DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant MC seeks compensation in respect of injuries suffered by her arising out of offences committed against her by the respondent Donald Francis Allom on 23 June 2006 at Jimboomba. The respondent pleaded guilty before me in the Beenleigh District Court on 23 May 2008. The respondent was sentenced to imprisonment for 18 months in respect of Count 1 (indecent assault) and 7 years imprisonment for each of Counts 2-6 (5 separate counts of rape). A period of 8 days pre-sentence custody was declared time already served under the sentence, and a parole eligibility date was fixed at 29 November 2010.

Facts

2. [2]
   The applicant was aged 38 at the time of the offences and was residing at an address at Lot 55 Amber Crescent, Jimboomba, a granny flat semi-attached to the main dwelling on that property. The landlord resided in the main dwelling of the house and was friends with both the applicant and the respondent. At the time of the offences, the applicant had been living at the residence for two years with her daughter. The applicant had known the respondent for approximately 18 years prior to the offences.

3. [3]
   On 23 June 2006 (Friday), the applicant dropped her daughter off at the daughter’s father’s house, and the applicant went to work. The applicant finished work at about 5pm, returned home shortly after and was doing some laundry when she saw her landlord and the respondent in the dining room of the main house drinking wine. The applicant had a conversation with the landlord and the respondent and was invited to sit down with them. Shortly after that, some other friends arrived and it was decided to have pizza and some further drinks. The applicant consumed about half a glass of wine.

4. [4]
   The applicant then went to check on her washing which was in the laundry of the main house. The respondent followed the applicant to the laundry, and the applicant got her clothes from the dryer and returned to her granny flat. The respondent offered to help the applicant take her clothes back to her granny flat but she said, “I’m a big girl, I can walk myself home” and he said, “No, I’ll come with you”. The applicant had the clothes basket in her hands and she walked towards her granny flat. The applicant went inside and placed the washing on her bed. The applicant was leaning over the washing facing the bed. The respondent was on her right hand side. The applicant picked up some clothes that were on the floor and with her back to the respondent when she did that, said to the respondent, “Don’t you get any ideas”.

5. [5]
   The respondent didn’t reply. The applicant felt the respondent push behind her and the respondent placed his arms under the applicant’s arms as if he was giving her a cuddle from behind. The applicant pushed back on the respondent in order to push him away from her. The applicant started to turn around and as she did, the respondent then pushed up against her and put his right hand down the front of her pants. The respondent then put his hand down the front of her underwear and touched her on the vagina area (Count 1, sexual assault).

6. [6]
   The applicant describes the respondent running his fingers roughly on her vagina. The applicant said, “Don’t” again, and in a further attempt to get him to stop, the applicant said she was in a hurry and needed to sort out some things for her daughter. The respondent said, “It’ll be right” and the applicant replied, “No, I need to get this done”. The respondent then grabbed the applicant with both hands and in one motion pushed her onto the bed so that she landed on her back. The respondent then grabbed the applicant’s legs and held them in the air with his right arm, which the applicant described as being like a headlock hold, and then with his left arm the respondent tried to undo her pants. During this process the applicant continued to struggle with the respondent and told him, “Don’t” and asked him to stop as he was pulling down her pants and her underwear.

7. [7]
   The respondent then lifted the applicant’s legs higher and was able to pull the applicant’s legs out of her pants and underwear and then started to push himself towards her while the applicant continued to struggle. The applicant felt something penetrate her vagina and the respondent then started having sexual intercourse with the applicant (Count 2, rape).

8. [8]
   The applicant described herself continuing to wrestle with the respondent and attempting to get him to stop, resulting in the respondent going in and out of the applicant, again causing considerable pain to her vagina. The respondent was thrusting and not being careful and at this point the respondent missed the applicant’s vagina and entered her anus (Count 3, rape) causing the applicant significant pain.

9. [9]
   The applicant was trying to push the respondent off with her hands at his groin area and the respondent continued to persist in his actions and again entered the vagina of the applicant (Count 4, rape) and then in similar circumstances stopped penetrating the applicant’s vagina and penetrated her anus with his penis (Court 5, rape).

10. [10]
    During this time the applicant felt scared, the respondent was hurting her and she was in a lot of pain. The respondent then again entered the applicant’s vagina and at that time ejaculated (Count 6, rape) and the respondent was still standing up holding the applicant’s legs as he did this.

11. [11]
    The applicant then heard the people in the main house calling out to the respondent. The respondent dropped the applicant’s legs and started to walk away, and as the respondent walked out he said to the applicant, “This will be our secret”. The applicant didn’t respond. The applicant went straight to have a shower, then got out of the shower and phoned the landlord and asked him to come over without the respondent knowing. The landlord and another friend came over and the applicant told them that the respondent had forced himself on her. The applicant went to her partner’s house, arriving at about 11pm, avoided sex with her partner by saying that she was too tired, and then the next day told her partner what had happened. In a phone call between the applicant’s partner and the respondent, the respondent admitted intercourse but denied rape, but when the applicant confronted the respondent over the phone the respondent apologised. On 25 June 2006 the applicant made a complaint to police and was examined on that date by a forensic medical officer.^[1] 

Injuries

12. [12]
    When the applicant was examined by a forensic medical officer on 25 June 2006, the applicant reported to the medical officer that she had been bleeding from the vagina since the offence, but that it had stopped prior to the examination commencing. The medical officer noted that the applicant had what was described as a “healing abrasion to the posterior fourchette” which was consistent with having occurred over 24 hours previously and about two days earlier which was when the offences occurred. There were no other injuries noted.^[2]

The Law

13. [13]
    This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence.  R v Ward; ex parte Dooley [2001] 2 Qd R 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.  However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[3]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[4]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by COVA s 25 [which] is mandatory”.^[5]  In respect of sexual offences, the Court of Appeal in JI v AV [2002] 2 Qd R 367 determined that it was necessary in a proceedings under COVA to commence by compensating the victim of a sexual offence insofar as the impact amounted 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 impact of a sexual offence were not an injury under COVA s 20^[6].

Compensation

14. [14]
    It was submitted on behalf of the applicant that compensation should be awarded under three heads as follows:

1.Item 2 – Bruising/Laceration etc. (severe) – 3%-5%

[15] The report of Dr Donal Buchanan, who examined the applicant on 25 June 2006 indicates that (relevantly to this application) the applicant had “a circular tender reddish bruise…on the right wrist measuring 1.5cm in diameter” which was “from blunt trauma” and “would be over 24 hours old [from the time of examination]”.^[7]  Further, Dr Buchanan noted on genital examination “a healing reddish abrasion…on the area of tissue in front of the vaginal entrance (posterior fourchette) [and] the inner aspect of the right lavia minora (inner hairless skin fold to the right of the vaginal entrance) was tender to the touch.”  Dr Buchanan noted further that, “the anus and the skin surrounding the anus revealed no recent injuries”.  Dr Buchanan was of the opinion that “the abrasion to the posterior fourchette [was] from a blunt object moving across its surface in front of the vaginal entrance.”  Dr Buchanan expressed the opinion that, “the healing nature of the abrasion [indicated] it would be over 24 hours old [from the time of his examination] and [was] consistent with being about two days old.”  Dr Buchanan noted that abrasion could have been the source of the bleeding that the applicant had advised him of in the history which had occurred from her vagina after the rapes.  Dr Buchanan also noted that “while the lack of any anal injuries does not confirm penetration, it also does not exclude recent penetration from a blunt object of penile size and shape.”^[8]

[16] It was submitted on behalf of the applicant that the injuries should be assessed under this item at the top of the severe range.  While acknowledging that the series of rapes involved non-consensual penile penetration of both the applicant’s vagina and anus on a number of occasions, the physical injuries observed by Dr Buchanan (the injury to the wrist and the abrasion to the posterior fourchette as well as the tenderness of the right labia minora) do not in my view justify an award at the severe end of the Item 2 range.  Accordingly, I award 3% of the scheme maximum ($2,250) pursuant to Item 2.

2.Item 32 – Mental or Nervous Shock (severe) – 20%-34%

[17] The applicant was examined by Dr John Chalk, Psychiatrist, who provided a report dated 13 October 2008.  Dr Chalk concluded that the applicant had “developed post traumatic stress disorder as a result of the assault”^[9] and had received some limited treatment, including a tripling of anti-depressants that she had been on prior to the assault.  Dr Chalk noted that the applicant reported “that her sleep remains poor, she wakes easily and the flashbacks that she described settled to a significant degree.  Her appetite is reasonable but she has lost weight.  Indeed, she put on weight whilst on the anti-depressants but has slowly lost some.  Her energy and concentration are in tact.  She is not sexually active.  She would like to be but describes issues of trust.  She remains very over-protective of her daughter.  She recognises the problems this might cause but feels that she cannot help herself.  The applicant does not describe pervasive anger but feels sad, hopeless and helpless at times.  She is occasionally tearful but not pervasively emotional.”^[10]  Dr Chalk further noted that the applicant’s relationship with her partner (as at the date of the rapes) had fallen apart although they remain friends and the applicant was hopeful of getting the relationship back together after they had moved interstate to be near her partner’s parents.  Dr Chalk noted further that the applicant had reported, “having had to leave her previous place of residence, found it difficult to remain at work and has had substantial difficulties with ongoing anxiety, depression and hyper-vigilance.”

[18] Dr Chalk concluded that the applicant had “developed a significant psychiatric syndrome as a result of [the] assault…[had] improved overtime but [continued] to report significant residual symptoms of post traumatic stress disorder…and was “likely to be left with a moderate degree of psychiatric symptomology and impairment.”^[11]

[19] It is submitted on behalf of the applicant that an award should be made at 30% of the scheme maximum (towards the upper end, Item 32 – Mental or Nervous Shock – severe).  In my view, given the level of consequences suffered by the applicant and the significant ongoing consequences, 30% of the scheme maximum is an appropriate award for the mental or nervous shock suffered in this case.  Accordingly, I award the applicant 30% ($22,500) pursuant to Item 32.

3.  Criminal Offence Victims Regulation (COVR) s. 1A – Adverse Impacts

20. [20]
    The decision in JI v AV^[12] makes it clear that compensation under COVR s 1A can only be applicable to the extent that any relevant adverse impacts of sexual offences are not otherwise a compensable injury under COVA s 20.  It is necessary to identify what if any adverse impacts do not form part of the indicia of the psychiatric injury diagnosed by Dr Chalk (post traumatic stress disorder) and for which compensation has been awarded under COVA s 20.

21. [21]
    It is submitted that the adverse impacts include the following:

1. (a)
   A sense of violation

It is submitted that the applicant experienced a profound sense of violation by being raped both vaginally and anally^[13] and that the applicant was extremely sad and frightened by the experience.^[14]

2. (b)
   Disease

It is submitted that the applicant’s concern about pregnancy and disease was such that she consulted her general practitioner and obtained a blood test within the first week after the assault.^[15]

3. (c)
   Adverse impact on feelings

Dr Chalk notes that the applicant has substantial difficulties with ongoing anxiety, depression and hyper-vigilance^[16] and has also suffered panic attacks which have resolved over time.^[17]

26. [26]
    It is submitted on behalf of the applicant that she has become overly protective of her daughter^[27].  The applicant has suffered sleep disturbance^[28] and the applicant has struggled with employment issues subsequent to the assault.^[29]

27. [27]
    Doing the best I can to assess the compensable adverse impacts outlined above, and noting the decisions in LAB v RLB [2008] QDC 24 and Warren v Hardy,^[30]  it seems that an appropriate award in the circumstance would be (as submitted) 30% of the scheme maximum ($22,500).  Accordingly, I award 30% ($22, 00) for adverse impacts under COVR s 1A.

Contribution

28. [28]
    There is no question that the complainant has in any way contributed to any aspect of her own injury.^[31]

Conclusion

29. [29]
    Accordingly, I order that the respondent Donald Francis Allom pay the applicant MC the sum of $47, 250.00.