Ashton v Eggmolesse

[2010] QDC 455

DISTRICT COURT OF QUEENSLAND

CITATION:

Ashton v Eggmolesse [2010] QDC 455

PARTIES:

CYNTHIA PASIGADO ASHTON
(Applicant)
v
ISAAC SIMON EGGMOLESSE
 (Respondent)

FILE NO/S:

256 of 2009

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

26 November 2010

DELIVERED AT:

Cairns

HEARING DATE:

19 November 2010

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant the sum of $15,750.00 by way of compensation.

CATCHWORDS:

Criminal compensation – physical injuries – psychological injuries – sexual offence

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310
JI v AV [2002] 2 Qd R 367 at 373

Vlug v Carrasco[2006] QCA 561 at [11]

COUNSEL:

SOLICITORS:

Legal Aid Queensland for the applicant
No appearance for the respondent

1. This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”).

1. The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 11 February 2008 namely assault with intent to rape.

Facts

1. On the morning of 21 May 2006, the respondent entered the applicant’s bedroom and demanded sex.  He was unknown to her.  He proceeded to grab her around the neck with both hands and throw her onto her bed, however the applicant was able to escape (“the incident”).

Injuries

·     A muscle sprain in the region of her right lower ribs;

·     Psychological sequelae.

The relevant law

1. COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

1. Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”         

[1][2002] 2 QdR 303 at 310

1. Relevantly the Compensation Table prescribes:

·     Item 1 Bruising/laceration etc (minor/moderate)…     1% - 3%

·     Item 32 Mental or nervous shock (moderate)  …        10% - 20%

1. Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.[2]

   [2]s 25 (8) referring to s 22 (4)

1. Section 1A of COVR is also relevant to this application. It is in the following terms:

“For section 20 of the Act, 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 prescribed as an injury.

An adverse impact of a sexual offence includes the following –

(a)        a sense of violation;

(b)        reduced self worth or perception;

(c)        post-traumatic stress disorder;

(d)        disease;

(e)        lost or reduced physical immunity;

(f)        lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;

(g)        increased fear or increased feelings of insecurity;

(h)        adverse effect of the reaction of others;

(i)         adverse impact on lawful sexual relations;

(j)         adverse impact on feelings;

(k)        anything the court considers is an adverse impact of a sexual offence.

In this section-

Sexual offence means a personal offence of a sexual nature.”

The effect of section 1A was considered in JI v AV[3] as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:[4]

“The regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of 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…”

[3][2002] 2 Qd R 367 at 373 per Chesterman J.

[4][2006] QCA 561 at [11]

1. Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum.

The Assessment

1. The medical evidence before me suggests that the physical injuries suffered by the applicant as a consequence f the incident were minor.

1. In her report dated 20 July 2009, Dr Richardson, psychologist expresses the view that the applicant is suffering from a Post Traumatic Stress Disorder (“PTSD”) in the moderate range and mild to moderate Depression. I note the evidence that the incident has had notable impacts on the applicant’s lifestyle, however in her report Dr Richardson attributes virtually all of these adverse impacts to the PTSD and they are therefore not otherwise compensable pursuant to s 1A of COVR.

1. Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows:

·     Item 1 – 1%  $    750.00

·     Item 32 – 15%  $11,250.00

· Section 1A COVR – 5% $  3,750.00

$15,750.00

Order

1. I order that the respondent pay the applicant the sum of $15,750.00 by way of compensation.