ASH v LJC[2012] QDC 211

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 the 30th of January 2008.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (QLD) (the 2009 Act) which commenced on 1 December 2009.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 22 January 2010.  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 section.

On 27 August 2009, the respondent pleaded guilty to one count each of rape and sexual assault.  He was sentenced by me to 25 years' imprisonment for the rape and three years' imprisonment for the sexual assault to be served concurrently.

On 16 February 2010, the Queensland Court of Appeal set aside the sentence of 25 years' imprisonment and substituted a sentence of 16 years' imprisonment for the rape charge.  The sentence for the sexual assault was confirmed.  The success of the appeal to this extent is irrelevant to the determination of the application.

I am satisfied that the application, the notification of hearing today, and the supporting affidavits were served on the respondent by 27 May 2012, other than Mr Saggers most recent affidavit which was filed on 7 January 2012.  The purpose of that affidavit is simply directed towards proving that service had occurred.

The reason that I am satisfied as to service is, first, by letter dated on 27 January 2012 to the applicant's legal representatives, the respondent, who gives his address as Wolston Correctional Centre, acknowledges the notification of the hearing and states that he does not wish to contest anything the applicant has stated or any other affidavit.

The letter identifies correspondence from the applicant's solicitor by virtue of a reference code on the solicitor's letter to the Public Trustee of 18 May 2012.  This letter was directed to the Public Trustee on the assumption that it was managing the respondent's affairs. 

Under section 110(a) of the Uniform Civil Procedure Rules 1999, (the UCPR), a document required to be served personally on a prisoner must be served on the Public Trustee if the Public Trustee is the manager of the prisoner's estate under part 7 of the Public Trustee Act 1978 and the proceeding is for the recovery of a debt.

Rule 105(1) of the UCPR requires that a person serving an originating process must serve it personally on the person intended to be served.  It was assumed by the applicant's solicitor that the Public Trustee would be managing the respondent's estate because he was serving in excess of three years' imprisonment.  Therefore, the documents were forwarded to the Public Trustee by way of service.

This was also initially assumed to be the case by the Public Trustee who advised on 22 May 2012 that it had posted the copies of the documents to the respondent for this reason.  However, it transpired that the Public Trustee had issued a notice of intention to discontinue management of the respondent's estate on 27 December 2010.

Notwithstanding this, the documents having been posted by the Public Trustee to the respondent, an affidavit of Mr Miles of the agency deposes that the respondent was served with a copy of all material filed in connection with this application, is aware of the return date for the hearing and wished to take no further part in the proceedings. 

This is evidenced by an exhibited document to this effect, signed by the respondent and witnessed by a JP qualified on 29 May 2012.  This is the second reason why I consider that the applicant has been served with the relevant documents.

Rule 110(c) of the UCPR provides an alternative method of personal service of a prisoner by service on the person in charge of the prison in which the prisoner is imprisoned.  Because the respondent has twice acknowledged receipt of the documents, I conclude that he has been personally served as required by the UCPR with the application and all relevant material relied on in support of it.  I'm also satisfied that the application has been filed and served on him at least three business days before the date set for the hearing as required by rule 27(1) of the UCPR. 

The service of the originating application together with the supporting affidavits also satisfied the requirements of rule 389(1) that no step having been taken in a proceeding for over one year from the time the last step was taken, the applicant give a month notice to the respondent of his intention to do so.

CIRCUMSTANCES OF THE OFFENCES

As I said in my sentencing remarks, the respondent walked behind the victim at the Burleigh headland area and pulled her to the ground, pushing her head down.  He pushed two fingers into her anus with some force, causing immediate pain and discomfort.  He forced his fingers in and out around 10 times.  He also put his hands under her top and vigorously groped her right breast for a short time. 

The applicant did not know the respondent.  She was then aged 18 years.  The respondent was able to pull her to the ground by grabbing her left shoulder and placing his forearm against her throat.  Despite the fact she was trying to push him off, he used his weight to pin her to the ground.  She screamed for help, but nobody came.

He reached under her shorts and pulled aside her bikini bottoms to jam two fingers into her anus with considerable force.  She could not believe this was happening to her and was shocked.  In her affidavit she describes feeling helpless.

As he continued to move his fingers in and out of her anus, she could feel his nails scratching her inside.  He then pushed a hand under her polo shirt and under her bikini top vigorously rubbing her breast, as I have described.  Not surprisingly, she felt extremely uncomfortable.  She was frightened as to how far he would go.  However, fortunately, he stopped and ran away.  The applicant, who describes herself as "very upset" then rang triple O.  She was crying when the police and her mother arrived at the headland. 

INJURIES AND MEDICAL REPORTS

In my sentencing remarks, I referred to the applicant suffering abrasions and a one centimetre bleeding split type laceration on her anal opening consistent with distended force.  In her statement, on the day of the attack, she refers to bleeding from her anus and scratches to her body including her legs, right breast, elbows and arms.  Some photocopies of photographs taken by the police are exhibited to her affidavit, although her injuries are difficult to see because they are photocopies.

In her affidavit, she also refers to bruising on her legs.  In her police statement, she said she felt violated and very angry.  In her victim impact statement dated on 8 August 2008, about six months later, she speaks about her shock and anger at what had happened to her.  She felt violated and disgusted.  As I observed in my sentencing remarks, after she arrived home and found she was bleeding, she started shaking and crying.  She thought she may have contracted an STD.  She doesn't think that she stopped shaking for the whole day until she finally fell asleep.

She expressed the belief that she would never be the same again.  At that time, she was scared that the respondent would attack her and other women.  She was also scared that other men would do it to her again.  She was scared to go back to the place she had loved and was uncomfortable when she had to return there with the police.

As a result, she was living in a state of constant fear and paranoia.  She kept thinking she was going to be attacked.  Even when she was at home, she feared someone would break in and attack her.  She was afraid of anyone who fitted her memory of the attacker.  As a result, she did not believe she would ever fully trust people.  As she put it, the crime robbed her of her freedom and sense of security.  She described the constant state of fear and paranoia as ruining her life.  It interfered with her relationships with men.

In her affidavit of 14 May 2012, she deposes that: 

. After the offences, she experienced nightmares and thoughts about them which caused her to become extremely upset and was often exhausted when waking in the mornings. 

. She is scared that something like this will happen to her again and she feels vulnerable. 

. She avoids walking at night in isolated places.

. She becomes worried about men who she does not know.

. She no longer goes to Burleigh headland and has deleted the song she was playing at the time of the assault from her iPod. 

. She became extremely frightened when she heard somebody running behind her as she associated the sound with when she was attacked; and

. She is upset and cries when she thinks about the affect this has had on her life. 

She was interviewed by Mr Hatzipetrou, a psychologist, on two occasions in late July and early August 2011.  This was about three and a-half years after the attack.  Mr Hatzipetrou is an experienced psychologist whose reports are well known to me, particularly when sitting in the criminal jurisdiction of this Court. 

Mr Hatzipetrou identified the applicant as suffering from each of the impacts she has described in her affidavit.  According to him, her history is that of a woman now aged 23 years with a largely unremarkable and stable upbringing until the onset of the offences when she was 18 years.  She reportedly experienced positive family and peer relationships throughout her childhood.  There was no known history of maladaptive behaviour or emotional disturbances in childhood. 

She had excelled in her academic achievements whilst maintaining part-time employment throughout high school. 

At the time of the offending, she had commenced a university degree course and was engaging in casual employment.  She was also actively involved in surf lifesaving and the local community.  She enjoyed social activities with her friends and had a close set of friendships.  She had not previously accessed public or privately funded mental health services and was unaware of any family history of mental illness.  Her estimated level of cognitive ability was within the above average range.

Consistently with what she told the police and what appears in her victim impact statement, during the attack, the applicant experienced intense feelings of shock, fear, anxiety and trepidation.  She felt helpless and diminished by her attacker.  She confirmed that when she contacted the police, she was in a state of shock and heightened anxiety.  She described instant panic when she observed blood on the toilet paper.  She was overwhelmed by feelings of paranoia and shock and required assistance from her mother to undertake the physical examination and to provide a police statement.

The applicant describes significant changes in her behaviours, thinking and mental state immediately after the offences.  Specifically, she experienced nightmares and sleep disturbances.  She became withdrawn and avoided contact with her friends.  She suspected unfamiliar men were capable of perpetrating the act.  More over, she suspected unknown males as the potential perpetrator until the respondent was detained.  She experienced symptoms of hyper vigilance and heightened anxiety.  She suspected the respondent may have been stalking her. 

There were changes in her day to day behaviour.  Specifically, she did not walk about public amenities at night and did not wear headphones.  Her focus was on travelling and walking in populated areas. 

As she deposed in her affidavit, she recalled an intense trauma reaction when she heard a man running behind her.  This was because the sound resembled the attack and she automatically experienced intense psychological arousal and a sense of imminent threat.

Mr Hatzipetrou states that given the findings of the psychological assessment measures the applicant completed, she continued to experience a cluster of these symptoms in the ensuing months.  Her responses to the depression, anxiety and stress scale generated elevations in the depression and anxiety scales which Mr Hatzipetrou considered consistent with her presentation at interview.

The scores fell within the mildly severe range.  The results of the SCL-90-R questionnaire suggested a range of mental health symptoms and symptomatic distress penetrating the clinical threshold.  The overall level of distress was elevated, reflecting the likely presentation of a psychiatric disorder. 

The level of anxiety symptoms in this profile was manifestly elevated and reflected clinically significant problems.  In addition, elevations were observed on the obsessive compulsive interpersonal sensitivity, psychoticism and depression scales which reached clinical thresholds. 

Her responses suggested feelings of inadequacy, devalued self-worth and guilt.  The score on the paranoid scale also was clinical in nature.  There was evidence of suspiciousness and paranoia exceeding the threshold for a non-patient adult normative group.  These scores indicated her predominant clinical problems appeared to be related to her mood and anxiety.  This was consistent with her presentation.  The symptomatic distress levels were moderate-high.

The applicant reported ongoing sleep disturbances associated with intrusive thoughts and memories through nightmares and flashbacks.  On occasions, she could be tearful and distressed.  A prominent feature since the offending was feeling exhausted on awaking.  Again, this was consistent with what she deposes in her recent affidavit as being something she continues to experience.

Similarly, she experienced feelings of paranoia and hyper vigilance.  More over she fears further sexual assault.  She continued to feel vulnerable in less populated environments and avoided walking in the community at night.  Therefore, she continued to avoid these areas and continued to walk without headphones.  This is also consistent with her more recent affidavit.  She also continued to experience increased psychological arousal when exposed to resembling events. 

The applicant confirmed feelings of insecurity and violation which left her tearful.  Mr Hatzipetrou concludes that these current findings suggest that she experienced a constellation of symptoms consistent with a post-traumatic stress disorder which appeared to be the direct result of these offences.  However, improvements were noted in her emotional reactions.

Mr Hatzipetrou also noted that although she maintained involvement in the surf club, she did not engage in social activities with friends as she avoided travelling at night.  In addition, she was suspicious of other people.  Further, as a result of the offences, she had since experienced difficulties in intimate relationships.  The respondent had focussed on her studies as a means of coping with the onset of these mental health problems.  She also continued with her casual employment.  However, she was suspicious of male workers or members of the public around the workplace, although, these reported feelings of paranoia had subsided. 

Mr Hatzipetrou concludes that the applicant suffered a range of emotional disturbance and psychological disorders impacting on her relationships, general functioning and socialisation.  In his opinion, the evidence suggests that she continued to experience moderately severe symptoms of a mental health disorder. 

She experienced symptoms consistent with acute stress disorder soon after the offences which evolved into a post-traumatic stress disorder.  However, in his opinion, the intensity and frequency of the symptoms appeared slowly to have diminished over the previous 12 months.  He considered that the mental or nervous shock arising from the offences was likely to be severe and was the direct result of the assault. 

In his report, Mr Hatzipetrou also addresses whether the applicant has suffered any adverse impact of the sexual offences for the purposes of section 1A(1) of the Criminal Offence Victims Regulation 1995 (the regulation).  In his opinion, the applicant has suffered a number of adverse impacts of the offences listed in section 1A(2).  These are: 

. A sense of violation (para(a));

. Reduced self worth or perception (para (b));

. Increased fear or increased feelings of insecurity (para (g)); and

. Adverse impact on lawful sexual relations (paragraph (j)). 

He further is of the opinion that these impacts are separate to the mental or nervous shock. 

In relation to the applicant's sense of violation, Mr Hatzipetrou states that she recalled feelings of violation during and after the offences were perpetrated.  The periods of confusion had evolved in anger responses.  For example, she maintained resentment and anger towards the respondent at the time of the interview. 

With reference to her increased fear and feelings of insecurity, Mr Hatzipetrou says that her lack of trust in others was likely to have emerged from the feelings of violation which impacted on her feelings of insecurity.  This lack of trust included the development of a paranoid ideation and a constant fear of unknown males prior to the respondent's apprehension. 

With reference to her reduced self-worth and perception, the applicant suffered from low self-esteem and feelings of low self-worth.  Mr Hatzipetrou's findings suggested she lacked confidence in social relationships and relied on avoidance strategies.

In relation to the adverse affect on lawful sexual relations, he refers to the problems the applicant experienced with her interpersonal relationships.  She avoided certain intimate contact with her partner.  She recognised the avoidance of intimate relationships.  She placed restrictions on forms of intimacy and physical contact as a result of the sexual assault. 

Mr Hatzipetrou's view is that although at the time of the assessment the applicant had not participated in any mental health treatment, given the severity and impact of the trauma symptoms, she should be referred to a clinical psychologist for treatment.  In his opinion, she is likely to benefit from comprehensive psychological treatment which should include cognitive behavioural therapy.  This would consist of 12-15 sessions.  There is no evidence before me as to whether or not she has undertaken such treatment to date. 

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: JMR obo SRR 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: R v Atwell; ex parte Jullie [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

It is submitted on behalf of the applicant that she suffered the following injuries and should be compensated on the following basis:

. Item 2 - bruising/laceration etc (severe) - four per cent - $3,000.

. Item 33 - mental or nervous shock (severe) - 30 per cent - $22,500.

. Regulation 1A - adverse impact of a sexual offence - 20 per cent - $15,000.

Therefore, an award is sought of 54 per cent of the scheme maximum which is $40,500. 

ASSESSMENT

I'm satisfied on the balance of probabilities that the applicant suffered the physical and psychological injuries and the adverse impacts documented in the evidence to which I have referred and this is as a result of the offences of rape and sexual assault committed against her by the respondent on 30 January 2008.

ITEM 2 - BRUISING/LACERATION ETC (SEVERE) - THREE PER CENT - FIVE PER CENT

The submission is that compensation for the physical injuries should be at the midpoint of the severe range for this type of injury.  In Ward at 438-439 [9] the Court stated:  "To qualify for the five per cent which is the top of the 'severe' range, one would not have to be beaten black and blue from head to toe; and 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 two 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 difficulties because no two cases are exactly alike, I also take into account my assessment at four per cent of the scheme maximum of the injuries suffered by the applicant in JHC v. LJC [2011] QDC 26 which arose out of the same 27 month course of offending by the respondent.  I consider that a consistent approach must be taken to compensation awarded to victims of his offending in so far as this is possible.

This is the highest assessment I have made under item 1 or item 2 of the compensation table concerning bruising and laceration in respect of his offending.  In that case, the applicant suffered multiple bruises, abrasions and scratches to her face, head, scalp, neck, chest, knees and right buttock.  There was extensive bruising to her right eye and the right side of her face, shin, neck and ear as well as the left cheek/chin area. 

There was also evidence that associated with these injuries, the applicant suffered a headache for some months and she took two weeks off work until her face healed.  One month after the attack, she was still taking Panadol every couple of hours, not only for her headaches but for pain she was feeling to her neck and ribs. 

I assessed the compensation award at four per cent of the scheme maximum under item 2 in relation to her rib injury in conjunction with the bruising, scratches and abrasions in order to avoid duplication.  I made the necessary adjustments to cater for differences between the ranges for items 2 and 21. 

In the present case, the applicant suffered scratches and what I referred to in my sentencing remarks as abrasions to her body, including to her legs, right breast, elbow and arms.  She refers to also suffering bruising to both legs in her recent affidavit.

Although bruising was not mentioned in her statement, I proceed on the basis that it may not have manifested itself when the statement was taken on the same day as the attack.  Without minimising these injuries, the photocopied photographs do not suggest that they were serious. 

Mr Hatzipetrou in his report following his interview with the plaintiff, observed that there were no reported medical complications.  There is no medical evidence about her injuries.  They do not involve the multiplicity and seriousness of the injury suffered by the applicant in JHC v. LJC. 

However, the applicant in that case did not suffer a one centimetre bleeding split type laceration on her anal opening with associated anal bleeding.  This was, no doubt, caused by the respondent's fingernails scratching her in the course of digitally raping her.  I am conscious that this injury was to a particularly sensitive part of the applicant's anatomy.  On the other hand, it reportedly healed with no permanent complications.  Again, there is no medical evidence about this. 

In these circumstances, I assess an award at three per cent of the scheme maximum for item 2 of the compensation table for these physical injuries.  This is $2,250.  This assessment is at the bottom of the range for item 2 and at the top of the range for item 1 which relates to minor/moderate bruising or lacerations. 

ITEM 33 - MENTAL OR NERVOUS SHOCK (SEVERE) - 20 PER CENT - 34 PER CENT

It is submitted that item 33 of the schedule is appropriate for the applicant in this case and the compensation for the psychological injuries should be awarded at 30 per cent of the scheme maximum.  Reliance is placed on Mr Hatzipetrou's opinion that the applicant recalled symptoms consistent with acute stress disorder soon after which, the offences evolved into post-traumatic stress disorder. 

As he also put it, the applicant appeared to experience a constellation of symptoms consistent with a post-traumatic stress disorder which appeared to be a direct result of these offences.  He considered that what he also described as "mental or nervous shock" arising from the offences was likely to be severe.  He also referred to it as being the direct result of the assault. 

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 recognised 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 [2005] QCA 293 Jerrard JA made reference to:  "Establishing the existence of post-traumatic stress disorder and therefore mental or nervous shock." 

Having regard to Mr Hatzipetrou's opinion, I am also satisfied that the respondent's conduct constituting the offences against the applicant was the material cause of that disorder and, therefore, is a proper subject for compensation.

Although Mr Hatzipetrou expressed the opinion that the mental or nervous shock arising from the offences was likely to be severe, he also concluded that the intensity and frequency of the symptoms of post-traumatic stress disorder appeared to slowly diminish over the previous 12 months.

In Hill v. Dizo [2010] QDC 71 Dorney QC DCJ adopted the approach that when the Act requires a decision about what item in schedule 1 of the compensation table applies, concern must be directed at what the nature of the "injury" is that was suffered "because" of the offence.  That can only be the injury that was originally suffered which in this case was severe mental or nervous shock. 

In accordance with his Honour's approach, with which I agree, the slow diminishing of the intensity and frequency of the symptoms is merely something to be taken into account in assessing pursuant to section 22(4) wherein the scaling a particular case falls.

As stated in Ward at 438(5):  "But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range, 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious this shock is in comparison with the 'most serious' case which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault should, on that account, get no more than $25,000."

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 offending by LJC.  The highest assessment I have made for mental or nervous shock in any of these cases was in SMR v. LJC [2010] QDC 285 where unlike the present case, the post-traumatic stress disorder was described as "moderate."  Accordingly, I assessed compensation under item 32 for which the range of the award available was 10 per cent to 20 per cent of the scheme maximum.  I decided that this could properly be regarded as the most serious case within that range.  Therefore, I assess compensation at 20 per cent of the scheme maximum which was also the bottom of the range for severe mental or nervous shock.

I came to this conclusion in circumstances where the post-traumatic stress disorder had serious consequences in most areas of the applicant's life.  It had persisted for just over four years and was likely to persist indefinitely with a recommendation of two years of psychology sessions to reduce her anxiety. 

In this case, I categorised her symptoms as:

. Panic attacks and anxiety when she is not with her husband - this is described as "long-term chronic anxiety".

. Nightmares.

. Flashbacks.

. Sleep disturbance. 

. Control issues.

. Her persisting sense of injustice about the attack and generally.

. Excessive worrying, including her obsession with her appearance and worry as to what others think about her. 

. Concurrent thoughts. 

I noted that she had not had flashbacks recently.  Her career had been affected and at the time of the application, she was searching for work in an unrelated area of employment which did not use her professional skills. 

There are obvious parallels between SMR and this applicant.  In particular, the post-traumatic stress disorder symptoms were persisting in each for just over four years.  Although there had been a slow diminution of the intensity and frequency of the present applicant's symptoms in the 12 months prior to her interviews with Mr Hatzipetrou, on the basis of her affidavit sworn about four and a-half years after the offending, I conclude that her post-traumatic stress disorder continued to persist.

For example, she continues to be upset and to cry when she thinks about the affect of this intrusion on her life.  As her affidavit has expressed, she still feels exhausted when she wakes in the morning.  I also conclude in those circumstances that the impacts of her post-traumatic stress disorder are likely to continue to affect her for the indefinite future, although, there is no evidence that her future career towards which she continues to study will be affected. 

On the basis of this comparison, having regard to the assessment of the present applicant as suffering severe mental and nervous shock as opposed to the assessment of SMR as suffering moderate mental and nervous shock and also taking into account that 34 per cent of the scheme maximum represents the most serious case, I assess compensation for the applicant's mental and nervous shock at 24 per cent of the scheme maximum, namely, $18,000.

REGULATION 1A - ADVERSE IMPACT OF SEXUAL OFFENCES - ONE PER CENT - 100 PER CENT

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 the 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" is defined in section 1A(3) of the regulation to mean a personal offence of a sexual nature. 

There is no doubt that the offences of rape and sexual assault committed by the respondent against the applicant are sexual offences.  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."

Mr Hatzipetrou has done this in the present case.  He has identified four impacts as being separate to his diagnosis of mental or nervous shock on the basis of the applicant's post-traumatic stress disorder.  These are a sense of violation, reduced self-worth or perception, increased fear or increased feelings of insecurity and adverse impact on lawful sexual relations.  I have already detailed the basis of his conclusion that she suffered from these adverse impacts.

It is notable that she was still suffering this sense of violation at the time of her interview with Mr Hatzipetrou about three and a-half years after the offences were committed against her.  At that time, she maintained her resentment and anger towards the respondent.

In addition, Mr Hatzipetrou says that her lack of trust in others was likely to have emerged from the feelings of violation which impacted on her feelings of insecurity.  Although the respondent has been apprehended and incarcerated, according to her affidavit, the applicant maintains a fear of unknown men four and a-half years after this attack upon her. 

At this time, she continued to be scared that something like this will happen again so that she feels vulnerable.  As a result, she continues to avoid walking at night and in isolated places.  Therefore, as with the post-traumatic stress disorder, these have been continuing impacts.  They are likely to persist despite some improvements.

Again, the highest assessment that I have made for adverse impacts in the case of any of the victims of LJC is 20 per cent of the scheme maximum in SMR.  In that case, there were more individual adverse impacts, but they were described as moderate.  Comparing the cases, I agree with the applicant's submission and also assess the adverse impacts in this case at 20 per cent of the scheme maximum.  That is, $15,000. 

SECTION 25(7) OF THE ACT - CONTRIBUTION

Finally, I conclude that nothing in the applicant's actions on 30 January 2008 contributed to either her bodily injury, mental or nervous shock or prescribed injuries that were 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.  She did nothing that could be considered any kind of provocation, nor can the circumstances surrounding the offences in any way be construed to involve behaviour or prior conduct by her which might somehow have contributed 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. 

For completeness, I mention there was no history of maladaptive behaviour or emotional disturbance in the applicant's childhood.  She had not previously accessed public or privately funded mental health services and was unaware of any family history of mental illness. 

CONCLUSION AND ORDERS

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

. Item 1 - bruising/laceration ETC (severe) - three per cent - $2,250.

. Item 33 - mental or nervous shock (severe) - 24 per cent - $18,000.

. Regulation 1A - adverse impact of sexual offences - 20 per cent - $15,000.

Therefore, the total assessment is $35,250.  I order the respondent pay to the applicant the sum of $35,250 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offences of rape and sexual assault which led to the conviction of the respondent in the District Court at Brisbane on 27 August 2009.