JCK v WJP[2011] QDC 120

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, WJP pleaded guilty in the District Court at Beenleigh before Judge Rafter on 16 October 2008 to one count of wilfully doing an indecent act with intent to offend, and one count of rape (each in respect of the applicant JCK).  The respondent was sentenced to three years imprisonment, suspended after serving eight months, with an operational period of three years in respect of the charge of rape (count 2), and was sentenced to a concurrent prison probation order of eight months imprisonment and three years probation in respect of the charge of wilfully doing an indecent act with intent to offend.

Facts

Count 1 – Wilfully did an indecent Act with intent to offend

2. [2]
   The applicant was 58 years old at the time of the offences committed against her by the respondent. Three months prior to the offences, the applicant moved from Bundaberg to her son’s home at Crestmead. The respondent was her son’s house-mate. The applicant, her son and the respondent each occupied separate bedrooms in the house at Crestmead. The applicant regarded the respondent as “a son” and the applicant’s son regarded the respondent “like a brother”.

3. [3]
   On Saturday 20 October 2007, the respondent had spent a good of the day drinking with some neighbours. The applicant had gone to bed. The applicant was suffering from a range of medical conditions at the time including Legionnaire’s disease, diabetes and a “frozen shoulder” (an arthritic complaint). The applicant had been prescribed pain killers to assist with pain relief to the shoulder which often made her drowsy.

4. [4]
   The applicant woke up at 11.30pm, felt pain in her shoulder and went to the kitchen to have coffee and two Panadols. The applicant returned to her bedroom and was sitting at the side of her bed drinking her coffee and having a smoke. The respondent came to the doorway of his own bedroom, had a full erection, and was holding a smoke in one hand and a beer in the other. The respondent looked directly at the applicant and smirked at her. The applicant then turned her back to him and went to sleep.^[1]

Count 2 – Rape

5. [5]
   On 26 October 2007, the applicant had taken her medication and retired to go to sleep at about 7.00pm. At this time the respondent and the applicant’s son were watching television in the lounge-room and the respondent was drinking beer. The applicant normally wore pyjamas to bed, but these were in the wash and she wore a nightie, with a pair of underpants but no bra. It was the applicant’s habit to sleep with her bedroom door open.

6. [6]
   At about 7.30pm the applicant’s son came into her room and said goodnight. The applicant recalls dozing off to sleep sometime after that, with a sheet and doona covering her and the television and bedside lamp both on.

7. [7]
   The applicant woke sometime that evening and saw the respondent kneeling beside her bed. The applicant felt fingers inside her vagina. This awoke the applicant. The applicant looked at the respondent. The applicant states that she didn’t react due to a combination of surprise, being scared and the effects of the medication. When the applicant awoke, the respondent moved his hand away from underneath the blankets and retired to his bedroom. The applicant rose and shut her bedroom door.

8. [8]
   The applicant met her son in the kitchen area the following morning at 5.00am, after the respondent had gone to work. The applicant then informed her son that the respondent had attacked her.^[2]

Injuries

9. [9]
   The applicant had a medical examination approximately four days after the rape. This revealed that she had a pale yellow bruise on the top of her abdomen which the medical practitioner opined was consistent with some sort of blunt force or leaning pressure on that area of the applicant’s abdomen. There was also an area of redness to the wall of the applicant’s vagina. The opinion was that it was a non-specific finding but because of the localised nature of that particular redness, it was indicative of some minor trauma to the applicant’s vagina.

10. [10]
    The applicant also suffered mental or nervous shock, and adverse impacts^[3] as a result of the offences.

The Law

11. [11]
    The application in this proceedings was filed on 27 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) on 1 December 2009.  The application complies, however, with the relevant transitional provisions of Victims of Crime Assistance Act 2009 (VOCAA) ss. 154 and 155.^[4]

12. [12]
    I refer to and adopt my exposition of the law in respect of compensation relating to sexual offences as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

13. [13]
    Ms Muirhead, for the applicant, seeks compensation as follows:-

3. (1)
   Item 32 – Mental or Nervous Shock (Moderate) 10%-20%

The applicant was examined by Dr Barbara McGuire, psychiatrist on 1 December 2010.  Dr McGuire diagnosed the applicant as suffering from post traumatic stress disorder (PTSD) exhibited to a “moderate degree”.  Dr  McGuire noted the applicant “has nightmares, flashbacks, intrusive thoughts of the incident, hyper-vigilance, irritability and avoidant behaviour [and] exaggerated startle reflex.”^[5]  It should be noted that the symptoms have continued despite a year of counselling.^[6]  The applicant’s counsellor, Ms Marisol Pacheco, who had 21 appointments with the applicant between 29 October 2007 and 2 February 2009, confirms the nature of the psychological effects on the applicant arising from the rape and indecent exposure offence, and offers her view (although she appears to have no formal qualifications as a psychologist or psychiatrist) that the applicant “has suffered emotional and psychological harm” as a result of the offences committed by the respondent.^[7]

Ms Muirhead submits that an award should be made at 20% of the scheme maximum (i.e. the top of the Item 32 scale or the bottom of the Item 33 scale for mental and nervous shock).  I accept the submission and accordingly I award 20% ($15,000) pursuant to Item 32.

3. (2)
   Criminal Offence Victims Regulation s.1A – Adverse Impacts

Dr McGuire’s report canvassed a range of adverse impacts including a sense of violation (COVR s. 1A(2)(a)); reduced self worth (COVR s. 1A(2)(b)); post traumatic stress disorder (COVR s. 1A(2)(c)); increased fear or feelings of insecurity (COVR s. 1A(2)(g)); the adverse effect of the reaction of others (COVR s. 1A(2)(h)); adverse impact on lawful sexual relations (COVR s. 1A(2)(i)).  Dr McGuire concluded that all of the “adverse impacts” which she identified were pre-requisites to or part of the diagnosis of post traumatic stress disorder, other than the adverse impact of the reaction of others.  In respect of the “adverse impact on lawful sexual relations” Dr McGuire noted that the applicant was not in a sexual relationship at the time of her examination by Dr McGuire nor was she in such a relationship at the time of the offence. On the face of it, it would seem that there is therefore no adverse impact which flows from the offences.

Ms Muirhead submits, however, that there are further adverse impacts pursuant to COVR s. 1A(2)(k) i.e. “anything the court considers is an adverse impact of a sexual offence” namely:-

1. Impact on personal relationships/social life – the applicant no longer goes out and socialises as she used to.^[8]

2. Need to alter appearance and dress – the applicant has altered her hair colour, hairstyle and appearance so that the respondent will not recognise her.^[9]

3. Impact on housing and expenses.  The applicant was unable to continue to share a house with both her son and the respondent, and when the respondent moved out, the applicant’s living expenses increased because the applicant no longer feels safe with anyone else (other than her son) living in the house. In addition, the applicant was unable to continue to sleep in the same bed where the offence occurred and consequently bought new bedroom furniture and a bed for a cost of $1,200.^[10]

The submission by Ms Muirhead is that the totality of the adverse impacts identified should receive an award of 15% of the scheme maximum.  I accept this submission and accordingly award 15% ($11,250) for adverse impacts.

Contribution

14. [14]
    The applicant did not contribute to her own injuries in any way, either direct or indirect.^[11]

In conclusion

15. [15]
    I order that the respondent WJP pay the applicant JCK the sum of $26,250.