STH v LJC[2010] QDC 303

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for the physical and emotional injuries caused by the attack of the respondent on 16 July 2008.  The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act), which commenced on 1 December 2009. The transitional provision in section 155(1)(a) of the 2009 Act requires the application to be determined in accordance with the Act, as it was made on 27 January 2010.  This was before the end of two months after the commencement as required by section 155(2)(b), it being the earlier of the dates required in that subsection.

On 27 August 2009, the respondent pleaded guilty to one count of rape committed upon the applicant.  He was sentenced on 28 August 2009 to 25 years' imprisonment for this offence.  On 16 February 2010, the Queensland Court of Appeal set aside the sentence of 25 years' imprisonment and substituted a sentence of 16 years' imprisonment.  The success of the appeal is irrelevant to the determination of the application.

The application and the supporting affidavits relied upon were served on the respondent at the Wacol Men's Correctional Centre on 11 June 2010 by serving them on an officer, who is authorised by the Manager of the centre to accept service for inmates confined at the centre.  This was in accordance with Rule 110(c) of the Uniform Civil Procedure Rules 1999 (Qld) under which a document required to be served personally on a prisoner must be served on the person in charge of the prison in which the prisoner is imprisoned.  In this case the documents have been served on a person who is effectively authorised to accept service of such documents on behalf of the person in charge of the prison where the respondent is imprisoned.  I am, therefore, satisfied that the respondent has been served with and is aware of the application and all relevant material relied on in support of it.

CIRCUMSTANCES OF THE OFFENCE

As I said in my sentencing remarks, this attack occurred on a woman who was then aged 27 years as she was jogging at the foot of the cliffs at Kangaroo Point at 12.30 p.m. Accordingly, she was victimised in a public place in broad daylight.  The applicant was exercising during her lunchbreak. She ran past the respondent who had gone to this location with the intention of attacking a woman.  He had changed from his work clothes before the attack to facilitate his not being identified.  It was the applicant whom he chose randomly for this purpose.

He grabbed her by the shoulders as she ran past him and flung her to the ground.  He put a hand over her mouth and nose so she felt she could not breathe.  He penetrated her anus with his finger through the outside of her shorts for about 10 seconds. Therefore, the rape was digital rather than penile.  Not surprisingly, she was screaming throughout the attack and after he let her go she was hysterical.  She gained assistance from persons in the vicinity and the police were contacted.

INJURIES AND MEDICAL REPORTS

As a result of the attack she suffered a cut, bruises and grazes.  These physical injuries are described by Dr Reynolds in her report, which is an exhibit before me, as a small one centimetre scratch to her right lower jaw, bruising to her right upper lip and adjacent gum, grazing to her left elbow and a small bruise above her right knee.

Mr Perros, the psychologist who interviewed and assessed her on 30 December 2009, states in his report, which is also an exhibit in these proceedings, that the injuries healed with very minor scarring.  The applicant told him the scarring was not a major concern for her.

In sentencing this respondent, I said that his victims, as there were other victims of his offending over a 27 month period, were violated and degraded, with many suffering more devastating psychological consequences than their immediate physical injuries.  As I observed, the victims were simply trying to enjoy and obtain pleasure from their environment as they went about their daily exercise.  This was the case with the applicant.

As far as is known she was his last victim.  Somebody nearby recorded the registration number of his motor vehicle.  His apprehension for this offence led him to be charged with the other offences to which he also pleaded guilty.

In her Victim Impact Statement, which was an exhibit before me during the sentencing proceedings and is also an exhibit in these proceedings, the applicant describes her emotional injuries as a result of the attack as follows:

•   her sense of trust of other people has been taken away from her;

•   her behaviour has changed since the attack;

•   she has gone from being an independent, confident athlete to a person who does not like being in public alone;

• she looks all men in the eye, including strangers, to make sure they will not attack her, and then she turns around to make sure she is safe;

• if she does not like the look of certain men,particularly if they are wearing work clothes, she will go to great lengths to avoid contact;

• she feels she has lost her freedom.

In her affidavit sworn on 25 January 2010, approximately 18 months after the attack, she describes how this has affected her life and how she has ceased being the independent person she was previously.  Although she deposes her life gradually improved, after the attack she says:

• she finds it hard to do things by herself;

• her relationship with her husband took a few weeks to return to normal;

• she started running again 10 days afterwards, but only did one to two runs a week and only in very public places, such as main roads.  If she saw a man she would cross the road;

• when she went shopping at a major suburban shopping centre about two weeks afterwards, although it was extremely busy it was the worst experience for her. Anyone coming too close caused her to jump out of her skin and she was disgusted by men looking at her;

• she still has the same reaction to anyone coming too close and men looking at her;

• she will not go into her backyard while alone, even to put out the rubbish or hang out the washing, she keeps thinking someone is waiting for her there;

• if she needs to go out, she rushes to the car with her daughter, locks the doors and then puts her in the car seat;

• she will not go outside at night-time, if she needs to pick her husband up from work late at night.  She drives to her sister's home and waits there until he is ready to go;

• she will not be outside in the dark by herself;

• the attack plays on her mind more than once every day, she is reminded of it by people coming too close to her, people looking at her, having to go to her car alone and having people knock on her door while she is home alone;

• she has a reduced social life due to her insecurities about being outside alone.  The attack has turned her into somewhat of a hermit.

This is consistent with her interview and assessment by Mr Perros about a month before she swore her affidavit.  He observed she has suffered psychologically as a result of the attack and noted she has become anxious and insecure.  In relation to this, he refers to her not going into the backyard alone and a compulsive counting ritual which she has undertaken.  He considers this ritual is associated with a post traumatic anxiety condition.  Although she told him that she had been obsessional since childhood, these symptoms have become much worse (and seemingly suddenly quite intrusive) since the attack.

With reference to her status before the injury, he says she had no major psychological problems and she was an elite sponsored athlete.  Because she has now changed from a person who ran daily to running once a week, her weight has increased marginally.  She only runs if her husband is nearby keeping an eye on her.  She worries that someone might just pop up out of nowhere and assault her.  She does not answer the door if her husband is not at home and hates answering the telephone, using an answering machine to pick up the calls before picking up the hands.et.  She will not go outside unless necessary and,as she deposed in her affidavit, she feels that if she goes into her backyard there will be someone hiding there waiting to hurt her.  Therefore, she waits until her husband is home before hanging the washing on the clothesline.  She has become fearful of people but forces herself to socialise with her husband and friends.  However, when she is out she is constantly hypervigilant and fearful of being assaulted.  She finds it difficult to relax.

Her relationship with her husband has not suffered.  She returned to work a few days after the assault.  No employment problems were reported or identified at interviews.  She was not receiving any treatment at the time of her interview with Mr Perros. Her responses to the tests administered by him reflect severe to extreme symptoms of post traumatic stress and impairment, including avoidance and re- experiencing the traumatic event. In his opinion, these symptoms meet the criteria for post traumatic stress disorder.

Mr Perros used the PIRS methodology described in the Civil Liability Regulation 2003 (Qld) to assess psychological impairment.  She received a final PIRS rating of five compared to a median score of two.  This equates, according to his report, to an injury scale value (Schedule 4 Part 2 of this Regulation) falling in the lower end of the range for moderate mental disorder (2-10 per cent of total injury scale value).

He then attempts to translate this psychological injury to Schedule 1 of the Criminal Offence Victims Act and concludes that this places the score in the minor range, allowing for statistical scale incongruities.  Although, as he concludes, he believes that the true impact of the attack falls at a greater level than this.

As he opines, the applicant has, probably from her days of competition, learnt to control her emotions and put on a brave face, behaviour which she displayed at the interview.  He says, however, the formal assessment of post traumatic stress disorder reveals quite serious psychological problems masked by a visage of control and contentment in motherhood.  I note she fell pregnant a few weeks after the attack.

Mr Perros says it concerns him greatly the applicant is displaying ongoing psychological problems and not getting treatment.  He considers she has anxiety disorder which is affecting her quality of life.  Therefore, he considers it appropriate for her to discuss her post traumatic adjustment with a clinical psychologist.

In fact, he also describes per post traumatic stress disorder as a severe to extreme impairment in circumstances where on objective self-report measures she continues to display psychological symptoms of post traumatic distress, social withdrawal, cessation of once cherished hobbies and social phobia which takes away from her enjoyment of life.  Mr Perros classified the post traumatic stress disorder as severe to extreme when expressing his opinion on the adverse impacts the applicant has suffered for the purpose of section 1A of the Criminal Offence Victims Regulation.  The other adverse impacts he has identified are:

• a sense of violation;

• a reduced self-worth or perception;

• increased fear or increased feelings of insecurity;

• adverse impact on feelings.

He considers her sense of violation to be a severe impairment. He says she coped with this by disassociating while the assault took place and screaming after the respondent walked off.  Her score on the tests for experiencing depersonalisation, derealisation, or other diagnostic reactions during the trauma was extremely high, being 90 compared to an average of between 44 to 56.  He observes she felt the respondent's actions were callous.  In particular, he says:

"She said it took several weeks to get over the sense of beingviolated, but she still engages in disassociation and obsessional rituals intended to be anxiety reducing."

He describes the reduction of her self-worth or perception as a mild impairment.  She claims she has not suffered a marked reduction in self-worth and still feels good about herself.  However, she is unhappy about the weight she has gained since the attack and misses being a successful sponsored runner.

In his opinion, her increased fear or increased feelings of insecurity is a severe impairment.  He says she experiences high anxiety and panic attacks if left home alone.  He refers to her not venturing into the backyard in these circumstances and fears of being attacked when outside the house.

With reference to the adverse impact on her feelings, he considers this anxiety involves a mild to moderate impairment. To support this he refers to the unusual counting rituals she engages in to reduce her anxiety.

THE APPLICABLE PRINCIPLES

The assessment of compensation is governed by Part 3 of the Act.  Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6]. A personal offence is an indictable offence committed against the person of someone:  Section 21 of the Act.  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:  Section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act.  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled:  Section 22(3) of the Act. A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000:  See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation) section 2; See also Riddle v. Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [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: section 25(3)-(4) of the Act.  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to make an order for the prescribed amount.  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:  Section 25(6) of the Act.

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:  Riddle v. Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 438, 440. It follows that in such cases the amounts of compensation ordered are to be scaled 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: R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication:  Riddle v. Coffey at 224; and at [18]; JMRoboSRR v. Hornsby at [6].  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 section 25(3) of the Act and Ward:  Riddle v. Coffey at 224; and at [18].  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:  Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6]. 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 the differences between the ranges or maximum for each item:  Wren at [29]; Hornsby at [6]. 

Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

In respect of sexual offences, it is necessary to commence by compensating the victim in so far as the impact amounted to an injury pursuant to section 20 of the Act, and to assess compensation pursuant to section 1A of the Regulation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under section 20 of the Act: R v Atwell; ex parte Jullie [2002] 2QdR 367 per Chesterman J at 372; per Atkinson at 382-383; Hornsby at [6].  They would be such an injury if they were nervous or mental shock; AT v FG QCA 294 per Jerrard JA at [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 issues of fact on this application must be decided on the balance of probabilities:  Section 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS

In his written submissions, Mr Bowler, for the applicant, submits that she has suffered the following injuries:

• Item 1 - bruising/laceration, etc, (minor/moderate) - 3 per cent - $2,250;

• Item 27 - facial disfigurement or bodily scarring (minor/moderate) - 5 per cent - $3,750;

• Item 31 - mental or nervous shock (minor) - 5 per cent - $3,750;

• Regulation 1A - adverse impact of a sexual offence - 35 per cent - $26,250.

Therefore, an award is sought of 48 per cent of the scheme maximum, which is $36,000.

ASSESSMENT

I am satisfied on the balance of probabilities that the applicant suffered the physical and psychological injuries documented in the evidence before me as a result of the indictable offence of rape committed against her person by the respondent on 16 July 2008.  I am satisfied that those injuries involved bruising, abrasions and scratches, mental and nervous shock and separate adverse impacts within Regulation 1A of the Regulation.

ITEM 1 - BRUISING/LACERATION ETC (MINOR/MODERATE) - 1 PER CENT - 3 PER CENT

Mr Bowler's written submission is that the injuries compensable under this item of the table are the grazing to her left elbow and the small bruise above her right eye.  He submitted in that outline of submissions that a separate assessment should be made under Item 27 for the small one centimetre scratch to her right lower jaw and bruising to her right upper lip and adjacent gum.  This item permits compensation for minor or moderate facial disfigurement or bodily scarring within a two per cent to 10 per cent range of the scheme maximum.  However, he accepted during oral argument that these injuries were all properly assessed under Item 1, particularly having regard to Mr Perros' evidence that the injuries healed with very minor scarring which was not a major concern for her.  This is emphasised by her failure to mention it in her Victim Impact Statement or affidavit.

Nonetheless, the written submission was that the two injuries relied upon of grazing and a bruise should be awarded at the top of the minor/moderate scale for this type of injury.  This is also the bottom of the severe range for this type of injury.

In Ward, at 438-439 [9], the Court stated:

"To qualify for the five per cent, which is the top of the severe range, one would not have to be beaten black and blue from head to toe, but the bruising and laceration must have some claim to be one of the most serious cases."

In that case, their Honours reduced an award at the top of the range to one of two per cent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the right elbow.  They could find nothing in the evidence that this swelling was long lasting or causative of significant pain.  There were no lacerations.  I do not consider that the injuries suffered in this case are more serious than in Ward,

or at least not sufficiently more serious to cause me to

assess the award at a higher level.

While comparisons of awards in cases involved under this legislation can be fraught with difficulty because no two cases are exactly alike, I also take into account my assessment at three per cent of the scheme maximum of the injuries suffered by the applicant in KMS v. LJC, a decision delivered by me on 18 June 2010, compensating KMS as a result of an attack as part of the 27 month course of offending by the same respondent.  The offences against this applicant were committed as part of that course of offending.  In that case the scratches, abrasions and weals were to nearly all areas of the applicant's body.  Reference was made to her face, head, arms, torso and legs being injured.  The applicant also suffered from a puncture wound to her upper lip which bled. The pain and discomfort the injuries caused the applicant lasted for "some time and required the applicant to take painkillers to assist in the management of pain."

I consider the injuries suffered by KMS to be more serious than those suffered by the present applicant.  In these circumstances, for the totality of the injuries within this item, I assess an award of two per cent of the scheme maximum for Item 1 of the compensation table.  This is $1,500.

ITEM 27 - FACIAL OR BODILY SCARRING (MINOR /MODERATE) - TWO PER CENT - 10 PER CENT

For the reasons I have given, I assess the award for the injuries on which this application is based as part and parcel of the injuries on the basis of which I have assessed the

award for Item 1; therefore, I do not assess it separately.

ITEM 31 - MENTAL OR NERVOUS SHOCK (MINOR) - 2 PER CENT - 10 PER CENT

It is submitted that Item 31 of the Schedule is appropriate for application in this case and the award be at five per cent of the scheme maximum.  This is on the basis of Mr Perros' opinion that the applicant meets the criteria for post traumatic stress disorder with a PIRS rating of five per cent on the injury scale value for moderate mental disorder under the Civil Liability Regulation and this translates to the minor range (around 3 per cent - 5 per cent) under Schedule 1 of the Criminal Offence Victims Act.

In RMC v. NAC [2009] QSC 149, Byrne SJA preferred the view of Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345, to that of Thomas JA in Ferguson v. Kazakoff [2001] 2 QdR 320; [2000] QSC 156, and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.

In AT v. FG [2004] QCA 293, Jerrard JA made reference to:

"Establishing the existence of post traumatic stress disorder and, therefore, of mental or nervous shock."

Because the applicant has suffered a recognisable psychiatric disorder as a result of the attack, it is not necessary for me to determine whether RMC v. NAC or Ferguson v. Kazakoff expresses the correct principle.  In these circumstances, proceeding on the basis of RMC v. NAC and Tiltman, I find the post traumatic stress disorder is compensable as mental or nervous shock within the meaning of those words in the Act, and having regard to the opinion, I am satisfied that the respondent's conduct constituting the offence, which I have identified, was the material cause of that disorder and is a proper subject for compensation.

However, I have come to a different conclusion as to the item of the compensation table under which the mental or nervous shock should be assessed and as to the percentage of the scheme maximum at which I assess the compensation.  This conclusion is reached against the background of the approach taken to the assessment of compensation for post traumatic stress disorder in the written submission on behalf of the applicant, which is based on the approach by Mr Perros in his report.

In the written submission a dichotomy is sought to be drawn between mental or nervous shock on the one hand and adverse impacts, including post traumatic stress disorder, on the other hand for the purpose of section 1A of the Criminal Offence Victims Regulation.  This may flow from Mr Perros' approach of making what appears to be separate assessments of mental or nervous shock for the purpose of Schedule 1 of the Act and then to include post traumatic stress disorder in giving his opinion on the adverse impacts for the purpose of the Regulation.

Because, as Mr Bowler recognises in oral argument, the post traumatic stress disorder is the basis of the finding of mental or nervous shock, it cannot be relied upon again to assess the existence or the extent of adverse impacts. Section 1A of the Regulation is inapplicable to the assessment of compensation if any of the adverse impacts of the sexual offence are also relied upon to support the diagnosis of mental or nervous shock.

As stated by McMurdo P (with whom Muir and Chesterman JJ agreed) in PAJ v. AAK [2010] QCA 79 at [28]:

"The clear terms of Reg 1A(1) of the Regulation provide that to be compensable under the Act, the adverse impacts under Reg 1A must be additional to the mental or nervous shock injury under s 20 of the Act.  The onus was on the applicant to establish her claim on the balance of probabilities."

It was for this reason that Jerrard JA stated in AT v. FG at [25]:

"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. Therefore, as Mr Bowler conceded in oral argument, he cannot "double dip".  Accordingly, he does not now seek to rely upon this dichotomy, but, instead, seeks an assessment for mental or nervous shock on the basis of the post traumatic stress disorder and to exclude this disorder from the determination of whether there are any matters capable of being adverse impacts.  He suggested on the basis of this approach, the assessment could be made as high as 10 per cent of the scheme maximum.

This submission is based on the assessment being made under Item 31 for mental or nervous shock (minor).  This is the top of the range available under this item.  It is also the bottom of the range available under Item 32 for mental or nervous shock (moderate).  In making the submission, Mr Bowler is clearly influenced by Mr Perros' assessment of mental or nervous shock in the minor range of around three per cent to five per cent.  However, this must be considered in the context that in drawing the dichotomy between this and post traumatic stress disorder, Mr Perros described the latter as severe to extreme.

This dichotomy is not the only problem with the manner in which Mr Perros has expressed his opinion.  The threshold difficulty is that he has arrived at his assessment of mental or nervous shock being in the minor range by giving it an PIRS rating for the purpose of the Civil Liability Regulation and then translating it to a score under Schedule 1 of the Criminal Offence Victims Act.  This approach is contrary to section 22(3) of the Act, which makes it plain that an award of criminal compensation is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.  Therefore, it is no more intended to reflect compensation liability under the Civil Liability Regulation than it is intended to invoke the principles applicable to common law damages (see:  section 25(8)(a) of the Act).

Mr Perros himself demonstrates his appreciation that such an approach as he adopted will not help the applicant when he concludes he believes the impact of the attack falls at a level greater than that identified by the PIRS score translated into a score on Schedule 1 of the Criminal Offence Victims Act.  Although I do not reject the PIRS score as a relevant factor to be taken into account in assessing compensation under the Act, it is not determinative.  The correct approach is for me to assess compensation on the basis of the nature and severity of the injury suffered by the applicant as a result of the attack on her by the respondent, in this case her psychological injuries.

In making this assessment, it is again relevant to have regard to the assessment made for mental or nervous shock in compensating not only KMS but also SMR arising from attacks as part of the same course of offending by LJC.  Both decisions were delivered on 18 June 2010.

SMR has suffered the most serious psychological consequences of LJC's offending of the applications I have dealt with to date, including the offending against the present applicant. In her case, I categorised the symptoms she suffered for the purposes of her post traumatic stress disorder as:

• panic attacks and anxiety when she is not with her husband - this is described as "long-term chroni canxiety";

• nightmares;

• flashbacks;

• sleep disturbance;

• control issues;

• her persisting sense of injustice about the attack and generally;

• excessive worrying, including her obsession with her appearance and worry as to what others think about her;

• concurrent thoughts.

Given that this post traumatic stress disorder with its serious consequences in most areas of her life had persisted for just over four years and was likely to persist indefinitely with a recommendation of two years of psychology sessions to reduce her anxiety, I assessed the compensation as submitted at 20 per cent of the scheme maximum.  Additionally, her career had been affected and at the time of the application she was searching for work in an unrelated area of employment which did not use her professional skills.  I considered the case as involving more serious consequences than those suffered by KMS, to whom I awarded 12 per cent of the scheme maximum.

On the other hand, I consider the consequences to the applicant in the present case to have similarities to those suffered by KMS, who was also the victim of digital rape, in her case vaginal rape.  They both experienced heightened anxiety following the assault, became hypervigilant, constantly scanning their environments, being highly suspicious and fearful of men, particularly those wearing similar clothes to the respondent when he attacked her, and have struggled to do things away from home.

Unlike the applicant in this case, KMS lost interest in sex. Further, in the case of KMS the severity of the original injury had moderated in three and a quarter years since the attack, although I assessed her compensation on the basis of moderate mental or nervous shock which she originally suffered.

Although this applicant has not lost interest in sex and her condition had continued for approximately 18 months at the time of swearing her affidavit, what she has suffered has nonetheless been described by Mr Perros as a post traumatic stress disorder involving a severe to extreme impairment, which is ongoing and requires the assistance of a clinical psychologist.  She continues to be anxious, insecure and fearful of attack, as well as suffering social phobia.

I do not consider I am constrained by the descriptors of the post traumatic stress disorder used by Mr Perros, which are variously "in the minor range" and "severe to extreme".  In my view, as I have said, it is for me to assess compensation on the basis of the nature and severity of the psychological injury suffered.  This must be done having regard to the categories and levels of injury itemised in the compensation table.

In this case, for the reasons I have given, I find the injury suffered by the applicant as a result of the incident was moderate mental or nervous shock within Item 32 of the compensation table.  I assess the compensation for this degree of mental nervous shock within that item at 12 per cent of the scheme maximum, namely $9,000.

REGULATION 1A - ADVERSE IMPACT OF SEXUAL OFFENCE - 1 PER CENT - 100 PER CENT

As I have said, a compensable injury under the Act includes an injury under a Regulation.  Under section 1A(1) of the Regulation, the totality of the adverse impacts of a sexual offence suffered by a person to the extent to which the impacts are not otherwise an injury under section 20 is prescribed as an injury and "adverse impact" of a sexual offence is then defined to include the four impacts that Mr Perros has identified as being suffered by the applicant.

"Sexual offences" are defined in section 1A(3) of the Regulation to be a sexual offence of a personal nature.  There is no doubt that the offence committed by the respondent against the applicant is a sexual offence.  As I have said, these adverse impacts can only be an injury pursuant to the Regulation to the extent that they are not symptoms of mental or nervous shock for which I have already compensated the applicant.

SENSE OF VIOLATION

I accept Mr Perros' opinion that this was a severe impairment, given not only did the applicant deal with the attack on her at the time it was occurring by disassociation to an extent well above the average, but having taken several weeks to get over the sense of being violated, she continues to engage in this behaviour approximately 18 months after the incident. According to Mr Perros, her obsessional rituals are intended to reduce her anxiety and these are ongoing.  I consider that despite some childhood obsessional traits, it is the attack which is the material cause of her present intrusive symptoms of this nature.

REDUCED SENSE OF SELF-WORTH

I proceed on the basis of Mr Perros' report that this is a mild impairment.

INCREASED FEAR AND INCREASED FEELINGS OF INSECURITY

I do not take this into account in assessing adverse impacts because I consider her high anxiety and panic attacks if at home alone, particularly her fear of being attacked when outside the house, are part and parcel of her post traumatic stress disorder, which, in my view, incorporates her hyperarousal and avoidance behaviour.  As such, it is not additional to the mental or nervous shock and cannot be assessed as an adverse impact for the purpose of compensation.

ADVERSE IMPACTS ON FEELINGS

As this is based only on her engaging in the counting rituals, this is part and parcel of the matters I have taken into account in considering the seriousness of her sense of violation; therefore, I do not take this into account in assessing the adverse impacts she has suffered as a result of this attack.

In recognising that the adverse impacts must be assessed without reference to the post traumatic stress disorder, Mr Bowler conceded that he could not sustain the original submission to the extent of assessing this at 35 per cent.  He ultimately submitted it could not be put much higher than 15 to 20 per cent of the scheme maximum.

Taking into account that I assessed the adverse impacts in the more serious case of SMR, which included the accumulation of six such impacts, one of which was an adverse impact on sexual relations with her husband at 20 per cent, I consider an assessment of this level would be excessive in the case of this impairment.  As with the post traumatic stress disorder, there are continuing impacts which are expected to persist. Given the severity of the sense of violation, I assess the adverse impacts at 15 per cent of the scheme maximum; that is, $11,250.

SECTION 25(7) OF THE ACT - CONTRIBUTION

Finally, I conclude that nothing in the applicant's actions on 16 July 2008 contributed to either her bodily injury, mental or nervous shock or prescribed injuries that were suffered by her.  For this reason, there is no requirement for any further allowance to be made or a lower percentage of compensation to be fixed as a consequence of section 25(7) of the Act.

The applicant did not in any way, either directly or indirectly, contribute to her injuries.  She was engaging in outdoor exercise on a public road as she was entitled to do. She had no previous dealings with the respondent.  She did nothing that could be considered any kind of provocation, nor can the circumstances surrounding the offence in any way be construed to involve behaviour or prior conduct of the applicant which might somehow have been contributory to what happened to her.

I noted in my sentencing remarks that the applicant (along with other victims) was attacked "generally at a time when they were exercising and enjoying their environment by walking, jogging and bike riding in public places where they had every right to feel safe and secure."  The applicant in no way contributed to her injuries, therefore, there is no reason for any reduction of any assessment of compensation against the respondent.

CONCLUSION AND ORDERS

Accordingly, I assess compensation in terms of the compensation table as follows:

• bruising/laceration, etc, (minor/moderate) - 2 per cent -$1,500

• Item 32 - mental or nervous shock (moderate) - 12 per cent - $9,000;

• Regulation 1A - adverse impact of sexual offences - 15 per cent - $11,250.

Therefore, the total assessment is 29 per cent of the scheme maximum; that is, $21,750.  I order the respondent to pay to the applicant the sum of $21,750 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offence of rape which led to the conviction of the respondent in the District Court at Brisbane on 27 August 2009

The formal order of the Court will, therefore, be that LJC, whose name will be spelt in full in the order, pay to STH, whose name will be spelt in full in the order, the sum of $21,750.