SLA v SAH[2011] QDC 126

HIS HONOUR: This is an application by which the applicant seeks compensation to be determined by the Court under section 24 of the Criminal Offence Victims Act 1995 for injuries sustained by her as a result of personal offences which led to the conviction of the respondent on 2 August 2007. Upon indictment the offences committed by the respondent which are personal offences for the purposes of this application was one count of unlawful and indecent assault and two counts of rape.

The applicant was born on 23 May 1970. She was 35 years of age when these offences were committed against her and she is now 41 years of age. The respondent at the time he committed these offences was aged 32. The basic description of these offences are that while the respondent was in the applicant's home he forced her onto the bed, licked her vulval region, penetrated her vagina with his penis and also penetrated her anus with his penis.

The offences occurred on 8 March 2006. The respondent was sentenced on 2 August 2007 for these offences to terms of imprisonment. The application was filed on 16 October 2009. The Criminal Offence Victims Act 1995 was repealed as from 1 December 2009, however, section 167 of the Victims of Crime Assistance Act 2009 provides that in a case where the application has been filed before the 1st of December 2009 the Court must hear or continue to hear and decide the application under the repealed provision.

A further time limit is provided by section 40 subsection(1) of the Criminal Offence Victims Act 1995. That is a three year time limit within which the applicant is to bring the application from the end of the convicted persons trial. The trial ended on 2 August 2007 so the applicant had until 2 August 2010 within which to bring the application. Again the application having been filed on 16 October 2009 is within time.

Another procedural requirement is that where there has been no step taken in a proceeding for one year from the time the last step was taken a party who wants to proceed, must before taking any step in the proceeding, give a months notice to every other party of the party's intention to proceed, rule 389 sub-rule 1 of the Uniform Civil Procedure Rules. In this respect, service was effected upon the respondent on 11 April 2011. The applicant sought to proceed with her application on 10 June 2011. The respondent has been provided with one months notice in accordance with the rules therefore, the matter can proceed.

I'm also satisfied on the evidence before me that the respondent has been served with the application and that I can proceed to determine the compensation in this case.

As far as the evidence is concerned the applicant has sworn that the offence has had a significant impact upon her life. She lives in fear of the respondent and of a further attack. She worries about what will happen upon the respondent being released from prison. She does not feel safe knowing he is out and about and living in the community. She also swears that she has been very security conscious since the rape. She was careful before, but she is now obsessive about her safety. She keeps the doors and windows of her home locked and secured. She was also extremely distressed by the rape. She was simply unable to cope with the aftermath of the rape and it's effect upon her.

She was admitted to the psychiatric unit of the Toowoomba Hospital from 8 April 2006 until 3 May 2006. She swears this was for treatment for issues arising from the rape and it is the longest period of time she has spent in hospital for a psychiatric admission. She has since that time had repeated admissions for treatment of issues relating to the rape.

The applicant swears that before the rape she had self-harmed, however, her self-harming increased alarmingly after the rape. She took overdoses and cut herself. She inflicted a serious burn upon herself by scalding in May 2007 because she was so distressed by the reaction of her sister to the offence. That is, her sister is married to the respondent. Her sister does not accept that the offences occurred. There has been a breakdown in the relationship between the applicant and her sister. However, as a result of the scalding burn the applicant has a deep thickness burn to her right lower leg. She required a skin graft for this burn.

Returning to the worst aspect of the offending, the applicant says it has been the reaction of her family to the offence. Her sister did not believe her about the rape and supported the respondent. She tried to pressure the applicant to drop the charges against the respondent. She has since the offence refused the applicant any contact with her children. She was close to her sister's children and loved them. She is unable to have children of her own and really valued her relationship with her nieces and nephew.

Prior to the offence she relied on her sister and her family for support and companionship. They formed a large part of her social life and support network. She has been devastated by the loss of these relationships. She feels humiliated that her sister did not believe her. She has been ostracised by her from the family.

The applicant's parents are also in a difficult position in terms of the breakdown in the relationship between the applicant and her sister. They are torn between the two. The applicant states that before the offence she had a good relationship with her sister, she was very supportive of her, she would see her and her children three or four times a week. She now has no relationship with them. Her sister hates her. She misses her sister and the contact she had with her and her children.

Also, the applicant, since the rape has experienced problems with sleep. She suffers from nightmares. She also experienced flashbacks of the offence which were extremely distressing. She states over time these reactions have settled and are not as frequent. She does get nightmares and flashbacks if she has to talk about the offences or if she sees a reference in the newspaper or TV to sexual offending.

She felt such a significant loss of trust in people as a result of the rape. She felt appalled that she had trusted the respondent. She feels that as a result of the rape she is unable to trust her ability to assess people and determine risk. She feels she can trust no-one. She never feels safe and she fears a further attack. The offence has had the effect of limiting her already limited lifestyle.

She also found the prosecution of the respondent a humiliating, distressing and extremely upsetting process. She was required to give evidence at the committal proceedings and at the trial. Prior to the rape she was overweight, however, since the rape she has gained a further 20 kilograms in weight. She is now considered to be morbidly obese. The increase in weight has adversely affected her health.

The applicant has been examined by a number of doctors. Regarding physical injuries Doctor Conroy saw the applicant on 8 March 2006. Her clinical examination was that there was generalised mild abdominal tenderness, bruising and erythema to both labia minora inferiorly. There was a two centimetre tear posteriorly at the introitis with surrounding bruising and marked swelling. The hymen was not in tact and blood was present in the lower and upper vagina. There was also a three millimetre tear anterior to the anus which was tender and erythematous,. There was also bruising and erythema to the perineum.

Regarding her psychiatric injuries, the psychiatrist who has provided two reports, Dr Boros, B‑O‑R‑O‑S Lavack, L‑A‑V‑A‑C‑K states that, "The applicant has suffered an aggravation of a pre-existing depressive disorder, dissociative identity disorder and borderline personality disorder due to chronic post-traumatic stress disorder caused directly by the rape on 8 March 2006". She considers the level of severity to be severe. She states, "All of the above disorders have had a chronic waning and waxing course and they will be likely to continue indefinitely".

It is clear from the medical evidence that the applicant suffered from symptoms from these conditions prior to the offences being committed by the respondent. Dr Boros Lavack states that, "These symptoms are due to early severe and repeated physical and/or sexual trauma". She states when the applicant is stressed she dissociates with feelings that she is changing due to recurrent shifts in her consciousness which she cannot explain. Further, she may feel troubled by parts of her body or self she experiences as alien or by aspects of her personality as "alter" and may resort to deliberate self-harm to bring herself back to reality.

In Dr Boros Lavack's report, she refers to the history of child sexual abuse by an Uncle from the age of four/five, possible younger until the age of 15 when she left home. The applicant states that her siblings were also abused which her sister denies and her brother does not talk about. Her parents were unaware of the abuse until she disclosed it at 18.

As a child the applicant would wet the bed, hid and was selectively mute during the first three years of school. She could not learn properly, left school prematurely and worked in a number of unskilled jobs until 1999 when she had a bad mental breakdown, after which she had not been able to work. She had a brief relationship with an abusive boyfriend at 18 and has remained partnerless since.

She was diagnosed with dissociative identity disorder and depression at the age of 20 and had multiple overdoses, deliberate self-harm behaviours and at least 20 admissions to psychiatric hospital as a result.

Regarding the impact of the offences committed by the respondent, Dr Boros-Lavack states that following the rape experience by the applicant on 8 March 2006, her condition became much worse. She became housebound and had several hospital admissions about what he had done to her. This worsening was caused directly by the rape trauma, due to post-traumatic stress disorder with re-experiencing and dissociations, and indirectly due to its short and long term sequelae.

For example, in May 2007 her younger sister disowned the applicant because she had laid charges against her husband (the respondent), and did not let the applicant see her children, whom the applicant used to baby-sit for and had a very close relationship with. In response to the stress and negative effect, the applicant severely dissociated, then cut and scalded her right leg with boiling water. This was her most severe deliberate self-harm attempt to that time.

As far as treatment provided, Dr Boros-Lavack states that with intensive psychiatric treatment the applicant has done a lot of healing. Her treatment includes crisis intervention and brief psychiatric hospital admissions for acute exacerbations and long term psychiatric treatment with pharmacotherapy, talking therapy, and other psychosocial treatments to help her cope with her disability.

The doctor also states, the fact that the applicant was effective in seeking legal redress and her rapist is still in prison, have been major contributing factors in her recovery and present psychological wellness. The doctor states despite the best evidence based treatment outlined above, the applicant is still regressing into recurrent dissociation with attempting to think or talk about her rape. This has happened every time she has seen the doctor.

The doctor states given her underlying fear of abuse, psychiatric treatment has to proceed slowly at a pace controlled by the applicant until she is able to address and reintegrate dissociated cognitive, emotional, behavioural and somatic aspects of her rape.

I am satisfied the applicant has suffered mental or nervous shock, as defined in the repealed Act.

I bear in mind the approach referred to in SAY v AZ [2007] 2 Queensland Reports 363 at page 370, where the Courts said, "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 their contribution, although, the evidence may not lend itself to any precision."

"Often a broad brush approach of the kind adopted by Thomas, Justice of Appeal in Sanderson v Kajewski will be necessary. The exercise may be one of discounting or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment."

In the present matter, if it were not for the pre-existing factors, the applicant's compensation would be assessed in the severe category of mental or nervous shock, item 33 at 34 per cent. However, because of the pre-existing factors, I come to the view that what the applicant should be allowed on this application for the impact of the offences committed by the respondent, is 20 per cent, which is a sum of $15,000.

I also allow the applicant, for bruising/lacerations, minor/moderate under item 1 of the schedule, 3 per cent, which is a sum of $2,250.

However, that is not the end of the determination of compensation in this matter. I am satisfied there have been adverse impacts of a sexual offence as provided for under regulation (1)A of the repealed Act. In my opinion, these have been significant. Dr Boros-Lavack refers to a great number of them.

The most significant, I consider in this context are the sense of violation and shame and the reduced self worth and the increased fear and feelings of insecurity which are likely to worsen when the respondent is released from prison and also the adverse impact of the reaction of her sister and her sister's friends.

That is, the loss of that relationship and the relationship with the three young children who are her nieces and nephew, is significant in this case, in light of the applicant's history, since she was four/five and the effect that the sexual abuse had upon her from that age.

Other adverse impacts, of course, are the self-harming attempts and the loss of trust and the retraumatising in this case. Therefore, for adverse impacts, I allow the applicant 20 per cent of the scheme maximum which is a sum of $15,000. Making a total, therefore, under all three items that I have allowed, $32,250.

Therefore, there'll be an order as per the draft, initialled by me and left with the papers.