LWC v FML[2011] QDC 230

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, FML pleaded guilty in the District Court, Beenleigh on 24 August 2009 to one count of deprivation of liberty and nine counts of rape in respect of the applicant LWC. On 19 November 2009, the respondent was sentenced to an effective head sentence of seven and a half years with a declaration of 470 days spent in pre-sentence custody as time served, and a parole eligibility date fixed at 9 April 2011 (i.e. two and a half years).

Facts

2. [2]
   The applicant was at the time of the offending (22 May 2007) married to the respondent and living with him at Regents Park, Queensland.  On that day, the applicant had been out and arrived home at about 5.00pm, noticing the respondent had been drinking alcohol which was unusual.

3. [3]
   Subsequently the applicant went to her bed after falling asleep in the children’s bedroom. The respondent came into the room and tied the applicant’s hands and feet to separate corners of the bed and placed a sock in her mouth. The respondent then sexually offended against the applicant with acts including forced digital penetration of the vagina and anus; forced fellatio, forced sodomy, and the insertion of a wooden toilet roll holder covered with glad wrap and lubricant into the applicant’s vagina and anus. The offences occurred over a period of one to two hours and the respondent took photographs with a digital camera. The applicant was repeatedly questioned about alleged sexually infidelity by the respondent, who also threatened to kill the applicant. The respondent then went to the kitchen and returned with a video camera and went into an ensuite bathroom. The applicant, believing the respondent was about to kill her and film it, managed to get free of the rope and ran naked to the next door neighbour where she was allowed in and phoned the police. The respondent came into the neighbour’s yard, angry and yelling. The respondent then drove off at about 11.00pm with his three children and attended a friends place, stating that he had “done something stupid”.

4. [4]
   The respondent claimed to have no recollection of the events, told police that he had consumed pills and alcohol but accepted that if the applicant claimed the events had occurred, then they must have occurred. A medical examination of the applicant confirmed injuries consistent with what she said had happened and police were able to recover images (consistent with the applicant’s version of events) which had been deleted from a digital camera used by the respondent.^[1]

Injuries

5. [5]
   The physical injuries suffered by the applicant as a result of the offences including bruising and swelling to the mouth, neck, throat, arms, face (bruising to upper lip), anterior thorax, posterior thorax and anterior abdomen, as well as bruising and marking to the genital area including the labia majora and labia minora, to the introitus and anus.^[2]

6. [6]
   Unsurprisingly, the applicant suffered mental or nervous shock, and adverse impacts, as a result of the offences.

The Law

7. [7]
   The application in these proceedings was filed on 27 January 2010 subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  The application is compliant with the relevant transitional provisions of VOCAA ss 154 and 155 and has been brought in compliance with the relevant time frame pursuant to COVA s 40(1).

8. [8]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147.

Compensation

9. [9]
   Ms Muirhead, for the applicant, seeks compensation as follows:-

(1)Item 2 – Bruising/laceration etc (severe) – 3%-5%

10. [10]
    It is submitted that the physical injuries suffered by the applicant should receive an award at the upper end of the item 2 range. Given the injuries suffered during this appalling and protracted sexual assault (as outlined above in paragraph 5), I have no hesitation in accepting the submission that an appropriate award pursuant to item 2 is 5% of the scheme maximum. Accordingly, I award 5% ($3,750) pursuant to item 2.

(2)Item 33 – Mental or nervous shock (severe) – 20%-34%

11. [11]
    The applicant attended on Dr Stephane Auchincloss, psychiatrist, on 26 October 2010. Dr Auchincloss provided a report dated 28 October 2010^[3] as well as an addendum report dated 15 November 2010^[4].

12. [12]
    Dr Auchincloss diagnosed the applicant as suffering from post traumatic stress disorder (PTSD) to a moderate degree of severity with the likelihood that the disorder will persist, although the applicant’s symptoms are improving. Dr Auchincloss noted the applicant’s “considerable resilience and personality strengths which will assist her recovery”.^[5]

13. [13]
    In my view, balancing the diagnosis of PTSD and its moderate severity against the ongoing and persistent nature of the condition (now in excess of four years), it is appropriate to make an award towards the upper end of the item 33 range (mental or nervous shock (severe)). I consider that an award which adequately recognises the serious consequences of this appalling offending by the respondent is an award of 30% of Scheme maximum ($22,500).

(3)Criminal Offences Victims Regulation s. 1A – Adverse impacts

14. [14]
    The applicant is entitled to compensation for the adverse impacts of the sexual offences committed against her. Dr Auchincloss identified what he described as “adverse effects” in his report of 28 October 2010 as “in addition to PTSD include a sense of violation, reduce self worth, a reduced sense of physical immunity, and increased feelings of insecurity.”^[6]  Ms Muirhead accepts that these “adverse impacts”, are in fact indicia of the PTSD diagnosis and cannot be claimed as “adverse impacts”, as they have been taken into account as part of the assessment of the diagnosable psychiatric disorder.^[7]

15. [15]
    Ms Muirhead does however identify a range of other adverse impacts which, in her submission, are compensable. These adverse impacts include:

1. COVR s. 1A(2)(h) – Adverse effect of the reaction of others

16. [16]
    Ms Muirhead identifies as adverse impacts, the humiliation felt by the applicant as a result of the police tape around the house and the inquiries from parents of her children’s school friends, as well as concerns about the intrusion by neighbours, work colleagues and others.^[8]  In addition, the applicant continues to feel paranoid about the respondent’s family who live in Hobart (the applicant returned to Tasmania subsequent to the offending against her by the respondent).  The respondent’s family supported the applicant and did not want contact with the applicant or her children.^[9]

2. COVR s. 1A(2)(k) – Impact on working life

17. [17]
    The applicant found it very difficult to cope after the offences occurred. She was then working full time and caring for the children and trying to cope. The applicant moved to Tasmania subsequent to the offending, could not manage working full time and was forced to reduce her work to three days per week, before reducing her hours so that she only worked five hours per day over five days a week.^[10]  The applicant moved to Tasmania from Queensland because she had family support in Tasmania and no longer felt comfortable living in the house where the offences had occurred.^[11]

3. COVR s. 1A(2)(k) – Impact on social contact

18. [18]
    The applicant was very lonely on moving back to Tasmania and felt very isolated subsequent to the offending.  She has slowly returned to more social contact.^[12] 

4. COVR s. 1A(2)(k) – Impact on applicant’s children

19. [19]
    The respondent was a full time carer for the children at the time of the offences but after the respondent committed the offences and went to prison, the applicant was required not only to work full time but also to take full care for the children who, in her words, have been “terribly affected by the offence and its aftermath” and have exhibited a range of severe behavioural issues since the offending. The applicant has required significant support and assistance to deal with the behavioural issues of two of her children.^[13]

20. [20]
    It is submitted that, in totality, these adverse impacts, all of which flow directly and inexorably from the sexual offences committed against the applicant by the respondent, should receive an award of 50% of the scheme maximum. In my view, such an award is entirely appropriate and I award 50% of the scheme maximum ($37,500) pursuant to COVR s 1A.

Pre-existing Vulnerabilities

21. [21]
    Dr Auchincloss in his report outlines a range of pre-existing vulnerabilities suffered by the applicant, who grew up in a household with a father who had severe flashbacks as a result of his Vietnam War induced PTSD. In addition the applicant’s parents separated when she was aged 16.

22. [22]
    Although these various matters may have contributed to a level of pre-existing vulnerability for the applicant, I do not consider that there should be any reduction of the award, given the nature of the offences and the effect of those offences on the applicant. This view is bolstered by the opinion of by Dr Auchincloss, who, in a supplementary report, stated “it is impossible to separate the effects of the offences for which the offender was convicted from [the applicants] other life experiences. However in this case, I believe that the percentage amount for the influence of the other factors on the client’s condition, are minimal (i.e. less than 1%).”^[14]

Contribution

23. [23]
    I do not consider that the applicant has contributed to her own injuries in any way, either direct or indirect.^[15]

Order

24. [24]
    I order that the respondent FML pay the applicant LWC the sum of $63,750.