JGS v Adams[2009] QDC 290

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by offences committed by the respondent between 25 December 2006 and 21 February 2007.

2. [2]
   On 16 June 2008 in the District Court at Ipswich the respondent pleaded guilty to 7 counts of rape, 2 counts of sexual assault, 1 count of entering a dwelling and stealing, 1 count of burglary by breaking with violence, 1 count of attempted rape and 1 count of robbery. On 17 June 2008, the respondent was sentenced to 10 years imprisonment in relation to 5 of the rape counts. Those convictions were declared to be convictions of serious violent offences. There were lesser terms of imprisonment imposed in respect of the other offences.

3. [3]
   It was declared that the respondent had served 480 days in pre-sentence custody.

4. [4]
   On 13 March 2009 the Court of Appeal refused an application to extend the time within which to apply for leave to appeal against the sentence. (See R v Adams [2009] QCA 51)

5. [5]
   As the Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978, the application and supporting affidavits were served on the Public Trustee on 7 May 2009. The applicant’s solicitor filed an affidavit of Clinton Miles, Deputy Director, Client Services, of the Public Trustee stating that the respondent has provided written confirmation that he has been served with all relevant material and does not wish to take part in the proceedings. Mr Miles states that the Public Trustee does not hold any assets on behalf of the respondent and the respondent has advised that he has no assets with which to satisfy an order made against him. There has been no appearance by or for the respondent.

6. [6]
   Circumstances of the offence

7. [7]
   Prior to the offences, the applicant and respondent were in a relationship which lasted approximately 12 months. The relationship ended on 26 December 2006. However the respondent remained living in the applicant’s home until 6 February 2007. During that time the sexual relationship between the applicant and respondent had ceased.

8. [8]
   On 21 September 2007 the applicant, a 22 year old female was home alone when she heard a noise at the back door. The security door was locked. However the wooden internal door was not. She believed she heard a footstep and went to investigate when she was confronted by an intruder who was wearing a dark stocking over his head and disguised his voice. Nevertheless the applicant correctly believed the intruder to be the respondent.

9. [9]
   The respondent then began touching the complainant by stroking her hair and touching her neck. The respondent then touched the applicant’s breast under her nightgown and touched her vagina and bottom with an open hand.

10. [10]
    The respondent told the applicant that he had been watching her, that he had photographs of her in the shower, that he had been in her house recently and that he had some of her panties at home. The respondent then told her it was a shame she didn’t have a boyfriend around to protect her.

11. [11]
    The respondent then began to bind the complainant’s hands in front of her body using tape. He told her to lie down on her stomach and smacked her head when she attempted to look at him.

12. [12]
    The respondent continued touching and rubbing the applicant on the vagina and bottom. The respondent then lay down on top of the applicant and penetrated her vagina and anus with his finger.

13. [13]
    The respondent then knelt between the applicant’s legs and spread her legs apart. The respondent pulled both his and her pants down. The respondent then penetrated the applicant’s anus and vagina with his penis.

14. [14]
    The respondent then grabbed the applicant’s head when she began to cry. He told her to shut up and again said he had been watching her. He told the applicant to then get on her knees and continued to have anal sex with her.

15. [15]
    The respondent then told the applicant to stand up and lean against the cabinet, at which point he again attempted to penetrate her.

16. [16]
    Following the rape, the respondent re-applied tape to the applicant’s mouth and tied her ankles with the tape. The respondent asked the complainant for her wallet, which she directed him to. He then told her not to move or she would be killed at which point he left the room and went to the kitchen where money was stolen.

17. [17]
    The respondent, before leaving, ran his finger across the applicant’s throat whilst she was lying on the ground. He asked her, “So what should I do with you? Should I kill you or let you live? If I let you live, will you tell anyone? If you mention any of this to anyone, I will come back and kill you, and anyone that’s precious to you. I know you’re a teacher. Do you understand?” The applicant indicated she understood at which point the respondent repeated that it was a shame she didn’t have a boyfriend around to protect her.

18. [18]
    The respondent then said, “Let me have one more feel.” He reached down and penetrated the applicant’s vagina and anus with his fingers while she lay on the ground. He grabbed her throat and said, “If I let you live, you have to count to 100 and only then will you get up. Do you understand?”

19. [19]
    The applicant began counting and heard the respondent exit the house through the laundry door. The applicant had recognised the respondent by his general appearance and manner of speech.

20. [20]
    A police search of the respondent’s house located underwear of the applicant’s, along with photographs of the applicant in sexually explicit positions. Two photographs showed the respondent digitally penetrating the applicant’s vagina. A further photograph shows a carrot inserted into the applicant’s vagina. These photographs were relied upon in support of 2 counts of rape (counts 1 and 2). There were further photographs depicting the respondent holding the applicant’s vagina open which were relied upon in respect of count 3, sexual assault. These offences occurred on a date unknown between 25 December 2006 and 22 February 2007.

Injuries and medical reports

21. [21]
    The applicant sustained the following injuries:

• Post Traumatic Stress Disorder.
• Bruising to the neck and wrists.
• Adverse impacts of sexual offences.

22. [22]
    The applicant was examined by Dr Alison Scandrett, Medical Practitioner at the Tranberg Medical Centre on 23 February 2007. She presented with complaints of difficulty sleeping and fear of being alone. She presented with physical injuries including scratches and bruising to the wrists and tenderness along her jaw line and both sides of her neck. She was prescribed Temazepam to help her sleep.

23. [23]
    In her report dated 12 January 2009, Dr Scandrett states that she has seen the applicant several times since the offence. She states:

“She has experienced a number of symptoms of severe anxiety and mild depression consistent with Post Traumatic Stress Disorder.

These have included:

• Severe sleep disturbance
• Poor appetite
• Feeling unhappy
• Poor motivation
• Feeling lost, trapped and hopeless at times
• Teary
• Upset easily
• Feeling anxious and afraid
• Mind racing, heart racing.

I referred her to a psychologist in April 2007 and she attended twice but did not feel ready to embark on psychological therapy.”

24. [24]
    Dr Bartholomew Klug, Consultant Psychiatrist first saw the applicant on 25 February 2009. He states in his report dated 25 February 2009:

“Psychological sequelae. Following the traumatic experience of February 21^st, 2007, Ms [JGS] was afraid to live by herself and went to stay with her parents. She took 1½ weeks off from work and subsequently resumed her normal full time teaching duties but had to force herself to go to work where everyone knew what had happened to her and took frequent days off throughout the year 2007. She felt depressed and lost her enthusiasm for work and for socialising with friends. She suffered from sleeplessness and had a constant feeling of being watched. She was afraid of driving by herself. She did not feel like eating and lost some weight. She developed panic attacks. The traumatic event was on her mind all the time. She suffered from frequent intrusive mental images and nightmares of the assault. She never returned to live in her house where the assault occurred and sold it six months later. She felt very depressed with frequent periods of crying, death wishes and suicidal thoughts. She was prescribed antidepressants and a sleeping pill but did not like the effect of the drugs and stopped taking them after a few weeks.

At one stage after the rape her hair started to fall out and her nails became brittle. She also developed acne and mouth ulcers.

Her G.P. referred her to a psychologist whom she did not find particularly helpful. She stopped the counselling after two sessions and has had no further counselling since.

Her condition did not start to improve until 2008 when she was transferred to another school, bought another house in a different area, started making new friends and formed a new relationship.

Present situation. Two years have elapsed since the assault and her condition has improved in that the traumatic incident is no longer constantly on her mind and her sleep is almost back to normal. However, she still suffers from:

- A fear of being alone at night. She has a new boyfriend who lives with her and also keeps a boarder.

- A tendency to startle easily for trivial reasons.

- Infrequent flashbacks and occasional nightmares of the traumatic event.

- A tendency to avoid anything that could remind her of the traumatic event.

- Intimacy issues with her boyfriend which they are endeavouring to resolve.

- A compulsion to check any unfamiliar place, such as a hotel room, for its security.

- A fear of “what happens when he gets out a jail”.(Page 2)

….

1. (a)
   Diagnosis.

The symptoms which Ms [JGS] developed after the sexual assault in February 2007 are consistent with the diagnosis of Post-Traumatic Stress Disorder. However, her condition has improved significantly over the two years which have elapsed since the assault.

Ms [JGS’s] current diagnosis is that of Post-Traumatic Stress Disorder (DSM-IV 309.81) in partial remission.

….

The degree of disability suffered by Ms [JGS] as a result of her traumatic experience on 21.2.07 can be categorised as mild.”

25. [25]
    Dr Klug states that the applicant prior to the offence had good health generally and no other medical or psychiatric history.

26. [26]
    The applicant, in her affidavit filed 30 April 2009 states:

“40. Initially I had visible bruising on my neck and arms. I had a stiff and sore neck for a couple of weeks.

41. My face broke out into really bad acne and I lost large clumps of my hair

42. My skin kept peeling and my nails breaking.

43. I have been informed by Dr Scandrett and verily believe that this has been attributed directly to the stress and shock of the incident. Consequently, I was prescribed treatment.

Physical stress.

44. I get so worked up and worried I get stomach aches and back aches and headaches. I can’t stay still or I go to an extreme and can’t move and feel like just lying down and doing nothing. I also go through periods when I lose my appetite.

Emotional harm

45. I was so scared all the time; I could not be left alone. So I would sleep on a mattress in my parent’s bedroom for the initial 2 (two) months.

46. I would not drive anywhere on my own so I when I returned to work my mum drove me to work and back.

47. I did not have any desire to socialise with anyone and became withdrawn.

48. I became very nervous and could not help but cry a lot of the time.

49. I found it really hard to function normally in an everyday routine because a large portion of the time my mind was always playing over what happened and why it happened.

50. I gradually rebuilt my courage to do things on my own over the next 6-8 months.

51. I was embarrassed that people closest to me knew the details about what had happened to me. I was embarrassed that such intense photos had been taken of me without my prior knowledge, and I was worried how people would judge them. It was also uncomfortable being shown these photographs with male officer present and getting examined at the doctor after it happened.

52. My depression was manifested through unsettled lifestyle, life plans changed, no enthusiasm to work where I used to, socialise with the friends that I used to.

53. I have difficulty dealing with people helping me in any circumstance. I need ot (sic) feel like I’m in control of everything around me.

54. On the regular basis I still have flashbacks to the night I was raped. There are lots of things that trigger these memories such as any criminal investigation show on television, the name Tim and packaging tape.

55. Fear of life threatened – repercussions to family, friends and future incidents. Fear of being in a house alone; fear of going out on my own. Fear of being photographed, fear of taking medication that might take my alertness and power away such as sleeping tablets or medication to help with anxiety.

56. I can’t sleep because I know I’ll have nightmares. I am afraid im (sic) going crazy. I am afraid to be alone. I often wake up jumpy and in a sweat.

57. I am having panic attacks. I can’t breathe! I shake. I can’t stay sit still and have to stay busy all the time. I feel overwhelmed.

58. I am constantly checking to make sure the house is locked up securely and all blinds are closed so that nobody can look in.”

27. [27]
    The applicant in her affidavit outlines the further adverse impacts which resulted from the offences. These include, having to change the number plates on her car, the sale of her house, having to move from employment into a different district, repairs to her house and carpet. She describes the embarrassment of having people knowing what happened to her. She says she is embarrassed about the intense photographs taken of her and having people view them. She is angry that this happened to her and that her ex-boyfriend would do it to her. (Paragraphs 64 -72)

The relevant principles

28. [28]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

29. [29]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.  The amount of compensation cannot exceed the scheme maximum (s 25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

30. [30]
    The Criminal Offence Victims Regulation 1995 provides in regulation 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under section 20 is prescribed as an injury. Pursuant to regulation 2A the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum.

31. [31]
    Mr Hodgson submits that 2% of the scheme maximum is appropriate under item 1 of the schedule for bruising and 20% for mental or nervous shock pursuant to item 32 for Post Traumatic Stress Disorder.

32. [32]
    Regulation 1A provides:

“(1) 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.

(2) An adverse impact of a sexual offence includes the following –

 (a) a sense of violation;

 (b) reduced self worth or perception;

 (c) post-traumatic stress disorder;

 (d) disease;

 (e) lost or reduced physical immunity;

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

 (g) increased fear or increased feelings of insecurity;

 (h) adverse effect of the reaction of others;

 (i) adverse impact on lawful sexual relations;

 (j) adverse impact on feelings;

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

33. [33]
    Mr Hodgson for the applicant submits that 30% of the scheme maximum is the appropriate award for adverse impacts under the regulation. Mr Hodgson in his outline of submissions identifies sub-sections (a), (b), (c), (g), (h), (i) and (j) as the adverse impacts suffered by the applicant. He further submits an award should be made pursuant to Regulation 1A (k).

34. [34]
    It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the regulation to the extent that they are not an injury under section 20: R v  Atwell, ex parte Jullie [2002] 2 Qd R 367 at [20] per Chesterman J. If the injury is a bodily injury under s 20 it must be compensated under the Act. It is only additional adverse impacts that may be compensated under the Regulation: R v  Atwell, ex parte Jullie [2002] 2 Qd R 367 at [57] per Atkinson J. The effect of the Regulation is that “…post-traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever, be the case.” R v  Atwell, ex parte Jullie [2002] 2 Qd R 367 at [22] per Chesterman J.

35. [35]
    The evidence establishes that the applicant has suffered adverse impacts by way of embarrassment in the way others perceive her, the way she perceives herself and the degrading effect of the photographs taken of her. She is angry about what happened to her, the process she was put through and that her life has changed dramatically because of it. The applicant has had to sell her house, re-locating from the area and gaining new employment.

36. [36]
    Having regard to the serious and violent nature of the offences and the impacts upon the applicant, I accept the submissions of Mr Hodgson in relation to the assessment of compensation.

Assessment of compensation

37. [37]
    I assess compensation in accordance with the items in the compensation table and Regulation 1A as follows:

38. [38]
    This leads to a total assessment of $39,000.

39. [39]
    There is no behaviour of the applicant that contributed directly or indirectly to her injuries.

Order

40. [40]
    I order that the respondent pay to the applicant the sum of $39,000 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of rape, sexual assault and attempted rape which led to the conviction of the respondent in the District Court at Ipswich on 16 June 2008.