SLM v SKF[2010] QDC 229

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation arising out of the rape of the applicant by the respondent on the 10th of November 2007. He pleaded guilty and was convicted before His Honour Judge Searles on 20th of October 2009 and was sentenced to five year's imprisonment.

2. [2]
   The respondent was served, by serving the Queensland Correctional Services and the Public Trustee, with the application and supporting documentation on the 22nd of April 2010, but has not appeared on the hearing of the application.

3. [3]
   The applicant was born on the 20th of June 1981. She was therefore 26 at the time of the offences and is now 30. The rape was committed by the respondent in the circumstances set out in the sentencing remarks of his Honour Judge Searles. His Honour notes that in addition to the trauma of the rape, she suffered bruising of her wrist. The rape was described by him as both aggressive and violent and this seems clearly to have been the case.

4. [4]
   Prior to the rape, the applicant had suffered from agoraphobia since 2002. Although this restricted her activities very significantly outside of her home, she says she was happy and busy with her life within the home. She was the mother of a ten year old child. I note that in her police statement, being Exhibit MLS3 she refers to herself as being "totally housebound".

5. [5]
   She says the crime has destroyed much of her remaining enjoyment of life. She feels numbs and empty and rather than living, says she is merely existing. (See Victim Impact Statement of 15th of October 2009 Exhibit MLS4). The statement certainly paints a picture of very significant sorrow and emotional pain. There is little mention of the bruising of her wrist or pubic area referred to in the material before me. I therefore infer that it was relatively slight. The material indicates that the bruising of the wrist was said to have lasted for some weeks and that that in her pubic area made walking difficult for a period.

6. [6]
   Bettina Tubalo, a psychologist has provided a report of the 11th of March 2010. The report indicates that prior to the offence the applicant had been on a disability support pension since 2007 for her agoraphobia. Her mother was her carer in all matters outside of the house, which included taking her daughter to school. She also reported suffering PTSD in her late teens and of having a nervous breakdown from 2001 to 2004 together with symptoms of obsessive compulsive disorder. Her parents separated when she was a child of five. The mother was thereafter for some period a violent alcoholic. In her teenage years she used heroin and appears to have been somewhat rebellious herself. She lived on the streets for a time, engaging in prostitution and was both assaulted and raped on occasions.

7. [7]
   From about the age of 17 she attempted to turn her life around, reuniting with her mother and returning to school. Unfortunately she continued the use of heroin. She then fell pregnant and thereafter discontinued her use of heroin. After the birth of her child her agoraphobia developed over time and appears to have been acute, and she was almost totally unable to leave her home at the time of the offences.

8. [8]
   In my opinion the matters set out in the report indicate that the applicant, prior to the offences, had significant difficulty coping with life. Her life was far from fulfilling, though I accept that it was very significantly better and happier than after the rape. She was, in my view, a vulnerable personality to an event such as has occurred.

9. [9]
   In that circumstance, as might be expected, the effects of the rape on such a vulnerable person were very significant. Ms Tubalo says the applicant has features consistent with post-traumatic stress disorder - chronic, and a dysthymic disorder. She says the post-traumatic stress disorder is at a moderate level of severity, and the symptoms of her dysthmic disorder are of a high/moderate to low/severe level.

10. [10]
    Importantly in view of the scheme of the legislation to which I shall shortly refer, Ms Tubalo says:

"The combination of these disorders impacts deleteriously upon various aspects of Ms Schulten's life.  She has lost interest in many things, including socialising with her friends. She has less motivation to do things, and has become very uncharacteristically disorganised around her home and neglectful towards herself.  She finds it very difficult to concentrate as she is constantly competing with intrusive thoughts and feelings associated with the rape.  She feels incapable of having an intimate relationship.  She feels as though she has no feelings, specifically, she feels numb and empty and lifeless.  She struggles to eat.  She used to enjoy visits from friends and talking to them on the telephone, which she now avoids or keeps brief.  She had an opportunity to be in a relationship but couldn't maintain it because she was unable to be physically intimate.  Where she had started to look after herself, and make positive changes in her life, she's now stopped.  Where she was once busy organising the house and cleaning, she has let everything go and has no motivation to do these things.”

11. [11]
    Ms Tubalo is of the view that the significant deleterious impacts of the rape are caused by her psychiatric conditions, primarily her depression or dysthymic disorder. She does not enumerate any particular symptoms which might be said to be additional to the deleterious consequences of the psychiatric condition.

12. [12]
    The scheme of the Criminal Offence Victims Act and Regulations is that victims of crime are entitled to compensation for injury as defined in section 20 of the Act. By section 25 of the Act a Court assessing compensation may not order more than the prescribed maximum amount which is presently $75,000. Schedule 1 of the Act consists of a compensation table in which are set out various injuries to which is ascribed a percentage or a range of percentages of the scheme maximum of $75,000. In particular items 31, 32 and 33 deal with mental or nervous shock. In respect of moderate levels of such an assessment, the range of assessable compensation is from 10 to 20 per cent, and for mental or nervous shock said to be severe the range is from 20 to 34 per cent.

13. [13]
    In additional, Item 8 of the schedule sets out the percentage range for bruising or lacerations as between 1 and 5 per cent.

14. [14]
    The regulations to the Act somewhat complicate the assessment of compensation in relation to sexual offences. Regulation 1A and 2A effectively provide that an additional assessment, but not more than the scheme maximum, may be allowed for the "adverse impact" of a sexual offence. Various adverse impacts are set out in the regulation. The regulation does not sit particularly well with terms of the Act itself. (See the discussion of this matter in the judgment of Chesterman J, as he then was, in JI v AV [2001] QCA 510). The effect is that a victim is entitled to additional compensation for the "adverse impacts" of a sexual offence, to the extent to which the impacts are not otherwise an injury under section 20. (See regulation 1A (1) of the Criminal Offence Victims Regulation).

15. [15]
    In RMC v NAC [2009] QSC 149, Byrne SJA said at paragraph 22 of his judgment:

"The wider the range of injurious effects comprehended by 'mental or nervous shock', the less the scope for compensation under Regulation 1A".

16. [16]
    His Honour adopted the meaning of the term "nervous shock" as used in civil damages claims, meaning the term extended to cover, and indeed was confined to, cases involving a recognised psychiatric illness or disorder.

17. [17]
    More recently in PAJ v AAK [2010] QCA 78, McMurdo P in a judgment with which Muir and Chesterman JA, agreed, said. in respect of a claim by a victim of multiple sexual offences who had suffered post-traumatic stress disorder and a dysthymic disorder, that she was not satisfied the applicant had suffered any adverse impacts that were not part and parcel of the diagnosed psychiatric disorder.

18. [18]
    In my view, similar considerations apply in this case. In particular, paragraph 73 of the report of Ms Tubalo which I have earlier set out, makes it clear that the symptoms of which the applicant complains are caused by her diagnosed psychiatric condition.

19. [19]
    I am prepared, however, to allow a small additional sum for what I believe are the adverse impacts of the rape. I do this because of the immediate emotional impact of the rape on the applicant. This is described in, for example, Mr Earl’s's submissions:

"The applicant was scared and fearful during and after the rape when the respondent continued to sleep in her bed.  She thereafter felt confused, fearful and vulnerable.  She was crying and had feelings of terror and loss of control."

20. [20]
    In my view it would have been some little time before it could be said the applicant had developed the recognisable psychiatric disorders which Ms Turbalo diagnosed. In my view her symptoms over this limited period would constitute adverse impacts of the rape, but otherwise the impacts of the rape are ones which come within the compass of the diagnosed psychiatric injury.

21. [21]
    In respect of the mental and nervous shock I believe the combined effects of her moderate post-traumatic stress disorder and high/moderate-low/severe dysthymic disorder would entitle the applicant to an award under item 33 of the schedule at about 25 per cent of the scheme maximum. I will allow an additional 5 per cent for the adverse impacts I have referred to.

22. [22]
    In respect of the bruising I will allow under Item 8 an amount of 2 per cent.

23. [23]
    In all, I assess an entitlement of 32 per cent of the scheme maximum amounting to $24,000.

24. [24]
    In my view, no behaviour of the applicant contributed to the injury so as to require reduction of her compensation under section 27 of the Act. She was entitled when she said “No”, to believe that the respondent would have complied, and any previous conduct between them is in my view irrelevant for the purpose of this assessment.

25. [25]
    In this case, the solicitor for the applicant submitted she ought to be entitled to a significant sum for the adverse impacts of the rape. It was submitted a 30 per cent uplift should be allowed because she had suffered extensive adverse impacts quite apart from her post-traumatic stress disorder.

26. [26]
    I have rejected that argument for the reasons outlined. The attention of practitioners who practice in this area is drawn to the comments of Jerrard JA in AT v FG [2004] QCA295, quoted with approval by McMurdo P in her judgment in PAJ v AAK. His Honour Justice Jerrard said:

"Applicants for compensation who are diagnosed as suffering from post-traumatic disorder, or from depression, or from an anxiety or other disorder, 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.  Courts hearing those applications should be astute to make inquiries about that point, to ensure an applicant is not being denied by oversight compensation for an injury."

27. [27]
    In making this observation, I do not want to be thought critical of the solicitor in this case. In this matter Ms Tubalo specifically indicated that the applicant's range of complaints outlined in paragraph 73 of her report, set out by me elsewhere in this judgment, were caused by her diagnosed psychiatric condition.

28. [28]
    Rather I make the comment to alert practitioners to the comments of the Court of Appeal, in an order to disabuse practitioners of the notion that in cases of sexual offences there is some automatic entitlement to an increase in compensation on account of the significant adverse affects of such significant sexual offences.

29. [29]
    I order that the applicant be entitled to a sum of $24,000 being 32 per cent of the scheme maximum from the respondent.