C v Reinecker[2009] QDC 96

DISTRICT COURT OF QUEENSLAND

COUNSEL: Mr B Begg for the applicant

 No appearance for the respondent

SOLICITORS: Legal Aid Queensland for the applicant

 No appearance for the respondent

1. [1]
   HIS HONOUR:  This is the criminal compensation decision in the matter of C, applicant, and Tyrone Gordon Reinecker, respondent. It's number D4 of 2008 at the Rockhampton Registry.

INTRODUCTION

2. [2]
   The applicant, C, seeks compensation in respect of injuries suffered by her, arising out of an incident which occurred in Rockhampton on 23 August 2003. The respondent, Tyrone Gordon Reinecker, pleaded guilty before Judge Britton SC in the Rockhampton District Court on 16 February 2005 to one count of assault occasioning bodily harm and two counts of indecent assault. The respondent was sentenced to two years' imprisonment on each count, suspended after serving six months with an operational period of three years.

FACTS

2. [3]
   The facts as outlined by the sentencing Judge in his sentencing remarks are as follows:-

"The complainant was a 19 year old girl at the time. She pulled up at a telephone booth because she was trying to get directions to a place where she was to attend a party. You [the respondent] were there, you allowed her to make a short telephone call, and then when she returned to her car you followed her and ultimately you struck her. You put a hand over her mouth and a finger went inside her mouth and caused her to suffer some small injury.

2. [4]
   More significantly, however, you roughly grabbed her right breast under her bra, and in the course of doing that it appears that her nipple was scratched. She screamed and struggled, you continued to hold her. You placed your hand inside her underwear and pressed hard against her anus, but there was no penetration of her anus, nor did you touch her in the vaginal area. She continued to struggle and to scream and you ran off."  (Exhibit B (Sentencing Remarks), p.2, affidavit of Debbie Richardson sworn 29 October 2008)

INJURIES

2. [5]
   The applicant seeks compensation for the following injuries which, it is submitted, are causally linked to the offences committed by the respondent against her, namely:-

(1)bruising/laceration to the applicants;

(2)scarring of the applicant's right nipple;

(3)injured left shoulder and back;

(4)mental or nervous shock (post-traumatic stress disorder);

(5)adverse impacts of sexual offences (Criminal Offences Victims Regulation (COVR) s 1A).

THE LAW

2. [6]
   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 injuries suffered by an applicant because of that offence.

2. [7]
   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.

2. [8]
   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 (Wren v. Gaulai [2008] QCA 148 per Fraser JA at paragraphs 24-25).

2. [9]
   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."  (Wren v. Gaulai [2008] QCA 148 per Fraser JA at paragraph 29).

2. [10]
   Ultimately the Court should ensure that there is compliance with "The use of the methodology prescribed by COVA s 25 [which] is mandatory." (Wren v. Gaulai [2008] QCA 148 per Fraser JA at paragraph 22).

2. [11]
   In respect of sexual offences, the Court of Appeal in R v. Attwell; ex parte Jullie [2002] 2 Qd R 367 determined that it was necessary in a proceeding 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 impacts of a sexual offence were not an injury under COVA s 20 (R v. Attwell; ex parte Jullie [2002] 2 Qd R 367 per Chesterman J at p 372; per Atkinson J at p 372; per Atkinson J at p382).

COMPENSATION

2. [12]
   Mr Begg, who appears on behalf of the applicant, seeks compensation as follows:-

(1) Item 1 - bruising/laceration etc (minor/moderate) - 1%-3%

The respondent's fingernail went inside the applicant's mouth and grazed the inside corner of her mouth (Exhibit B (sentencing submissions), p.4, affidavit of Debbie Richardson sworn 29 October 2008). The applicant in her police statement describes this manoeuvre as "causing a burning feeling and a lump, like a fat lip."  (Exhibit A, paragraph 30, affidavit of C sworn 2 September 2008).

It is appropriate in these circumstances, in my view, to award 1% of the scheme maximum ($750) pursuant to item 1.

(2) Item 27 - facial disfigurement or bodily scarring (minor/moderate) - 2%-10%

The injury to the applicant's right nipple was described in prosecution submissions at the sentence, as occurring when the respondent put his hand under the applicant's bra and "apparently another fingernail has scratched her nipple and caused an injury that wept for some time."  (Exhibit B (Sentencing Submissions), p.4, affidavit of Debbie Richardson sworn 29 October 2008). This injury was described by the applicant in her victim impact statement tendered as Exhibit 3 in the sentence proceedings, as leaving a "nipple itself [that] is now somewhat disfigured and [the applicant] has concerns about the appearance of it and functionality if she ever has children and wants to breastfeed."  (Exhibit B (Sentencing Submissions), p.4, affidavit of Debbie Richardson sworn 29 October 2008).

It appears that the applicant's fears were, unfortunately, well founded. Dr David Theile, plastic and reconstructive surgeon, examined the applicant on 16 April 2008 (Exhibit A, affidavit of Dr David Theile sworn 2 September 2008). Dr Theile, in his report, states as follows (relevantly):-

"ACTIVITIES

C is currently breastfeeding and has noticed the right breast having decreased milk flow and more difficulty breastfeeding when compared to the left.

ON EXAMINATION

Right Nipple

There is a transverse scar across the right nipple. The right nipple has a different contour when compared to the left. There is also an obvious deformity of the inferomedial part of the nipple, which would represent a piece of nipple that was partially avulsed at the time of the injury.

ASSESSMENT

C has suffered some scarring, disfigurement and functional impairment of the right nipple as a result of her assault on 23 August 2003. The symptoms and appearance of the nipple are consistent with the described mechanism of injury.

The right nipple is different in size and appearance when compared to the left nipple. This is accentuated when the nipple becomes erect. The right nipple has decreased projection and has a transverse scar across the centre of the nipple. There is also an abnormal protuberance of the inferomedial part of the nipple which represents a previously avulsed part of the nipple that has healed in an abnormal position. There is decreased milk flow on the right side which is almost certainly the result of the injury to the nipple at the point where the ducts open externally.

C has a nipple that has been deformed by her injury. The decrease in milk flow is almost certainly the result of the injury to that nipple.

The nipple could be corrected in terms of its appearance with surgical scar revision. This would involve a day surgical procedure and the cost would be as follows:-

1.  Surgical cost - $1,000

2.  Anaesthetic cost - $750

3.  Hospital costs - $2,500

This procedure would improve the appearance of the nipple, but would not do anything to improve the flow of breast milk. The impact on breastfeeding is not able to be corrected with surgery or medications.

C reports that she is conscious of the appearance of her nipple and finds this somewhat difficult when the nipples are exposed." 

In my view, given the physical consequences of the injury which are clearly causally linked to the offence of assault occasioning bodily harm, it is appropriate to make an award at the upper end of the item 27 range, namely 10% of the scheme maximum ($7,500) under item 27.

(3) Item 21 - neck/back/chest injury (minor) - 2%-7%

In the applicant's victim impact statement, she refers to suffering "bruising from the back of my neck to my lower back from struggling and twisting so much."  (Exhibit B, p.2, affidavit of C sworn 2 September 2008).

Stephen Barton, muscular skeletal physiotherapist expressed the opinion in his report dated 30 October 2007, that "Although the incident [clearly a reference to the offending] occurred some four years ago, it is highly possible that the reported incident as described, resulted in peri-shoulder laxity and may well have been initially due to [the applicant's] struggle with the assailant, given that she had no previous shoulder problems."  Mr Barton goes on, in respect of the issue of possible treatment, to state:-

"At this stage it would be recommended that C undertake a course of physiotherapy treatment primarily involving peri-shoulder muscle strength work, muscle balancing activities, including scapular stabilising exercises and trigger point therapy, to work particularly on re-establishing normal muscle strength and balance around her shoulder."

(Exhibit A (report dated 30 October 2007), affidavit of Stephen Barton sworn 17 October 2008)

Mr Begg submits that the injury is causally liked to the assault occasioning bodily harm offending, and further that it is appropriate to assess compensation at the mid‑range of item 21, essentially encapsulating the injuries caused to the applicant's shoulder and back in a single consolidated assessment. In my view this is an appropriate approach, and according I award 5% of the scheme maximum ($3,750) pursuant to item 21.

(4) Item 33 - mental or nervous shock (severe) - 20%-34%

The circumstances of the respondent's offending against the applicant were chilling, and it is unsurprising the applicant has been diagnosed by Dr Barbara McGuire as suffering from post-traumatic stress disorder (PTSD). (Exhibit A, affidavit of Dr Barbara McGuire sworn 25 august 2008)

Dr McGuire considers the applicant to be suffering PTSD to a moderate degree, further considers that the applicant has suffered from her symptoms for a period of five years, is not improving, and may need up to 20 counselling sessions at a cost of $150 per session in the future.

In these circumstances I consider that the submission of an award of 28% of the scheme maximum ($21,000) is an appropriate award which recognises the level of the applicant's PTSD, balanced against its chronicity and Dr McGuire's prognosis (which is that the PTSD is likely to lessen over time, but this is unable to be predicted with any accuracy) - (Exhibit A, p.4, affidavit of Dr Barbara McGuire sworn 25 August 2008).

(5) Adverse impacts (COVA s 1A)

In order to assess compensation under COVA s 1A, it is necessary to identify any relevant adverse impacts of a sexual offence, which are not otherwise a compensable injury under COVA s 20 (R v. Atwell; ex parte Jullie [2002] 2 Qd R 367).

Dr McGuire, in her report, identifies the following "adverse impacts" as not being integral to or part of the diagnosis of PTSD, namely:  "Continuing problems with [the applicant's] nipple."  "Loss of reduced physical capacity…because [the applicant] couldn't do exercise she went from being very fit and put on an extra 10-15 kilos."  "(h) adverse effect of the reaction of others [the applicant] lost a relationship with a girlfriend who didn't know how to deal with [the applicant]. Otherwise [the applicant] did not suffer any adverse effects from the reaction of others."  (Exhibit A, p.4, affidavit of Doctor Barbara McGuire sworn 25 August 2008)

Mr Begg, in his written submissions, identifies further "adverse impacts" which are set out in the applicant's affidavit at paragraphs 15-17, namely "At the time when the assault occurred I had a great office job in a construction firm. I loved working there. After the time of the attack I tried to go back to work straightaway. This was a big mistake. The office was busy, people were cranky and the result was that it was all too much. I was at my breaking point and broke down in tears. I had an anxiety attack and was physically sick in the office.

16. My boss came to me and tried to calm me down, but I just couldn't stop crying. She was so understanding and said I needed to take a few weeks off. She said my job would be there when I got better. I then stayed at home for a month but still didn't want to go out. I advised my employers and they said my job would still be there for me when I felt I was up to it. Months went by and I tried to go back but I couldn't concentrate.

17. At this time my self-esteem was very low and I was too afraid of serving at the front desk so I'd resort to cleaning in the office, tried to stay out of the front office where I would have to engage with others. I ended up being let go and my employer said it just wasn't working out.

18. I was so sad to leave this job. Before the incident I took pride in my job. I looked and was professional, work makeup, did my hair etc. I was the first person people saw when they walked in and I was so happy."  (affidavit of C sworn 2 September 2008, paragraphs 15 - 18)

Mr Begg submits that in total the adverse impacts should receive an award of 20% of the scheme maximum, emphasising in particular the fact that the offences caused the unplanned cessation of the applicant's employment in which she was [happily] engaged at the time of the offence. Although it is difficult in the circumstances to form a view on the totality of such "adverse impacts", it does seem to me appropriate, as submitted, to assess the adverse impacts at 20% of the scheme maximum ($15,000).

CONTRIBUTION

2. [13]
   The applicant has not contributed in any way, direct or indirect, to her own injuries (COVA s 25(7)).

CONCLUSION

2. [14]
   Accordingly, I order that the respondent, Tyrone Gordon Reinecker, pay the applicant, C, the sum of $48,000.