La v Saqu
[2007] QDC 153
•17 July 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
LA v Saqu [2007] QDC 153
PARTIES:
LA
(Applicant)
v
JOSEPH SAQU
(Respondent)
FILE NO/S:
BD 795/2007
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
Brisbane
ORDER MADE:
10 July 2007
REASONS DELIVERED:
17 July 2007
DELIVERED AT:
Brisbane
HEARING DATE:
10 July 2007
JUDGE:
Rafter SC DCJ
ORDER:
The respondent pay the applicant the sum of $22,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence which led to the conviction of the respondent on 28 October 2004
CATCHWORDS:
APPLICATION – criminal compensation – rape – mental or nervous shock – adverse impacts
LEGISLATION:
Criminal Offence Victims Act 1995
COUNSEL:
F Muirhead, solicitor, for the applicant
No appearance by or for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
No appearance by or for the respondent
Introduction
The respondent was tried in the District Court at Brisbane for the rape of the applicant. The respondent was convicted of the offence on 28 October 2004. On 29 October 2004 the respondent was sentenced to five years imprisonment. He was also sentenced for other offences not relating to the applicant.
At the time of sentence his Honour Judge Boulton observed that it was likely that the respondent would be deported. In fact, following his release by the Department of Corrective Services on 22 July 2006, the respondent was deported from Australia to the Solomon Islands.
On 27 April 2007 an order for substituted service was made that deemed the respondent to have been served 14 days after publication of an advertisement in the “Solomon Star”. The advertisement appeared in the Public Notices section of the “Solomon Star” on Friday, 18 May 2007.
The respondent has not appeared in response to the application.
Facts
The present applicant was one of four women upon whom the respondent committed sexual offences. It appears that his modus operandi was to pretend that he could create money through the use of magic tricks. The complainants would give him money which he folded in paper and then told them to put away until the next day when he claimed the money would be multiplied. Of course when they checked the next day not only had their money not multiplied, but the money initially given to the respondent had disappeared. The sexual offences committed by the respondent involved him inserting or attempting to insert five cent coins into the vagina of the complainants.
In the schedule of facts presented to the court, the circumstances of the offence committed against the present applicant are outlined as follows:
“(The applicant) had met the accused at the Nundah railway station at about midday. (She) was collecting cigarette butts in a plastic bag. The accused approached her and said that he could make some money for her. He indicated that he had received special powers from his grandfather. He performed a trick in front of her where he closed his hand and turned a train ticket into $5.00 note. (She) agreed to take the accused home for a cuppa so he could perform his ‘magic’.
The daughter was home when they arrived. The accused had a cup of coffee and showed the 2 women some tricks. He looked at (the applicant) and asked her how long she had been sick. (She) replied that she had Hep C and had been sick for some time. The accused said that he could heal her. He grabbed a lighter (and) flicked the flame near his left thumb knuckle and then placed a 5 cent coin into the knuckle until the knuckle cracked. He then placed the coin into (the applicant’s) stomach area near her kidneys. The accused then found out that the daughter was asthmatic and he then did the same thing to her pushing the coin into her ribs.
The accused then told (the applicant) that if she went and bought a pools ticket that he would pick the numbers out for her.
(The applicant) then went to the newsagent and left the accused alone with her daughter.
…
While (the daughter) was cooking the sausages the accused told (the applicant) that he had the power to make her rich but he needed to show her this power in the bedroom. She said OK as long as there wasn’t any sex. He told her that he could make it so she married a lawyer and had 2 more babies. He again lit the flame near his knuckle and placed the 5 cent coin there. He then pushed the coin into the complainant’s pubic mound. He then rubbed the coin in and out of her vagina. She held her hands up and said no sex. He then pulled back and she said he acted as if nothing had happened and they left the bedroom.
The accused then ate the sausages and kept asking (the applicant) if she was going to go and put the lotto ticket on (after he had picked numbers). She said she would put it on when he left to catch the train. (The applicant) walked him to the train station and he left. (The applicant) later that afternoon said to (her daughter) “I did something really stupid and let him put a 5 cent piece in my fanny”. (The daughter) then replied that the same thing had happened to her and she started crying.
(The applicant) took (her daughter) to see a Doctor on the 28th January which was the earliest appointment. They hesitated in contacting police because of custody issues and made a complaint to police on the 28th January, 2003.
They both identified the accused from a photo-board on the 28th March, 2003.”
When sentencing the respondent on 29 October 2004 his Honour Judge Boulton said:
“You also met some women at some shops near Zillmere and in much the same way, promising them easy money, you managed to be taken back to the home of another one of the complainants and there you again interfered with two of the women. This was on another day altogether.
It beggars belief that people could be so naïve as to think that you could change $250 into $8,000 by tying it up in a string bag and putting an elastic band around it and leaving it in a cupboard. That, nonetheless, is what was done and when the women came to inspect the cupboard, of course later, the string bag and the elastic band might have been there but the money was not. The jury, not surprisingly, found that in whatever way the money had left in your pocket.
Now, the fact that people are gullible does not entitle persons such as yourself to take advantage of that gullibility. You penetrated these women in the vulval area. It does not seem to me to be entirely clear that you actually penetrated their vaginas but I have heard from one of the women in the form of a victim impact statement that following this intrusive incident, she has suffered psychological after-effects which do not sound to be at all disproportionate. Such advantage taken of women is quite apt to produce those sorts of after-effects.”
Injuries
The applicant suffered no physical injuries as a result of the offence.
The applicant was examined by Dr Barbara McGuire, psychiatrist on 18 September 2006. In her report dated 21 September 2006 Dr McGuire states that the applicant had a pre-existing psychotic illness, namely schizophrenia. Dr McGuire states that as a result of the offence committed by the respondent the applicant has suffered from post-traumatic stress disorder. Dr McGuire is of the opinion that this condition is improving over time, in that the applicant has good insight but still suffers symptoms. Dr McGuire states that the post-traumatic stress disorder is directly related to the offence and that it probably exacerbated the applicant’s symptoms of schizophrenia.
In summary Dr McGuire states:
“GENERAL MATTERS
a) The effect of the offences upon our client as they occurred: At the time of the incident she gradually realised that she had been exploited and then she felt disgusted and angry with herself and him.
b) The immediate after effects of the offences: She experienced fear. She said she also felt that she was not worthy of being treated nicely and was not worth as much as anybody else.
c) The impact of the incidents upon the family/social/relationship aspects of client’s life: Her relationship with the father was not so good. She said no one’s relationship with her mother is good and her mother is unsupportive because she is not well. Her daughter blamed her and her elder daughter blamed herself.
d) The effect of the incidents in respect of client’s outlook on life in general: She saw the world as a more dangerous and difficult place.
e) The possible need for further counselling and an estimate of the duration of any future counselling: Her treatment is counselling incorporated into her general psychiatric treatment for schizophrenia.
f) An estimate of the costs of this counselling:
She obtains it through a mental health service and doesn't have to pay.At interview she presented warmly. She exhibited some thought disorder when describing her paranoid delusional beliefs. She is deluded. She has hallucinations but she has good insight into her behaviour. She was pleasant and co-operative.”
In a supplementary report dated 7 November 2006 Dr McGuire states:
“I consider that she exhibits post-traumatic stress disorder to a moderate degree. Her pre-existing schizophrenic condition was exacerbated to a mild degree.”
In her affidavit filed 21 March 2007 the applicant states:
“6. In the past I have suffered from psychotic illnesses and I was diagnosed with schizophrenia about four years ago by Dr Bert Klug, a psychiatrist. I have been prescribed medication for my condition since that time. At the time of the offence I was experiencing difficulties associated with my condition. At the time I was being trialled on different medications for my condition. My mental state was affected by the medication and I was really messed up in my head. I feel that the respondent took advantage of my condition to abuse me. The respondent also took advantage of my daughter and abused her as well.
7. I met the respondent at the Nundah train station. At the time I was picking butts off the ground because I was addicted to cigarettes. The respondent offered me cigarettes. At the time of the offence I was not mentally well. The respondent told me that he had magic powers and offered me cigarettes. He had what seemed to me wonderful business ideas and said he could make lots of money and that he would share his ideas with me.
8. I took him back to my home and after I had been in the house for about 10 minutes he told me to go and buy a Lotto ticket. I later found out that while I was away he abused my daughter. When I came back we talked and told him that I had Hepatitis C. He said he could cure me and it was then, by using this excuse, that he sexually assaulted me.
9. At the time the offence was happening I was really alarmed and I wanted him out of the house as soon as possible. I walked him to the train station and he put his fingers in my mouth to grab my tongue stud. I was sickened and disgusted at the situation I had found myself in.
10. Both my daughter and I were traumatised by what had happened. I felt suicidal off and on for about two years after the offence. I feel betrayed and that no one can be trusted. I have had a difficult life and he took advantage of my desire for things to be better.
11. Since the offence I have had bad dreams about the respondent.
12. I am humiliated and embarrassed by the offence committed by the respondent. I felt not only my body had been violated but also my mind. I felt disgust that I had been treated in this way and my trust abused by this person. I blame myself. I am humiliated that I was so gullible. I should not have been so naïve and more wary of the respondent.
…
17. My daughter was 15 when the offences were committed against us. She had been living with her dad and had only recently returned to live with me. I was terrified to go to the police as I feared she would be taken away from me. She also feared being taken away but in the end we both decided to tell the police. We felt we should tell the police to stop him.
…
20. I get flashbacks of the offence but I try most of the time not to think about it. I also get nightmares and these are violent and scary. In my dreams the violence is me wanting to hurt the respondent and because of my reaction my father has a heart attack and dies. These dreams are very distressing. Since my hospitalisation these dreams are less frequent and intense.
21. I have avoided the city as I found it an angry, ugly place. I am however looking for accommodation within the city as my daughter is hoping to start studying at TAFE.
22. After the offence my psychotic condition worsened and continued to deteriorate over a period of nearly three years. I started obsessing about the respondent. I could not think of anything beautiful or lovely as he was crowding my thoughts. My dreams about him worsened and as my condition worsened I wanted to harm him. I was hospitalised around Christmas 2005 and was in hospital for about three months. I was hospitalised because my psychiatric condition so bad.”
Applicable Law
The assessment of compensation is governed by Pt 3 of the Act. It is necessary to bear in mind that compensation is designed to help the victim and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise[1]. The maximum amount of compensation is reserved for the most serious cases and amounts in other cases are intended to be scaled according to their seriousness[2]. The scheme maximum provided under the Act is $75,000. The award in a particular case is assessed by reference to the percentages of the scheme maximum provided in the compensation table[3]. Section 25(4) of the Act provides:
[1] Section 22(3) of the Act
[2] Section 22(4)
[3] Schedule 1 of the Act
“(4) In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for –
(a) if there is only 1 percentage listed opposite the injury – an amount up to the amount that is the listed percentage of the scheme maximum; or
(b) if there is a range of percentages listed opposite the injury – an amount that is within the listed range of percentages of the scheme maximum.”
Ms Muirhead submitted that the applicant had suffered a moderate form of mental or nervous shock. She pointed out that Dr McGuire expressed the opinion that the applicant had pre-existing schizophrenia but that as a result of the offence committed by the respondent she has suffered from post-traumatic stress disorder. The condition is improving over time. The offence was committed on 20 January 2003 so the applicant has suffered symptoms for a considerable period of time. In these circumstances, I accept Ms Muirhead’s submission that the injury should be classified under Item 32 of the compensation table which provides for a range of percentage of the scheme maximum between 10 per cent and 20 per cent. Ms Muirhead submitted, and I accept, that an award of 15 per cent of the scheme maximum is appropriate for the applicant’s post-traumatic stress disorder. This results in an award of $11,250 in respect of the applicant’s mental or nervous shock.
Adverse Impacts
Ms Muirhead submits that it is appropriate to make a further award in respect of adverse impacts of a sexual offence. Section 1A Criminal Offence Victims
Regulation 1995 provides that for the purpose of 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. Section 2A of the Regulation provides that for an injury referred to in s 1A, an amount of up to 100 per cent of the scheme maximum may be awarded. Section 1A(2) defines an “adverse impact” as follows:
“(2) An ‘adverse impact’ of a sexual offence includes the following –
(a) a sense of violation;
(b) reduced self worth or perception;
(c) post-traumatic stress disorder;
(d) disease;
(e) lost or reduced physical immunity;
(f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent;
(g) increased fear or increased feelings of insecurity;
(h) adverse effect of the reaction of others;
(i) adverse impact on lawful sexual relations;
(j) adverse impact on feelings;
(k) anything the court considers is an adverse impact of a sexual offence.”
Ms Muirhead accepted that the effect of the decision of the Court of Appeal in Re Jullie v Atwell[4] is that an injury classified as mental or nervous shock cannot also be classified as an adverse impact, as that would result in a duplication in the assessment of compensation.
[4] [2002] 2 Qd R 367
In her report dated 21 September 2006, Dr McGuire specifically addressed the issue of adverse impacts. She said as follows:
“ADVERSE IMPACTS
a) A sense of violation.
At the time she had a strong sense of violation. He was intimidating and aggressive.b) Reduced self worth.
She did suffer reduced self esteem which was enhanced by the litigation.c) Posttraumatic stress disorder.
She has posttraumatic stress disorder.d) Disease.
She did not sustain disease.e) Lost or reduced physical immunity.
No lost physical immunity.f) Lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent
No lost physical capacity.g) Increased fear or increased feelings of insecurity.
She has suffered increased fear.h) Adverse effect of the reaction of others.
Her daughter upset her by blaming her for the incident.i) Adverse impact on lawful sexual relations.
She said that sex disgusts her and she does not have any sexual relationship and hasn’t since this incident. She said that it has to do also with her years as a prostitute and the fact that she has Hepatitis C. She said she tried to start a relationship but gave it up because she was fearful of infecting him.j) Adverse impact on feelings.
N/AIN RELATION TO ADVERSE IMPACTS
a) A sense of violation is a pre-requisite to a diagnosis of posttraumatic stress disorder.
b) & c) These obviously are part of a diagnosis of posttraumatic stress disorder.
d), e) & f) These are not included in the diagnosis of posttraumatic stress disorder.
g) Increased fear and hypervigilance is a feature of posttraumatic stress disorder.
h) The adverse effect of the reaction of others is not a feature of posttraumatic stress disorder.
i) When the trauma precipitating a posttraumatic stress disorder is sexual in nature aversion to sexual relations is a feature of posttraumatic stress disorder.
She said that she has suffered from the deterioration of her eldest daughter’s self esteem. Her eldest daughter feels very ugly and also has mixed feelings about her own son because the respondent predicted she would have a son. She believes that she has been made very much worse as a result of the incident and her illness made her more vulnerable.
Had it not occurred her whole family would be better off. Her father has a poor relationship with her elder daughter and her elder daughter’s joy over the pregnancy has been diminished because of the incident. Had it not happened they would not have been evicted. She said money meant a lot to her father and they had been in his unit whilst he was at sea. He saw it all as a bad reflection upon his name.”
Ms Muirhead submits that the following matters should give rise to an award of compensation for adverse impacts:
• the applicant found the trial process humiliating and difficult. She felt that she was laughed at because she has a psychiatric condition and was gullible enough to believe the respondent[5].
• the applicant has experienced difficulties obtaining rental accommodation. Her elder daughter became distressed following the events and she withdrew and began to play loud music to block her thoughts and memories of the incident. That eventually resulted in noise complaints which led to the applicant being evicted. She says that she has now been blacklisted by real estate agents[6].
• the applicant has experienced a deterioration in her relationship with her oldest daughter. She says that her relationship with the daughter was severely affected as she no longer trusted the applicant[7].
• the applicant has suffered a loss of freedom including, as a result of hospitalisation while subject to an Involuntary Treatment Order[8].
[5] Paragraph 13 of the applicant’s affidavit filed 21 March 2007
[6] Paragraphs 14, 15 and 16 of the applicant’s affidavit filed 21 March 2007
[7] Paragraph 25 of the applicant’s affidavit filed 21 March 2007
[8] Paragraphs 23 and 24 of the applicant’s affidavit filed 21 March 2007
Ms Muirhead submits that it is appropriate to allow 15 per cent of the scheme maximum to reflect the adverse impacts of the offence upon the applicant. In my view, that is an appropriate award and results in a further amount of compensation of $11,250.
Contribution
Section 25(7) of the Act provides that in assessing compensation the court must have regard to everything relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.
Ms Muirhead submits that there should be no reduction in the assessment of compensation on account of any contribution by the applicant. She points out that the applicant was a vulnerable person. In her report dated 21 September 2006 Dr McGuire said:
“(The applicant) was rendered very much more vulnerable to exploitation as a result of her mental illness and the difficulties of the her life. However it is my belief that the offences committed by the respondent made a substantial and material contribution to her present clinical symptoms.”
In these circumstances it is not appropriate to make any reduction in the award of compensation because of the applicant’s own conduct.
Order
I therefore order that the respondent pay to the applicant the sum of $22,500 by way of compensation pursuant to s 24 of the Act for injury sustained as a result of the offence of rape of which the respondent was convicted on 28 October 2004.
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