JHC v LJC

[2011] QDC 26

DISTRICT COURT OF QUEENSLAND

CITATION:

JHC v LJC [2011] QDC 26

PARTIES:

JHC

(Applicant)

V

LJC

(Respondent)

FILE NO/S:

3793/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

21 February 2011 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

4 February 2011

JUDGE:

Irwin DCJ

ORDER:

The respondent pay the applicant the sum of $21,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offences of assault occasioning bodily harm and assault with intent to commit rape, which lead to the conviction of the respondent in the District Court at Brisbane on 27 August 2009.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the respondent was convicted of one count each of assault occasioning bodily harm and of assault with intent to commit rape – where the applicant suffered physical injury, a post-traumatic stress disorder to a moderate degree which was likely to persist indefinitely, and an adverse impact under reg 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) as a result of the offence – assessment of compensation

Criminal Offence Victims Act 1995 (Qld) (repealed), s 20,

s 21, s 22, s 24, s 25, s 26, s 30, Schedule 1

Criminal Offence Victims Regulation 1995 (Qld) (repealed),

s 1A, s 2, s 2A

Uniform Civil Procedure Rules 1999 (Qld), r 105(1), r 110(a),

r 110(c)

Victims of Crime Assistance Act 2009 (Qld), s 149,

s 155(1)(a), s 155(2)(b)

AT v FG [2004] QCA 295, applied

R v Kazakoff; ex parte Ferguson [2001] 2 QD R 320, cited

JMR obo SRR v Hornsby [2009] QDC 147, cited

KMS v LJC [2010] QDC 284, considered

PAJ v AAK [2010] QCA 78, applied

JI v AV [2002] 2 Qd R 367, applied

R v Tiltman; ex parte Dawe (1995) QSC 345, applied

R v Ward; ex parte Dooley [2001] Qd R 436, applied

Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, applied

RMC v NAC [2009] QSC 149, applied

SAY v AZ; ex parte A-G (Qld) [2007] 2QdR 295; [2006] QCA 462, applied

SAN v LJC [2010] QDC 439, considered

SMR v LJC [2010] QDC 285, considered

STH v LJC [2010] QDC 303, considered

WHG v LJC [2010] QDC 395, considered

Wren v Gaulai [2008] QCA 148, applied

COUNSEL:

Y. Chekirova for the applicant

No appearance by or on behalf of the respondent

SOLICITORS:

Campbell & White Lawyers for the applicant

No appearance by or on behalf of the respondent

HIS HONOUR:  The applicant seeks compensation pursuant to
section 24 of the Criminal Offence Victims Act 1995 (Qld) (the
Act) for physical and psychological injuries caused by the
attack of the respondent on 2 March 2007.

The Act was repealed by section is 149 of the Victims of Crime
Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1
December 2009.

The transitional provision in section 155(1)(a) of the 2009
Act requires the application to be determined in accordance
with the Act as it was made on 24 December 2009.  This was
within two months after the commencement of the 2009 Act, as
required by section 155(2)(b), it being the earlier of the
dates required in that subsection.

On 27 August 2009, the respondent pleaded guilty to one count
each of assault occasioning bodily harm and assault with
intent to commit rape.  He was sentenced to three years'
imprisonment for the assault occasioning bodily harm and 10
years' imprisonment for the assault with intent to commit
rape.

The application and the supporting affidavits with the
exception of the affidavits of the applicant and Dr McGuire
sworn on 8 January 2011 and 21 December 2010 respectively were
served on the respondent on 30 April 2010.  On that date they
were served by delivering them to the person in charge of the
prison in which the respondent is imprisoned.

Rule 105(1) of the Uniform Civil Procedure Rules 1999 (the
UCPR) requires that a person serving an originating process
must do so personally on the person intended to be served.

Rule 110(c) then provides that a document required to be
served personally on a prisoner must be served on the person
in charge of the prison in which the prisoner is imprisoned.

The documents were delivered to the visits processing officer
in accordance with the procedure for the service of documents
at Wolston Correctional Centre where the respondent is
incarcerated.

I am satisfied that the visits processing officer is
authorised by the general manager of the centre to accept
service on inmates confined at the centre.  Therefore, section
110(c) has been complied with.

I note that the visits processing officer also advised that
she was authorised to accept these documents on behalf of the
respondent.

For completeness, I mention that on the same day the documents
were delivered to an officer of the Public Trustee who was
managing the respondent's estate.  This was in purported
reliance on rule 110(a) of the UCPR to establish personal
service.  However, this provision is limited to proceedings

"of a property nature or for the recovery of a debt or
damage".

An issue arises as to whether the present application is of
this nature.  However, it is not necessary to decide this
because I am satisfied that the respondent has been served
personally in accordance with rule 110(c) of the UCPR.

On 24 January 2011, the respondent's solicitors sent a letter
addressed to the respondent at the centre advising him that
the hearing of this application had been adjourned until
4 February 2011 and enclosing by way of service the affidavits
of the respondent and Dr McGuire which had not previously been
served.

I am therefore satisfied that the respondent has been served
with and is aware of the application and all relevant material
relied on in support of it.  He did not appear when the matter
was called on for hearing at 9 a.m. on 4 February 2011.
Inquiries established that he was not present in the Court
cells.  I therefore proceeded in his absence.

In doing so, I was conscious that the respondent was not
advised of the precise time of the hearing on that date.
However, having regard to the fact that he has advised in
applications by four other victims who were attacked as part
of the same course of offending by the respondent that he did
not wish to take part in the proceedings, I was satisfied
that this failure to appear on 4 February 2011 was consistent
with his taking a similar attitude to the present application.

The other applications were KMS v. LJC [2010] QDC 284; SMR v.
LJC [2010] QDC 285; SAN v. LJC [2010] QDC 349, and WHG v. LJC
[2010] QDC 395.

In the fifth previous application arising out of the
respondent's 27 month course of conduct, he also did not
appear. This was STH v. LJC [2010] QDC 303.

I note that no contact has been made with the Court by or on
behalf of the respondent concerning this application.

CIRCUMSTANCES OF THE OFFENCES

As I said in my sentencing remarks the respondent pulled the
applicant to the ground as she was jogging on a narrow section
of the walking circuit in the Brisbane Forest Park at
4.45 p.m. on 2 March 2007.  This was part of her regular
exercise routine which she engaged in around five days a week.
She had seen him about 15 minutes before the attack as he
approached her on the walking circuit from the opposite
direction.  She said a friendly "Good day" to him.  He grabbed
her hand as he walked past her on the second occasion.  He
pulled her to the ground.  She landed on the gravel.  He
placed himself on top of her with his knees on her chest
pinning her to the ground with the weight of his body.  He then put his hand over her mouth and nose, making it impossible for her to breathe.  She fought back struggling violently against him with the result that he removed his hand.  This enabled her to start screaming.  He threatened to kill her if she didn't stop.  He then punched her three times to the right side of the head.  During the struggle, an earring was ripped from her ear.  She feared for her life.

In the course of the struggle, he put his hand down her
underpants and touched her on the outside of the vagina.  She
managed to bend one of his fingers which caused him to removed
his hand and to try and restrain her arms.  Then he suddenly
got up and ran in the direction he had come from.

The applicant was able to attract the attention of a passing
cyclist.  As a consequence the police and ambulance were
called and she was taken to hospital for an examination and
x-rays.  This included an examination at the sexual assault
clinic.

INJURIES AND MEDICAL REPORTS

The agreed schedule of offences which was tendered by the
prosecution at the sentence described the applicant's physical
injuries as multiple bruises, abrasions and scratches to the
face, head, scalp, neck, chest, knees and right buttock.

There was extensive bruising to her right eye and right side
of her face, chin, neck and ear, as well as to the left cheek
and chin area.

I made reference to these injuries in my sentencing remarks.
They are documented in the photos which were tendered at
sentence and which form part of the evidence before me on this
application.

The summary of her injuries was based on the report by
Dr Thomas who examined her at 1.10 a.m. on 3 March 2007.
The more detailed account of her injuries which he gives
commences with swelling, tenderness and blue/pink
discolouration of bruising over the right ear and on the side
of the face in front of the ear.  The affected area measured
about 7 centimetres from front to back and 8 centimetres up
and down.

The ear had a typical cauliflower appearance because of its
swollen irregular surface and discolouration.  There were
pinpoint bruises and abrasions inside the ear.  There were
purple linear bruises around the outer margins of her upper
and lower lips.  There were small patches of bruises over her
upper right eyelid and another bruise medial to the eye.
Lateral to the left eye, there was a 2 centimetre long
scratch.  There was tenderness with small bruises over the
bridge of her nose.  Tenderness was found to the left cheek
bone.  There was a raised 4 by 5 centimetre tender area on the
left side of the head in the temporoparietal occipital region.

There was also tenderness over the occipital area to the right
side of the head which extended to the back of the upper part
of the neck.  On the left side of her neck just below the
mandible was a red bruise 2 centimetres by 3 centimetres.
Tenderness was found in the region of the eighth rib on the
right side.  Multiple superficial abrasions and welts were
observed over both shoulder blades extending to the lower
chest on the right side.  A cluster of parallel, linear,
grooved abrasions were noted on the lower outer quadrant of
the buttock extending to the upper thigh.  These covered an
area of 8 by 5 centimetres.  A 4.5 by 3.5 centimetre area of
abrasion and bruising was noted over the right kneecap.  The
left knee had scattered, small abrasions and there was a 2
centimetre long scratch above the left knee.

In her statement made one month after the attack, the
applicant refers to applying ice to her head and taking
Panadol to relieve her severe headache, sore neck and her sore
and tender right ribs.  At the time of her statement she was
still taking Panadol every couple of hours due to headaches
and pain she was feeling in her neck and ribs.

Dr McGuire, the psychiatrist who assessed her for the purpose
of this application, reports that the applicant suffered
headache for a period of some months and she took two weeks
off work until her face healed.

In sentencing the respondent, I said that his victims, because
as I have indicated, there were other victims of his offending
which occurred over the 27 month period, were violated and
degraded with many suffering more devastating psychological
consequences than their immediate physical injuries as
demonstrated in their victim impact statements.

The applicant is the sixth of these victims whose application
for compensation for injuries as a result of the respondent's
attacks I have considered.

In her undated victim impact statement which was tendered at
sentence, the applicant commences by saying that "recalling
the events of that afternoon is traumatic."  She said that
despite two years passing since the attack, "It is something
that is on my mind on a daily basis.  I know I will never feel
safe again."

She also wrote:
"At the time I used to go running through the Brisbane State
Forest at least once a day enjoying my time alone.  Now I am
even frightened to be alone in my own home.  When I am at work
and a man walks in with sunglasses and a hat on, I get a sick
feeling in my stomach.  The attack has forced changes to my
lifestyle with consequential impact on relationships, health
and well-being.  Because of lack of exercise I have put on 10
kilos.  This is quite distressing for me."

She emphasised that she was in fear of her life.

In conclusion she said:
"I feel that the memory of the attack on me is something that
will stay with me for the rest of my life."

This remained the case when she swore her affidavit for the
purposes of this application about eight months later on 22
April 2010.

In this affidavit she deposed:
"The assault has had a huge impact on my life.  I used to run
regularly by myself.  Now I cannot and my fitness is
non-existent.  If I go for a walk I have always have to have
someone with me.  I will never feel safe again.  I'm
frightened even to be alone in my own home."

She was interviewed by Dr McGuire approximately seven months
later on 29 November 2010.  Dr McGuire's report demonstrates
that her psychological condition remains unchanged about three
and three-quarter years after the attack.  The applicant told
Dr McGuire that she doesn't like talking about the incident
and was tearful on occasions when recounting it.  She has not
had any counselling and does not want to undertake it.

Consistent with the applicant's victim impact statement and
affidavit, she told Dr McGuire that running, which she had
stopped doing since the incident, was an important part of her
life which had meant a lot to her.  She is distressed that she
has put on weight because she is not running.

While she can go out alone, she is anxious if she is in an
empty train station and there is a man there.  She has a great
deal of trouble passing a man on a path.  She feels her
stomach turn and she becomes agitated.  She prefers company
whenever she is out.

She sits at home but is very security-conscious and hears
footsteps in the house constantly.  She is hypervigilant.  Her
sleep has been affected.  She has nightmares and wakes
frequently.  She relives the event and experiences flashbacks
almost daily when she is reminded of the incident by
interviews with people like Dr McGuire.  She feels her life
has been foreshortened.  She was more irritable than usual.

Although she has remained with her current partner for four
years and her sexual life has not been affected, she is very
angry with men and lacks trust in them.  In general she has
less enjoyment of the life.

Her work has been affected.  She works in a service station
and at times when she is on her own, she is very
security-minded and anxious.  She has an exaggerated startle
reflex, is constantly on edge and states that her self-esteem
is lower compared to her previous high degree of
self-confidence.

In her affidavit of 8 January 2011, the applicant swears that
Dr McGuire has accurately recorded those matters discussed
with her and confirms that the factual matters outlined in Dr

McGuire's report are correct.

Dr McGuire, a psychiatrist with 38 years' experience, is of
the opinion that the applicant exhibits a post-traumatic
stress disorder as exemplified by her experiencing nightmares,
flashbacks, disturbed sleep, recurrent intrusive thoughts of
the incident, irritability, hypervigilance and exaggerated
startle reflex.

She considers that the applicant suffers this condition to a
moderate degree because she is able to continue her work
although it is more difficult than it had been prior to the
incident.

Dr McGuire considered that there were no significant
contributing factors to this condition.  I interpret this in
the context of the report to mean that there are no significant contributing factors other than the attack on her by the respondent.

The report also addresses the issue of whether the applicant
has suffered any adverse impacts of the sexual offence of
assault with intent to commit rape.

For the purpose of section 1A(1 )of the Criminal Offence
Victims Regulation 1995 (the regulation), Dr McGuire addresses
the adverse impacts in paragraph (a)(to)(i) of section 1A(2) of the regulation.

In her opinion, these are either a prerequisite for a
diagnosis of post-traumatic stress disorder or are not
applicable in this case.  Therefore, she has not identified
any adverse impact which is not included in the diagnosis of
post-traumatic stress disorder.

THE APPLICABLE PRINCIPLES

The assessment of compensation is governed by Part 3 of the Act. Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6]. A personal offence is an indictable offence committed against the person of someone: Section 21 of the Act. An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act or prescribed under a regulation: Section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act. It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled: Section 22(3) of the Act. A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (Qld) (the Regulation) section 2; See also Riddle v. Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [12].

An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: section 25(3)-(4) of the Act.  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to make an order for the prescribed amount.  If the injury does not come within those itemised in the compensation table or specified under a Regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table:  Section 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table: Riddle v. Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 438, 440.
It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table
is reserved for the most serious cases: R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v. Coffey at 224; and at [18]; JMRoboSRR v. Hornsby at [6]. However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward: Riddle v. Coffey at 224; and at [18]. Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted: Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6]. However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item, in order to avoid duplication it may therefore be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item: Wren at [29]; Hornsby at [6].

Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

In respect of sexual offences, it is necessary to commence by compensating the victim in so far as the impact amounted to an injury pursuant to section 20 of the Act, and to assess compensation pursuant to section1A of the Regulation only to the extent that any relevant adverse impacts of a sexual offence were not an injury under section 20 of the Act: JI v AV [2002] 2QdR 367 per Chesterman J at 372; per Atkinson at 382-383; Hornsby at [6]. They would be such an injury if they were nervous or mental shock; AT v FG [2004] QCA 294 per Jerrard JA at [17].

Section 25[7] of the Act provides that in deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury. 

The issues of fact on this application must be decided on the balance of probabilities:  Section 30(2) of the Act.

THE APPLICANT’S SUBMISSIONS

Miss Chekirova who appeared for the applicant submits that she
suffered the following injuries and should be compensated on
the following basis:

• item 2 - bruising/laceration etc (severe) - 4% - $3,000.

• Item 32 - mental or nervous shock (moderate) - 15% -

  $11,250.

• regulation 1A - adverse impact of a sexual offence - 10% - $7,500.

Therefore an award is sought of 29% of the scheme maximum
which is $21,750.

ASSESSMENT

I am satisfied on the balance of probabilities that the
applicant suffered the physical and psychological injuries
documented in the evidence to which I have referred, and this
is as a result of the indictable offences of assault
occasioning bodily harm and assault with intent to commit rape
committed against her by the respondent on 2 March 2007.

ITEM 2 - BRUISING/LACERATION ETC (SEVERE) - 3%-5%

Ms Chekirova's submission that compensation for the
applicant's physical injuries should be awarded at the
mid-point for this type of injury in item 2 is based on their
multiplicity and the number of different areas of the
applicant's body that they affected.

In Ward at 438-439[9] the Court stated:  "To qualify for the 5
per cent which is the top of the 'severe', one would not have
to be beaten black and blue from head to toe; but the bruising
and laceration must have some claim to be one of the most
serious cases."

In that case, their Honours reduced an award at the top of the
range to one of 2 per cent for moderate areas of swelling to
the upper lip, right side of the mouth, three fingers and the
elbow.  They could find nothing in the evidence that this
swelling was long-lasting or causative of significant pain.
There were no lacerations.

While comparison of awards in cases under this legislation can
be fraught with difficulty because no two cases are exactly
alike, I also take into account my assessment at 3 per cent of
the scheme maximum of the injuries suffered by the applicant
in KMS v. LJC [2010] QDC 284 which as I have indicated arose
out of the same 27 month course of offending by the
respondent.

This is the highest assessment I have made under item 1 or
item 2 of the compensation table concerning injuries caused by
the respondent's offending.

In that case, the scratches, abrasions and weals were also to
nearly all areas of the applicant's body.  Reference was made
to her face, head, arms, torso and legs being injured.  The
applicant also suffered from a puncture wound to her upper lip
which bled.  The pain and discomfort the injuries caused to
the applicant lasted for "some time and required the applicant
to take pain-killers to assist in the management of the pain."

However, Dr Thomas who also examined KMS described most of her
injuries as superficial and the lacerations which involved
some bleeding were scratches rather than wounds.

In the case of the present applicant the injury to her right
ear and the right-hand side of her face cannot be described as

superficial as the photographs demonstrate.

In addition, there was tenderness to the region of her eighth
rib on the right side and tenderness and bruising to her head
and neck.  One month after the assaults she was still taking
Panadol every couple of hours, not only for headaches but also
for pain she was feeling in her neck and ribs.

In KMS v. LJC, I also assessed a further 2 per cent of the
scheme maximum to compensate the applicant in relation to mild
to moderate tenderness to the same rib which was described as
being moderately painful.  This continued to cause discomfort
for a further five weeks with the result that analgesia was
prescribed.  I made this award under item 21 for a minor chest
injury for which the range is 2 per cent to 7 per cent of the
scheme maximum.

In the present case, the application being made on the basis
of item 2, I consider it is appropriate to assess the tenderness to her rib, and the tenderness to her neck with the associated pain in conjunction with the bruising, scratches and abrasions.  In order to avoid duplication I make the necessary adjustments to cater for the differences between the ranges of items 2 and 21.

In these circumstances, I assess an award at 4 per cent of the
scheme maximum for item 2 as compensation for the applicant's
physical injuries, that is, $3,000.

ITEM 32 - MENTAL OR NERVOUS SHOCK (MODERATE) - 10%-20%.

It is submitted that item 32 of the schedule is appropriate
for the applicant in this case and that compensation for her
psychological injuries should be awarded at 15 per cent of the
scheme maximum.  This is at the mid-point of the moderate
range for mental or nervous shock.  Reliance is placed on Dr
McGuire's opinion that the applicant is suffering from a
post-traumatic stress disorder of a moderate degree as a
result of the offence.

In oral submissions, particular emphasis was placed on Dr
McGuire's statement that the applicant has not had any
counselling and does not want to undertake it.  This is
obviously because, as emerged from Dr McGuire's report, the
applicant has an aversion to talking about the incident.

As the psychiatric observes:
"She relives the event and experiences flashbacks almost daily
especially when she is reminded of the incident by interviews
with people like me."

In RMC v. NAC [2009] QSC 149, Byrne SJA took the view that
mental or nervous shock within the Act is confined to a
recognised psychiatric illness or disorder.  In coming to this
view, his Honour preferred the view of Lee J in R v. Tiltman;
ex parte Dawe [1995] QSC 345 to that of Thomas JA in R v.
Kazakoff; ex parte Ferguson [2001] 2 QdR 320.

In WHG v. LJC [2010] QDC 395, I applied the decision of
Thomas JA in preference to that of Byrne SJA and therefore
proceeded on the basis that mental or nervous shock within the
Act is not confined to a recognisable psychiatric illness.
However, a determination of this issue is not necessary in the
present case because I find that a post-traumatic stress
disorder is a recognisable psychiatric illness or disorder.
As such, it constitutes mental or nervous shock and is
compensable under the Act.

In AT v. FG [2004] QCA 293, Jerrard JA made reference to:
"Establishing the existence of post-traumatic stress disorder
and therefore mental or nervous shock."

Having regard to Dr McGuire's opinion, I am also satisfied
that the respondent's conduct constituting the offence against
the applicant was the material cause of that disorder and
therefore is a proper subject for compensation.

Dr McGuire says that there are no contributing factors.  In
coming to this conclusion, she has perused the applicant's
victim impact statement.  This statement makes reference to the applicant becoming more depressed and isolated as a result of injuries received in a pushbike accident subject to the
respondent's attack.  Therefore, I proceed on the basis that
Dr McGuire did not consider the consequences of this accident
to be a contributing factor to the applicant's post-traumatic
stress disorder.

In making this assessment, it is again relevant to have regard
to the assessments made for mental or nervous shock in
compensating other victims who are attacked as part of the
same course of conduct by the respondent.

I assessed compensation at 12 per cent of the scheme maximum in the cases of KMS v. LJC [2010] QDC 284, and STH v. LJC [2010] QDC 303.

The victims in both those cases experienced heightened anxiety
following the assault, became hypervigilant, constantly
scanning their environments, being highly suspicious and
fearful of men, particularly those wearing similar clothes to
the respondent when he attacked, and struggled to do things
away from home.

The similarities with the nature of the disorder suffered by
the applicant are readily apparent.  KMS had lost interest in
sex.  This is not the case with the present applicant.
However, as Dr McGuire says, she experienced diminished
enthusiasm about sex but is not adverse to it.

However, unlike the present applicant, the severity of the
original injury suffered by KMS had moderated in the three and
a quarter years since the attack.

Although STH had not lost interest in sex, her condition had
continued for approximately 18 months at the time of her

affidavit and was described by her psychologist as a
post-traumatic stress disorder involving a severe to extreme
impairment which is ongoing and requires the assistance of a
clinical psychologist.

She continued to be anxious, insecure and fearful of attack as
well as suffering social phobias.  By comparison, the present
applicant's condition has continued for about three and
three-quarter years as at the time of her interview with
Dr McGuire.  In my view it is likely to affect her at the same level for the indefinite future.

I assessed compensation at 16 per cent of the scheme maximum in SAN v. LJC [2010] QDC 349. In that case Dr McGuire's opinion was that SAN had a post-traumatic stress disorder of a
moderate degree.  This was based on an interview about three
and a half years after the attack.

SAN said that her life and lifestyle had been permanently
affected as a result of the attack.  She summed this up almost
four years after the incident as follows:

-    She was constantly thinking about her safety.
-    she no longer exercised in public.
-    she was hypervigilant whenever she was in public places.
-    she had lost her sense of security.
-    she had trouble trusting people particularly men.
-    she had not had a stable personal relationship with a man

since the incident.

-    she became very emotional when the event came into

conversation, when she heard of a similar event in the media or when she saw sexual violence in films or on television. This had been exacerbated by the media interest in her case.  She got upset at constant reminders of the incident. She had been unable to see a counsellor because she found it emotionally distressing to talk about the attack.

-    she had several nightmares leading up to her appointment

with Dr McGuire for the purpose of the medico-legal report which was prepared for the proceedings.

- she had trouble sleeping and recurring nightmares of being suffocated by the attacker or dreaming that he was in her bedroom.  She slept with the bedroom light on for peace of mind.

-    she developed some obsessive tendencies such as turning

lights on and checking that doors and windows were locked.

-    she thought that she had seen her attacker on several

occasions and on one of those occasions, she phoned the police to investigate.

-    she often felt depressed as a result of the offence.

Dr McGuire observed that SAN had:
"Nightmares, flashbacks, avoidant behaviour, irritability,
hypervigilance, some obsessionality, low mood."

Dr McGuire also said that SAN required counselling but was not
ready for treatment as she had an aversion to talking about

the incident.

Although the present applicant did not suffer as serious an
adverse effect on her lawful sexual relations as was the case
with SAN, like SAN, her post-traumatic stress disorder
persists a substantial time after the incident such that she
remains unable to undertake counselling because she finds it
emotionally distressing to talk about the attack.

In these circumstances, as in the case of SAN, I consider that
the post-traumatic stress disorder is likely to continue to
affect the applicant at the same level for the indefinite future and that it will do so to a moderate degree.  I accept that the respondent's attack is on her mind daily and she will never feel safe again.  I consider she has suffered more severe consequences than KMS and STH, and that these consequences are more closely comparable to those experienced by SAN.

I find the injury suffered by the applicant as a result of
the incident was moderate mental or nervous shock within item
32 of the compensation table.

Having regard to the less adverse effect on the applicant's
lawful sexual relations to that experienced by SAN, I assess
compensation for this degree of mental or nervous shock at 15
per cent of the scheme maximum, namely $11,250.

REGULATION 1A - ADVERSE IMPACT OF SEXUAL OFFENCES - 1%-100%.

As I have said, a compensable injury under the Act includes an
injury under a regulation.  Under section 1A(1) of the
regulation, 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
described as an injury, and "adverse impact" of a sexual
offence is then defined by section 1A(2).  "Sexual offence"
are defined in section 1A(3) of the regulation to mean a
personal offence of a sexual nature.

There is no doubt that the offence of assault with intent to commit rape committed by the respondent against the applicant is a sexual offence.

As stated by McMurdo P (with whom Muir and Chesterman JJA
agreed) in PAJ v. AAK [2010] QCA 79 at [28]:
"The clear terms of reg 1A(1) of the regulation provide that
to be compensable under the Act, the adverse impacts under
reg 1A must be additional to the mental or nervous shock
injury under section 20 of the Act. The onus was on the
applicant to establish her claim on the balance of
probabilities."

It was for this reason Jerrard JA stated in AT v. FG [2004]
QCA 295 at [25]:
"Applicants for compensation who are diagnosed as suffering
from post-traumatic stress disorder or from depression or

anxiety will benefit from their legal representatives
insisting upon the diagnosing practitioner specifically
describing the matters experienced by the applicant which are
not relied on in support of a diagnosis; those matters may
then be capable of being adverse impacts."

Dr McGuire has done this in the present case.  As I have
observed, she has not identified any impact which is not
included in the diagnosis of post-traumatic stress disorder.
However, Dr McGuire did not refer to section 1A(2)(k) which
allows an award to be made for anything the Court considers is
an adverse impact of the offence.  It is submitted that an
adverse impact which is not included in Dr McGuire's diagnosis
is the effect on the applicant's health which has resulted
from her increased weight.

Reference is made to the applicant's 22 April 2010 affidavit
in which she deposes that:
"The assault has had a huge impact on my life.  I used to run
regularly and my fitness is non-existent."

In her victim impact statement made about eight months before,
the applicant stated:
"Because of the lack of exercise, I have put on 10 kilos.
This is quite distressing for me."

Dr McGuire observes that at the time of her interview about
three and three quarter years after the attack, the applicant
had not returned to running.  In her report, when referring to
the adverse impact identified by section 1A(2)(b) which is,
"Reduced self-worth or perception.", Dr McGuire includes the
decline of the applicant's fitness and says that this is
obviously part of a diagnosis of post-traumatic stress
disorder.  However, I agree with Ms Chekirova that the issue
of the applicant's physical health, although a consequence of
the lack of fitness contributing to her reduced self-worth is
an impact which is additional to the applicant's
post-traumatic stress disorder.  The affect on the applicant's physical health is an impact of the assault which is in addition to her psychological condition.

I consider that an increase in weight of as much as 10 kilos
to the applicant who is now 56 years of age and whose fitness
is now non-existent is a serious impact upon her as it is
likely to have an effect on her health and therefore to have a profound effect on the quality of her life for the future.

Under section 2A, the prescribed amount which can be awarded
for the effect of adverse impacts is up to 100 per cent of the
scheme maximum.

Having regard to the seriousness of the consequences of the
applicant's lack of fitness and the likelihood of an impact on
her health for the indefinite future, I assess that this in
itself warrants an assessment at 10 per cent of the scheme
maximum.  This is $7,500.

SECTION 25(7) OF THE ACT - CONTRIBUTION

Finally, I conclude that nothing in the applicant's actions on
2 March 2007 contributed to either her bodily injury, mental
or nervous shock or prescribed injury that was suffered by her.  For this reason there is no requirement for any further allowance to be made or a lower percentage of compensation to be fixed as a consequence of section 25(7) of the Act.

The applicant did not in any way either directly or indirectly
contribute to her injuries.  She was engaging in outdoor
exercise in a public place as she was entitled to do.  She had
no previous dealings with the respondent who obviously went to
this place with the intention of attacking a woman.

The applicant did not do anything which could be considered
any kind of provocation, nor can the circumstances surrounding
this offence in any way be construed to involve behaviour or
prior conduct of the applicant which might somehow have been
contributory to what happened to her.

I noted in my sentencing remarks that the applicant (along
with other victims) was attacked "generally at a time when
they were exercising and enjoying their environment by
walking, jogging and bike riding in public places where they
had every right to feel safe and secure."

The applicant in no way contributed to her injuries.
Therefore, there is no reason for any reduction of any
assessment of compensation against the respondent.

In addition, as I have said, Dr McGuire identified no other
contributing factors to the applicant's post-traumatic stress
disorder which would require any such reduction.

CONCLUSIONS AND ORDERS

Accordingly, I assess compensation in terms of the
compensation table as follows:

Item 1 - bruising/laceration etc (minor/moderate) - 4 per cent
- $3,000.

Item 32 - mental or nervous shock (moderate) - 15 per cent -
$11,250.

Regulation 1A - adverse impact of sexual offences - 10 per
cent - $7,500.

Therefore the total assessment is 29 per cent of the scheme
maximum.  That is $21,750.

I order the respondent to pay the applicant the sum of $21,750
by way of compensation pursuant to section 24 of the Act for
the injuries sustained as a result of the offences of assault

occasioning bodily harm and assault with intent to commit rape
which led to his conviction in the District Court at Brisbane
on 27 August 2009.

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