Bernard v Lawrence

[2001] QDC 226

DISTRICT COURT OF QUEENSLAND

CITATION:	Bernard v Lawrence [2001] QDC 226
PARTIES:	HENRIETTA VIRGINIA BERNARD (Applicant) COLIN WILLIAM LAWRENCE (Respondent)
FILE NO/S:	12 of 2001
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING	District Court Cairns
COURT:
DELIVERED ON:	19 June, 2001
DELIVERED AT:	Cairns
HEARING DATE:	21 February, 2001
JUDGE:	White DCJ
ORDER:	That the respondent Colin William Lawrence pay the applicant Henrietta Virginia Bernard the sum of $50,000 by way of compensation
CATCHWORDS:
COUNSEL:	Mr. A. Kimmins for the applicant No appearance for the respondent
SOLICITORS:	Mr. Tony Bailey for the applicant No appearance for the respondent

[1] The respondent was convicted in the District Court at Cairns on 20 October, 1999
of the following offences:-

“1. That on the 6th day of May 1999 at Kowanyama in the State of

Queensland he committed rape upon Henrietta Virginia Bernard.

2.    That on the 6th day of May 1999 at Kowanyama in the State of Queensland he committed rape upon Henrietta Virginia Bernard.

3.    That on the 6th day of May 1999 at Kowanyama in the State of Queensland he unlawfully assaulted Henrietta Virginia Bernard and thereby did her bodily harm.

4.    That on the 6th day of May 1999 at Kowanyama in the State of Queensland he unlawfully detained Henrietta Virginia Bernard in an abandoned house at the corner of Chellikee and Pindi Streets, Kowanyama against her will.

5.    That on the 6th day of May 1999 at Kowanyama in the State of Queensland he unlawfully detained Henrietta Virginia Bernard in a house at the corner of Chellikee and Inatawngk Street, Kowanyama against her will.

This is an application by Henrietta Virginia Bernard for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995.

1. At all relevant times the Applicant was a 22 year old single mother residing in Kowanyama. She had never been in a relationship or ever had sex previously with the respondent.

2. On the 6th May, 1999 she had worked at a retail store as a checkout operator from 9.00 am to 4.00 pm. She then attended at the canteen and went to bed about 7.00 pm. About 8.00 pm she awoke and walked off to go and pick up her son. She then came upon the respondent who said to her “Any date”. The applicant responded “No, you living with my cousin’s sister”. The respondent then grabbed her by the shirt and screwed it up around her neck and lifted her up a bit and was choking her. He then grabbed a hold of the front collar part of her shirt. She couldn’t scream because the collar was so tight around her throat. She struck the respondent in the mouth and received a small cut to her index finger. The respondent dragged her up the road by the collar and pulled her into an old house. The respondent pushed the applicant on to a bunk with no mattress on it. The applicant received small cuts to both her lower legs from the bunks. The respondent ordered her to take off her shirt and she refused. He then undid the buttons of her shirt and pulled her shirt over her head. He then told her to take off her bra and threatened to bash her with a board if she did not. She then removed her bra. The respondent then ordered her to remove her pants which she did due to the fear that she was in. She got up on to her knees on the bunk and tried to run away and the respondent took hold of her hair and pulled her back down on the bunk. The respondent threatened to punch her if she tried to run away again. The respondent then lay on top of her and pushed her legs open. He then inserted his penis into her vagina and he then commenced to rape her. The applicant noted that during the incident the respondent was rough and hurting her. The respondent then ejaculated and he got off her.

3. The respondent then ordered her to put her clothes back on. He then grabbed her by the hair and pulled her out of the house and dragged her along the street. The applicant saw the community police drive by and screamed out to them. The respondent let go of her wrist and grabbed her around the throat and choked her to stop her calling out. He then dragged her into George Dunbar’s house. He pulled her into a middle bedroom and ordered her to take her clothes off again. When she had removed her clothes he pushed her back on to the bed. He then lay on top of her and then inserted his penis into her vagina. The respondent commenced to rape her and continued until he ejaculated again. He then got off her and ordered her to get dressed. He then allowed her to leave and she did. She came upon a community police truck and made a complaint.

[5] The attended at the Kowanyama Hospital where she was treated by a Dr. Watson.
Dr. Watson noted as follows:-

5.   “I recall the 6th day of May 1999 at approximately 2330 I attended Henrietta BERNARD date of birth 28/4/1977 at Kowanyama regarding an alleged sexual assault. She stated that she had been grabbed around the neck, thrown into an object and held down and threatened. She also state that Colin LAWRENCE was the person who had done this to her and had penetrated her vagina and ejaculated.

6.   A nurse Gail JONES and a Policeman Constable Joshua ELLIOTT were present when I had arrived for the interview. Henrietta’s clothing consisted of shorts, underwear and t-shirt and this was intact although there were stains on her shorts and underwear that would have been consistent with semen.

7.   Henrietta appeared to be dazed, afraid and in emotional shock. She didn’t appear to be drunk and had no alcohol on her breath. Her mental state was entirely consistent with having recently experienced a major traumatic event.

8.   On examination she had fingernail marks on both sides of her throat with some associated bruising. There was a solitary fingernail mark on both sides and two extra points of bruising on one side of her throat. This could be entirely consistent with a single hand grip to the throat.

9.   She had a shallow abrasion running for several centimetres on each leg just below the knee. I believe it was the inner aspect of the right leg and outer aspect of the left leg.

10. She also had pain on the left wrist and forearm but no obvious bruising or external injuries. Moving her wrist was painful.

11. Genital examination revealed a small 2 millimetre abrasion on the inferior aspect of her introites, but was otherwise unremarkable. Gentle speculum examination was nonetheless uncomfortable.”

On 12th December, 1999 the applicant consulted Dr. William Kingswell,

Psychiatrist. Dr. Kingswell noted upon examination as follows:-

“MENTAL STATE EXAMINATION:

Henrietta presented as a withdrawn occasionally angry young woman who was reluctant to provide even basic demographic information.

Her angry mood was well communicated and quite inappropriate to the interview given that its purpose was carefully explained to her.

Henrietta’s brief statements were coherent. She did not have evidence of formal thought disorder.

The content of Henrietta’s thinking was inaccessible other than to establish that when she was raped she had feared for her life as she was choked by Mr. Lawrence and that she remained extremely angry regarding the incident. No psychotic symptoms were evident.

Cognitive testing was inaccessible.

Henrietta’s insight and judgment seemed exceptionally poor. Rather then seeking any assistance Henrietta has become angry and according to Ms. Gledhill engaged in reckless drinking and promiscuity.

CONCLUSIONS:

Henrietta is a 22 year old woman who was raped with considerable violence in May of 1999. She is clearly very disturbed from the experience. Information to hand suggests that she is suffering from posttraumatic stress disorder (DM-IV) characterised by sleep disturbance, nightmares, anxiety and prominent avoidance.

The prognosis appears particularly poor. Henrietta has few supports. She is alcohol dependent. She lives in a remote community where access to specialist psychiatric supervision is essentially non-existent.

I saw Henrietta seven months after the incident. She had not received any specific treatment at that point. Timely treatment may have limited the progression of her symptoms. Specialist psychiatric treatment is in my view warranted now. It may be possible to access through outreach mental health services provided by Queensland Health in the far north. The only other possibility would be to fly Henrietta to Cairns which I expect would be extraordinarily expensive.

If the treatment were available, most psychiatrists would in the early phases provide Henrietta with intensive support. I expect they would see her for one session per week for several months. As she improved sessions would become less frequent. Contact would probably continue for one to two years. Under ordinary circumstances the cost of seeing a private psychiatrist is of the order of $150 to $180 per session with much of that cost being recoverable from Medicare. In Henrietta’s case I think that her mood symptoms and sleep disturbance are such that pharmacological treatment would be warranted. The cost of most pharmaceutical preparations available on the NHS is $20.20 per month. As noted the transport costs in this case are likely to be prohibitive.”

On the 17th August, 2000 the applicant consulted Mr. Tim Ryan, Psychologist.

Mr. Ryan concluded upon examination as follows:-

“Opinion

Miss Bernard claimed to have been repeatedly victimised by her past defacto partner as she has been by her present one. Hence there is likely to be cumulative traumatic symptomatology impinging on any psychological and emotional destabilisation resulting from the recent sexual assault. It would be impossible to differentiate the degree to which either of the abovementioned negative experiences have contributed to Miss Bernard’s post rape symptomatology. However, it is considered that regardless of the traumatic impact of either defacto relationship, the recent rape alone would have been sufficient to cause a severe nervous shock at the extreme end of severe. The Chronic Posttraumatic Stress Disorder with anxiety and depressed mood (PTSD) which has developed is a likely consequence of such a traumatic event.

Conclusions

Miss Bernard is a twenty-three year old woman who was the victim of two counts of rape on the 6th May 1999.

As mentioned above, Miss Bernard is likely to have been suffering from trauma symptoms as a consequence of victimisation by her ex-defacto partner prior to her being raped. Furthermore, she is also likely to be suffering a certain degree of trauma currently due to her victimisation by her present partner. Hence her trauma response to her rapes is likely to be confounded by these factors.

Having said this however, it should be pointed out that the severe nervous shock that Miss Bernard sustained as a result of the May 1999 rapes would in and of itself be sufficient to produce the significant emotional and psychological destabilisation represented by her extant diagnosis of Chronic Posttraumatic Stress Disorder with anxiety and depressed mood (PTSD) (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, 1994).

Given that the rapes appear to have had a negative impact on all areas of Miss Bernard’s psychosocial functioning, it would be reasonable to assert that they have caused a significant diminishments in her enjoyment of life. Furthermore, it seems likely that this negative impact may be of a long- term nature.

It is likely that immediate psychotherapeutic intervention may enhance Miss Bernard’s prognosis. Ascertaining the amount of therapeutic intervention required in cases of trauma is difficult, however it is considered, given the severity of the nervous shock in this instance, that 20 to 30 sessions would not be excessive. Cost per session is $158.”

[6] I am satisfied that there was no conduct on the part of the applicant which
contributed in any way to her injuries.

1. Compensation is to be assessed according to the compensation provided for in the Table of injuries to the Act. I am of the view that the applicant is entitled to compensation pursuant to Item 1 on the Schedule – bruising/laceration (minor/moderate) and more substantially for the adverse impacts of a sexual offence provided for in Regulation1A to the Act. I am of the view that an amount of $50,000.00 would be appropriate for compensation in this case. I propose to order that the respondent, pay the applicant that sum.