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 the respondent on 5 August 2004.

2. [2]
   On 7 February 2007 the respondent pleaded guilty to grievous bodily harm and sexual assault. He was sentenced to three-and-a-half years imprisonment with a parole eligibility date on 6 December 2007. There was a period of 139 days pre-sentence custody that was taken into account but could not declared as imprisonment served under the sentence.

3. [3]
   On 8 June 2007 the Court of Appeal allowed the respondent’s appeal against sentence. The court varied the sentence in respect of Count 1, the offence of grievous bodily harm by ordering that the sentence of three-and-a-half years imprisonment be suspended after 10 months for an operational period of four years. In respect of Count 2, the offence of sexual assault, the court substituted a sentence of 10 months imprisonment and two years probation.^[1]

4. [4]
   On 6 November 2009 the application and supporting affidavits were served upon the respondent.

Circumstances of the offences

5. [5]
   On the evening of 4 August 2004 the applicant met the respondent at the Alexandra Hills Hotel while playing pool with friends. She had not previously met the respondent. The respondent invited her back to his residence to “smoke some pot”. Soon after arriving at the respondent’s residence the applicant took a puff of the “pot”. She noticed that the taste was unusual and began to panic. She requested that the respondent drive her back to the hotel.

6. [6]
   The respondent commenced driving the applicant back to the hotel but turned off in a different direction towards bushland. The applicant attempted to telephone a friend at the hotel. The respondent grabbed the telephone from her and threw it down. He then punched the applicant repeatedly in the face. At some stage the respondent directed the applicant to remove her pants which she did because she was scared. The respondent fondled her vagina. The applicant lost consciousness.

7. [7]
   When the applicant regained consciousness she was in a reclined position in the passenger seat and most of her clothing had been removed. The vehicle was travelling at significant speed. She pleaded with the respondent to allow her out of the vehicle. She attempted to sound the horn of the vehicle. She then pulled on the steering wheel. The respondent lost control of the vehicle. It left the road and collided with a tree. A fire broke out. The applicant managed to extract herself from the vehicle. She suffered burn injuries to her chest, arms and right leg.

8. [8]
   The offences in respect of which the respondent was convicted related to the punches to the applicant’s face and the subsequent sexual assault. The applicant’s burn injuries are not the subject of this application.

Injuries and medical reports

9. [9]
   The applicant was transported to the Royal Brisbane Hospital where she remained an in-patient for approximately three weeks.

10. [10]
    Following her discharge from the Royal Brisbane Hospital the applicant continued to attend the hospital for regular reviews at the maxillo-facial clinic, burns unit and eye clinic. She also attended the Redlands Hospital for ongoing counselling and consulted her general practitioners from time-to-time for residual psychiatric symptoms. She has been prescribed anti-depressant medication.

11. [11]
    The applicant continues to suffer regular headaches, numbness in her right cheek and nose and double vision at the outer edges of her visual field. She suffers from anxiety and depression.

12. [12]
    The medical reports are helpfully summarised in the detailed written submissions on behalf of the applicant.

13. [13]
    Dr John Harrison, eye specialist, reviewed the applicant in July 2008 and provided a report dated 29 September 2008. He concluded that the trauma to the applicant’s face caused a fractured eye socket requiring surgical repair and that as a result of that fracture there was ongoing restriction of ocular motility causing symptomatic diplopia. Dr Harrison assessed the applicant’s visual disability as equivalent to an 80% impairment of one eye, equating to a 20% impairment of the visual system and a 19% impairment of the whole person.

14. [14]
    Dr Kevin Vandeleur, ophthalmic surgeon, assessed the applicant in early 2009 and provided a report dated 5 June 2009. He noted that the applicant suffered severe bruising around her eyes and a laceration to her forehead requiring suturing. He noted x-rays revealing orbital fractures corrected by surgery with plate and screws. He noted a slightly sunken appearance of the right eye with restrictions of movement of the right eye. He expressed the opinion that the applicant has a permanent impairment of ocular mobility and ocular coordination. He assessed her visual impairment to be 40% impairment of ocular motility and 10% loss of efficiency of the visual system resulting in a 9% whole person impairment.

15. [15]
    Dr Christopher Muir, oral and maxillofacial surgeon examined the applicant on 17 July 2008. He noted that the applicant suffered a “blow-out” fracture of the right orbit with fractures of the medial wall and floor of the orbit together with fractures to the nose and medial wall of the right maxillary sinus. He assessed the applicant’s impairment due to facial scarring and orbital blow-out fracture at 6% impairment of the whole person with a further impairment due to sensory deficit in the right cheek at a 1% whole person impairment.

16. [16]
    Dr Trevor Harris, plastic and reconstructive surgeon, examined the applicant on 28 April 2008. He provided a report dated 29 April 2008. Apart from the burn injuries which are not relevant to the present application, Dr Harris noted the applicant’s fracture of the floor of her right orbit requiring operative repair, laceration to the left eyebrow region, laceration of the lower lip and generalised contusion and swelling of the face consistent with repeated blunt trauma. Dr Harris concluded that the applicant’s facial injuries including the scarring of her eyebrow, chin and lower lip and her left orbit fracture constituted a 6% whole person impairment.

17. [17]
    Dr Gary Larder, Psychiatrist, assessed the applicant on 17 July 2008. In his report dated 12 September 2008 Dr Larder concluded that as a result of the incident the applicant suffered from major depression against a background of prior anxiety disorder.

18. [18]
    The applicant was examined by Dr Catherine Oelrichs, Psychiatrist, on 19 August 2008. In her report dated 19 August 2008 Dr Oelrichs concluded that the applicant has suffered a Post Traumatic Stress Disorder with residual mild impairments in her social and recreational activities, travel and social functioning. She assessed an overall Psychiatric Impairment Rating Scale (PIRS) at 4%. She indicated that the applicant’s pre-existing anxiety condition did not impact on the PIRS rating.

19. [19]
    The applicant has endured considerable pain and suffering.^[2]  The details are set out in her Victim Impact Statement dated 5 February 2007.  She continues to suffer regular headaches behind both eyes.  She has numbness to her right cheek and the right side of her nose.  She has a scar above her left eyebrow which is a constant reminder of the assault.  She continues to suffer from double vision, particularly on the outer edges of her vision.  Her double vision becomes worse if she is sitting at her computer for more than one hour at a time.  She relies on spectacles to correct her vision but the problem is not able to be fully corrected.^[3]  The applicant continues to suffer from anxiety and depression.  She is not able to get close to people and she is no longer able to enjoy social events.^[4]

The applicable principles

20. [20]
    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)).

21. [21]
    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)).

22. [22]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[5]  The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[6] The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[7]

Assessment

23. [23]
    One issue for determination is the extent to which the applicant’s psychiatric injuries and related impairment arise from the physical and sexual assault of which the respondent was convicted and the extent to which those injuries were as a result of the motor vehicle accident. As the written submissions on behalf of the applicant recognise, the other potential causative factors include the motor vehicle accident itself and the burn injuries sustained by the applicant in the subsequent fire. This issue is addressed by Dr Larder and Dr Oelrichs in their reports.

24. [24]
    Dr Oelrichs says in her report that:

“(The applicant) sustained a psychiatric injury as a result of a combination of these three incidents.  Given the nature of the incidents and how they are intimately and intricately related, it would not be possible to differentiate which of these three incidents had most of the impact upon (the applicant’s) mental health.  Her psychiatric injury, as noted above under the DSM-IV, of a post traumatic stress disorder is related to the combination of the three incidents and their residual effects relate to her own psychological feeling of wellbeing when reminded of these injuries by the persistence of scarring.”

25. [25]
    In my view there is merit in the submissions made on behalf of the applicant that it is somewhat artificial and arbitrary to attempt to differentiate and apportion the causative factors that have given rise to the applicant’s psychiatric injury. It is therefore appropriate to accept the submission made on her behalf that the offences of which the respondent has been convicted have had an equal contribution to the applicant’s psychiatric condition as other causative factors. This approach is consistent with that adopted in SAY v AZ.^[8] Often, a broad brush approach is necessary.^[9]

26. [26]
    Another issue addressed in the applicant’s written submissions concerns the possibility that the applicant’s head and facial injuries may have been caused in the motor vehicle accident rather than by the respondent’s assault. Overall in my view the medical evidence supports the conclusion that the applicant’s facial injuries were caused by the respondent’s assault.

27. [27]
    The applicant’s submissions accept the likelihood that the sexual assault was committed when she was unconscious. The applicant has no independent recollection of the sexual assault. She endured considerable embarrassment in having to undergo various tests at the hospital to determine whether there had been intercourse. She suffered significant anxiety until the negative results of those tests were obtained. The sexual assault does not feature prominently in the applicant’s report of her concerns and disabilities to her treating and assessing psychiatrists. In those circumstances the applicant’s written submissions do not seek any additional component for adverse impacts of a sexual assault pursuant to Regulation 1A Criminal Offence Victims Regulation 1995.

28. [28]
    It is submitted on behalf of the applicant that the following injuries in the compensation table are applicable:

29. [29]
    The total percentage of the scheme maximum sought by the applicant is 57%. This would lead to an award of $42,750.

30. [30]
    In the circumstances, having regard to the significant injuries caused to the applicant, the amounts sought on her behalf are reasonable.

Order

31. [31]
    I order that the respondent pay to the applicant the sum of $42,750 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of grievous bodily harm and sexual assault which led to the conviction of the respondent in the District Court at Brisbane on 7 February 2007.