KMS v LJC

[2010] QDC 284

[2010] QDC 284

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN  

KMS	Applicant
and
LJC	Respondent

BRISBANE

..DATE 18/06/2010

JUDGMENT

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for physical and emotional injuries caused by the attack of the respondent upon her on 6 December 2006. The Act was repealed by section 149 of the Victims Of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.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 28 January 2010. This was before the end of two months after the commencement as required by section 155(2)(b), it being the earlier of the dates referred to in that subsection.

On 27 August 2009, the respondent pleaded guilty to one count
each of rape, sexual assault and assault occasioning bodily
harm committed upon the applicant.  He was sentenced on
28 August 2009 to 25 years' imprisonment for the rape and to
three years' imprisonment for each of the other offences.  All
of the sentences were to be served concurrently.

On 16 February 2010, the Queensland Court of Appeal set aside
the sentence of 25 years' imprisonment and substituted a
sentence of 16 years' imprisonment, otherwise the orders made
were confirmed.  The success of the appeal against sentence to this extent is irrelevant to the determination of this application.

The Certifcate of Indictment details issued by the Deputy Registrar of the District Court, and exhibited to an affidavit of Ms Dunlop, incorrectly describes the count of assault occasioning bodily harm as a sexual assault.  However, as is clear from my sentencing remarks and the judgment of the Court of Appeal, the count was one of assault occasioning bodily harm.  I proceed on that basis.

The application, the supporting affidavit from Ms Tubaro and a
letter to the respondent dated 6 May 2010, were served on the
respondent at the Wolston Park Correctional Centre by a letter
addressed to the General Manager and mailed on 6 May 2010 by
ordinary prepaid post.  This was in accordance with rule
110(c) of the Uniform Civil Procedure Rules 1999 (Qld) (the
UCPR) under which 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 unless the Public
Trustee is managing the prisoner's estate or the prisoner has
Litigation Guardian.  The affidavit of Mr Miles deposes that
the Public Trustee is not actively managing the affairs of the
respondent.  There is no suggestion that the respondent has a
Litigation Guardian.

Both the letter to the General Manager and the letter dated
6 May 2010, which was addressed to the prisoner at the same
correctional centre and also sent by prepaid post, state it is
intended to rely on an affidavit of the applicant which would
be forwarded to him.  The respondent was advised that this

would happen in due course.  The General Manager was advised
that this would happen in the near future.

The letter to the respondent also advised this matter was listed for hearing on 4 June 2010 at 9 a.m. Out of an abundance of caution, the same material was served on the Public Trustee in purported reliance on rule 110(a) of the UCPR by being forwarded by ordinary post on 19 May 2010. This included advice that the matter was listed for hearing on
4 June 2010 at 9 a.m.  This was done on the basis that a staff member of the Public Trustee advised that the Public Trustee was able to accept service in this manner on behalf of the respondent.

Because the Public Trustee is not actively managing the
prisoner's affairs, section 110(a) is inapplicable.  However,
as Mr Miles' affidavit demonstrates, this has had the
effect of the respondent writing to the Public Trustee on
24 May 2010, advising he had received the application and
supporting affidavits, was aware of the date of the hearing
and he did not desire to take part in the proceedings.

Since that date, as Ms Dunlop deposes, she has served both the
respondent and the Public Trustee with the applicant's
affidavit by letters sent on 2 June 2010.  This confirmed the
date of the hearing of the application.  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.  The Public Trustee has, not surprisingly,
indicated no wish participate in the proceedings.  As
indicated, the respondent has expressed the position that he
does not desire to do so.

As a consequence, neither appeared when the matter came on for
hearing before me at 9 a.m. on 4 June 2010 as had been
notified.  On that date I adjourned the matter to today,
18 June 2010, for hearing.

CIRCUMSTANCES OF THE OFFENCES

As I stated in my sentencing remarks, these offences occurred
in a reserve at 6 p.m. when the applicant was taking her dog
for a walk.  This was on 6 December 2006.  The respondent put
his hand over her mouth and threw her to the ground.  He
briefly inserted two fingers into her vagina.  This was the
rape.  He also grabbed her left breast under her bra for a few
seconds.  This was the count of sexual assault.  He also
gratuitously assaulted her.  As I said, the applicant sought
to defend herself by grabbing the respondent's testicles, as a
result of which he punched her three times in the side of the
head.  As the Crown Prosecutor said, "This was gratuitous and
excessive."

I identified that she suffered swelling and bruising to her
left forehead and left ear.  I also mentioned her suffering
scratches and abrasions.

The reserve where the incident occurred was a short distance
from the applicant's home.  At the time she was a 38 year old
married woman.  She was unwinding after a busy day by walking
her dog on a lead along a track.  As she said in her Victim
Impact Statement, there was "heaps of daylight".  She had
walked past the respondent a short time before the attack.
In her usual way of acknowledging other walkers, she smiled at
him but did not receive a response.  As I said in my
sentencing remarks, his intention was "to attack the
unfortunate woman who was in that area at the time."

The applicant's account in her statement, which is in more
detail than the summary in my sentencing remarks and contains
observations relevant to the emotional aspect of her claim was
as follows:

"When he first grabbed me I was shocked.  The first thing he
did was put his hand down the back of my bike pants and I felt
maybe two fingers inside my vagina quickly.  His fingers went
inside for a brief time and then he removed his fingers out.
He removed his whole hand, I think because I was struggling so
much and screaming as loudly as I could.  I think he tried to
cover my mouth again.  I was yelling, 'You bastard,' several
times and I was very angry.  I didn't cry or show him anything
except fear and anger.  Amidst the struggle he also put his hand down the inside of my top under my bra and grabbed my
left breast for a few seconds.  It wasn't for long because I
was struggling so much and as hard as I could. 

I was punching him anywhere I could.  I punched him once in the groin but I couldn't get him hard.  I kept wriggling, kicking and hitting so he couldn't grab me.  I was trying not to stay still so he couldn't touch me.  I was fearful that he was trying to or going to rape me.  I think I bit him on either his shirt sleeve or the side of his shirt.  I don't know if I got any skin.  With my right hand I grabbed his testicles and squeezed as hard as I could and he didn't let go.  I think he rose over me and kneeled up and punched me three times in the side of the head.  I let go of his testicles before he hit me.  It was really hard because I remember thinking, 'Are you trying to knock me out?' 

It was very vicious and I could feel his anger.  He connected with my forehead, my left temple area and on the top of my left ear.  After he punched me I let out one lengthy
scream.  He then got up and walked away back the way he came
towards the fire break.  He didn't run at all.  It all
happened too quickly and I wasn't expecting it.  I wouldn't
have thought the whole thing was more than a minute."

Upon apprehension the respondent stated this account was
correct.  The applicant walked and ran back along the track
after the attack until she saw a couple to whom she explained
she had been assaulted.  As a result, the police were
contacted, following which she was photographed and swabs were
taken.  She saw a doctor at this time.

INJURIES AND MEDICAL REPORTS

The applicant's description of her physical injuries in her
statement of the following day is as follows:

"I have skin abrasions on my right shin and knee, cuts on my
right forearm, two scratches on my stomach, minor scratches on
my back and buttocks, a small abrasion on my top lip, bruising
on my forehead, bruising on my left ear, bruising on my
temple, bruising on the left side of my head and bruising on
the left side on one of my ribs.  My neck is stiff and I feel
generally quite sore.  I am also quite upset by what has
happened."

These injuries are documented in the photographs taken at the
time which are exhibited to her affidavit.  They demonstrate
the extent of her injuries.

When Dr Thomas examined her at 10.30 on the evening of the
attack, he noted the following injuries:

"Face, Head and Scalp:

• tender swelling with superficial abrasion

  4 x 4 centimetres over left forehead;

• tender, slightly swollen area of the lower left temple,

  measuring 3 x 2 centimetres about one centimetre above the zygomatic arch.  This area was mildly painful on opening her mouth and clenching her teeth;

• two small wheals, almost superficial abrasions, below the left ear;

• a tiny puncture wound of the upper lip just above the middle of the vermilion border.  There were bloodstains across the upper lip.

Right Forearm:

• three scratches, 0.5, 1.5 and 5.0 centimetres long on the

  front of the forearm just below the cubital fossa (elbow);

• three marked scratches, shortest one centimetre, longest five centimetres on the ulna aspect (inside) of the forearm.

Left Upper Arm:

• a wheal six centimetres along across the mid level of the upper arm.

Front of Chest:

• mild to moderate tenderness across the region of the eighth left rib in the mid-axillary line.  She said it was mildly painful on taking a deep breath and also on antero-posterior chest wall compression.  The lung fields seemed clear on auscultation;

• there was a red wheal, bordering on abrasion, on each side of the lower chest flanks.

Back of Chest:

• two superficial scratches, 2.5 and 5.0 centimetres long,

  running across the left shoulder blade.

Front of Abdomen:

• two long scratches, 8.5 and 10 centimetres long, running

  obliquely across the left upper quadrant.

Buttocks:

• multiple small scratches across the right buttock;

• two small, superficial abrasions on the lower, inner part of the left buttock.

Right Knee and Leg:

• multiple scratches in clusters at the upper and lower levels of the right kneecap;

• multiple scratches and superficial abrasions on the front of the right leg on the fleshy part.

Left Thigh:

• a superficial scratch 3.5 centimetres long on the front of the thigh above the left knee."

For completeness, I add her lower genital tract was examined
without revealing any abnormality.

She states in her affidavit that these physical injuries,
especially those to her face, took some time to heal and
caused her a good deal of discomfort.  She took painkillers to
help her manage the pain they created.

The pain to her rib area in particular continued to trouble her.  She had difficulty sleeping because the rib cage hurt
when lying on her stomach.  She would feel uncomfortable
taking a deep breath.  As a result, about five weeks later, on
13 January 2007, she attended her GP, Dr Jabs, whose medical
notes state:

"She was tender over the lower eighth rib as a result of which
she was given analgesia."

Consistently with Dr Jabs' progress notes, the applicant
states that the doctor indicated to her the possibility a
callus had formed over the area which may have been indicative
of a fracture that had healed.  At the time of the
appointment, Dr Jabs advised her that there was little or no
benefit in getting an x-ray as no treatment was available to
mend the break other than time.  Upon that advice, the
applicant did not get the site x-rayed.  The applicant further
states that she obtained the sum of $500 from her insurer for
a broken rib.

In sentencing the respondent, I said that his victims, as there were other victims of his offending over a 27 month period, were violated and degraded, with many suffering more
devastating psychological consequences than their immediate
physical injuries as demonstrated by their Victim Impact
Statements.  I selected the applicant's Victim Impact Statement to sum-up the effect on these women ,who, like the applicant, were simply trying to enjoy and obtain pleasure from their environment as they went about their daily exercise. 

In that Victim Impact Statement of 23 August 2008, 20 months after these events, the applicant said:

"That day I was robbed of my positive outlook on life and of
my trust in human nature...that's when my world changed...I'd never been assaulted before...the hours ensuing the assault were mind numbing...I'd never been punched before...doctors' visits, police station interviews, time off work, conversations to tell loved ones, phone calls, psychologists'
appointments, hearing about my assault on radio and
television, doubts, fears, tears, all things generally absent
from my day to day, now more frequent than ever, horrible
thoughts and flashbacks had taken over my space...my
fortnightly visits to the blood bank to donate were ceased for
a year because of the risk that I may have contracted some
disease.  I was devastated.  I had set myself a personal goal
to make 200 donations by 2008 but that goal was shattered.
Every man I saw wearing a cap and sunglasses sent a shiver up
my spine - 'Was that him?'  It put my mind right back to the
moment when I was forced to the ground, kicking and screaming.
People standing behind me put me on edge.  This also triggered
horrible images in my thoughts.  For months I wouldn't go into
my own backyard at night, nor would I shower if my husband
wasn't home - I was anxious for most of the time when I was
isolated."

In her affidavit sworn on 2 June 2010, the applicant deposes
about three and a half years after the events:

"10.  At the time of the offences I was very shocked and
distressed.  I struggled as much as I could against him.  I
screamed as loudly as possible, like I had never screamed
before.  After the assault was over I felt numb, extremely
frightened and previously foreign feelings of anxiety
enveloped my world.  When I returned with the police to the
area where I had been assaulted, I was overcome with feelings
of intense fear.  Having to recount events to police was
extremely stressful.  Undergoing the examination with the
sexual assault team at the hospital was embarrassing and
degrading.  The possibility that I may have contracted a
sexually transmitted or other disease was incomprehensible.  I
am a woman of extremely high morals and have always conducted
myself in a manner where such possibilities remained remote.

11.  In the days and weeks following the assault, I became
extremely anxious and upset.  I was often teary.  I found this
very frustrating because I did not want to become someone who
was too terrified to leave my house.  I was determined that I
would not allow this man to change who I was and what I
enjoyed about my live.

12.  Despite my determination, my anxiety continued to
increase and I attended with a psychologist to assist me in
managing this condition.  However, symptoms have persisted
since the assault.  I feel that I have to keep a vigilant
lookout for people who may mean to do me harm.  I am
constantly looking around for potential attackers and I am
very suspicious of other people, particularly men.  I feel
somewhat fearful of men in general.  This feeling excalates
when I see men who are dressed in a similar to manner to that
of my attacker.  I would and continue to do so to a lesser
extent experience flashbacks to the moment the respondent
attacked me.  I also feel uncomfortable when people stand
behind me.  I can't help but think of the horrible things that
may happen if they mean to harm me.  I forced myself to do
things away from the home and because I was so fearful and
anxious I became physically tense.  These feelings are not as
severe now that the Court has dealt with the respondent.  I
always prided myself on being a trusting and friendly person,
even to strangers.  I am now suspicious of strangers and trust
very few.

13.  An issue that caused me the most distress was that I was
unable to give blood for a period of 12 months following the
assault.  I found this to be devastating as I am a regular
donor of platelets and/or plasma.  I did this every fortnight.
I had a goal of making 200 donations by 2009, the year of the
blood donor.  I would have also been able to collect my Red
Cross silver medal alongside my husband who would collect his
100th donation medal at the same ceremony.  However, that
moment was snatched from us.  Our joint goal was to be
shattered by the respondent's actions.  The blood bank decided
to suspend me for 12 months in case I had contracted a disease
from the respondent as a result of the assault.  I again had
to endure the thought that perhaps a complete, filthy stranger
had passed some ugly diseases into my otherwise healthy body.
I have now recommenced giving blood to the blood bank.

14.  I have lost interest in sexual relations with my husband.
I found that I didn't really want to engage in intimate
behaviour with my husband any more.  When I did engage in such
activity, I suffered from flashbacks to the offence.  The act
of intimate touching by my husband took me directly back to
that hideous moment when a complete stranger violated my most
personal, private and intimate part of my body.  These flashbacks take away spontaneity, ease and comfort.  This, of
course, has put immeasurable pressure on our marriage.  My
husband feels uneasy and worries for my peace of mind.  The
respondent has taken away something that was very sacred to my
husband and I.  I have a difficult time trusting men in
general.  Prior to the attack I had never felt like that.  The
offences have taken this away from me.

15.  In general, I am not the same person I was before this
happened.  I am not the easygoing, approachable, happy person
I used to be.  That part of my personality was an integral
part of who I was.  I had changed..."

At the time of her psychological assessment on 25 March 2010
by Ms Tubaro in order to provide the report for the purpose of
these proceedings, the applicant was separated from her
husband for reasons unassociated with the respondent's
offending against her. 

Ms Tubaro's opinion is that the applicant presents with features consistent with an Axis 1 psychiatric disorder with features consistent with post traumatic stress disorder - chronic (DSM-IV-TR).  She presents with low to moderate level

acute anxiety episodes, as well as symptoms of increased arousal and impairment in important areas of life functioning.

Ms Tubaro says that the incident was very traumatic for the
applicant who thought her assailant might kill her.  She
experienced a traumatic event where she incurred actual
physical injury and felt frightened for her physical
integrity, as well as intense fear and pain.

Ms Tubaro does not consider there to be any factors in the
applicant's history that might be impacting deleteriously on
the post traumatic stress disorder.  There are no pervasive
indicators in family and personal history that may suggest a
pre-existing psychological vulnerability that would lead to
the development of this disorder.

While the applicant had an emotionally difficult childhood,
given her mother's attitude and her history of being adopted,
the applicant seems to have managed to cope with those issues

in the absence of developing any psychiatric issues in
Ms Tubaro's view.  Although it does appear to impact both upon
her life in other ways that are of no significance to the
development of the current disorder.

Ms Tubaro says that since that time in late 2008, when the
attack occurred, the applicant continues to reexperience the
sexual assault through occasional, fleeting flashbacks.  She
continues to be hypervigilant of men and exhibits a startle
response if a person comes up from behind her.  Her sexual
life with her husband was affected, and notwithstanding that
she and her husband were separated at the time of Ms Tubaro's
examination, she notes that the applicant has no interest in
sex any more.  She also observes that the applicant has a less
positive outlook which is noticeable to those who know her.  In Ms Tubaro's opinion, the applicant presents with a post
traumatic clinical picture at a mild level of severity.

Ms Tubaro says that the applicant appears to be managing any
symptoms well.  At most, according to Ms Tubaro, she could
benefit from having around half a dozen CBT counselling
sessions available to her for those times when she feels the
need of support.  Outside of this, Ms Tubaro makes no ongoing
treatment recommendations for the disorder.  She says that the
therapeutic treatment sessions can range from $120 to $240,
depending on the length of time allocated for the sessions and
whether the practitioner is a clinical psychologist or a
psychologist.

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
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 making an order for the prescribed amount.  The prescribed amount for an injury mentioned in section 1A of the
Regulation is an amount not less than one per cent but not more than 100 per cent of the scheme maximum:  section 2A of the Regulation. 

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 in 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 QdR 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] 2QdR 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 section 1A 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:
R v. Atwell; ex parte Jullie [2002] 2QdR 367 per Chesterman J at 372; per Atkinson J 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

In her written submissions, Ms Whitaker, for the applicant,
submits that the following injuries in the compensation table
are applicable:

• Item 2 - bruising/laceration, etc (severe) - 4 per cent - $3,000.

• Item 21 - neck/back/chest injury (minor) - 2 per cent -

$1,500.

• Item 31 - mental or nervous shock (minor) - 10 per cent -

$7,500.

Therefore, an award is sought of 16 per cent of the scheme
maximum, which is $12,000.

ASSESSMENT

I am satisfied on the balance of probabilities that the
applicant suffered the physical and psychological injuries
documented in her affidavit and that of Ms Tubaro as a result
of the indictable offences of rape, sexual assault and assault
occasioning bodily harm committed against her person on
6 December 2006. 

I am satisfied that those injuries involved abrasions, lacerations in the form of scratches, bruising and
swelling, an injury to her chest associated with her eighth
rib on the left side and mental or nervous shock.

Item 2 - Bruising/Laceration, Etc (Severe) - 3 per cent -
5 per cent:

As the applicant's solicitor submits, Items 1-2 in the
schedule set the percentage range for bruising and lacerations
between one per cent and five per cent.  However, because the
submission is that the applicant should be awarded four per
cent of the scheme maximum, it must be contended that the
injuries come within Item 2, which sets a range between three
per cent and five per cent for severe bruising/laceration.

In addressing this issue, I do not have regard to the chest
injury, which I regard as a separate injury and which was of a
more longstanding nature than the other injuries for which the
applicant claims.  In support of this contention, Ms Whitaker
refers to the medical evidence of Dr Thomas, as well as
that of the applicant, and compares her injuries to those
suffered by the applicant in the case of Ward at 438-439, [9],
where the Court stated:

"To qualify for the five per cent, which is the top of the
'severe' range, one would not have to be beaten black and blue
from head to toe; but the bruising and the 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 two per cent for moderate areas of swelling to
the upper lip, right side of the mouth, three fingers and the
right elbow.  They could find nothing in the evidence that
this swelling was longlasting or causative of significant
pain.  There were no lacerations.

It is submitted that the applicant's injuries in this case are
markedly more extensive than those in the case of Ward.  The
scratches, abrasions and wheals to the applicant's body are
more extensive in that they are to nearly all the areas of
her body.  Her face, head, arms, torso and legs were injured.
The applicant also suffered from a puncture wound to the upper
lip which bled.  The pain and discomfort, the injuries caused
the applicant, lasted for "sometime" and required the
applicant to take painkillers to assist in the management of
the pain.

It is accepted in the submission that the applicant's injuries
could not be described as the "most severe" case of bruising
and lacerations.  However, the award, it is submitted, should
reflect the extensive nature of the injuries on her face and
the remainder of her body and the pain and discomfort she
suffered as a result.  Therefore, it is submitted the
applicant should be awarded four per cent of the scheme
maximum.

Although I accept that the injuries are more extensive than in
Ward, involve lacerations and there is some evidence that they
took "sometime" to heal, Dr Thomas describes most of them as
superficial and the lacerations, although as apparent from the
photographs involving some bleeding, are scratches rather than
wounds.  The reference to "sometime" is vague and it cannot
have been as long as 13 January 2007, which is the date the
applicant approached Dr Jabs only in relation to the ongoing
pain to her rib area.

I do not accept that the injuries shown in the photos and
commented on by Dr Thomas are so close to the most serious
cases to be assessed at only one per cent below the scheme
maximum for such injuries.  I would assess an award at three
per cent of the scheme maximum, which is at the top of the
minor/moderate range contained in Item 1 or at the bottom of
the severe range for bruising/laceration as contained in
Item 2 of the compensation table.  I consider it is more
appropriate to assess the compensation under Item 1.  This is
$2,250.

Item 21 - Neck/Back/Chest Injury (Minor) - 2 per cent -
7 per cent:

This claim is in relation to the injury associated with the
region of the eighth left rib.  Dr Thomas describes this as at
the front of the chest.  He describes it as being of mild to
moderate tenderness and as being mildly painful.  However, as
I have observed, it continued to be tender and to cause
discomfort for a further five weeks, such that the applicant
had to consult Dr Jabs and an analgesia was prescribed in
relation to it.

The submission is that due to the uncertain status of this
injury and the fact the applicant received compensation of
$500 from insurance for a broken bone, it should be assessed
at the bottom of the range for this type of injury in Item 21.
This is at two per cent. 

The reference to the uncertain status is that despite Dr Jabs referring to a possible fracture and the insurance payout, it has not been established on the balance of probabilities that there was, in fact, a fracture or break to a rib bone.

Therefore, while I consider the different nature of this chest
injury to the other injuries and its existence for a longer
period makes it separate from those other injuries which are
within Item 1, I assess it at two per cent of the scheme
maximum, namely $1,500.

Item 31 - Mental or Nervous Shock (Minor) - 2 per cent -
10 per cent:

This application is on the basis of a post traumatic stress
disorder.  I have referred to Ms Tubaro's opinion that the
applicant presents with such a disorder of a chronic level
which is presently at the low to moderate acute anxiety level.
In RMC v. NAC (2009) QSC 149, Byrne SJA preferred the view of
Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345 to that of
Thomas JA in Ferguson v. Kazakoff [2001] 2 QDR 320; [2000] QSC
156, and held that nervous shock within the Act is confined to
a recognisable psychiatric illness or disorder. 

In AT v. FG [2004] QCA 293, Jerrard JA made reference to:

"Establishing the existence of post traumatic stress disorder
and therefore of mental or nervous shock."

In these circumstances, I accept Ms Tubaro's opinion and
proceeding on the basis of Tiltman and RMC v. NAC  that for
the purposes of Item 31 of the table, there must be a
recognisable psychiatric illness or disorder, I find that the
applicant's post traumatic stress disorder is compensable as
mental or nervous shock within the meaning of those words in
the Act, and having regard to that opinion, I am satisfied
that the respondent's conduct constituting the offences which
I have identified, was the material cause of that disorder and
is a proper subject for compensation.

As Ms Tubaro indicates, the disorder manifested after the
traumatic events involved in the commission of the offences
against her by the respondent and there are no other factors
in her history that might be impacting on the disorder.

I accept Ms Whitaker's submission that given Ms Tubaro's
opinion that the applicant has no pre-existing psychological
vulnerability which may have contributed to the development of
the post traumatic stress disorder and there is nothing else
which has directly or indirectly contributed to this injury,
there should be no reduction in the amount of compensation
awarded to the applicant under section 25(7) of the Act.

It is submitted that although the applicant only suffers from
post traumatic stress disorder to a mild degree, the offences
have still had a significant effect on her life, turning a
once happy, open person into a person who now distrusts
strangers and has a fear of men.  It is submitted that it is
only due to her strength of character that she has overcome
the common response of alienating one's self from the world by
ceasing to do the things they did previously.  It is
submitted, therefore, that an allowance of 10 per cent of the
scale be made for the applicant's mental or nervous shock,
given the impact the applicant's psychological injuries have
had upon her life.

An award of 10 per cent falls at the top of the minor range of
mental or nervous shock in Item 31 and the bottom of the
moderate range in Item 32 of the compensation table.  Despite
the submission on behalf of the applicant, it is necessary to
consider what item of the compensation table applies to the
determination of the quantum which I would order the
respondent to pay to the applicant. 

In Hill v. Dizo [2010] QDC71, Dorney QC DCJ adopted the approach that when the Act requires a decision about what item in Schedule 1 of the compensation table applies, concern must be directed at what the nature of the "injury" is that was suffered "because" of the offence. That can only be the injury that is originally suffered, which in turn means that where a later diagnosis is that the severity of the original injury is moderated, that is merely something that is taken into account in assessing pursuant to the second limb of section 22(4) of the Act where in the scaling a particular case falls.

The reference to the applicant suffering from a post traumatic
stress disorder at a mild level of severity is based on an
assessment made three and a quarter years after the injury.
However, it is clear that the severity of the original injury
has moderated since that time. 

For example, Ms Tubaro says in her report:

"57.  [KMS] reported experiencing heightened anxiety
following the sexual assault.  The features of that assault or
post trauma response reduced in frequency and severity since
the assault, although some have mildly and infrequently
persisted since the Court dealt with the assailant.  For some
time following the attack, Ms Shaw reported being
hypervigilant, constantly scanning her environments and being
highly suspicious and feeling fearful of men, particularly
those wearing similar clothing to what the assailant was
wearing when he attacked her.  She struggled to do things
away from home, although she forced herself to maintain her
usual routines, despite highly uncomfortable feelings of fear
and heightened anxiety, such that she felt physically tense.
She felt let down because she had a goal of donating a certain
amount of blood and that goal was interfered with after the
attack because they had to await tests to ensure her blood had
not been contaminated.  She lost interest in sex, finding she
didn't want to engage with her husband any more.  Further, during any sexual experiences with her husband, she suffered from 'flashbacks' of the attacks.

58.  Since the Courts have dealt with her assailant, Ms Shaw
experiences much fewer symptoms of less severity and less
frequency."

Having regard to the effect of the offence on her as set out
in the Victim Impact Statement, given only four days before
the respondent pleaded guilty, this being 20 months after the
offences were committed and the loss of her interest in
intimacy with her husband, I consider it is more likely that
the symptoms were originally within the moderate range for
mental or nervous shock rather than the minor range.
Therefore, I find that the injury originally suffered as a
result of the incident was moderate mental or nervous shock
within Item 32 of the compensation table. 

I assess the compensation for this degree of mental or nervous shock having regard to the moderation of her symptoms over time at 12 per cent of the scheme maximum, namely $9,000.

SECTION 25(7) OF THE ACT - CONTRIBUTION

Finally, I consider that nothing in the applicant's actions on
6 December 2006 have contributed to either the bodily injury
or the mental or nervous shock suffered by her and do not for
this reason require any further allowance to be made or a
lower percentage of compensation to be fixed as a consequence
under section 25(7) of the Act. This is consistent with what
I have previously said.

The injuries of the applicant were sustained as a result of
unprovoked attacks.  She was enjoying a walk through a
bushland reserve with her dog during daylight hours.  She did
not know her attacker and did not provoke him in any way.  I
noted in my sentencing remarks that the applicant (along with
other victims) were 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.

CONCLUSION AND ORDERS

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

Item 1 - bruising/laceration etc (minor) - three per cent -
$2,250.

Item 21 - neck/back/chest injury (minor) - two per cent -
$1,500.

Item 32 - mental or nervous shock (moderate) - 12 per cent -
$9,000.

Therefore, the total assessment is $12,750.  I order the
respondent to pay the applicant the sum of $12,750 by way of
compensation pursuant to section 24 Criminal Offence Victims
Act 1995 (Qld) for injuries sustained as a result of the
offences of rape, sexual assault, assault occasioning bodily

harm which led to the conviction of the respondent in the
District Court at Brisbane on 27 August 2009.

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