LMF v SWA[2011] QDC 97

DISTRICT COURT OF QUEENSLAND

HIS HONOUR: 

1. [1]
   Introduction.  The respondent, SWA (who appears personally before me today on this application) pleaded guilty (relevantly) at the Beenleigh District Court on 5 August 2008 to one count of sexual assault of the applicant, LMF.

1. [2]
   The respondent was sentenced to two and a-half years imprisonment, wholly suspended with an operational period of four years.  I note that in his appearance before me, the respondent advised that he has complied strictly with the terms of the orders that are made (including an associated probation order) and that he is clear that the order resulted in his life turning around for the better.  I thank the respondent for making this clear during the course of submissions.

1. [3]
   Facts.  The applicant and the respondent have been friends since they were teenagers and the respondent was also a friend of the applicant's husband.  I note that the respondent and the applicant's husband remain friends to this day.

1. [4]
   On 4 February 2008, the applicant, her husband and family, and the respondent, were all at the Albion Park Harness Racing Club.  After significant badgering, the applicant agreed to drive the respondent home.  During that drive the respondent made familiar approaches (i.e. his hand on her thigh) which were rebuffed.

1. [5]
   After stopping and consuming alcohol at a local hotel, the applicant took the respondent home to her place where the respondent often stayed over.  The applicant's husband was already at home asleep in a bedroom.  The applicant fell asleep in front of the TV in the lounge room and was awoken by the respondent's hand on her vagina.  The applicant told him to "Piss off" (Exhibit SKB-2 (sentencing submissions) pp 1-6 - 1-8, affidavit of Shannon Breen sworn 25 January 2010).

1. [6]
   Injuries:  The applicant has suffered mental or nervous shock, and adverse impacts (Criminal Offence Victims Regulation s. 1A (COVR)).

1. [7]
   The law:  This application was filed on 27 January 2010 and complies with the transitional provisions of Victims of Crime Assistance Act (VOCAA) ss. 154 and 155, which permit the application to proceed pursuant to the Criminal Offence Victims Act 1995, repealed 1 December 2009 (see Kennedy v. Faafeu [2010] QDC 21).

1. [8]
   I refer to and adopt my exposition of the relevant law in respect of this application as set out in JMR obo SRR v. Hornsby [2009] QDC 147.

1. [9]
   The applicant has given the relevant one month's notice pursuant to Uniform Civil Procedure Rules R. 389(1), given the failure to take a step within one year from the last step. In addition, I note that the respondent has appeared personally on this application.

1. [10]
   Compensation:  Ms Fadden who appears on behalf of the applicant seeks compensation as follows:-

1. (1)
   Item 33 - mental or nervous shock (severe) - 20%-34%

1. [11]
   The applicant was diagnosed by Dr Barbara McGuire, psychiatrist, as suffering from post-traumatic stress disorder (PTSD) to a severe degree.  Dr McGuire notes, however, that this has occurred in the context of a pre-existing generalised anxiety disorder.  The applicant's mother died when she was 13 and her father subsequently sexually abused her, including actual intercourse (Exhibit A pp 3-4, affidavit of Barbara McGuire sworn 17 January 2011).

1. [12]
   In addition, the respondent in appearing provided material contained in Exhibits 2 and 3 which also provide weight to the disclosure by the applicant to Dr Barbara McGuire that there were pre-existing issues, it appears both of mental health and physical health.

1. [13]
   This does raise clear issues of causation.  Dr McGuire acknowledges the pre-existing psychiatric issues in her report, but considers that the respondent's offence "made a substantial and material contribution [to the applicant's] symptoms" (Exhibit A p 4, affidavit of Barbara McGuire sworn 17 January 2011).

1. [14]
   Applying the broad-brush approach approved in SAY v. AZ, ex parte Attorney-General [2006] QCA 462 per Holmes J at paragraphs 22-23, I consider that a nominal assessment under item 33 of 30 per cent of the scheme maximum for the applicant's severe PTSD, should be reduced to 25 per cent to take account of the competing causal factors.  Accordingly, I award 25 per cent ($18,750) pursuant to item 33.

2. (2)
   Adverse impacts - COVR s. 1A.

1. [15]
   Dr McGuire identifies a range of adverse impacts (COVR s. 1A(2)), suffered by the applicant, but accepts that all of those impacts, with the exception of "the adverse effect of the reaction of others" (COVR s. 1A(2)(h)) are an integral part of her assessment of the applicant's mental or nervous shock.  In other words, these "adverse impacts" are essentially indicia of the diagnosed PTSD.

1. [16]
   It is submitted, however, that the adverse effects of the reaction of others, in particular the applicant's family, justify an award at 10 per cent of the scheme maximum under this heading.  I accept that submission and accordingly I award $7,500 pursuant to COVR s. 1A.

1. [17]
   Contribution:  I do not consider that the applicant has contributed in any way, direct or indirect, to her own injuries (COVA s. 25(7)).

1. [18]
   Conclusion:  I order that the respondent, SWA, pay the applicant LMF, the sum of $26,250.