J v F[2012] QDC 78

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by which the applicant seeks compensation to be assessed under section 24 of the Criminal Offence Victims Act (1995) for injuries she suffered by reason of a personal offence committed against her by the respondent.
2. [2]
   The personal offence committed by the respondent against the applicant was an offence of assault occasioning bodily harm whilst armed with an offensive weapon.  The offence was committed by the respondent on the 25th of December 2007.  It is an indictable offence.  He pleaded guilty to the offence before her Honour Judge Dick in the Mackay District Court on the 31st of July 2008.  Her Honour sentenced him to two years' imprisonment for a number of offences with a day fixed for parole on 31 July 2008.  219 days he had been in presentence custody was declared as time already served under the sentences.
3. [3]
   The applicant was born on the 24th of February 1984.  She was 23 years of age when the respondent committed this personal offence against her.  He was 21 years of age.  She is now 28 years of age. 
4. [4]
   Some preliminary matters must be dealt with.  The Criminal Offence Victims Act (1995) was repealed by the Victims of Crime Assistance Act (2009).  The latter act commenced on 1 December 2009.  However, the application in this matter was filed on 28 January 2010.  There was provided by the new Act, a period of two months from the commencement of the new Act for persons to apply under the old Act. 
5. [5]
   The applicant is within time under the transitional provisions of the new Act.  The transitional provisions of the new Act provide that the Court must continue to hear this application under the old Act. 
6. [6]
   Furthermore, the old Act provided three years from the convicted person's trial for an application to be made under the old Act.  As the respondent pleaded guilty on 31 July 2008, the applicant had until the 31st of July 2011 to make this application.  Again, she is within time as the application was filed on 28 January 2010.
7. [7]
   The other preliminary matter is that there has been no step taken in the proceeding for one year from the time the last step was taken.  The application and the supporting affidavit of the applicant were both filed on the 28th of January 2010.  The next step that appears to have been taken is the filing of an affidavit of Melissa Lo dealing with matters relevant to the application. 
8. [8]
   However, in my opinion, leave should be given to the applicant to proceed with her application.  She has satisfactorily explained the delay in her affidavit and the respondent has shown no interest in the application.  There would be no prejudice to the respondent if I gave leave to the applicant to proceed.  I rely on the decision of Tyler and Custom Credit Corp Limited and Others [2000] QCA 178.  I'm satisfied that with respect to all the factors mentioned by the Court that must be taken into account on an application for leave to proceed, that the applicant should be favoured with an order for leave to proceed.  I, therefore, order that she have leave to proceed.
9. [9]
   The respondent has also been served with notice of the hearing day for this application.  I am satisfied, therefore, he has been given notice of the application and that I can proceed to assess the compensation. 
10. [10]
    With respect to the facts behind the offending, the applicant was at home on Christmas Day with her mother.  They were watching television.  The respondent and two other offenders were trying to gain entry to their house.  The applicant and her mother were alerted to the attempts of the respondent and the other offenders to enter the house.  When confronted, the respondent and his co-offenders ran away.  However, the respondent had stolen the applicant's handbag. 
11. [11]
    Wishing to retrieve her handbag, the applicant gave chase and, eventually, the respondent stopped.  He dropped the bag and then confronted the applicant with a garden hose and struck her three times across the head.  She had to place her hands up to protect herself.  As a result, she suffered some minor cuts to her left forearm and bruising to her face and head. 
12. [12]
    These injuries are verified in the report of Dr Warby, the resident medical officer at the Mackay Base Hospital where the applicant was seen following this incident. 
13. [13]
    The report also indicates that the applicant suffered pain from the physical injuries.  She was treated with analgesia.  She underwent X-rays but they showed no abnormality.  She was also given a tetanus booster and discharged.
14. [14]
    The applicant in her affidavit in support of the application states that she was horrified when she was attacked by the respondent.  After the offence, she became very anxious and no longer felt safe at home or when out.  She did not leave the house for two months.  She was unable to go out and do her shopping for a few months.  She was easily distressed by crowds and noise and started to suffer from panic attacks. 
15. [15]
    By the time she swore her affidavit in support of the application, she states she was able to go out but was constantly on edge and wary.  She still occasionally suffers panic attacks.  She has changed her life substantially and rarely goes out except for work and essentials.  She mainly stays home and does not socialise like she did before the offence. 
16. [16]
    She also found it difficult to sleep following the offence.  She would get flashbacks whenever she laid down and tried to sleep.  Her flashbacks involved her seeing the respondent's face and his very wide and wild looking eyes.  If she eventually did go off to sleep, she would wake during the night feeling agitated. 
17. [17]
    Her sleep patterns have now settled and she mainly suffers problems when she hears noises around the house.  She then immediately turns on the lights, and including the outside lights, to try and scare off anyone that might be there.  She is also now very security conscious.  She is startled by noises.  At one stage, she slept with a knife in her room for a considerable time.
18. [18]
    Her anxiety is disproportionate to the incident and she worries that she's not getting better quickly.  She finds it hard to control the fears brought on by this offence.  She feels very little trust in people and is irritable and easily frustrated.  She was unable to work for some time following the offence.  She left Mackay and went to Western Australia to get away.
19. [19]
    Although she can now work, she finds she is less tolerant and, at times, short tempered.  She feels constantly on edge and this affects how she reacts to others.  She gets thoughts of how she should not have chased him.  She feels helplessness and cannot control what goes on around her.  She feels the world is a more dangerous place. 
20. [20]
    The applicant, to her credit, has admitted that when she was about 18 years of age, she was raped, and that must have had a impact upon her, as she states it did.  She has had a troubled life even from when she was 12 years of age, as revealed by what she has told Dr McGuire, the psychiatrist.
21. [21]
    Dr McGuire has provided two reports regarding the applicant.  The applicant confirmed to Dr McGuire her symptoms and there is no reason to doubt the veracity of the applicant's account.  Dr McGuire's opinion is that the applicant has suffered a post-traumatic stress disorder which she suffers to a moderate degree because of the offence committed by the respondent. 
22. [22]
    Dr McGuire states, "It appears that she also suffered from this condition after rape and the current incident has reinforced her post-traumatic stress disorder.  She believes that she feels worse now because it affects more areas of her life and she cannot put it aside.  She experiences chronic anxiety as a result of this."
23. [23]
    Dr McGuire recommends that the applicant undergo counselling.  She thinks 12 sessions would be needed approximately at a cost of about $150 to $200 per session.  Dr McGuire confirms that at the time of the incident, the applicant felt terrified and in fear of her life and the other symptoms she has suffered from.  Dr McGuire's opinion is that the offence committed by the respondent has materially and significantly contributed to her post-traumatic stress disorder. 
24. [24]
    She states, "It is probable that had the offence committed by the respondent being the only trauma the applicant suffered, she would have made a quicker recovery from the post-traumatic stress.  Dr McGuire believes that as a consequence of the rape when she was 18, she suffered post-traumatic stress disorder and that her symptoms then contributed to her borderline personality traits.  The subsequent trauma for which the respondent is responsible had the effect of reinforcing symptoms which previously existed in making her less accessible to successful treatment.
25. [25]
    In my opinion, the applicant is to be compensated for her physical injuries.  I allow the applicant under the schedule to the Act, an amount of two per cent, which is a sum of $1,500.  I should say, that the Act requires that the compensation to be awarded to an applicant is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.  Further, the maximum amount of compensation is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.  See section 22(3) and (4) of the repealed Act.
26. [26]
    I am also of the opinion that the applicant is to be compensated for mental or nervous shock moderate.  In this case, if it were not for the pre-existing circumstances of the rape and her unfortunate early life, I would have assessed the applicant's compensation under the heading of "Mental or Nervous Shock" at 20 per cent.  However, I reduce that to 15 per cent because of the pre-existing circumstances or factors.  See the decision of Say v. AZ ex parte Attorney-General Queensland [2006] QCA 462. 
27. [27]
    Therefore, for mental or nervous shock, I allow the applicant the sum of $11,250.  The total, therefore, that I allow the applicant is $12,750.  I order the respondent to pay the applicant the sum of $12,750.  Under the legislation, I cannot order the respondent to pay the applicant's costs of the application. 
28. [28]
    There'll be an order as per the draft initialled by me and left with the papers.