SAN v LJC[2010] QDC 349

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 physical and emotional injuries caused by the attack of the respondent on 19 July 2006. The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (2009 Act) which commenced on 1 December 2009.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 12 January 2010. This was within two months after the commencement of the 2009 Act 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 assault with intent to commit rape upon the applicant. He was sentenced to 10 years' imprisonment. I am satisfied that the originating application was served in accordance with rule 110(c) of the UCPR by service on the person in charge of the prison in which he is imprisoned, in this case the correctional supervisor of the Wolston Correctional Centre. I am also satisfied he was served by post with all supporting affidavits pursuant to rule 112(d) of the UCPR. The covering letter advised him the hearing date was 19 July 2010 at 10 a.m. The mail attendant at the correctional centre confirmed this correspondence was received by him.

In addition, the Public Trustee has received written confirmation from the respondent that he has been served with this material and was aware of the hearing date; and he has advised in writing that he wishes to take no further part in these proceedings. As a consequence he did not appear when the matter came on for hearing on that date. I therefore proceeded in his absence and adjourned the matter to 13 August 2010 to hear oral submissions.

Circumstances of the Offence

As I said in my sentencing remarks, the respondent grabbed the applicant from behind as she walked along The Gap bikeway. The respondent had gone there with the intention of attacking a woman. This happened at about 2 p.m. when the applicant was engaging in her regular exercise routine along the bike way. After grabbing her the respondent attempted to pull her towards some bushes. He covered her mouth with his hand. She bit his index finger. She thought he bled as a result.

He ran his hands down her breasts. She was screaming and struggled with him to get away. In the course of this he punched her in the head. This knocked her over and her head hit the ground heavily. She was face down on her knees with him standing behind her holding her down with one leg either side of her back. She was able to break free and run to a nearby house. As a result the police were called. The applicant was then 23 years of age. She is now 27 years.

Injuries and Medical Reports.

The applicant's description of her physical injuries as a result of the attack in her statement is:

"I suffered minor physical injuries in the attack.  I had a cut and bloodied lip, a bruise on my left temple and abrasions on my knees.  These injuries have since healed."

In sentencing the 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.

In her affidavit sworn on 28 June 2010, almost four years after this offence, the applicant deposes that:

"Without a doubt the most significant impact from the attack on me has been my emotional well-being."

She says that her life and lifestyle have been permanently affected as a result of the attack. She sums this up as follows:

• She is constantly thinking about her safety;

• She no longer exercises in public;

• She is hypervigilant whenever she is in public places;

• She has lost her sense of security;

• She has trouble trusting people, particularly men;

• She has not had a stable personal relationship with a man since the incident;

• She becomes very emotional when the event comes into conversation or when she hears of a similar event in the media or when she sees sexual violence in films or on television.  This has been exacerbated by the media interest in the case;

• She gets upset at constant reminders of the incident;

• She has been unable to see a counsellor because she finds it emotionally distressing to talk about the attack;

• She had several nightmares leading up to her appointment with Dr McGuire for the purpose of the medico-legal report which has been prepared for these proceedings;

• She has trouble sleeping and recurring nightmares of being suffocated by the attacker or dreaming that he is in her bedroom.  She sleeps with the bedroom light on for peace of mind;

• She has developed some obsessive tendencies such as turning lights on and checking that the doors and windows are locked;

• She thought she had seen the attacker on several occasions and on one of these occasions she phoned the police to investigate;

• She often feels depressed as a result of the offence.

She was subject to an assessment by Dr McGuire, a psychiatrist, on 23 February 2010. This was about three and a-half years after the attack. Her findings are consistent with the applicant's subsequent affidavit. For her part the applicant confirms the facts attributed to her in Dr McGuire's report.

Consistent with the applicant's concerns leading up to her assessment by Dr McGuire, she presented as highly anxious, distressed and resistant to talking about the incident. She was frequently fearful. Dr McGuire opines that as a result of the offence the applicant exhibits nightmares, flashbacks, avoidant behaviour, irritability, hypervigilance, some obsessionality and low mood.

With reference to these symptoms, in addition to what the applicant has said, Dr McGuire refers to the applicant developing migraines after the incident. These episodes are triggered by reminders of the attack. She experiences a pounding headache and vomiting which usually lasts about 12 hours and sometimes experiences numbness of her hand and blurred vision.

With reference to the flashbacks, Dr McGuire says that the incident is always in the back of the applicant's mind. Dr McGuire says of the applicant's avoidant behaviour that she doesn't walk in parks any more. This is an activity she had previously enjoyed. Although she can go out on her own to places like supermarkets she is hypervigilant when she is on the street. Her hypervigilance extends to not liking to walk into her car park at night after finishing work. She always looks in the back of her car before getting in.

There is a reference to the applicant having an exaggerated startle reflex. Dr McGuire also refers to the applicant's security fears in her own home, including her having thoughts that the respondent was in her room, when the attack first happened.

She confirms that the applicant has not had counselling because of the perception it would make it much worse if she had to talk about the incident rather than forget it.

Dr McGuire notes that the applicant enjoys her work which involves managing a hairdressing salon. Although she didn't take any time off work following the attack, the applicant believes her work has been affected by the incident. She has difficulties travelling to and from work. Her colleagues have noticed a change in her temperament.

The report describes a period after the incident when the applicant drank to excess. The applicant believes her anxiety led her to do so.

Dr McGuire opines that the applicant's psychological trauma suffered as a result of the offence is a post-traumatic stress disorder, that she suffers to a moderate degree. This has developed in circumstances where the applicant had never experienced a pre-existing trauma in her life and has no past history of mental illness.

Dr McGuire expresses the view that if the applicant's aversion to talking about the incident settles with time she would benefit from counselling and possibly also from antidepressant medication. Her belief is that the applicant would need at least 10-15 sessions.

The report also addresses the issue of whether the applicant has suffered any adverse impacts of this sexual offence for the purpose of section 1A(1) of the Criminal Offence Victims Regulation 1995 (the regulation). In doing so the nature of the post-traumatic stress disorder is described in further detail. In Dr McGuire's opinion the applicant suffered a sense of violation which is a prerequisite to a diagnosis of a post-traumatic stress disorder. Reference is made to the applicant feeling terrified and thinking she was going to be killed or raped. In her opinion the applicant's increased feelings of insecurity and hypervigilance are also a feature of the disorder.

Further, in her opinion where, as in this case, sexual abuse is the precipitant of a post-traumatic stress disorder, the adverse impact on lawful sexual relations experienced by the applicant is a feature of the disorder.

Consequently, the only adverse impact identified by Dr McGuire which is not included in the diagnosis of post-traumatic stress disorder is that because the applicant bit the respondent in the course of the struggle and had his blood on her face she was worried for some months about having acquired a disease, although the applicant did not suffer a disease.

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

Ms Worsnop, who appears for the applicant, submits that she has suffered the following injuries and should be compensated for:

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

Item 32 - mental or nervous shock (moderate) - 20 per cent - $15,000.

Regulation 1A - adverse impact of a sexual offence - 7 per cent - $5,250.

Therefore an award is sought of 29 per cent of the scheme maximum which is $21,750.

Assessment

I am satisfied on the balance of probabilities that the applicant suffered the physical and psychological injuries documented in her affidavit and that of Dr McGuire as a result of the indictable offence of assault with intent to commit rape committed against her person by the respondent on 19 July 2006.

I am satisfied that those injuries involved bruising, a laceration and abrasions, mental or nervous shock and a separate adverse impact within section 1A of the regulation.

Item 1 - bruising/laceration etc (minor/moderate) - 1 per cent-3 percent.

Ms Worsnop's submission is that her injuries which amounted to a cut and a bloodied lip, a bruise to her left temple and abrasions on her knees should be awarded at the mid-point for this type of injury. As I have noted these injuries have healed. 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. 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 2 per cent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and an 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 so as to cause me to assess the award at a higher level.

While comparisons of awards in cases under this legislation can be fraught with difficulty because no two cases are exactly alike, I also take into account my assessment at 2 per cent of the scheme maximum of the injuries suffered by the applicant in STH v LJC [2010] QDC 303, a decision which I delivered on 19 July 2010 compensating STH as a result of an attack as part of the 27 month course of offending by the same respondent. The offence against the applicant was committed as part of that course of offending.

In that case the applicant suffered a small one centimetre scratch to the 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. These injuries had healed with very minor scarring. However the scarring was not of major concern to the applicant. I do not regard the injuries suffered by the applicant in the present case as markedly different to those suffered by STH.

In these circumstances I assess an award of 2 per cent of the scheme maximum for item 1 of the compensation table, that is $1,500.

Item 32 - mental or nervous shock (moderate) - 10 per cent-20 per cent.

It is submitted that item 32 of the schedule is appropriate for application in this case and the award be at 20 per cent of the scheme maximum. This was at the top of the moderate range for mental or nervous shock or at the bottom of the severe range for it. Reliance is placed on Dr McGuire's opinion that the applicant is suffering from post-traumatic stress disorder of a moderate degree as a result of the offence. Reference is also made to Dr McGuire's observation that the applicant has:

"Nightmares, flashbacks, avoidant behaviour, irritability, hypervigilance, some obsessionality, low mood."

Particular emphasis is placed on Dr McGuire's statement that the applicant requires counselling but is not presently ready for treatment as she has an aversion to talking about the incident. Ms Worsnop also stresses the significant impact that the applicant identifies in her affidavit the attack had on her life. I note in addition, as I have already observed, that the applicant, according to Dr McGuire, has developed migraines since the incident. These episodes are triggered by reminders of the attack and involve a pounding headache and vomiting which usually lasts about 12 hours with associated numbness of her hand and blurred vision on some occasions. This is expressed by Dr McGuire in such a way as to suggest that those consequences of the attack continue.

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

Because I find that a post-traumatic stress disorder is a recognisable psychiatric illness or disorder, it is not necessary for me to determine whether to follow the decision of Thomas JA in that case. As it is a recognisable psychiatric illness or disorder it constitutes mental or nervous shock that is compensable under the Act.

In AT v FG [2004] QCA 293 Jerrard J A made reference to:

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

Having regard to Dr McGuire's opinion I am also satisfied that the respondent's conduct constituting the offence against the applicant was a material cause of that disorder and therefore it is a proper subject for compensation.

In making this assessment it is again relevant to have regard to the assessment made for mental or nervous shock in compensating other victims who were attacked as part of the same course of offending by LJC.

In SMR v LJC [2010] QDC 285 I categorised the symptoms suffered by that applicant for the purpose of her post-traumatic stress disorder as follows:

• Panic attacks and anxiety when she is not with her husband - this is described as "long term chronic anxiety";

• 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 worries 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 psychologist sessions to reduce her anxiety I assessed the compensation as submitted on her behalf at 20 per cent of the scheme maximum. 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.

In that case, having regard to the manner in which the psychiatric opinion was expressed, I did not assess the effect of the post-traumatic stress disorder as including an adverse impact on sexual relations with her husband. This was assessed as an adverse impact for the purpose of section 1A of the regulation. I consider that case as involving more serious consequences to the victim than those suffered by the present applicant.

I assessed compensation at 12 per cent of the scheme maximum in the cases of KMS v LJC [2010] QDC 284 and STH v LJC [2010] QDC 303. The victims in both those cases experienced heightened anxiety following the assault, became hypervigilant, constantly scanning their environment, being highly suspicious and fearful of men, particularly those wearing similar clothes to the respondent when he attacked and having struggled to do things away from home.

KMS also lost interest in sex. The severity of her original injury had moderated in the three and a quarter years since the attack although I assessed her compensation on the basis of the moderate mental or nervous shock she had originally suffered.

Although STH had not lost interest in sex her condition had continued for approximately 18 months at the time of her affidavit and was described by her psychologist as a post-traumatic stress disorder involving a severe to extreme impairment which was ongoing and required the assistance of a clinical psychologist. She continued to be anxious, insecure and fearful of attack as well as suffering social phobias.

In the present case I accept Dr McGuire's opinion that the applicant's post-traumatic stress disorder is of a moderate degree and therefore falls within item 32 of the compensation table.

In assessing where in the scaling of item 32 this case falls I consider that the applicant has suffered less serious consequences than SMR who had lost her professional career as a result. However, I consider that she suffered more severe consequences than KMS and STH on the evidence before me. Not only has this offence had an adverse effect on her lawful sexual relations but the post-traumatic stress disorder persists after almost four years such that she remains unable to see a counsellor because she finds it emotionally distressing to talk about the attack. This is consistent with Dr McGuire's experience of her during the assessment. She found the applicant, as I have observed, to be highly anxious, stressed, frequently tearful and resistant to talking about the incident. Dr McGuire considers she would benefit from counselling which would involve at least 10-15 sessions. She also considers that the applicant would possibly benefit from antidepressant medication.

In these circumstances I consider that the post-traumatic stress disorder is likely to continue to affect her at the same level for the indefinite future.

Taking these matters into account 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 compensation for this degree of mental or nervous shock within that item at 16 per cent of the scheme maximum, namely $12,000.

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 by section 1A(2).

"Sexual offences" are defined in section 1A(3) of the regulation to mean a personal offence of a sexual nature. There is no doubt that the offence committed by the respondent against the applicant is a sexual offence. As stated by McMurdo P (with whom Muir and Chesterman JJA 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 section 20 of the Act. The onus was on the applicant to establish her claim on the balance of probabilities."

It was for this reason 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 anxiety will benefit from their legal representatives insisting 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."

Dr McGuire has done this in the present case. As I have observed, the only adverse impact she has identified which is not included in the diagnosis of post-traumatic stress disorder is that the applicant was worried for some months about having acquired a disease because she had bitten the respondent in the course of the struggle and had his blood on her face.

In the written outline it was submitted that the Court should compensate for this impact under section 1A(2)(d) which describes the adverse impact as "disease". It was also submitted compensation should be awarded for future counselling needs and the impact on her of the notoriety of the case. Under section 1A(2)(k) which allows an award to be made for "anything the Court considers is an adverse impact of the offence", it was submitted that taking into account the totality of these adverse impacts an award in the order of 7 per cent of the scheme maximum or $5,250 would be appropriate.

Ms Worsnop accepted during oral argument that the applicant's further counselling needs and the impact of notoriety were properly compensated as part and parcel of the post-traumatic stress disorder and are not to be considered as an adverse impact under section 1A. Accordingly, I have taken them into account in assessing compensation for mental or nervous shock.

Ms Worsnop also accepted that fear of disease is not the same as disease for the purpose of section 1A. Where that provision identifies fear as a specific adverse impact, it is capable of expressly doing so. For example, section 1A(2)(g) includes "increased fear or increased feelings of insecurity" as an adverse impact. It was therefore submitted that I should compensate for this fear under section 1A(2)(k). I agree.

I consider that at this time in our history fear by a female of contracting a communicable disease as a result of coming into contact with the blood of a male person who has attacked her for sexual purposes is a serious matter. Particularly whereas in this case it is a fear which inevitably persists for some months until a negative result is indicated. As a matter of commonsense a fear of this nature is likely to be have a profound effect on the victim's quality of life for the period it persists.

Under section 2A of the regulation the prescribed amount which can be awarded for the effect of adverse impacts is up to 100 per cent of the scheme maximum. Having regard to the seriousness of the applicant's fear of acquiring a disease, I assess this as, in itself, warranting an assessment of 10 per cent of the scheme maximum. That is $7,500.

Section 25(7) of the Act - Contribution

Finally, I conclude that nothing in the applicant's actions on 19 July 2006 contributed to either her bodily injury, mental or nervous shock or prescribed injuries that was 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 in a public place as she was entitled to do. The applicant was the unfortunate woman who he chose to attack.

She had no previous dealings with the applicant. 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.

Consistently with what I have already said, 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 the right to feel safe and secure." The applicant in no way contributed to her injuries. There is nothing else in the evidence that suggests anything in the applicant's background in any way contributed to her injuries.

Accordingly, 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:

Item 1 - bruising/laceration etc (minor/moderate) - 2 per cent - $1500.

Item 32 - mental or nervous shock (moderate) - 16 per cent - $12,000.

Regulation 1A - adverse impact of sexual offences - 10 per cent - $7,500.

Therefore, the total assessment is 28 per cent of the scheme maximum, that is $21,000.

I order the respondent pay to the applicant the sum of $21,000 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offence of assault with intent to commit rape which led to his conviction in the District Court Brisbane on 27 August 2009.