DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

2. [2]
   The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 5 April 2007, namely one count of rape.

Facts

3. [3]
   The respondent raped the applicant while she slept in her bedroom of the unit in which she resided on 4 December 2004. She awoke to find the respondent, a work colleague, having sexual intercourse with her. She told him to stop and a few seconds later he did and left her room (“the incident”).

Injuries

The applicant suffered psychological sequelae including a Post Traumatic Stress Disorder (“PTSD”) and Depression. A claim for minor bruising was abandoned at the hearing of the application.

The relevant law

4. [4]
   COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

5. [5]
   Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov^[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”         

6. [6]
   Relevantly the Compensation Table prescribes:

• Item 33 Mental or nervous shock (severe) ………20%-34%

7. [7]
   Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.^[2]

8. [8]
   Section 1A of COVR is also relevant to this application. It is in the following terms:

“For section 20 of the Act, the totality of the adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20, is prescribed as an injury.

An adverse impact of a sexual offence includes the following –

1. (a)
   a sense of violation;

2. (b)
   reduced self worth or perception;

3. (c)
   post-traumatic stress disorder;

4. (d)
   disease;

5. (e)
   lost or reduced physical immunity;

6. (f)
   lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

7. (g)
   increased fear or increased feelings of insecurity;

8. (h)
   adverse effect of the reaction of others;

1. (i)
   adverse impact on lawful sexual relations;

10. (j)
    adverse impact on feelings;

11. (k)
    anything the court considers is an adverse impact of a sexual offence.

In this section-

Sexual offence means a personal offence of a sexual nature.

The effect of section 1A was considered in R v Atwell ex parte Julie^[3] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:^[4]

“the regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of adverse impacts of a sexual offence suffered by a person, to the extent to which the impacts are not otherwise an injury under section 20…”

The Assessment

9. [9]
   In her report dated 27 June 2008, Dr Richardson, psychologist, concluded that the applicant was suffering from a PTSD “in the moderate to severe range”. In a subsequent report dated 28 May 2009 Dr Richardson noted that the applicant was also suffering from symptomatology described in s 1A of COVR in subsections (a), (b) and (i). This conclusion is consistent with evidence placed before me from the applicant herself. The applicant stressed how distressed she felt at unwittingly letting “a predator” into her life who took advantage of her “in the place where most people feel safest”, asleep in her own bed. She also stated that she felt “fundamentally flawed” as a consequence of the rape committed by the respondent, so much so that she later terminated a pregnancy with her current partner, as she did not feel she could cope with looking after a baby, as she was still struggling with the consequences of the incident. However, she has since become a mother. The incident has also resulted in the applicant not being able to “enjoy or relax during (sexual) intercourse as I used to”.

10. [10]
    Pursuant to s 2A of COVR the prescribed amount of compensation pursuant to s 1A is up to 100% of the scheme maximum.

11. [11]
    Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows:

Order

12. [12]
    I order that the respondent pay the applicant the sum of $24,750 by way of compensation.