VL v HHL[2010] QDC 12

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for criminal compensation under s 24 of the Criminal Offence Victims Act 1995 (Qld) (“the Act”) for injuries sustained “because of the offence of unlawful serious assault upon the applicant over a period of time from 1 April 2007 to 21 June 2007 of which offence the respondent was convicted on indictment on 18 June 2009.”^[1]

2. [2]
   Although the respondent was not convicted of an offence in these terms he was convicted on his pleas of guilty for the following personal offences committed against the applicant:

“Count 1: Unlawful stalking/between the 1^st day of April, 2007 and the 21^st day of June, 2007 at Brisbane in the State of Queensland.

Count 4: Deprivation of liberty/between the 19^th day of June, 2007 and the 21^st day of June, 2007 at Brisbane in the State of Queensland.

Count 5: Assault occasioning bodily harm/between the 19^th day of June, 20007 and the 21^st day of June, 2007 at Brisbane in the State of Queensland.

Count 6: Rape/on the 19^th day of June, 2007 at Brisbane in the State of Queensland.

Count 7: Rape/on or about the 19^th day of June, 2007 at Brisbane in the State of Queensland.

Count 8: Rape/on or about the 19^th day of June, 2007 at Brisbane in the State of Queensland.”^[2]

3. [3]
   I consider that the application relates to the respondent’s conviction for each of these offences. The offence of unlawful stalking was committed over the period of time specified in the application, and as I stated when sentencing the respondent on 18 June 2009, the other offences referred to each involved conduct which can be encompassed in that charge.^[3]

4. [4]
   For completeness I note that the respondent pleaded guilty, and was sentenced by me on the same date for one count each of wilful and unlawful damage of the applicant’s motor vehicle, unlawful stalking of a friend of the applicant, and attempting to pervert the course of justice. He also pleaded guilty, and was sentenced on that date for six counts of breaching a temporary protection order, three counts of possession of pipes and one count each of unlawful possession of a licence, possession of dangerous drugs, failing to take reasonable care and precautions in relation to a needle or syringe and of possession of a knife in a public place.

5. [5]
   In relation to the offences to which the application relates he was sentenced to 3 years imprisonment for unlawful stalking, 2 years imprisonment on each of the offences of deprivation of liberty and assault occasioning bodily harm, and 5 years imprisonment on each of the rape offences which were the subject of Counts 6 and 7.  He was sentenced to 7½ years imprisonment for the rape offence which was the subject of Count 8 to reflect his overall criminality by application of the totality principle.

6. [6]
   He was sentenced to imprisonment for 2 years in respect of the offences of wilful and unlawful damage of a motor vehicle and the second count of stalking.  For the offence of attempting to pervert the course of justice he was sentenced to 12 months imprisonment.

7. [7]
   A conviction was recorded in each case. The sentences were to be served concurrently. It was ordered that his parole eligibility date be fixed at 17 September 2009.  It was deemed that 729 days spent in pre ‑ sentence custody be deemed as time already served under the sentence.  The sentence took into account the extent of his cooperation with the administration of justice.  I also ordered in relation to his conviction on the stalking charges that the respondent was prohibited from the sentencing date from contacting the applicant and her friend directly or indirectly for a period of 5½ years.

8. [8]
   A conviction was recorded but he was not further punished in relation to each of the summary offences, the majority of which arose out of the circumstances of the indictable offences.

9. [9]
   The originating application and the relevant supporting material were served personally on the respondent on 9 December 2009 at the Capricornia Correctional Centre.  The originating application and the affidavit of service were served on the Public Trustee on 15 December 2009 by facsimile.  There was no appearance by the respondent or the Public Trustee on the date of hearing.

10. [10]
    Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for an injury suffered by an applicant because of that offence.^[4]  A personal offence is an indictable offence committed against the person of someone.^[5]  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act or prescribed under a regulation.^[6]

11. [11]
    An award of criminal compensation under the Act does not invoke the principles applicable to common law damages;^[7] it is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.^[8]  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000.^[9]

12. [12]
    An award for compensation must be made by reference to the compensation table, which lists 36 different types of injury giving each a percentage or range of percentages of the scheme maximum.^[10]  In deciding the amount of compensation to be paid for an injury specified under a regulation, the court is limited to making an order for the prescribed amount.^[11]  If the injury does not come within those itemised in the compensation table or specified under a regulation then the court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table.^[12]

13. [13]
    Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table.^[13]  It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in that table, on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases.^[14]

14. [14]
    Section 26 of the Act read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.^[15]  However, it does not discourage a judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by s 25(3) of the Act and Ward.^[16]  Accordingly, where it is practical to make separate assessments under each applicable item in the table whilst at the same time avoiding duplication, that course should be adopted.^[17]  However, 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 maximum for each item.^[18]

15. [15]
    Ultimately the court should ensure that there is compliance with the use of the methodology prescribed by s 25 of the Act, which is mandatory.^[19]

16. [16]
    In respect of sexual offences, it is necessary to commence by compensating the victim insofar as the impact amounted to an injury pursuant to s 20 of the Act, and to assess compensation pursuant to s 1A of the Regulation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under s 20 of the Act.^[20]  They would be such an injury if they were nervous or mental shock.^[21]

17. [17]
    Section 25(7) of the Act provides that in deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including for example, any behaviour by the applicant that directly or indirectly contributed to the injury.

The facts

18. [18]
    In determining the factual basis for sentencing the respondent, I was assisted by an agreed statement of facts which is summarised in my sentencing remarks. For the purposes of this application, this has been supplemented by the more detailed information contained in the applicant’s affidavit which exhibits her statements to the police and her victim impact statements, and the affidavits of her psychologist, Ms Prendergast, which exhibit a Medico-Legal Report and an addendum to that report.

19. [19]
    The applicant, who is aged 29 years, was born in the Czech Republic , where her parents and family still live.  She moved to Australia in July 2003 for the purpose of studying.  In 2004 she met the respondent.  In her affidavit she states that she began dating him in approximately January 2005 and lived with him for two years before leaving the relationship in February 2007.^[22]  However, as I said in my sentencing remarks, this was an “on again, off again” relationship.  She left him “as he had been taking more drugs than usual and [she] was beginning to feel threatened by him due to physical and verbal abuse.”^[23]

20. [20]
    She and the respondent had started using illicit substances together by April 2005. However, she stopped using illicit substances by December 2005.^[24]  My sentencing remarks record that this was methylamphetamine and it was used quite regularly.  She reported to the psychologist, Ms Prendergast, “that following the use of drugs [the respondent] became ‘abusive towards her’ … that [he] would call her a ‘whore’, would slap her across the face and was verbally aggressive.”^[25]

21. [21]
    The “on again, off again” nature of the relationship is demonstrated by the fact that in the middle of 2005, she told him that she did not want to live with him anymore and she moved out, although he continued to stay with her about three nights a week. In December 2005 they travelled together to the Czech Republic where he met her parents.  After returning to Queensland , he moved in with her.  Although she supported him to commence drug rehabilitation during 2006 and he remained drug-free for three months, he recommenced taking the drug.^[26]  He became increasingly violent during that year.  Although it was not suggested that he was physically violent to her, he did things such as punch holes in walls, and “would wake [her] up at night and ‘demand sex’ and would throw plates at her.”^[27]  She reported to Ms Prendergast that “she was in a ‘domestic violence cycle’ as at times the relationship would improve.”^[28]

22. [22]
    When she told him on Valentine’s Day 2007 that she did not want the relationship with him and it would be better if they did not see each other, he responded by threatening to make her life a living hell. As I observed, this was a fair description of what he subjected her to during the period between April and June 2007 to which the charges related.

23. [23]
    She agreed to meet him once a week in public places or at a friend’s place. However, he became “obsessed with resuming their relationship”.^[29]  For example, he sent numerous text messages and made numerous phone calls to one of her friends, seeking information about her exact location and wanting to make contact with her.  This was the subject of the other charge of unlawful stalking.

24. [24]
    At the end of March 2007 she moved into a house. He persisted in coming to her house at night time, although she told him to stop. As I stated in my sentencing remarks, the conduct which formed the substance of the charges in relation to her commenced from that point of time. As I said:^[30]

“This was protracted and relentless conduct in which you set out, in a manipulative and calculated way, to dominate and control her by subjecting her to psychological pressure.  It involved intimidation and death threats.

Those threats were not only made against her but against her family, her friends and even, according to the agreed statement of facts, her boss and a five-year-old child, and finally, on the 19^th and 20^th of June 2007, there was the physical and sexual abuse you committed on her.  It was obsessive behaviour.”

25. [25]
    On 8 April 2007, he sent her a text message threatening to break into her house and to steal and kill her dogs unless she signed a document saying that she owed him money.  Subsequently the dogs were missing, although they were eventually returned.  As a consequence, on 20 April she applied for a temporary protection order.

26. [26]
    On 21 April he followed her to the university campus where she was a student.  Later that day he visited her residence.  He threatened to bash her housemate’s friend; and said he would not stop harassing her until she came back to him or left Australia .  He threatened to have her deported and also said that he would come back and teach her a lesson.  This caused her concern for her safety.

27. [27]
    Between 21 and 24 April he scratched her car and put sugar in the petrol tank.  He left a note under the windscreen wiper asking her to call him.  The charge of wilful and unlawful damage related to this conduct, which caused the car to break down and other problems.

28. [28]
    Being in fear of her life, she changed her phone number. It was necessary for her to do so three times, because he always managed to phone her on the new number. On one of these occasions, he left a message threatening to harm her family and friends in Europe if she did not withdraw the domestic violence proceedings.  He also sent intimate photographs of her to one of her family members.

29. [29]
    One of the occasions that she changed her phone number followed his sending her threatening and humiliating messages at 15 ‑ minute intervals for two days.

30. [30]
    The need for her to consistently change her phone numbers also caused disruption of her work as a personal trainer. He also threatened her boss to try to get information about her. As a result she was unable to obtain employment in this capacity and had to recommence exotic dancing, which was how she was supporting herself when she first met the respondent.^[31]

31. [31]
    On 29 April he phoned one of the applicant’s friends with a threat to come to her house and kill her five-year-old son if she did not give him the applicant’s telephone number.

32. [32]
    On 1 May he saw the applicant at her university campus.  On this occasion he threatened to shoot her and to have her parents shot.

33. [33]
    A temporary protection order was obtained by her against him in his presence on 9 May.  He breached this order on six occasions.  Five breaches were committed between 11 and 18 May.  The sixth breach related to the events of 19 and 20 June which were the culmination of his conduct.  These are the six breaches to which he pleaded guilty.  Each formed part of the unlawful stalking.

34. [34]
    His conduct on 17 May involved approaching her in the driveway of a friend’s home.  He punched her car window, and threatened to kill her and have her father killed.  She was sufficiently concerned to call 000.  After this he sent her 15 text messages demonstrating that he knew exactly where she was at any given time.

35. [35]
    His conduct on 18 May involved sending more messages which continued into the night, including a threat to come to her house and that there would be blood everywhere.  As a result police had to attend and take her to another location.

36. [36]
    On 23 May he followed a friend of the applicant and asked where she was.  On 26 May he was apprehended by the police and charged with unlawful stalking concerning the applicant, unlawful stalking concerning her friend, wilful and unlawful damage, five counts of breaching the temporary protection order, and the other summary offences.  He was admitted to bail.

37. [37]
    At about this time she became aware that her parents in the Czech Republic were getting phone calls and text messages from unknown numbers telling them that she would be killed if she did not drop the charges and the protection orders.^[32]  He also told her this, and also again told her that he could arrange to have her deported.

38. [38]
    On 14 June she met him at the Cleveland courthouse for the purpose of their signing a letter that had been drafted by a solicitor on her instructions, to the effect that she would drop the charges in return for him obeying the protection order and leaving her alone.  But even at this time he asked her about getting back together and threatened her parents.  On the next day he sent her flowers and tried to contact her through friends.

39. [39]
    On 19 June she attended a police station and signed a withdrawal of the complaint for unlawful stalking and wilful and unlawful damage.  On the same date he contacted one of her friends with a request that she phone him because he had some bad news.  When she phoned he told her that she was working as a prostitute and he was going to kill everybody that night.  He asked her to come to his house.  She refused but agreed to meet him at a friend’s house at approximately 10.15 pm.

40. [40]
    She walked to where his car was parked. He pulled her into the car. As I said on sentence:^[33]

“You abducted her and that commenced about 12 hours of terror for her until she was eventually able to escape … ”

41. [41]
    Once he got her into the car he punched her in the head and face multiple times. He also squeezed her neck until she lost consciousness for a short time. The applicant deposed in her affidavit about this:^[34]

“I opened the front passenger door to get out but he grabbed me by the hair and pulled me back.  He then began to punch me in the face.  I cannot recall how many times he hit me … I was stunned by the punches to the face and head and tried to get out of the car.  By this time I was lying on the front seat and [he] then places his left arm around the front of my neck area and pulled me closer to him.  I tried to use my legs to push away but he was too strong.  He then squeezed my neck and I could not breathe.  I may have lost consciousness for a short time.”

She said in her undated Victim Impact Statement:^[35]

“When [he] started hitting me in the car, I felt a sharp pain in my eye socket.  He choked me.  I could not breathe and fainted.  When I became conscious, I felt my eye swollen and it was very painful as well as my throat.” (my emphasis)

42. [42]
    He drove her to his house. On the way he told her to suck his penis or he would bash her. He forced her to do so until he ejaculated in her mouth. She said in her affidavit:

“He grabbed me by the hair and forced me to place my mouth over his penis whilst he moved my head up and down.”

This is the first count of rape (Count 6).

43. [43]
    While he was driving her to the house he said that he was going to kill her and arrange for her parents to be killed. He also spoke about other persons joining him to kill her.

44. [44]
    After entering the house he smoked methamphetamine. Subsequent tests showed he had methamphetamine and amphetamine in his blood system. He said that he wanted to kill her because she disrespected him. He again accused her of working as a prostitute. When she denied this he hit her in the face with an open hand on numerous occasions and again threatened to kill her. She tried to protect herself with her arms. He threatened to break them if she did not put them down. Her account of this in her affidavit is:^[36]

“[He] hit me in the face with an open hand.  He hit me a few times and the pain increased in my face because my right eye was already swollen from the assaults in the car.  I was begging him to stop as I thought if he kept hitting me he would kill me.  [He] told me he wanted to kill me.

When [he] stopped hitting me, I started to tremble and shake.  I cannot recall how long I was sitting on the floor.  I remember feeling excruciating pain on my head and neck. …

… [He] kept talking about something and then hit me again twice in my head and face area.  I put my arms over my head to shield myself.  He said to stop covering my face otherwise he would break my arms.  I put my arms down and he then hit me on the left side of the face which caused more pain to my face and left ear.  [He] was still smoking the crystal meth pipe.” (my emphasis)

45. [45]
    He made further threats to kill and torture her or to scar her face. He also threatened to kill her family if she went to the police. He again asked whether she was working as a prostitute. When she said that this was untrue, he accused her of lying and again hit her across the face and head with an open hand. He also pulled her hair. A number of clumps of hair were subsequently found on the bedroom floor. She described this in her affidavit as follows:^[37]

“[He] told me I was lying and started hitting me again.  He pulled my hair and hit me across my face and head with his left open hand.  This happened several times.”

She said in her Victim Impact Statement:^[38]

“He kept hitting me on and off for about next 16 hours while keeping me in his house against my will.  The pain to my face kept increasing. … I also felt a sharp pain in neck from [him] pulling me by the hair many times.” (my emphasis)

46. [46]
    He then searched her mobile phone and when he found a male name, he would punch her in the face and head with a closed fist and call her a whore. The pain became unbearable and she begged him to stop. He also struck her to the back and shoulder with what she described as a whip but appears to have been a car aerial. It caused her sharp pain. However, I accepted for the purpose of sentence that it caused no injury. She gave the following description in her affidavit:^[39]

“[He] … started to look through the phone.  He told me that if he finds something on the phone he does not like, he would bash me for it.  He looked through every number and for every male’s name, he would punch me with his fist and scream ‘you fucking whore’.  I cannot recall how many times this happened.

I remember my mouth started to bleed and blood dropped on the bed …

…

[He] then started to look through the messages in my outbox on my phone.  He started to punch me with a closed fist for every male name that appeared.  He punched me in the face and head and I felt unbearable pain.  I thought I was going to pass out and begged him to stop hitting me.  He then picked up what looked like a black whip and started hitting me with it on the back and shoulder.” (my emphasis)

With reference to the use of the item she described as a whip, she said in the Victim Impact Statement:^[40]

“He also hit me across the back with something that looked like a black whip.  I felt sharp pain to my back.” (my emphasis)

47. [47]
    These references to the respondent’s statements in her affidavit and Victim Impact Statement are consistent with the factual basis on which I sentenced the respondent. This is also the case with the statement in her affidavit which I did not expressly refer to in my sentencing remarks, and which is as follows:^[41]

“[He] then checked my computer and found the file containing the threats he made in the past.  He slapped me in the face with his left hand and I felt unbearable pain in my eyes.” (my emphasis)

48. [48]
    He forced her to call her boss and resign. She was in terrible pain and trembling. Her eyes were swollen and sore. In relation to this, she deposed:^[42]

“At this point I was trembling and feeling like I could not handle any more pain.  My eyes were swollen and sore and I could not see.  I was crying a lot.” (my emphasis)

49. [49]
    With reference to the cumulative effect of this violence to her, she said in her Victim Impact Statement:^[43]

“He kept hitting me to the face and head which caused more pain to my face and ear, my mouth started to bleed, my eyes were so swollen I could barely see, my hair was ripped off my head and I could see it lying on the ground.  I had a bad headache.” (my emphasis)

50. [50]
    He gave her some liquid and pills which he said was morphine and painkillers, and as a result of which she felt drowsy. Although I proceeded to sentence the respondent on the basis that there was no evidence that he actually drugged her with morphine or otherwise, the letter from Dr Adamson of 21 June 2007 concerning her subsequent discharge from hospital notes that a drug urine screen was positive for cocaine and opiates in her system.^[44] In her affidavit she also referred to her compliance with his telling her to smoke “crystal meth”.^[45]

51. [51]
    He then raped her on two occasions. Count 7 was an act of digital rape and Count 8 was a penile rape.  She was too scared to say anything.  She also felt drowsy and drugged.  Her description in the affidavit is:^[46]

“[He] was kneeling next to me on the bed when he took the sheets off me and stuck his fingers inside my vagina.  I felt pain and discomfort but did not say anything to him because I was scared.  I am not sure how long it took, but I remember [him] taking his underwear off and sticking his penis into my vagina.  I did not stop him because I was drugged.  He then had sex with me and it appeared like it was for a few minutes but I am not sure. … I think I fainted or fell asleep.”

52. [52]
    When she awoke, consistent with what I described as the “irrationality” of his conduct, there was a stage when he began to cry and apologise for what he had done, but then followed this with threats that he would bash her again. He also told her that if she did not go to the police and agreed to marry him, he would not kill her parents and would buy her anything that she wanted. However, he did say that she would have to help him kill some of her friends.

53. [53]
    He then made her call her friend to tell her to drop the unlawful stalking charge, and drive him to the police station so he could sign for his bail. In her affidavit she says that he made her “snort a line of cocaine”^[47] before leaving.  This is also consistent with the notation on the discharge letter.

54. [54]
    On arriving at the police station he left her in the car. Before doing so he told her that if she tired to run away her family would be killed and his friends would kill her if anything happened to him. However, after he left she was able to escape to the nearby courthouse where she was hysterical and said, “He is going to kill me.”

55. [55]
    When she was seen by police, as the photos that were tendered as exhibits showed, she had blackened eyes, swelling around her eyes, cheeks and nose. She was visibly crying and upset.

56. [56]
    The doctor who examined her noted that she had large fresh bruises on her face and limbs, particularly in the area around her eyes, the right side of her mouth and the left upper arm, in the region of the deltoid and triceps muscles. An abrasion was evident on the skin of the right buttock and over the left shin with an area of surrounding bruising. The physical injuries outlined in the records of the hospital to which she was admitted are summarised in the Medico-Legal Report by Ms Prendergast as follows:^[48]

“two black eyes, soft tissue damage, damage to her gums and bruising to her body.  In addition it was noted that [she] had been given illicit substances while being assaulted (i.e. morphine).”

57. [57]
    As the applicant states in her Victim Impact Statement:^[49]

“I spent a night in hospital, and then I was released to go home.  I have suffered from headaches and neck soreness for a long time since the assault.  I have been taking over-counter painkillers almost every day for almost a year.  I have been going to massage regularly and it seemed to have helped.” (my emphasis)

She said that for the “next few months after the incident” she got a neck and back massage every week.^[50]

58. [58]
    Although, as I observed during my sentencing remarks, these injuries may not be as serious as seen in some cases of this nature, particularly some that were referred to me during submissions, as the respondent’s counsel conceded, these were serious injuries.^[51]  And as I also accepted:^[52]

“… it is an inescapable fact that on this evening [the respondent] subjected [the applicant] to a long course of violence over several hours which included the sexual assaults, and [his] counsel conceded that [his] conduct involved serious and sustained violence.”

Victim Impact Statement^[53]

Physical impact

59. [59]
    I have quoted the relevant aspects of the “Physical Impact” of the offending on 19 and 20 June 2007 on the applicant in outlining the facts, with the exception of the following:

“I have been anxious and not able to sleep properly ever since the assault happened due to nightmares and being afraid and have been prescribed sleeping and anti-anxiety medication.” (my emphasis)

Emotional impact

60. [60]
    She enlarged on this in explaining the emotional impact of the offending by saying that despite her resistance to taking antidepressants that were prescribed for her after the offending, she had to take sleeping pills because of the inability to sleep. She had the nightmares every night, and at the time of the statement she still had nightmares several times every week about someone trying to kill her.

61. [61]
    With further reference to the physical impact, she said that her face was “black-and-blue and very swollen and my hair was ripped out in some spots.” Consequently she could barely recognise herself in the mirror and was worried that her face would never look the same again. She was ashamed to go to the hospital bathroom because people were staring at her.

62. [62]
    Relevant to the issue of the contribution of other factors to any injury suffered by her, in particular with reference to any mental or nervous shock, for the purpose of the application of s 25(7) of the Act, is her statement that:

“[He] had been stalking her for a few months before the final incident happened.  He tried to attack me on several occasions, threatened my family, friends and myself.  I felt like I lost control over my own life, I could no longer do what I wanted to; I was always scared and looking over my shoulder.  I was constantly stressed and nervous and felt like a hunted animal.  I could not sleep or focus on my study and was depressed from losing my job.”

Further, she said, “I lost my friends, my job and I was humiliated.”^[54]

63. [63]
    She said that as soon as she was hit in the face on 19 June 2007, she was shocked and scared.  She felt an intense pain and fear for her life.  She had never before felt so scared and helpless.

64. [64]
    Since that incident, in addition to having nightmares and trouble with sleep, she had been angry and anxious a lot. She also became negative towards herself. This reflected in her relationships because she does “not trust people much” and is “scared to be at home alone in the night.”

Specialist care

65. [65]
    In addition to the sleeping tablets, she also commenced taking anti-anxiety medication when feeling anxious. She lived in denial for a long time before contacting a counsellor when her emotional well-being declined. Although this did not seem to assist, she appears to have formed a positive clinical relationship with Ms Prendergast, and intends to keep seeing her weekly until she feels emotionally stable.  I have made reference to her undergoing neck and back massage.

Impact on relations with others

66. [66]
    Because she was scared, embarrassed and wanted to forget about everything, she moved from Brisbane and found a few new friends.  Initially this was hard because she “did not trust anybody”.  Even now, as I have observed she does “not really trust people”.

Impact on lifestyle

67. [67]
    This has had a negative impact on her because she had been a very social person with many acquaintances. Although she found a new job which she likes after a year of intensively looking, she is afraid that she will probably have to move further away on the respondent’s release from gaol because she would not feel safe at her current place.

Before and after comparison

68. [68]
    She states that she was a very positive and motivated person before her relationship with the respondent declined, and said that:

“After the incident, everything changed.  I am anxious most of the time and have negative thoughts.  My self-esteem declined and I am now more insecure in interaction with people.  I suffer from terrible mood swings and am more insecure for no apparent reason.

…

I am finding hard to start a new relationship. … I cannot imagine living with a man now.”

Medico-legal reports^[55]

69. [69]
    As Ms Prendergast states in the Medico-Legal Report, it is important that as the applicant had previously seen her for psychological treatment, this report should be viewed as an extension of this previous psychological management.^[56]

70. [70]
    The applicant had previously attended four sessions (30/10/08; 09/11/08; 24/11/08; 11/12/08) with Ms Prendergast.  Treatment had focused on coping strategies for anxiety symptoms, increasing self-esteem and addressing traumatic symptoms (i.e., exposure to feared memories).^[57]  In the Summary Report of these sessions, the result of the assessment is that the applicant:

“had experienced a history of domestic violence, stalking, and rape perpetrated by her ex-partner, which had led to experiencing nightmares, flashbacks, poor sleep, anxiety symptoms and low self esteem suggesting Post Traumatic Stress Disorder, chronic.  This was further complicated during treatment by the upcoming court case to address the charges against her ex-partner.

The Depression, Anxiety and Stress Scale (DASS) was completed on the initial session (30/10/08) indicating that [the applicant] was within the range of ‘mild’ for Depression; ‘moderate’ for Anxiety and Stress.” (my emphasis)

71. [71]
    The Medico-Legal Report was completed following a three ‑ hour interview with the applicant.^[58]  The witness statements and Victim Impact Statement of the applicant was also consulted.^[59]

72. [72]
    According to the report the applicant described her childhood as normal.^[60]  She had only experienced one episode of physical violence in a relationship before she commenced her relationship with the respondent.  This was a slap across her face when she informed her then partner that she wanted to end their relationship.  She would have been about 21 years of age at this time.  She denied that this had any impact on her.^[61]

73. [73]
    In discussing the psychological impact of the respondent’s criminal behaviour on 19 and 20 June 2007 on the applicant, Ms Prendergast states that she reported:^[62]

“that she does not have flashbacks of the specific incident that occurred on 19 June 2007 as she ‘tries not to ever think about the event’; however, [she] reported that she will remember other incidents in which [the respondent] would stalk her or throw things at her.”

74. [74]
    In the context of a Personality Assessment Inventory (PAI) administered to the applicant, Ms Prendergast states:

“14.1.2.2 [the applicant] appears to manifest overt physical signs of tension and stress …

…

14.1.2.4 [the applicant] reports some difficulties consistent with relatively mild or transient depressive symptomatology.  In particular, she appears to have experienced a change in physical functioning in a manner often associated with depression.  She is likely to show a disturbance in sleep pattern, a decrease in energy and level of sexual interest, and a loss of appetite and/or weight.”

75. [75]
    She maintains the view expressed in the Summary Report that the applicant’s scores on the DASS 21 suggest she is currently in the normal range for depression, mild for anxiety and moderate range for stress.^[63]

76. [76]
    Based on the applicant’s self-report, the results of psychological testing and available collateral information, Ms Prendergast makes the diagnostic hypothesis under DSM ‑ IV ‑ TR of the applicant’s condition being “Post Traumatic Stress Disorder, chronic”.^[64]

77. [77]
    Other relevant findings by Ms Prendergast are:

“15.4.3 [The applicant] appears to be experiencing a range of signs and symptoms consistent with the emotional distress being associated with being assaulted by [the respondent].  These include sleep disturbance due to nightmares, mood disturbance, anxiety, and fear of being stalked again, avoiding certain friends and places, increased vulnerability in interpersonal relationships with males and avoiding intimate relationships with males.

15.4.4 [The applicant] described avoiding certain behaviours now for fear of being assaulted or stalked, for example ceasing contact with known associates of [the respondent], avoiding Brisbane as much as possible, ensuring that she is not alone with a male, and actively trying not to think or talk about the assault.  Moreover, she is experiencing intrusive symptoms in regards to the previous stalking behaviour since the assault by [the respondent].  It is important to note that [the applicant] reported that she did not initially engage in treatment as she did not want to talk about the assault, having attended treatment in 2008, one year following the assault.  Additionally, [the applicant] requested that she not discuss the assault in great detail during the current assessment process due to the distress this exposure elicits, suggesting likely possible active suppression strategies of intrusive thoughts or images.

15.4.5 [The applicant] reported to have thoughts related to significant worry and anxiety from February to June 2007, in regards to [the applicant’s] stalking behaviour, which occurred for four months prior to the assault (19 June 2007); however, [the applicant] did not note any specific symptoms such as flashbacks, intrusive memories, thoughts or nightmares.  Hence it is my opinion that the PTSD symptoms commenced following the assault, however being mindful of the presence of [the applicant’s] predisposing risk factors in regards to developing PTSD, as highlighted in Appendix One.^[65]

15.4.6 … [The applicant] reported anxiety thoughts in regards to [the respondent’s] release from jail in the future and how that will impact her mental health.

15.4.7 [The applicant] was noted to answer in a forthright manner on the PAI.  It is important to note that on the PAI [the applicant] described anxiety symptoms, transient depressive symptoms and increased self-criticism when in stressful situations.  The findings on the PAI and DASS are noted to be consistent with [the applicant’s] self-report during the clinical interview.

15.5 The Psychiatric Impairment Rating Scale (PIRS) was also employed to asses level of current impairment. …

15.5.1 The overall aggregate score equates to a 1% level of impairment at present, which in my view appears to under-rate [the applicant’s] reported level of psychological, social and vocational functioning.” (my emphasis)

78. [78]
    Ms Prendergast concludes that the applicant “appears to present with signs and symptoms of a chronic post traumatic condition developed from the assault on her person in 2007; which was also complicated by ongoing domestic violence and stalking behaviour perpetrated by [the respondent] prior to the assault.”^[66]

79. [79]
    In relation to this complication, Ms Prendergast observed that:^[67]

“… it is important to note that [the applicant] was engaged in a domestic relationship with [the respondent] over a period of two years prior to the assault on 19 June 2007.  It is likely that [the applicant] was mentally prepared for the possibility of exposure to trauma, given that she had ended the relationship with [the respondent] and had been stalked for four months; and during that time had coped with the stress.  [The applicant] clearly describes the impact of the assault and the subsequent fear for her life.  Since the assault [the applicant] has reported a range of symptoms that had a clinically significant impact on her mood, social relationships, and occupation.” (my emphasis)

80. [80]
    More specifically in relation to the post-traumatic stress disorder, she refers to the applicant experiencing “persistent and chronic symptoms” of this.^[68]  At the time of the report, the applicant presented with the significant features of the disorder such as:

“arousal symptoms (i.e., anxiety), sleep disturbance (i.e., nightmares), mood disturbance, and avoidance (i.e., dependence on anti-anxiety medication to minimise the distress caused by nightmares and flashbacks) and intrusive symptoms and thoughts (i.e., remembering running away from [the respondent], objects being thrown at her by [the respondent]).”

81. [81]
    Other important aspects of Ms Prendergast’s conclusions are:

“16.4 Taking into account the reported responses and degree of functioning prior to 19 June 2007, the current assessment revealed a cluster of distressing and debilitating trauma symptoms impacting not only upon [the applicant’s] general functioning but mental state.  The evidence suggests that [the applicant] experienced a degree of psychological decline, which was likely to be initially at the time of the offence, and following weeks to the present time when the ‘mental or nervous shock’ was evident and likely to be at least moderately severe.

16.5 Overall, given available data I estimate [the applicant’s] current level of impairment using the PIRS to be 1% acknowledging this can, in my view, be further reduced with ongoing psychological and psychiatric treatment.  [The applicant] has and continues to experience ‘mental or nervous shock’ over the past two years, however pre‑offence there appears evidence of anxiety and stress symptoms in regards to ongoing stalking and threats made by [the respondent]; however [the applicant] reported the PTSD symptomatology commenced following the assault.  It is important to note that this would have increased [the applicant’s] vulnerability to developing a mental health condition given the seriousness of the stalking behaviour being perpetrated by [the respondent].  Despite this [the applicant’s] current mental state and psychological responses may be attributed to the offence committed on her person by [the respondent].

16.6 [The applicant] has presented with some coping responses such as gaining support from close friends and using relaxation (i.e., massage, breathing), however, most of [the applicant’s] strategies largely consist of avoidance and denial (e.g., use of anti-anxiety medication).  While [the applicant] has demonstrated some ability to process the event by attending four sessions of psychological treatment by self-referral, it is apparent that [the applicant] continues to experience symptoms in regards to processing the traumatic event.

16.7 Given the severity and subsequent impact of the trauma symptoms, including the previous history of domestic violence, [the applicant] is likely to benefit from comprehensive psychological treatment by a psychologist with extensive experience in treating PTSD … The psychotherapy should involve at least 15-20 sessions. … The intervention is likely to focus on developing effective coping strategies, increasing insight into her condition and improving general functioning.

…

16.8 It is important to consider, given the length of time since the assault and the ongoing symptoms present, without treatment it is likely that [the applicant] will continue to experience trauma symptoms if not treated by a clinical psychologist or psychiatrist and may experience a further decline in mental state.” (my emphasis)

82. [82]
    As indicated, Ms Prendergast gave an addendum Medico-Legal Report in relation to whether the applicant has suffered adverse impacts of the sexual offences which are prescribed as an injury for the purpose of s 1A of the Regulation.^[69]

83. [83]
    In this report she reiterates that the applicant “has experienced significant psychological harm following the personal offence of rape, stalking, wilful damage, deprivation of liberty, and assault occasioning bodily harm committed against her on 19 June 2007”^[70] by the respondent.

84. [84]
    She also opines that the applicant meets the criteria under s 1A for a prescribed injury, in particular that the applicant has been adversely impacted by the sexual offences perpetrated by the respondent against her person, with the following:^[71]

“(a) a sense of violation;

Submissions on behalf of the applicant

85. [85]
    It is submitted that the applicant sustained the following injuries:

86. [86]
    It is submitted with reference to the table:

1. (a)
   that the injuries specified in para [85](i) fall within Item 2; namely “Bruising/laceration etc (severe)”, in respect of which the applicant should be awarded 4% of the scheme maximum ($3,000)

2. (b)
   that the injuries specified in para [85](ii) fall within Item 21, namely “Neck/back/chest injury (minor)”, in respect of which the applicant should be awarded 2% of the scheme maximum ($1,500)

3. (c)
   that the injuries specified in para [85](iii) fall within Item 33, namely “Mental or nervous shock (severe)”, in respect of which the applicant should be awarded 30% of the scheme maximum ($22,500)

4. (d)
   that the injuries specified in para [85](iv) fall within Item 27, namely “Facial disfigurement or bodily scarring (minor/moderate)”, in respect of which the applicant should be awarded 2% of the scheme maximum ($1,500).

This is a total of $28,500.

87. [87]
    Although the addendum medico-legal report was dated on 15 December 2009 and exhibited to an affidavit sworn by Ms Prendergast on 17 December 2009, the Outline of Argument which was also dated on 17 December 2009 makes no submission that I should make any award for compensation based on a prescribed injury under s 1A of the Regulation.  The oral submissions by Mr Campbell on behalf of the applicant which were made on 21 December 2009 simply relied on the Outline of Argument without adding to it, notwithstanding that Ms Prendergast’s affidavit was filed by leave during those proceedings.

Discussion

88. [88]
    I am satisfied on the balance of probabilities that the applicant suffered an injury as a result of indictable offences committed by the respondent against her person on 19 and 20 June 2007.  These indictable offences are unlawful stalking, deprivation of liberty, assault occasioning bodily harm, and the three counts of rape.  Although the stalking occurred over a period between 1 April and 21 June 2007 and included conduct which was not committed against the applicant’s person, it encompassed the assault occasioning bodily harm and rapes which were committed against her person on 19 and 20 June 2007.  The deprivation of liberty also encompassed this conduct.  The injuries suffered by the applicant were bodily injuries and mental or nervous shock.

Bodily injuries

89. [89]
    As the respondent’s counsel accepted on sentence, the applicant suffered bodily injuries that were serious as a result of the respondent’s conduct towards her on these dates. I am satisfied that these injuries involved bruising, a neck injury and facial disfigurement as submitted on behalf of the applicant.

Item 2 – Bruising/laceration etc (severe) – 3%-5%

90. [90]
    In relation to bruising the factual basis on which I sentenced the respondent with reference to the agreed statement of facts was that when she was seen by the police, as confirmed by the exhibit photos, the applicant had blackened eyes, swelling around her eyes, cheek and nose. The doctor who examined her noted that she had large fresh bruises on her face and limbs, particularly in the area around her eyes, the right side of her mouth, and the left upper arm in the region of deltoid and triceps muscles. In the Victim Impact Statement, the applicant described her face, when viewed by her at the hospital, as black and blue and very swollen. She said that she could barely recognise herself in the mirror and was worried that her face would never look the same again. As a result she was ashamed to go to the hospital bathroom because people were staring at her.

91. [91]
    I consider that in these circumstances the applicant suffered severe bruising within Item 2 of the table.  Having regard to the requirement to scale the amount of compensation within the ranges set out in the table, on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases, I assess that it is 4% (out of a maximum of 5%) inclusive of the disfigurement involved ($3,000).

92. [92]
    Although the applicant has made a separate claim for minor or moderate facial disfigurement or bodily scarring within Item 27, I can find no such disfigurement beyond that associated with the severe bruising I have described.  This would only have existed for the period that the bruising remained and until the hair grew back.  There is no evidence of other facial disfigurement, and there is no evidence of scarring.  In my view, this relationship between the bruising and the disfigurement does not make it practical to make separate assessments for each item without duplication for what is in reality one episode of injury.  In these circumstances the injury is best described and assessed as bruising.  Even if the bruising is assessed together within the disfigurement in order to avoid duplication, the relationship between them is such that even catering for the difference between the ranges of 3%-5% for the former and of 2%-10% for the facial disfigurement, the appropriate amount of compensation is still 4%.

Item 21 – Neck/back/chest injury (minor) – 2%-7%

93. [93]
    During the incidents of 19 and 20 June 2007 she commenced to feel a sharp pain in her neck which she described as excruciating.  As a consequent, as the evidence supports, she suffered from neck soreness to the extent that it was necessary for her to take over-counter painkillers for almost a year, and for a few months have neck massages.

94. [94]
    Item 21 relates to back injury as well as neck injury.  She makes reference to feeling back pain when struck during the incident by what she described as a whip, and to requiring subsequent back massage together with the neck massage.  However, I accepted for the purpose of sentence that in striking her with what appears to be a car aerial, the respondent caused her no injury.  Consequently I focus only on her neck injury for the purpose of this aspect of the claim.

95. [95]
    I consider that in these circumstances the applicant suffered the neck injury which is minor in nature. It is therefore within Item 21 of the table.  I assess that, as conceded by the applicant, it is at the bottom of the range set out in the table.  That is, it is 2% (out of a maximum of 7%).  This is $1,500.

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

96. [96]
    For the reasons expressed in para [92], I consider it would be duplication to make separate assessments for this item and for the bruising suffered by the applicant.  As I have concluded that it is best described and assessed as bruising, I make no award of compensation in respect of this item.

Section 25(7) of the Act – contribution

97. [97]
    I find that the applicant’s actions have not contributed in any way to these bodily injuries, and further that there is nothing else that directly or indirectly contributed to these injuries which would affect the amounts that I have assessed should be awarded for them.

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

98. [98]
    Ms Prendergast has made a diagnostic hypothesis under DSM ‑ IV ‑ TR of the applicant’s experiencing a Post-Traumatic Stress Disorder, chronic, the symptoms of which commenced following the assault.  In context, I take this to be a reference to the respondent’s assaults on her during 19 and 20 June 2007.  She describes these symptoms as persistent and continuing to the date of her report on 4 October 2009, such that the applicant is likely to benefit from further comprehensive psychological treatment.  She states that the applicant reported that the Post-Traumatic Stress Disorder symptomatology commenced following the assault.  In her opinion the evidence suggests that the applicant “experienced a degree of psychological decline, which was likely to be initially at the time of the offence, and following weeks to the present time, where the ‘mental or nervous shock’ was evident and likely to be at least moderately severe.”  Overall, her level of impairment using the PIRS is estimated to be 1%.  This can be further reduced with ongoing psychological and psychiatric treatment.

99. [99]
    In RMC v NAC^[73] Byrne SJA preferred the view of Lee J in R v Tiltman; ex parte Dawe^[74] to that of Thomas JA in Ferguson v Kazakoff,^[75] and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.

100. [100]
     In AT v FG Jerrard J made reference to “establishing the existence of Post-Traumatic Stress Disorder and therefore of mental or nervous shock”.^[76]  Ms Prendergast also speaks of the Post-Traumatic Stress Disorder in terms of mental or nervous shock.  She expresses her opinion as a person who has been practicing psychology in a clinical setting since 2002, and importantly conducted a 3-hour assessment of the applicant as an extension of four previous consultations with her for psychological treatment.

101. [101]
     In these circumstances, I accept Ms Prendergast’s opinion and proceeding on the basis of Tiltman and RMC v NAC that for the purpose of Item 33 of the table there must be a recognisable psychiatric illness or disorder, I find that the applicant’s Post-Traumatic Stress Disorder is compensable as “mental or nervous shock” within the meaning of those words in the Act.  And, having regard to her opinion that the symptoms of this disorder commenced following the respondent’s assaults on 19 and 20 June 2007, I am satisfied that the respondent’s conduct constituting the offences which I have identified has materially contributed to the disorder and is a proper subject for compensation.^[77]

102. [102]
     Having determined this, it is necessary to consider the question of what amount should be ordered to be paid for the injury. In this regard s 25(7) is relevant.

Section 25(7) of the Act – contribution

103. [103]
     It has been held^[78] that where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for the contribution of those other factors or fix a lower percentage in the compensation scale to allow for those matters.

104. [104]
     Wiemers v Lynch^[79] is an example of a case where there was a basis for reduction in the assessment of compensation for the applicant’s Post-Traumatic Stress Disorder to take into account the prior history of a five-year relationship between the applicant and the respondent which was abusive, and a prior abusive marriage which contributed to the symptoms suffered as a result of the Post-Traumatic Stress Disorder.  In that case, it was accepted on behalf of the applicant that it was reasonable to conclude that there was such a contribution of these other factors.

105. [105]
     It is for this reason that I have set out the history of the on-and-off again relationship between the applicant and the respondent from January 2005 until she left it in February 2007, and also his conduct towards her during the period of the unlawful stalking from 1 April to 21 June 2007.  It is only the aspects of the unlawful stalking concerning the respondent’s physical violence to and his rapes of the respondent on 19 and 20 June 2007 which are personal offences against the applicant warranting the award of compensation.  In these circumstances, the issue arises as to whether the respondent’s abuse of the applicant prior to these dates are contributing factors to her Post-Traumatic Stress Disorder providing a basis for a reduction in the award of compensation for mental or nervous shock having regard to s 25(7) of the Act.  I note that I accept that there was no previous history of mental health problems on behalf of the applicant which could be a contributing factor for this purpose.

106. [106]
     As the applicant told Ms Prendergast, she was in a domestic violence cycle.  In the Medico-Legal Report, Ms Prendergast refers to the fact that “pre-offence there appears evidence of anxiety and stress symptoms in regards to ongoing stalking and threats”^[80] made by the respondent.  Consistent with this, she says that the applicant reported “to have thoughts related to significant worry and anxiety from February to June 2007, in regards to [the respondent’s] stalking behaviour, which occurred for four months prior to the assault.”^[81]  Hence, in expressing her opinion that the Post-Traumatic Stress Disorder symptoms commenced following the assault, she states that it is essential to be mindful of the presence of the applicant’s predisposing risk factors to developing that condition.^[82]  These pre-disposing factors were “poor current psychological well being” and “evidence of current life stressors.”^[83]  Ms Prendergast also states that the applicant reported that “she is experiencing intrusive symptoms in regards to the previous stalking behaviours since the assault”^[84] by the respondent, e.g., she reported that she remembers incidents prior to 19 June 2007 in which he would stalk her and throw things at her.^[85]  As the applicant said in her Victim Impact Statement during the period prior to 19 June 2007 she felt she had lost control over her life, was always scared, stressed and nervous and felt like a hunted animal.^[86]  She had also lost her friends, her job and was humiliated.^[87]

107. [107]
     Notwithstanding this, as stated it is Ms Prendergast’s opinion that the Post-Traumatic Stress Disorder symptoms commenced following the assault.  Importantly, she states that during the four months of the stalking activity the applicant “had coped with the distress”.^[88]  Ms Prendergast says that it is “since the assault” that she has reported a range of symptoms that had a clinically significant impact on her mood, social relationships and occupation.^[89]  With reference to her responses and degree of functioning prior to 19 June 2007, she goes on to opine, as previously observed, the evidence suggests that the applicant “experienced a degree of psychological decline, which was likely to be initially at the time of the offence, and following weeks to the present time, where the ‘mental or nervous shock’ was evident and likely to be at least moderately severe.”^[90]

108. [108]
     I consider the evidence supports Ms Prendergast’s opinion that despite the “domestic violence cycle” throughout the applicant’s previous relationship with the respondent and the four months of stalking activity with its associated stressors before his violence towards her on 19 and 20 June 2007, she was able to cope.  For example, although she lost her job because of him, she was able to obtain other employment, albeit as an exotic dancer.  There is no suggestion that she was unable to continue with her studies, despite these difficulties.  The evidence is that she has received her degree.  She was also able to continue to live in Brisbane during this period.

109. [109]
     However, since the respondent’s conduct on 19 and 20 June 2007, she has moved from Brisbane because she was scared, embarrassed and wanted to forget about everything.  She is afraid that she will probably have to move further away on the respondent’s release from goal because she would not feel safe at her current place.  Even now she avoids Brisbane as much as possible.

110. [110]
     It is only since this conduct that she has had to take pills because of her inability to sleep. She had nightmares every night, and at the time of her Victim Impact Statement she was continuing to have nightmares several times every week about someone trying to kill her. Although the statement is undated, having regard to its terms I proceed on the basis that it was completed close to the time of sentence, approaching two years after the incident. While the applicant had nightmares following this conduct, as Ms Prendergast observes, she did not note any specific symptoms such as flashbacks, intrusive memories, thoughts or nightmares related to the period from February to June 2007.^[91]  Although, as indicated, she did experience intrusive symptoms related to that period, these were “thoughts related to worry and anxiety”.^[92]  In any event, as she is experiencing these intrusive symptoms “since” the assaults, it is the respondent’s conduct of 19 and 20 June 2007 which have triggered these symptoms to the extent that they form part of the symptoms of the Post-Traumatic Stress Disorder.

111. [111]
     Further, it is only since this conduct that the applicant sought counselling. Even then she did not want to talk about this conduct. She requested during the assessment conducted in September 2009, approximately 2¼ years after the incident, that she did not want to discuss the assault in great detail due to the distress it elicits. This suggests likely suppression strategies.^[93]

112. [112]
     In these circumstances, I find that the applicant’s conduct of 19 and 20 June 2007 not only materially contributed to her Post-Traumatic Stress Disorder but that nothing in their previous relationship or his stalking behaviour leading up to this date contributed to this.  If it was not for his behaviour on that date, the risk factors predisposing her to develop Post-Traumatic Stress Disorder would not have been triggered.  She did not have a Post-Traumatic Stress Disorder prior to this time.  As Ms Prendergast opines, these symptoms only commenced following his conduct at this time.^[94]

113. [113]
     Therefore I find that there were no other factors which contributed to the mental or nervous shock suffered by the applicant, and for which some allowance must be made or which requires a lower percentage of the compensation to be fixed.

Conclusion

114. [114]
     However, it still remains to determine what amount should be ordered to be paid for this injury with reference to the table and the range of percentages of the scheme maximum which applies.

115. [115]
     As indicated, it is submitted on the applicant’s behalf that this injury falls within Item 33, namely “Mental or nervous shock (severe)”.

116. [116]
     Having regard to Ms Prendergast’s diagnosis that the applicant presents with signs and symptoms of persistent chronic PTSD which has already affected her for approximately 2¼ years at the time of assessment and is likely to affect her for some time into the future, given the requirement of 15-20 counselling sessions to provide her with the necessary coping mechanisms, I accept that her current condition falls within the severe range for this injury.

117. [117]
     However, having regard to Ms Prendergast’s opinion that the evidence suggests that the applicant has “experienced a degree of psychological decline, which was likely to be initially at the time of the offence, and following weeks to the present time, where ‘mental or nervous shock’ was evident and likely to be at least moderately severe”, I do not consider that in scaling the amount of compensation within the range of 20%-34% set out in the table for the injury, this injury so closely approaches the most serious case as to assess the entitlement at 30% of the scheme maximum.  In coming to this conclusion, I take into account that Ms Prendergast assesses the applicant’s current level of impairment using the PIRS to be 1%.^[95]  Further, the applicant’s scores on the DASS 21 suggest that she is currently in the normal range for depression, mild for anxiety, and moderate range for stress.^[96]  Anxiety is a symptom of her PTSD.

118. [118]
     With reference to what is described as at least a moderately severe mental or nervous shock, I assess the entitlement for this head at 27% of the scheme maximum. That is an amount of $20,250.

Prescribed injury – s 1A of the Regulation – 1%-100%

119. [119]
     Because the offences committed by the respondent against the person of the applicant on 19 and 20 June 2007 include sexual offences, and Ms Prendergast has opined that she meets the criteria under s 1A of the Regulation for a prescribed injury, in particular that she has been adversely impacted by those offences, it is necessary to consider whether this provision applies in this case to provide an additional basis for compensation.

120. [120]
     As indicated, the applicant’s counsel has not submitted either in writing or orally that I should make any award for compensation on this basis. This is notwithstanding that Ms Prendergast’s report was known to the applicant’s counsel at the time of the oral submissions.  In these circumstances, it may be reasonable to infer that it is accepted on the applicant’s behalf that the adverse impacts identified are an injury under s 20 of the Act, namely “mental or nervous shock”.  However, as stated by Jerrard JA in AT v FG:^[97]

“Courts hearing those applications should be astute to make inquiries about that point, to ensure that the applicant is not being denied by oversight compensation for injury.”

121. [121]
     As I have compensated the applicant under s 20 of the Act for the mental or nervous shock^[98] which clearly relates to the sexual offences in addition to the other offences the respondent committed against her person on 19 and 20 June 2007, the threshold issue is whether any of the adverse impacts of those sexual offences are not relied upon to support the diagnosis of mental or nervous shock.  If the answer is in the negative, s 1A of the Regulation is inapplicable to the assessment of compensation.

122. [122]
     As also stated by Jerrard JA in AT v FG:^[99]

“Applicants for compensation who are diagnosed as suffering from post traumatic stress disorder, or from depression, or from anxiety, will benefit from having their legal representatives insist upon the diagnosing practitioner specifically describing the matters experienced by the applicant which are not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts.”

It is possible that despite the lack of references to the Addendum Medico-Legal Report, this was the purpose for which it was requested on the applicant’s behalf.

123. [123]
     As set out in para [84], the adverse impacts of the sexual offences identified by Ms Prendergast are as follows:

• a sense of violation;
• reduced self worth or perception;
• post-traumatic stress disorder;
• increased fear or increased feelings of insecurity;
• adverse impact on lawful sexual relations;
• adverse impact on feelings.

124. [124]
     It is readily apparent that Ms Prendergast made a diagnosis of Post-Traumatic Stress Disorder and that this was compensable as “mental or nervous shock”.  Therefore, to adopt the language of Jerrard J, this is not a matter that is capable of being an adverse impact for the purpose of compensation.

125. [125]
     The “increased fear or increased feelings of insecurity” are clearly within the significant features of Post-Traumatic Stress Disorder which Ms Prendergast says the applicant presented, e.g. anxiety, nightmares, dependence on anti-anxiety medication to minimise the distress caused by nightmares and flashbacks.^[100]  Her scores on the DASS21 suggest, as indicated, that she is currently in the mild range for anxiety and moderate range for stress.^[101]  The clinical features which Ms Prendergast clearly relied on included the applicant manifesting overt signs of tension and stress.^[102]  By making specific reference in the Medico-Legal Report, she also clearly relied upon the applicant regularly having nightmares involving the respondent attacking her,^[103] moving from Brisbane^[104] and avoiding travelling there,^[105] fear at the possible threat of being assaulted by the respondent again on release from gaol,^[106] concern that when this happens she will have to move again and change her name,^[107] and not engaging in another relationship because she does not trust men, and fear of the man becoming like the respondent.^[108]  Ms Prendergast specifically refers to a number of these signs or symptoms in her findings as consistent with emotional distress associated with the applicant being assaulted by the respondent.^[109]  She also states as part of her findings that the applicant described avoiding certain behaviours for fear of being assaulted or stalked.^[110]  Therefore this matter is also incapable of being an adverse impact for the purpose of compensation.

126. [126]
     With reference to “a sense of violation”, this is also within the matters relied on by Ms Prendergast in support of her diagnosis.  It is inherent in a number of the matters to which reference has already been made, such as the applicant’s level of anxiety, nightmares, her move from Brisbane , and not engaging in another relationship because she does not trust men and fear of the man becoming like the respondent.  It is also readily apparent from Ms Prendergast’s report, in the course of her findings, that the applicant requested during the assessment in September 2009 that she not discuss the assault in great detail due to the distress this exposure elicits.  As Ms Prendergast says, this suggests likely possible active suppression strategies of intrusive thoughts or images.^[111]  In my view, active suppression strategies of the event are consistent with a sense of violation.  And this must involve avoidance, which Ms Prendergast identifies as a significant feature of the Post-Traumatic Stress Disorder.^[112]

For these reasons, this matter is also incapable of being an adverse impact for the purpose of compensation.

127. [127]
     With reference to “reduced self worth or perception”, Ms Prendergast refers to the result of assessing the applicant with the PAI.  Consequently, in commenting on the applicant’s self-concept, reference is made to some fluctuation in self-esteem as a function of her current circumstances.  Although it is observed that “these fluctuations will not be extreme and are comparable to those experienced by most adults”,^[113] she nonetheless considers that “reduced self worth or perception” is an adverse impact of the sexual offences, and she refers in the Medico-Legal Report to the applicant being “prone to be somewhat self-critical, uncertain and indecisive” during stressful times.^[114]  As Ms Prendergast states that this adverse impact is a function of the applicant’s current circumstances, I consider, in the absence of any statement by her that this was not relied on in support of the Post-Traumatic Stress Disorder diagnosis, that it was relevant to this conclusion.

Therefore, this matter is also incapable of being an adverse impact for the purpose of compensation.

128. [128]
     It is clear that “Adverse impact on lawful sexual relations” was relied on by Ms Prendergast in support of her diagnosis.  Reference has already been made to Ms Prendergast’s reference to her not engaging in another relationship because she does not trust men.  Ms Prendergast also makes reference to the fact that she has no libido since the incident.^[115]  Importantly, in outlining the signs and symptoms consistent with emotional distress associated with being assaulted by the respondent, she refers to the applicant’s “increased vulnerability in interpersonal relationships with males and avoiding intimate relationships with males.”^[116]  The sexual offences were part of the assaults committed on the applicant by the respondent.

In these circumstances, this matter is also incapable of being an adverse impact for the purpose of compensation.

129. [129]
     I consider that this also demonstrates that “Adverse impact on feelings” was relied on by Ms Prendergast in support of her diagnosis.  To further support this proposition, reference is made to “avoiding certain friends” as another of the signs and symptoms consistent with the emotional distress associated with being assaulted by the respondent.^[117]

Therefore, again I consider that this matter is also incapable of being an adverse impact for the purpose of compensation.

130. [130]
     Accordingly, I find that the adverse impacts of the sexual offences identified by Ms Prendergast were relied upon by her to support the diagnosis of mental or nervous shock.  In making this finding, the circumstance referred to in para [127] with reference to “reduced self worth or perception” that there is an absence of any statement by Ms Prendergast that a particular adverse circumstance was not relied on in support of the Post-Traumatic Stress Disorder diagnosis, is applicable to each of the adverse impacts that she identified.  The fact is that as a specific affidavit has been filed exhibiting the Addendum Medico-Legal Report identifying the adverse impacts for the purpose of s 1A of the Regulation, it is to be expected, having regard to the observations of Jerrard JA, that if these impacts were not relied on in support of the diagnosis, this would have been expressly stated.

131. [131]
     Therefore I find that s 1A of the Regulation is inapplicable to the assessment of compensation of the applicant.

Conclusion and Order

132. [132]
     I assess compensation as follows:

1. (a)
   for the severe bruising within Item 2 of the compensation table – at 4% of the scheme maximum ($3,000)

2. (b)
   for the minor back injury within Item 21 of the compensation table – at 2% of the scheme maximum ($1,500)

3. (c)
   for severe mental or nervous shock within Item 33 of the compensation table – at 27% of the scheme maximum ($20,250).

133. [133]
     This results in a total amount of $24,750.

134. [134]
     I order the respondent to pay the applicant the sum of $24,750 by way of compensation for injuries suffered by her because of the following offences committed by the respondent against her person:

1. (a)
   Unlawful stalking between 1 April 2007 and 21 June 2007;

2. (b)
   Deprivation of liberty between 19 June 2007 and 21 June 2007;

3. (c)
   Assault occasioning bodily harm between 19 June 2007 and 21 June 2007;

4. (d)
   Rape on 19 June 2007;

5. (e)
   Rape on or about 19 June 2007;

6. (f)
   Rape on or about 19 June 2007,

for which the respondent was convicted on his plea of guilty upon being charged on indictment presented on 10 October 2008 and in respect of which he was sentenced on 18 June 2009.