Chapman v Mensforth

[2006] QDC 60

DISTRICT COURT OF QUEENSLAND

CITATION:

Chapman v Mensforth [2006] QDC 060

PARTIES:

JAMIE CHERRIE CHAPMAN

Applicant

v

ROBERT JAMES MENSFORTH

Respondent

FILE NO/S:

D649/05

DIVISION:

Civil

PROCEEDING:

Application for compensation

ORIGINATING COURT:

Southport

DELIVERED ON:

13 March 2006

DELIVERED AT:

Southport

HEARING DATE:

27 February 2006

JUDGE:

Rackemann DCJ

ORDER:

The respondent pay the applicant compensation in the amount of $18, 750.

CATCHWORDS:

CRIMINAL COMPENSATION – ADVERSE IMPACTS OF A SEXUAL OFFENCE – exacerbation of epilepsy

COUNSEL:

Mr Bagley, of counsel, for the applicant

No appearance by or on behalf of the respondent

SOLICITORS:

Sabben Lawyers for the applicant

1. The applicant seeks compensation, pursuant to s.24 of the Criminal Offence Victims Act 1995, as a consequence of her being unlawfully and indecently assaulted by the respondent on or about 15 January 2001. The respondent was convicted, on his own plea of guilty, and was sentenced on 8 August 2003.

1. The circumstances of the offence are set out in the sentencing remarks.  The applicant and respondent had been sharing a hotel room on an island.  Some time after the applicant fell asleep, the respondent took advantage of her and “touched her for a short time on the outside of the vagina”.  The two had previously enjoyed a platonic relationship.  While the sentencing Judge noted the applicant “might be said to have engaged in familiar conduct” with the respondent, he said that he meant no criticism by that, given that the applicant would have felt safe with the respondent. The facts are not such as would justify any finding that the applicant directly or indirectly contributed to her injury.

1. The applicant was examined by a psychiatrist, Dr Ziukelis on 29 July 2005.  In Dr Ziukelis’s opinion, the applicant displayed no evidence of persistent symptoms or signs sufficient to make a diagnosis of psychiatric disorder.  Counsel for the applicant did not suggest that any of the items set out in schedule 1 to the Act were applicable.  Regulation 1A of the Criminal Offence Victims Regulation provides however, that, for s.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 s.20, is prescribed as an injury. Subsection (2) sets out a non-exhaustive list of what may constitute an “adverse impact”.

1. The adverse impacts suffered by the applicant are described in her own affidavit, as well as in reports from Dr Ziukelis and Dr Freilich.

1. The applicant’s affidavit describes the adverse impacts upon her in the following paragraphs:

“5.        I continue to suffer psychological injury as a result of the assault.  I lack confidence and have become more introverted.  I have difficulty in relating to males and I feel anxious and stressed in their company.  I have an overall distrust of men and a fear of intimacy.  I now cannot tolerate watching any television or movies where violence and/or sexual violence is prominent.

6.          I continue to suffer anxiety in my day-to-day activities and have a general lack of confidence in dealing with people.  Distress and anxiety that I now experience has exacerbated my epilepsy condition.  I now suffer from reoccurring epilepsy incidents since the assault.”

1. While not diagnosing any psychiatric disorder, Dr Ziukelis noted that:

“During the period between the assault and the present time there has been a change in the manner in which she relates to others with development of mistrust of men and fear of intimacy.  Vicarious experience, as in watching depictions on television that are associated with sexual violence, continues to be difficult to tolerate.”

1. Dr Ziukelis did not recommend any specific treatment.  In his view “the matter has gradually proceeded to have less distressing impact with the passage of time”.  It should be noted however, that the time over which the applicant has continued to suffer these consequences is significant, given that the offence occurred in 2001.

1. The effect of the offence on the applicant’s epilepsy was examined by Dr Freilich whose report, dated a September 2005, states that:

“The sexual assault in January 2001 led to a worsening of the epilepsy immediately.  Stressful experiences such as this can worsen pre-existing epilepsy.  There has been some improvement from the initial worsening, but her condition has stabilised at a level of epilepsy which is worse than it was in the 14 months prior to the sexual assault.  It is likely that her epilepsy will remain constant in the ensuing years assuming nothing else is done medically to try to improve the epilepsy.”

1. In the body of the report, Dr Freilich records that in the 14 months prior to the sexual assault, the applicant had no generalised seizures, but only minor attacks.  She took no anti-convulsant treatment at that stage.  After the sexual assault, the epilepsy became worse.  She could have up to 30 petit mal seizures a day.  She began to have generalised tonic clonic seizures again.  The first occurred when she returned home from the police station following report of the assault.  For the first month after the sexual assault she would have generalised seizures every second day.  With the passage of time since the assault, the frequency of the generalised tonic clonic seizures diminished to one every two and a-half weeks.  At the time of her examination she still had 2-40 petit mal attacks per day.

1. I accept that each of the effects referred to above are adverse impacts for the purposes of the regulation.  In the circumstances, I assess compensation in an amount equivalent to 25 per cent of the scheme maximum.  Accordingly, I order the respondent to pay the applicant compensation in the amount of $18,750.