JHC v LJC[2011] QDC 26

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 psychological injuries caused by the attack of the respondent on 2 March 2007.

The Act was repealed by section is 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.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 24 December 2009. 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 each of assault occasioning bodily harm and assault with intent to commit rape. He was sentenced to three years' imprisonment for the assault occasioning bodily harm and 10 years' imprisonment for the assault with intent to commit rape.

The application and the supporting affidavits with the exception of the affidavits of the applicant and Dr McGuire sworn on 8 January 2011 and 21 December 2010 respectively were served on the respondent on 30 April 2010. On that date they were served by delivering them to the person in charge of the prison in which the respondent is imprisoned.

Rule 105(1) of the Uniform Civil Procedure Rules 1999 (the UCPR) requires that a person serving an originating process must do so personally on the person intended to be served.

Rule 110(c) then provides that 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.

The documents were delivered to the visits processing officer in accordance with the procedure for the service of documents at Wolston Correctional Centre where the respondent is incarcerated.

I am satisfied that the visits processing officer is authorised by the general manager of the centre to accept service on inmates confined at the centre. Therefore, section 110(c) has been complied with.

I note that the visits processing officer also advised that she was authorised to accept these documents on behalf of the respondent.

For completeness, I mention that on the same day the documents were delivered to an officer of the Public Trustee who was managing the respondent's estate. This was in purported reliance on rule 110(a) of the UCPR to establish personal service. However, this provision is limited to proceedings "of a property nature or for the recovery of a debt or damage".

An issue arises as to whether the present application is of this nature. However, it is not necessary to decide this because I am satisfied that the respondent has been served personally in accordance with rule 110(c) of the UCPR.

On 24 January 2011, the respondent's solicitors sent a letter addressed to the respondent at the centre advising him that the hearing of this application had been adjourned until 4 February 2011 and enclosing by way of service the affidavits of the respondent and Dr McGuire which had not previously been served.

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. He did not appear when the matter was called on for hearing at 9 a.m. on 4 February 2011. Inquiries established that he was not present in the Court cells. I therefore proceeded in his absence.

In doing so, I was conscious that the respondent was not advised of the precise time of the hearing on that date. However, having regard to the fact that he has advised in applications by four other victims who were attacked as part of the same course of offending by the respondent that he did not wish to take part in the proceedings, I was satisfied that this failure to appear on 4 February 2011 was consistent with his taking a similar attitude to the present application.

The other applications were KMS v. LJC [2010] QDC 284; SMR v. LJC [2010] QDC 285; SAN v. LJC [2010] QDC 349, and WHG v. LJC [2010] QDC 395.

In the fifth previous application arising out of the respondent's 27 month course of conduct, he also did not appear.  This was STH v. LJC [2010] QDC 303.

I note that no contact has been made with the Court by or on behalf of the respondent concerning this application.

CIRCUMSTANCES OF THE OFFENCES

As I said in my sentencing remarks the respondent pulled the applicant to the ground as she was jogging on a narrow section of the walking circuit in the Brisbane Forest Park at 4.45 p.m. on 2 March 2007. This was part of her regular exercise routine which she engaged in around five days a week. She had seen him about 15 minutes before the attack as he approached her on the walking circuit from the opposite direction. She said a friendly "Good day" to him. He grabbed her hand as he walked past her on the second occasion. He pulled her to the ground. She landed on the gravel. He placed himself on top of her with his knees on her chest pinning her to the ground with the weight of his body. He then put his hand over her mouth and nose, making it impossible for her to breathe. She fought back struggling violently against him with the result that he removed his hand. This enabled her to start screaming. He threatened to kill her if she didn't stop. He then punched her three times to the right side of the head. During the struggle, an earring was ripped from her ear. She feared for her life.

In the course of the struggle, he put his hand down her underpants and touched her on the outside of the vagina. She managed to bend one of his fingers which caused him to removed his hand and to try and restrain her arms. Then he suddenly got up and ran in the direction he had come from.

The applicant was able to attract the attention of a passing cyclist. As a consequence the police and ambulance were called and she was taken to hospital for an examination and x-rays. This included an examination at the sexual assault clinic.

INJURIES AND MEDICAL REPORTS

The agreed schedule of offences which was tendered by the prosecution at the sentence described the applicant's physical injuries as multiple bruises, abrasions and scratches to the face, head, scalp, neck, chest, knees and right buttock.

There was extensive bruising to her right eye and right side of her face, chin, neck and ear, as well as to the left cheek and chin area.

I made reference to these injuries in my sentencing remarks. They are documented in the photos which were tendered at sentence and which form part of the evidence before me on this application.

The summary of her injuries was based on the report by Dr Thomas who examined her at 1.10 a.m. on 3 March 2007. The more detailed account of her injuries which he gives commences with swelling, tenderness and blue/pink discolouration of bruising over the right ear and on the side of the face in front of the ear. The affected area measured about 7 centimetres from front to back and 8 centimetres up and down.

The ear had a typical cauliflower appearance because of its swollen irregular surface and discolouration. There were pinpoint bruises and abrasions inside the ear. There were purple linear bruises around the outer margins of her upper and lower lips. There were small patches of bruises over her upper right eyelid and another bruise medial to the eye. Lateral to the left eye, there was a 2 centimetre long scratch. There was tenderness with small bruises over the bridge of her nose. Tenderness was found to the left cheek bone. There was a raised 4 by 5 centimetre tender area on the left side of the head in the temporoparietal occipital region.

There was also tenderness over the occipital area to the right side of the head which extended to the back of the upper part of the neck. On the left side of her neck just below the mandible was a red bruise 2 centimetres by 3 centimetres. Tenderness was found in the region of the eighth rib on the right side. Multiple superficial abrasions and welts were observed over both shoulder blades extending to the lower chest on the right side. A cluster of parallel, linear, grooved abrasions were noted on the lower outer quadrant of the buttock extending to the upper thigh. These covered an area of 8 by 5 centimetres. A 4.5 by 3.5 centimetre area of abrasion and bruising was noted over the right kneecap. The left knee had scattered, small abrasions and there was a 2 centimetre long scratch above the left knee.

In her statement made one month after the attack, the applicant refers to applying ice to her head and taking Panadol to relieve her severe headache, sore neck and her sore and tender right ribs. At the time of her statement she was still taking Panadol every couple of hours due to headaches and pain she was feeling in her neck and ribs.

Dr McGuire, the psychiatrist who assessed her for the purpose of this application, reports that the applicant suffered headache for a period of some months and she took two weeks off work until her face healed.

In sentencing the respondent, I said that his victims, because as I have indicated, there were other victims of his offending which occurred over the 27 month period, were violated and degraded with many suffering more devastating psychological consequences than their immediate physical injuries as demonstrated in their victim impact statements.

The applicant is the sixth of these victims whose application for compensation for injuries as a result of the respondent's attacks I have considered.

In her undated victim impact statement which was tendered at sentence, the applicant commences by saying that "recalling the events of that afternoon is traumatic." She said that despite two years passing since the attack, "It is something that is on my mind on a daily basis. I know I will never feel safe again."

She also wrote:

"At the time I used to go running through the Brisbane State Forest at least once a day enjoying my time alone. Now I am even frightened to be alone in my own home. When I am at work and a man walks in with sunglasses and a hat on, I get a sick feeling in my stomach. The attack has forced changes to my lifestyle with consequential impact on relationships, health and well-being. Because of lack of exercise I have put on 10 kilos. This is quite distressing for me."

She emphasised that she was in fear of her life.

In conclusion she said:

"I feel that the memory of the attack on me is something that will stay with me for the rest of my life."

This remained the case when she swore her affidavit for the purposes of this application about eight months later on 22 April 2010.

In this affidavit she deposed:

"The assault has had a huge impact on my life. I used to run regularly by myself. Now I cannot and my fitness is non-existent. If I go for a walk I have always have to have someone with me. I will never feel safe again. I'm frightened even to be alone in my own home."

She was interviewed by Dr McGuire approximately seven months later on 29 November 2010. Dr McGuire's report demonstrates that her psychological condition remains unchanged about three and three-quarter years after the attack. The applicant told Dr McGuire that she doesn't like talking about the incident and was tearful on occasions when recounting it. She has not had any counselling and does not want to undertake it.

Consistent with the applicant's victim impact statement and affidavit, she told Dr McGuire that running, which she had stopped doing since the incident, was an important part of her life which had meant a lot to her. She is distressed that she has put on weight because she is not running.

While she can go out alone, she is anxious if she is in an empty train station and there is a man there. She has a great deal of trouble passing a man on a path. She feels her stomach turn and she becomes agitated. She prefers company whenever she is out.

She sits at home but is very security-conscious and hears footsteps in the house constantly. She is hypervigilant. Her sleep has been affected. She has nightmares and wakes frequently. She relives the event and experiences flashbacks almost daily when she is reminded of the incident by interviews with people like Dr McGuire. She feels her life has been foreshortened. She was more irritable than usual.

Although she has remained with her current partner for fouryears and her sexual life has not been affected, she is veryangry with men and lacks trust in them. In general she hasless enjoyment of the life.

Her work has been affected. She works in a service station and at times when she is on her own, she is very security-minded and anxious. She has an exaggerated startle reflex, is constantly on edge and states that her self-esteem is lower compared to her previous high degree of self-confidence.

In her affidavit of 8 January 2011, the applicant swears that Dr McGuire has accurately recorded those matters discussed with her and confirms that the factual matters outlined in Dr McGuire's report are correct.

Dr McGuire, a psychiatrist with 38 years' experience, is of the opinion that the applicant exhibits a post-traumatic stress disorder as exemplified by her experiencing nightmares, flashbacks, disturbed sleep, recurrent intrusive thoughts of the incident, irritability, hypervigilance and exaggerated startle reflex.

She considers that the applicant suffers this condition to a moderate degree because she is able to continue her work although it is more difficult than it had been prior to the incident.

Dr McGuire considered that there were no significant contributing factors to this condition. I interpret this in the context of the report to mean that there are no significant contributing factors other than the attack on her by the respondent.

The report also addresses the issue of whether the applicant has suffered any adverse impacts of the sexual offence of assault with intent to commit rape.

For the purpose of section 1A(1 )of the Criminal Offence Victims Regulation 1995 (the regulation), Dr McGuire addresses the adverse impacts in paragraph (a)(to)(i) of section 1A(2) of the regulation.

In her opinion, these are either a prerequisite for a diagnosis of post-traumatic stress disorder or are not applicable in this case. Therefore, she has not identified any adverse impact which is not included in the diagnosis of post-traumatic stress disorder.

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 section1A 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: JI v AV [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 [2004] 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

Miss Chekirova who appeared for the applicant submits that she suffered the following injuries and should be compensated on the following basis:

• item 2 - bruising/laceration etc (severe) - 4% - $3,000.

• Item 32 - mental or nervous shock (moderate) - 15% - $11,250.

• regulation 1A - adverse impact of a sexual offence - 10% - $7,500.

Therefore an award is sought of 29% 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 the evidence to which I have referred, and this is as a result of the indictable offences of assault occasioning bodily harm and assault with intent to commit rape committed against her by the respondent on 2 March 2007.

ITEM 2 - BRUISING/LACERATION ETC (SEVERE) - 3%-5%

Ms Chekirova's submission that compensation for the applicant's physical injuries should be awarded at the mid-point for this type of injury in item 2 is based on their multiplicity and the number of different areas of the applicant's body that they affected.

In Ward at 438-439[9] the Court stated: "To qualify for the 5 per cent which is the top of the 'severe', 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 2 per cent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the elbow. They could find nothing in the evidence that this swelling was long-lasting or causative of significant pain. There were no lacerations.

While comparison 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 3 per cent of the scheme maximum of the injuries suffered by the applicant in KMS v. LJC [2010] QDC 284 which as I have indicated arose out of the same 27 month course of offending by the respondent.

This is the highest assessment I have made under item 1 or item 2 of the compensation table concerning injuries caused by the respondent's offending.

In that case, the scratches, abrasions and weals were also 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 to the applicant lasted for "some time and required the applicant to take pain-killers to assist in the management of the pain."

However, Dr Thomas who also examined KMS described most of her injuries as superficial and the lacerations which involved some bleeding were scratches rather than wounds.

In the case of the present applicant the injury to her right ear and the right-hand side of her face cannot be described as superficial as the photographs demonstrate.

In addition, there was tenderness to the region of her eighth rib on the right side and tenderness and bruising to her head and neck. One month after the assaults she was still taking Panadol every couple of hours, not only for headaches but also for pain she was feeling in her neck and ribs.

In KMS v. LJC, I also assessed a further 2 per cent of the scheme maximum to compensate the applicant in relation to mild to moderate tenderness to the same rib which was described as being moderately painful. This continued to cause discomfort for a further five weeks with the result that analgesia was prescribed. I made this award under item 21 for a minor chest injury for which the range is 2 per cent to 7 per cent of the scheme maximum.

In the present case, the application being made on the basis of item 2, I consider it is appropriate to assess the tenderness to her rib, and the tenderness to her neck with the associated pain in conjunction with the bruising, scratches and abrasions. In order to avoid duplication I make the necessary adjustments to cater for the differences between the ranges of items 2 and 21.

In these circumstances, I assess an award at 4 per cent of the scheme maximum for item 2 as compensation for the applicant's physical injuries, that is, $3,000.

ITEM 32 - MENTAL OR NERVOUS SHOCK (MODERATE) - 10%-20%.

It is submitted that item 32 of the schedule is appropriate for the applicant in this case and that compensation for her psychological injuries should be awarded at 15 per cent of the scheme maximum. This is at the mid-point of the moderate range for mental or nervous shock. Reliance is placed on Dr McGuire's opinion that the applicant is suffering from a post-traumatic stress disorder of a moderate degree as a result of the offence.

In oral submissions, particular emphasis was placed on Dr McGuire's statement that the applicant has not had any counselling and does not want to undertake it. This is obviously because, as emerged from Dr McGuire's report, the applicant has an aversion to talking about the incident. As the psychiatric observes:

"She relives the event and experiences flashbacks almost daily especially when she is reminded of the incident by interviews with people like me."

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.

In WHG v. LJC [2010] QDC 395, I applied the decision of Thomas JA in preference to that of Byrne SJA and therefore proceeded on the basis that mental or nervous shock within the Act is not confined to a recognisable psychiatric illness. However, a determination of this issue is not necessary in the present case because I find that a post-traumatic stress disorder is a recognisable psychiatric illness or disorder. As such, it constitutes mental or nervous shock and is compensable under the Act.

In AT v. FG [2004] QCA 293, Jerrard JA 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 the material cause of that disorder and therefore is a proper subject for compensation.

Dr McGuire says that there are no contributing factors. In coming to this conclusion, she has perused the applicant's victim impact statement. This statement makes reference to the applicant becoming more depressed and isolated as a result of injuries received in a pushbike accident subject to the respondent's attack. Therefore, I proceed on the basis that Dr McGuire did not consider the consequences of this accident to be a contributing factor to the applicant's post-traumatic stress disorder.

In making this assessment, it is again relevant to have regard to the assessments made for mental or nervous shock in compensating other victims who are attacked as part of the same course of conduct by the respondent.

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 environments, being highly suspicious and fearful of men, particularly those wearing similar clothes to the respondent when he attacked, and struggled to do things away from home.

The similarities with the nature of the disorder suffered by the applicant are readily apparent. KMS had lost interest in sex. This is not the case with the present applicant. However, as Dr McGuire says, she experienced diminished enthusiasm about sex but is not adverse to it. However, unlike the present applicant, the severity of the original injury suffered by KMS had moderated in the three and a quarter years since the attack.

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 is ongoing and requires the assistance of a clinical psychologist.

She continued to be anxious, insecure and fearful of attack as well as suffering social phobias. By comparison, the present applicant's condition has continued for about three and three-quarter years as at the time of her interview with Dr McGuire. In my view it is likely to affect her at the same level for the indefinite future.

I assessed compensation at 16 per cent of the scheme maximum in SAN v. LJC [2010] QDC 349. In that case Dr McGuire's opinion was that SAN had a post-traumatic stress disorder of a moderate degree. This was based on an interview about three and a half years after the attack.

SAN said that her life and lifestyle had been permanently affected as a result of the attack. She summed this up almost four years after the incident as follows:

- She was constantly thinking about her safety.

-  she no longer exercised in public.

-  she was hypervigilant whenever she was in public places.

-  she had lost her sense of security.

-  she had trouble trusting people particularly men.

-  she had not had a stable personal relationship with a man since the incident.

-  she became very emotional when the event came into conversation, when she heard of a similar event in the media or when she saw sexual violence in films or on television. This had been exacerbated by the media interest in her case.  She got upset at constant reminders of the incident. She had been unable to see a counsellor because she found 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 was prepared for the proceedings.

-  she had trouble sleeping and recurring nightmares of being suffocated by the attacker or dreaming that he was in her bedroom.  She slept with the bedroom light on for peace of mind.

-  she developed some obsessive tendencies such as turning lights on and checking that doors and windows were locked.

-  she thought that she had seen her attacker on several occasions and on one of those occasions, she phoned the police to investigate.

-  she often felt depressed as a result of the offence.

Dr McGuire observed that SAN had:

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

Dr McGuire also said that SAN required counselling but was not ready for treatment as she had an aversion to talking about the incident.

Although the present applicant did not suffer as serious an adverse effect on her lawful sexual relations as was the case with SAN, like SAN, her post-traumatic stress disorder persists a substantial time after the incident such that she remains unable to undertake counselling because she finds it emotionally distressing to talk about the attack.

In these circumstances, as in the case of SAN, I consider that the post-traumatic stress disorder is likely to continue to affect the applicant at the same level for the indefinite future and that it will do so to a moderate degree. I accept that the respondent's attack is on her mind daily and she will never feel safe again. I consider she has suffered more severe consequences than KMS and STH, and that these consequences are more closely comparable to those experienced by SAN.

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.

Having regard to the less adverse effect on the applicant's lawful sexual relations to that experienced by SAN, I assess compensation for this degree of mental or nervous shock at 15 per cent of the scheme maximum, namely $11,250.

REGULATION 1A - ADVERSE IMPACT OF SEXUAL OFFENCES - 1%-100%.

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 described as an injury, and "adverse impact" of a sexual offence is then defined by section 1A(2). "Sexual offence" 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 of assault with intent to commit rape 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 [2004] QCA 295 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 a diagnosis; those matters may then be capable of being adverse impacts."

Dr McGuire has done this in the present case. As I have observed, she has not identified any impact which is not included in the diagnosis of post-traumatic stress disorder. However, Dr McGuire did not refer to section 1A(2)(k) which allows an award to be made for anything the Court considers is an adverse impact of the offence. It is submitted that an adverse impact which is not included in Dr McGuire's diagnosis is the effect on the applicant's health which has resulted from her increased weight.

Reference is made to the applicant's 22 April 2010 affidavit in which she deposes that:

"The assault has had a huge impact on my life.  I used to run regularly and my fitness is non-existent."

In her victim impact statement made about eight months before, the applicant stated:

"Because of the lack of exercise, I have put on 10 kilos. This is quite distressing for me."

Dr McGuire observes that at the time of her interview about three and three quarter years after the attack, the applicant had not returned to running. In her report, when referring to the adverse impact identified by section 1A(2)(b) which is, "Reduced self-worth or perception.", Dr McGuire includes the decline of the applicant's fitness and says that this is obviously part of a diagnosis of post-traumatic stress disorder. However, I agree with Ms Chekirova that the issue of the applicant's physical health, although a consequence of the lack of fitness contributing to her reduced self-worth is an impact which is additional to the applicant's post-traumatic stress disorder. The affect on the applicant's physical health is an impact of the assault which is in addition to her psychological condition.

I consider that an increase in weight of as much as 10 kilos to the applicant who is now 56 years of age and whose fitness is now non-existent is a serious impact upon her as it is likely to have an effect on her health and therefore to have a profound effect on the quality of her life for the future. Under section 2A, 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 consequences of the applicant's lack of fitness and the likelihood of an impact on her health for the indefinite future, I assess that this in itself warrants an assessment at 10 per cent of the scheme maximum. This is $7,500.

SECTION 25(7) OF THE ACT - CONTRIBUTION

Finally, I conclude that nothing in the applicant's actions on 2 March 2007 contributed to either her bodily injury, mental or nervous shock or prescribed injury 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. She had no previous dealings with the respondent who obviously went to this place with the intention of attacking a woman.

The applicant did not do anything which could be considered any kind of provocation, nor can the circumstances surrounding this 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. In addition, as I have said, Dr McGuire identified no other contributing factors to the applicant's post-traumatic stress disorder which would require any such reduction.

CONCLUSIONS AND ORDERS

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

Item 1 - bruising/laceration etc (minor/moderate) - 4 per cent - $3,000.

Item 32 - mental or nervous shock (moderate) - 15 per cent - $11,250.

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

Therefore the total assessment is 29 per cent of the scheme maximum.  That is $21,750.

I order the respondent to pay the applicant the sum of $21,750 by way of compensation pursuant to section 24 of the Act for the injuries sustained as a result of the offences of assault occasioning bodily harm and assault with intent to commit rape which led to his conviction in the District Court at Brisbane on 27 August 2009.