Curwood v O'Neill

[2001] QDC 220

DISTRICT COURT OF QUEENSLAND

CITATION:	Curwood v O’Neill [2001] QDC 220
PARTIES:	JOANNE CURWOOD (Applicant) MICHAEL KENNETH O’NEILL (Respondent)
FILE NO/S:	100 of 2000
DIVISION:	Trial
PROCEEDING:	Application for criminal compensation
ORIGINATING	District Court Cairns
COURT:
DELIVERED ON:	22/5/01
DELIVERED AT:	Cairns
HEARING DATE:	15/12/00
JUDGE:	White DCJ
ORDER:	That the respondent, Michael Kenneth O’Neill, pay the applicant the sum of $38,000 by way of compensation.
CATCHWORDS:
COUNSEL:	Mr. McCreanor for the applicant No appearance for the respondent
SOLICITORS:

[1] On 18 October, 1999 the respondent was convicted in the District Court at Cairns of
the following offence:-

“That on 12th day of June, 1999 at Cairns in the State of Queensland he

assaulted Joanne Curwood with intent to rape.”

This is an application by Joanne Curwood for compensation pursuant to s.24 of the
Criminal Offence Victims Act 1995.

1. In the early hours of the morning of Saturday, 12 June, 1999 the applicant was asleep alone in her bedroom in a flat which she shared with another young woman. She was awoken by the feeling of pressure being applied on the bed. She saw a male person (the respondent) with a blue towel draped over his head and across his face. The respondent placed his hands on her shoulders and held her down and then hit her across the mouth covering her mouth for a period of time. The respondent lay on top of the applicant and continued to pin her arms to the bed. He then commenced punching her in the face with a clenched fist. The applicant continued to struggle and the respondent placed his right forearm across her neck, applying pressure to it thereby making it very difficult for her to breathe. After struggling further the applicant got her right leg free and tried to hit him with it in the genital area. After that the respondent again repeatedly punched her around the face and head. Eventually the respondent stopped got off the bed and ran out of the bedroom. There is no doubt by his plea of guilty that he intended to rape the applicant. There is also no doubt that the applicant was well aware of this from statements the respondent made during the course of the attack.

2. The applicant was born on 17 July, 1974. She was therefore almost 25 years of age at the time of the commission of the offence and is now aged 27. She reported the matter to police and later that day attended at the Toogood Road Medical Centre where she was examined by Dr. James Proven, who reports the following injuries:-

   (i)         Bruising over her face and scalp, particularly behind both ears over the top of her scalp and under her right eye.

   (ii)        Abrasions over her scalp, particularly behind both ears and over the top of her scalp.

   (iii)       Swelling and haematoma formation (blood within the tissues) above her left eye, over her right temple and behind both ears.

   (iv)       A small (approx. 1 mm) laceration of her forehead above her left eye.

   (v)        Evidence of soft tissue injury to the muscles of her neck and right shoulder.

   (vi)       Evidence of soft tissue injury to the acro-mio-clavicular joint of her right shoulder.

   (vii)      Abrasions and evidence of soft tissue injury over the ulnar border of her left forearm.

   Treatment consisted of analgesics and muscle relaxants for her neck and shoulder. Dr. Proven saw her again on 16 June, at which stage she was improving but still had a fair degree of bruising, specifically a black eye and bruising behind both ears.

3. The applicant has also suffered significant emotional trauma as a result of the attack. This aspect of her injury is reported upon by Christine Bovey, a clinical psychologist. I accept the matters set out in that report. Ms. Bovey describes the applicant as follows:-

   “She suffers from moderate but chronic symptoms associated with Post Traumatic Stress Disorder and it is possible that her responses will become integrated into her personality.”

   Ms. Bovey recommends, which I accept, a prolonged course of counselling. The cost of such counselling would be approximately $2,400.00.

[5] The applicant, in her affidavit, describes her emotional reactions to the offence as
follows:-

“As a result of the incident I suffered nightmares and severe anxiety. I was very emotional and depressed. I feared staying in my home without a trusted adult with me. As a result of this I moved back into my parents’ home. I found that I was less trusting of strangers, that it was almost impossible to go out into public places, and I was very frightened all the time because I thought other strangers might try to hurt me. I required counselling after the event and my progress to full recovery is slow. I ceased playing all sports after the incident as the frantic nature of people running around caused me further anxiety. My sleeping habits have been affected to the point where I am no longer a deep sleeper as I was. I wake up at all times during the night from nightmares depicting the incident. I no longer live the full social life that I did prior to the incident. I feel that I can no longer drink alcohol or attend many parties as I want to be in total control of my surroundings. I have had to inform my friends and work colleagues of this event asking them not to approach me from behind as this scares me. I was always very confident in life, however as a result of this incident I am very timid and less trusting of people generally – particularly males. All of which did not exist prior to the incident occurring.”

I am satisfied that the applicant has suffered injuries which are dealt with in the schedule to the Act as follows:-

2.          Bruising/laceration etc (severe)

32.          Mental or nervous shock (moderate)

I am also satisfied that the applicant is entitled to compensation in respect of the adverse impacts of a sexual offence pursuant to Regulation 1A of the Act. In my view there is a degree of overlapping of the effects of these three aspects of the consequences of the offence to the applicant and it is not appropriate to attempt to assess them separately. However, I am satisfied that an amount of $38,000 is appropriate compensation for the applicant in this case.