DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant, Emma Kate Henderson (nee Allen), claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury she sustained arising out of the criminal conduct of the respondent, Jason Van Den Heuvel, who was convicted firstly by the District Court at Southport on 12 March 2004 of 2 offences of unlawfully stalking the applicant in 2000 and 2001 respectively and secondly, by the District Court at Beenleigh on 22 November 2005 for a further offence of unlawful stalking of the applicant on 25 December 2004 and contravening a restraining order made by His Honour, Judge Healy, on the 12 March 2004. 

2. [2]
   The respondent was served with the applications and supporting documents on the 7 November 2006^[1] and was present at the hearing of the applications on the 26 March 2007. 

3. [3]
   There are two applications for compensation before the court as the offences the subject of the applications were dealt with by the District Court at Southport and Beenleigh, respectively on the 12 March 2004 and the 22 November 2005, details of which are set out in paragraph [4] below. The applications for compensation are made pursuant to s 24 of the Act and are supported by the following material:-             

1. (a)
   the affidavit with exhibits of the applicant sworn 31 August 2006 and   filed at Beenleigh on 27 October 2006;

2. (b)
   the affidavit with exhibits of Scott Andrew Macoun, Articled Clerk, sworn 3 October 2006 and filed at Beenleigh on 27 October 2006;

3. (c)
   the 2 affidavits with exhibits of Steve Morgan, Psychologist, sworn 30 August 2004 and 17 August 2006 respectively and filed in the Southport and Beenleigh registries;

4. (d)
   the affidavit with exhibit of Graeme Kennedy Smith, Commercial Agent, sworn 11 December 2006 and filed at Beenleigh on 18 December 2006. 

Facts:

4. [4]
   The circumstances of the offences are summarised in the applicant’s affidavit and exhibits referred to in paragraph [3] above and in the schedule of facts, being exhibit SAM1 to the affidavit of Scott Andrew Macoun and detail that in respect of the respondent’s convictions on 12 March 2004 the respondent’s offending conduct commenced after a personal relationship between the parties ended in or about June 1998 when the respondent continuously stalked the applicant, breaking into her residence; observing her in her residence; telephoning her and generally harassing her over a period of years.

5. [5]
   In respect of the second convictions on 22 November 2005 the circumstances of those offences were that on 25 December 2004 the applicant saw the respondent walking towards her address while she was in her car with her husband. On recognising the respondent they returned to their home. The respondent arrived outside the applicant’s home a short time later and was subsequently apprehended by the applicant’s husband until police arrived and arrested him.

Injury (mental or nervous shock):

6. [6]
   The applicant claims that she has suffered “mental or nervous shock” on the basis of the reports of Steve Morgan, psychologist, being exhibits to his affidavits referred to in paragraph [3] above.

7. [7]
   It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.

8. [8]
   The applicant states that the respondent’s offending conduct commenced after their personal relationship ended in 1998 subsequent to which the respondent was charged and convicted of 2 offences of stalking by the District Court at Southport in March 2004.

9. [9]
   The applicant experienced “constant feelings of fear, helplessness, anger, anxiety, frustration and stress” and attended counselling services in 1999.^[2]

10. [10]
    The applicant further states that she “……was in fear of my life over the period that I was stalked and am still in fear of my life.”^[3]  She further states that as a result of the respondent’s first period of stalking she underwent, “……a significant change in personality.  I have become more conservative, rigid in my thinking, anxious, cautious and prone to fear, which has affected me in all domains of functioning, including social and occupational.  This has affected my employment prospects, as I refused to work as a teacher in an area where I could not be close to my parents.  My relationship with my husband has been affected as he has expressed a desire to have children but I feel that I would be too anxious and over protective mother because of what happened to me.”^[4]

11. [11]
    Following the respondent’s second period of stalking for which he was further convicted in November 2005 the applicant “……continued to suffer from anxiety and panic attacks ……has strong feelings of fear and anxiety regarding safety of my children and family being attacked ……suffers from uninterrupted sleep, lowered mood, irritability, loss of interest in social activity and feelings of helplessness”.^[5]

12. [12]
    Mr Steve Morgan, psychologist has submitted 2 reports in support of the applications and in his first report of 23 July 2004 in which he discussed the effect upon the applicant of the respondent’s offending conduct post 1998 he concluded that the applicant “……has periodically met the diagnostic criteria for a major depressive disorder (DSM-IV-TR, 296.2X) being best understood as being of variable severity and functional impact over the last 5 years. I consider this condition in partial remission at the time of interview.”^[6]

13. [13]
    In his second report of 1 May 2006 Mr Morgan’s “……view is that Ms Henderson focally experiences a Major Depressive Disorder (DSM-IV-TR 296.2X). Whilst of variable severity over the course of the last 5 years, I consider this presently moderate to severe and primarily associated with her sense of helplessness in the face of Mr Van den Heubel’s (sic) persistent offending (also influenced by recent maternal and bereavement experiences). The depressive symptoms , that I consider consistent with Post Traumatic Stress Disorder (DSM-IV-TR 309.81), being in partial remission.”^[7]

Category of Injury:

14. [14]
    It is submitted on behalf of the applicant that her injury falls under item 33 of Schedule 1 of the Act – “Mental or nervous shock (severe)” and that the applicant should be awarded the maximum percentage under that item namely 34% of the scheme maximum.^[8]

Applicant’s Contribution

15. [15]
    In deciding the amount of compensation payable to the applicant the court must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

16. [16]
    I have referred to the circumstances of the incident in paragraphs [3] and [4] above and I find that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by her.

Single compensation order:

17. [17]
    It is also appropriate that I should refer to s 26 of the Act which relevantly provides:

“(1)The purpose of this section is to ensure that, for applications, harm that substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more than 1 injury or be caused by more than 1 incident.

1. (2)
   The objective is to ensure that the way in which incidents of personal offences happen or personal offences are prosecuted does not cause—

1. (a)
   inequity of treatment between applicants; or

1. (b)
   an unjustifiable multiplicity of applications to the State under division 3 about substantially the same harm.

1. (3)
   Subject to subsections (7) and (8), only 1 compensation order may be made in favour of an applicant because of—

1. (a)
   injury suffered from a substantially single incident, whether consisting of 1 or more than 1 personal offence; or

1. (b)
   a substantially single state of injury suffered from a series of incidents of personal offences.

1. (4)
   In deciding whether an applicant has suffered a substantially single state of injury, the court may have regard to the following—

1. (a)
   the applicant’s injuries;

1. (b)
   the time over which the injuries were caused;

1. (c)
   the similarity of, or connection between, the injuries;

1. (d)
   the similarity of, or connection between, the events that caused the injury;

1. (e)
   anything else that is relevant.”

18. [18]
    On the evidence before me and applying the criteria set out in s 26 supra I have find that the applicant “has suffered a substantially single state of injury” and is to be compensated on the basis of one compensation order only for that injury.

19. [19]
    On the evidence before me including the applicant’s own evidence and that of the psychologist referred to above, particularly taking into account the lengthy period over which the respondent’s offending conduct persisted, I find that the applicant has suffered a severe “mental or nervous shock” injury and I assess the quantum of the compensation in the sum of $25,500.00 representing the maximum amount allowed under item 33 of the table in Schedule 1 of the Act.^[9]

20. [20]
    I therefore order that the respondent pay to the applicant the sum of $25,500.00 by way of compensation for the injury she sustained

21. [21]
    In accordance with s31 of the Act, I make no order as to costs.