Langdon –v– Fittler
[2006] QDC 170
•7 June 2006
DISTRICT COURT OF QUEENSLAND
CITATION: | Langdon –v– Fittler [2006] QDC 170 |
PARTIES: | LANGDON, Anita Rose Applicant Against FITTLER, Alan Robert Respondent |
FILE NO: | 124/06 |
PROCEEDINGS: | Application for criminal compensation. |
DELIVERED ON: | 7 June 2006 |
DELIVERED AT: | Townsville |
HEARING DATE: | 5 June 2006 |
JUDGE: | C.F Wall Q.C |
ORDER: | Respondent pay compensation to the applicant of $35,250.00. |
CATCHWORDS: | CRIMINAL LAW – COMPENSATION – Assessment and amount – application for criminal compensation involving 2 offences committed by the resp on the same date – resp convicted of AOBH and GBH – nolle prosequi entered into for 4 counts of rape alleged to also be committed on the same date – appct suffering post traumatic stress disorder – compensation for post traumatic stress disorder discounted by 20% due to contribution of alleged non-compensable rapes – GBH conviction involving vaginal injury constituting a personal offence of a sexual nature under the Criminal Offence Victims Regulation – separate compensation not awarded for the adverse impacts suffered by appct from the GBH – adverse impacts included in compensation awarded for post traumatic stress Legislation Referred to: |
| COUNSEL: | Ms A Le Roux (Solicitor) for the Applicant |
SOLICITORS: | Legal Aid Queensland for the Applicant |
HIS HONOUR: This is an application for compensation under the Criminal Offence Victim's Act.
The applicant was born on the 15th of June 1983.
In the District Court at Townsville on the 6th of May 2004 the respondent was convicted of assault occasioning bodily harm to the applicant and causing grievous bodily harm to her, both offences being committed on the 6th of December 2002. A nolle prosequi was entered in respect of four counts of rape (counts 1, 2, 3 and 5 of the indictment) said to have been committed on the same date and involving the applicant.
The facts as stated by the sentencing Judge are these:
"Mr Fittler, stand up, please. You have pleaded guilty to one count of assault causing bodily harm and one count of grievous bodily harm. That plea is at a late stage on the first day of the trial after a jury has been empanelled. Nevertheless, the prosecution has accepted that plea in full discharge of the indictment and has not proceeded upon counts of rape that were on the indictment, and that is an important consideration.
There is not a great deal of dispute it seems so far as the facts are concerned. The complainant was drinking in a hotel. She was introduced to you. You indicated an interest in some drugs called speed, and during the course of the evening it seems that you and her both used drugs, and alcohol was taken. You gave her some money at one stage to buy drugs but she said she had lost it. There was an act of consensual vaginal sex in a park. Subsequently, in the back seat of the car there was a further act of consensual vaginal sex.
You then are said to have indicated an interest in an act of anal sex, but she refused and you punched her in the face which caused an injury to the nose, and that is the assault causing bodily harm.
Now, it is said by the prosecution that you then pushed your hand into her vagina and the complainant believes it was a closed fist. The medical evidence seems to support that. She then said she needed to go to the toilet and she climbed out of the car and went to the toilet. It was noticed that there was blood on the back seat. You declined to drive her to a hospital and you drove off.
There was a significant tear to the vagina which was some eight to nine centimetres in length and some three to four centimetres wide. The medical opinion seems to be that this probably resulted from the forcible insertion of an object which could be a fist. There was quite a deal of blood loss at the scene. A complaint was made to the police that evening by the complainant.
Your version of events in the record of interview is that you pushed your hand into her vagina."
The vaginal injury was the subject of the grievous bodily harm offence. In my view that is a personal offence of a sexual nature within the definition of "sexual offence" in section 1A(3) of the Criminal Offence Victims Regulation 1995.
No behaviour by the applicant directly or indirectly contributed to her injuries.
Notwithstanding the result on the four counts of rape, it is nevertheless necessary for compensation purposes to consider the applicant's version of events on the basis that they may in fact also be contributing to the injuries she claims compensation for.
In her police statement dated the 9th of December 2002 she described what occurred in the following terms:
"17.Then we went to a park in Annandale and was drinking the cans but there was people there. So we left there and went to somewhere right out at Annandale and we parked in a dirt track to have a drink. I was sitting in the passenger side with the door open. He was on the drivers side talking away.
18.I think he just try to make excuses to me and lie to me to keep me there for long. I didn't feel safe there. I was a bit scared of him because he'd threatened to break my nose. I didn't know his background. He tried to have sex with me but I said no. But he said that I owed him because I lost his $50. He asked me to have sex with him. I didn't really want to. I felt funny. We had sex there but he didn't rape me. We just had normal sex.
19.Then were drove back to my friend's place at Aitkenvale but he had gone out.
20.We drove back to the pub because he wanted more drugs and I wanted to go back to my friends. And I told him to drop me off at my friend Brian's place at Moray Street. He was asking me please to stay with him so he can get on. He told me he'd get more money out of his keycard.
21.We went back to the pub and I went into my friend Tammy and I asked her to see if she could get on. Tammy came in the car with us and he drove us to the Belvedere to try and get on. She couldn't get anything so he dropped us back at the pub.
22.I was about to go and he told me to stay so he could buy more drugs. I told him no that I was staying with my friend. He begged me to stay and have a drink with him. He said let's go to Pallarenda to have more drinks. I decided to go with him to have a drink with him, that's all. I told him that I didn't want to have anymore sex.
23.Then were drove to Pallarenda and he parked the car under some trees right at the end of the road. There was a barbeque area from the other side of us. There was young people at the barbeque area but no one was where we were. It was all dark there.
24.We got out of the car and were sitting on the back of the boot and we had a drink. I didn't really feel sale with him. Then he told me to get in the back seat of the car for more sex. I had already told him that I didn't want anymore sex. He just told me to come in the back.
25.He just grabbed my can and put it on the top of the car. He told me to get in the back of the car so I got in. I was a bit scared now. He walked around the other side of the car and got in beside me.
26.He told me to give him a head job. I told him I didn't feel like giving him a head job. But he pushed my down into his lap and made me give him a head job. I didn't do it for long. I thought he had a big dick. I stopped giving him a head job.
27.He told me to bend over and he took my pants off. I was wearing a short purple sarong and bikini top and bottom. He came up from behind me when I was bending over in the back seat. I did what he said because he had a strange look on his face. He then started to have sex with me doggy style. By this I mean he stuck his dick up my front passage from where I wee. I was really scared of him so I just let him do it because I was scared he was going to break my nose. He did that not for long.
28.Then he rolled me over onto my back and tried to put his dick up my arse. I told him no and that it hurt and I pulled my body back away from him. I could feel that his dick went a bit into my arse. That's when he put his hands around my throat. I tried to kick him in the guts but he was too strong for him. I said no. Then he just punched me in the nose. I felt a bit shocked from that and I started crying.
29.Then he kept his left hand around my throat and then he used his other hand and started to push his hand inside my vagina. He had his whole hand around my throat and was squeezing. He just rammed his whole hand up inside me. I could feel it right up inside my stomach area. I could feel that he was using his fingers to pinch something inside my guts. He was twisting something around inside of me and turning his hand around.
30.I was screaming really bad because he was really hurting me. Real bad. He did this for nearly about 5 minutes, I'm not too sure. I just kept screaming. He wasn't saying anything.
I did not give any person permission or authority to assault me or have sex with me at Pallarenda."
The rape offences were most probably based on these paragraphs in particular:
Count 1 - paragraphs 26 and 40
Count 2 - paragraphs 27 and 40
Count 3 - paragraphs 28 and 40
Count 5 - paragraphs 29 and 40 before any injury the subject of the grievous bodily harm offence was caused.
The applicant was taken from Pallarenda by ambulance to the Townsville Hospital, where she was examined. In his statement Dr Ajay Rane says:
"On examination of the genital area Ms Langdon had suffered from an 8 centimetre to 9 centimetre by 3 centimetre to 4 centimetre lateral tear on the right side of the vagina which required suturing. She also had evidence of para-urethral trauma on the right side measuring 3 centimetres x 1 centimetre and on the left side measuring 1 centimetre x 1 centimetre. She also had four small skin tears in her anus at 12.00, 1.00, 4.00 and 8.00 o'clock. A proctoscopy revealed no other trauma to the anal canal and lower rectum. The vaginal tears were repaired with Vicryl and cat gut and a catheter and a pack were inserted and antibiotics were instituted.
In my opinion if these tears were left unsutured it could have endangered her life with haemorrhage or caused permanent disfiguration of the vagina."
In her victim impact statement dated the 12th of August 2003 tendered on sentencing the applicant said:
"I still get excruciating pain every now and then in my ovaries and in my lower back.
I very rarely menstruate since this horrific assault to my body and I have very bad mood swings.
I felt such helplessness and ashamed as to what this man had done to me. I felt such helplessness as after he caused the severe injury he drove off and left me bleeding profusely and I became very scared as I thought I was actually dying.
I feel very frightened and scared as I could not believe what had happened to me. I also felt very weak due to the loss of blood.
I very rarely went into society for a number of months after this vicious act. I just wanted to stay at home with my family. I felt very insecure if someone from my family was not with me when I had to go out in society.
I still have very bad nightmares on a regular basis about this incident. This is a near on weekly occurrence.
I do not socialise much anymore.
I always had been a friendly and open young person with a lot of confidence but now I am afraid and feeling very insecure towards men in my life."
In a statement dated the 18th of November 2004 Dr Peter Kraus of the Townsville District Health Service says:
"I saw Ms Langdon at 1550hrs on the 19 October 2004 for the purposes of this medico-legal report.
Ms Langdon gives a history of having had normal periods in the past but since the attack she has had only scant bleeding every 4 to 5-months accompanied by pain.
Ms Langdon has had one previous pregnancy resulting in the birth of one child, a girl weighing 2270gm at birth. There is little in the way of antenatal care recorded in the hospital records.
Examination revealed a tense, shy but cooperative aboriginal female of stated age.
Abdominal examination was normal.
Pelvic examination revealed normal external genitalia with no external scarring and no visible scarring with a speculum. No perianal scarring was noted.
The cervix, uterus and adnexa were normal to examination.
All the above is consistent with a normal physical examination indicating good healing following the surgical repair of her injuries.
I note that a pelvic ultrasound confirmed normal findings.
Ms Langdon listed the following as her problems since the assault, during the interview I had with her:-
1.She gets her periods only occasionally and they are painful
Infrequent or absent periods are a well-described phenomenon as a consequence of stress. My opinion would be that this is the cause in her case.
This may require treatment either for the pain she suffers during her periods or should she try to become pregnant.
2. Deep pain on urination
There is no obvious physical cause for this. It is reasonable to presume that both this and her continual internal pains are due to muscle spasm consequent on anxiety following the assault.
3.Ms Langdon told me that she was afraid to have sex because she was afraid that it would hurt and also because it would bring back memories of the attack.
My opinion would be that she is highly likely to get pain with attempted intercourse, the mechanism being a phenomenon known as "vaginismus" i.e. spasm of the pelvic floor muscles. Her concern that having sex would bring back memories of the attack is self-evident.
4. She complained that she still gets nightmares
These nightmares are obviously quite severe as her final question on completion of the interview was "Can you get rid of the nightmares?"
In summary:
Ms Langdon has physically healed well following the repair of her injuries.
Her current symptoms are explicable by the attack.
Future problems include sexual dysfunction for which she would require significant counselling and which may never be completely overcome.
Treatment to regulate her menses, make them less painful and possible treatment for any subsequent infertility due to poor ovulation, should be readily available. However none of it would have been necessary had she not suffered the assault."
In her affidavit sworn on the 23rd of March 2006 and filed on the application, the applicant says:
"4.I can recall the events that occurred on the 6 December 2002. I spoke to police and provided them with my statement on 9 December 2002. Exhibit "A" to this affidavit is a true copy of my statement.
5.On the 3 March 2006 I attended upon Mr Robert Zemaitis and explained to Mr Robert Zemaitis how the incidents have affected me. Everything I told Mr Robert Zemaitis is the truth. I have read the report Mr Robert Zemaitis has provided to my solicitors for the purpose of this application. I agree that the effects on my life of the incident are correctly detailed in his report.
6.On the 12th August 2003 I prepared a victim impact statement. Exhibit "B" to this my affidavit is a true copy of my victim impact statement.
7.At the time of the offence I felt excruciating stinging and pain. I felt blood pouring from my vagina and I could not stop the blood. While I was in hospital I felt a hot pain and a stinging sensation and I felt very weak for a number of days after the assault.
8.I still get excruciating pain every now and then in my ovaries and lower back. I very rarely menstruate, and also suffer very bad mood swings.
9.I am very ashamed of what happened to me. At the time I felt very frightened and scared as I could not believe what happened to me.
10.I very rarely socialise. After the assault I did not go out for a number of months. I wanted to stay at home with my family. I feel very insecure when someone from my family is not with me.
11.I still have very bad nightmares.
12.I was unable to look for work for a number of months after the assault. I now feel too frightened to go to Centrelink and apply for a job.
13.I have always been a friendly and open person with a lot of confidence but now I am afraid and feel very insecure. I have lost my confidence.
14.I don't trust men and I have not had a relationship since the assault. I don't like being around men and I don't trust men. I would rather stay single and not have any relationship with men.
15.While I have been in prison I have slashed myself with a razor. I did this because it all built up and I didn't want him in my dreams.
16.I feel depressed all of the time.
17.I also feel anxious inside, it comes from inside, I feel very jumpy.
18.The assault has effected me badly, I can be watching television and see something violent and it brings back bad memories."
The applicant was assessed by Mr Robert Zemaitis, a psychologist, at Townsville prison on the 3rd of March 2006. She was then apparently an inmate at the prison. In his report dated the 7th of March 2006 he says:
"Biographical data
Information provided by Anita Langdon.
She described the incident which occurred on 6 December 2002 which lead to Alan Robert Fittler being convicted of Assault occasioning bodily harm and also Grievous Bodily Harm.
Anita described the incident as a terrible experience and she states that to this day she is still having bad dreams about Alan Fittler.
She continued that other female prisoners had told her they hear her shouting out and crying in her sleep.
She also states that she now feels extremely anxious as Alan Fittler is in relatively close proximity to where she is, apparently staying at the Townsville Correctional Centre. She stated that he is currently in the Male section of the Townsville Correctional Centre which is obviously closely adjacent to the current location of the Women's Prison.
During the incident Anita stated that she felt terrified and she felt very severe pain. She also stated that what made it worse was that she had to walk quite a distance from the park at the end of Pallarenda and past the shops. She stated that she tried the public phone but it wasn't working. She then talked to some people who were in the second park opposite the Pallarenda Shops but they told her that they didn't have a mobile phone to call the Ambulance.
She states she continued walking and saw some young people out in the street and asked them to call the Ambulance and they subsequently helped her.
She described Alan Fittler as quite a solid person and that she feared for her life at that time when he was choking her. She also described feeling shocked when he punched her in the nose and that she remembers starting crying at this stage. Anita stated that she was at Low Security Women's at the Townsville Correctional Centre which is away from the female Prison. However she described herself as becoming very upset and whilst at the low security house she slashed herself with a razor blade. In her own words she stated that 'It all built up, I don't need him in my dreams'. She continues that she asked the Doctor's to help her with her sleeping and they have since provided her with medication. In her own words she stated that "I want to be on a good tablet that puts all the bad dreams behind me."
When questioned how she feels that the Assault with Grievous Bodily harm on 6 December 2006 impacted upon her, Anita stated 'it affected me bad, I can be watching TV and see something violent and it brings back bad memories', she also continued 'I now don't trust men, I have not had any relationships since the incident, I don't like being around men, I don't trust men'.
Anita also stated that she now feels 'too frightened' to go into Centrelink and apply for a job. She described herself as having no self confidence.
She also described herself as always feeling anxious. In her own words she stated 'I feel anxious inside, it comes from inside, I feel very jumpy'.
Anita also described her feelings, that she now feels angrier, particularly after what happened and how she was treated by Alan Fittler. She states that she prefers to stay single and does not wish to have any relationship with any males.
Anita also states that she constantly feels depressed. She described how the other women at the prison tell her that she very quite and that she keeps to herself, however she stated that she feels just like keeping away from people for the majority of the time.
In terms of past counselling she remembers seeing a counsellor called Carol at the Women's Centre in Aitkenvale. She felt that counselling with Carol had helped her.
She stated that she is also currently talking to a female counsellor named Jill at the Prison. She stated that she talked to Jill about what happened to her and she felt that this was helping her. Finally Anita also stated that she felt angry about Alan Fittler getting only what she felt was a limited time of only five years. She states that she is worried that he will do it again to another woman. She describes his behaviour from her point of view as a male 'playing around with people's minds'.
Psychological assessment
To gain further insight into her psychological functioning, Anita was administered the Trauma Symptom Inventory (TSI).
Anita's test results indicate she answered the TSI in a valid manner. Further she obtained clinically significant scores on the following clinical scales:-
Intrusive Experiences
Anxious
Anger/IrritabilityDepression
Discussion
From my interview with Anita Langdon reading the various documents and looking at the results of the Trauma Symptom Inventory it is clear that she is suffering from a DSM-IV diagnosis of Post Traumatic Stress Disorder that continues to be at a severe level of impact.
There is little doubt that during the incident with Alan Fittler she was exposed to a traumatic event in which she certainly experienced and was confronted with events that involved actual or threatened death or certainly a serious injury and a threat to her physical integrity. During these incidents her response involved intense fear, helplessness and horror at what was happening to her.
From my viewpoint, compounding her psychological trauma was the fact that she had to walk a considerable distance from the end park at Pallarenda, past another park and various shops and a phone booth where she was unable to obtain any help in calling for an Ambulance. She then had to walk a further distance where she was fortunate enough to come across a group of youths who then made the necessary phone calls for her.
She advised me she would be leaving the Correctional Centre in July 2006. It would be important at this stage for her to at least visit the Townsville Aboriginal and Islander Health Service and continue to discuss the possibility of Antidepressant and other medication to help with her sleep patterns. She would also benefit from psychological treatment with at least fortnightly sessions over the ongoing twelve months when she is released. The cost of such a program using the Australian Psychological Society's Schedule of Fees would be $4706.00."
I accept what Mr Zemaitis says except that he appears to have failed to consider the extent to which three prior instances of sexual assault and a further instance of sexual assault committed between the subject two offences may also be contributing to the post traumatic stress disorder suffered by the applicant. I have no doubt that if the respondent had been convicted only of counts 1, 2, 3 and 5 rather than counts 4 and 6, as he was, Mr Zemaitis would probably say that those offences alone were productive of post traumatic stress disorder for the applicant, perhaps not though to the present level. On the other hand, the applicant's victim impact statement seems mainly to attribute her problems to the grievous bodily harm offence rather than the rapes referred to in her police statement. Nevertheless, I think that the sexual assaults committed by the respondent referred to in the applicant's police statement, notwithstanding that the charges were withdrawn, are contributing to an extent to her post traumatic stress disorder. It is difficult to say to what extent they are contributing, but I think a probable contribution is about 20 per cent. Her compensation for mental or nervous shock, which post traumatic stress disorder is, will therefore be reduced by 20 per cent.
The applicant claims compensation for post traumatic stress disorder and also for the adverse impacts suffered by her as a result of the grievous bodily harm offence pursuant to the Criminal Offence Victims Regulation 1995. In my view this would lead to a doubling up in the assessment of compensation as the adverse impacts claimed have been taken into account in the diagnosis of post traumatic stress disorder. If I am wrong in relation to the claimed "lost or reduced physical capacity" that is also to be treated as a component of the compensation assessment in respect of her physical injuries.
Apart from the statement of the sentencing Judge that the first offence "caused an injury to the nose" and the definition of "bodily harm" there is no evidence of what the injury was. There must at least have been an identifiable bodily injury to satisfy the definition. The photograph of the applicant exhibited to Ms Thomson's affidavit is not, without some accompanying description (and there is none), of any assistance.
So far as the vaginal injury and its physical consequences is concerned, there is no item in the compensation table in schedule 1 of the Act that covers such an injury. By reason of section 25(6) of the Criminal Offence Victims Act I think the closest comparable item injury is item 23, severe chest injury, and I propose to use the percentage range for that type of injury.
The post traumatic stress disorder suffered by the applicant amounts in my view to severe mental or nervous shock within item 33 but it is not, I consider, the worst type of case in that category. I think the disorder in general warrants an assessment of 25 per cent of the scheme maximum, which should be discounted or reduced by 20 per cent because of the contribution likely to be made to the disorder by the sexual assaults I have referred to. It does not matter that they are not compensable offences.
In my view the applicant is entitled to compensation assessed as follows:
Item 1 - moderate bruising from the
injury to the nose 2 per cent
Item 23 - severe vaginal injury 25 per cent
Item 33 - severe mental or nervous
shock, 25 per cent
discounted by 20 per cent 20 per cent
___________Total: 47 per cent ___________
The scheme maximum is $75,000. Forty-seven per cent of that is $35,250.
I order that the respondent pay compensation to the applicant of $35,250.
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