensated under COVA s 20, becomes a question of what adverse impacts (if any) do not form part of the psychiatric injury compensated under COVA s 20, and the appropriate quantum for any such relevant impacts.

15. [15]
    The submissions by Mr Smith on behalf of the applicant seek to identify^[22] a series of “adverse impacts” which it is submitted are not otherwise part of the injury compensated under COVA s 20 (i.e. not relevantly aspects of the diagnosis of adjustment disorder with depressed mood [reactive depression]).  These adverse impacts, as listed by Mr Smith^[23], are:

1. Reduced self-worth or perception;

2. Reduced physical capacity;

3. Increased fear or increased feelings of insecurity;

4. Adverse effect of the reaction of others;

5. Adverse impact on lawful sexual relations;

6. Adverse impact on feelings;

7. (i)  Impact upon future earning capacity and employment prospects;

 (ii) Need for ongoing psychological and psychiatric therapy and medication.

16. [16]
    Although I accept that the offence of which the respondent was convicted has had a significant impact on the applicant, many of the “adverse impacts” set out above are, in my view, aspects of the diagnosis of adjustment disorder with depressed mood. In particular, Dr Byth notes that the applicant, following the assault “remained highly anxious about the possibility of future attacks or reprisals, and had trouble sleeping … [and] was reluctant to go out at night”^[24].  Dr Byth states further that the applicant “gradually developed a psychological reaction of depressed mood, accompanied by high anxiety, social withdrawal and reduced confidence”^[25], and that the applicant’s “social withdrawal can be seen as part of her depression”^[26].

17. [17]
    Although Dr Byth, in his report, does not undertake the specific exercise of separating out the adverse impacts which were not part of the “mental or nervous shock” (i.e. the injury under COVA s 20), I consider that “reduced self-worth or perception”, “reduced physical capacity” (described in the outline of submissions for the applicant as constituting “significantly reduced motivation, energy and drive”^[27]), “increased fear or increased feelings of insecurity”, “adverse effect of the reaction of others” and “adverse impact on feelings” are all (relevantly) “adverse impacts” encompassed by Dr Byth’s diagnosis of adjustment disorder with depressed mood.   In particular, Dr Byth notes that “[the applicant’s] social withdrawal can be seen as part of her depression”^[28].  In addition, I consider that the “impact upon future earning capacity and employment prospects” is a direct impact which is part of the relevant diagnosis^[29], and self-evidently the “need for ongoing psychological and psychiatric therapy and medication” is also a direct consequence of the relevant diagnosis.

18. [18]
    In my view, therefore, the only “adverse impact” which is an impact not otherwise part of the injury under COVA s 20, is the “adverse impact on lawful sexual relations” which could more properly be considered to be an “adverse impact on intimate relationships” given that the applicant has apparently continued “to meet and form relationships with men”, but because she would “get attached too easily and want to start living with them too quickly … then the relationships [would] fall apart”^[30].  In short, the applicant has been unable to sustain any intimate relationships in the longer term, although Dr Byth’s report does not indicate any difficulties in commencing such relationships.

19. [19]
    In all of the circumstances, in my view, the appropriate assessment of the further “adverse impact” pursuant to COVR s 1A and 2A is a figure of 7% ($5,250).

CONTRIBUTION

20. [20]
    I do not consider that the applicant contributed to her own injuries^[31].

CONCLUSION

21. [21]
    Accordingly, I order that the respondent Victor Manuel Carrasco pay the applicant, Nicole Frances Maria Vlug the sum of $19,500.00.