LMW v Nicholls

[2004] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

LMW v Nicholls [2004] QDC 118

PARTIES:

LMW

Applicant

v

ADAM JOHN NICHOLLS

Respondent

FILE NO/S:

BD1660/03

DIVISION:

PROCEEDING:

Originating application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

11 May 2004

DELIVERED AT:

Brisbane

HEARING DATE:

15 April 2004

JUDGE:

McGill DCJ

ORDER:

The respondent pay the applicant $12,750 as compensation for the injuries suffered by her because of the offences of which the respondent was convicted in this court on 23 October 2000.

CATCHWORDS:

CRIMINAL LAW – Compensation – causation – injury caused by compensable and non-compensable events – compensation not apportioned.

CRIMINAL LAW – Compensation – scope of mental or nervous shock and deemed injury under regulation.

Criminal Offence Victims Act 1995 ss 19(1)(a), 24(2).

Criminal Offence Victims Regulation 1995 s 1A.

Ferguson v Kazakoff [2001] 2 Qd R 320 – followed.

Hollywood v Levack [2002] 1 Qd R 279 – distinguished.

R v Tiltman; ex parte Dawe (SC 324/95, Lee J, 22 June 1995, unreported) – applied.

COUNSEL:

S J Hamlyn-Harris for the applicant
A J Kimmins for the respondent.

SOLICITORS:

Legal Aid Queensland for the applicant
Jacobson Mahoney for the respondent.

1. This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 23 October 2000 the respondent pleaded guilty to one count of sexual assault and one count of sexual assault with two circumstances of aggravation, both committed on 22 August 1999 on the applicant at Brisbane. The circumstances of aggravation were that the indecent assault partly consisted of penetrating the vagina of the applicant with part of his body other than the penis, and that the indecent assault partly consisted of bringing the respondent’s mouth into contact with part of the genitalia of the applicant. These two offences were personal offences so s 24(1) of the Act is satisfied.

1. The applicant claimed that, because of these offences, she suffered three injuries: (a) Two one millimetre haematomas on the edge of her hymen; (b) Mental or nervous shock, in the form of post-traumatic stress disorder; (c) The injury prescribed by Regulation 1A of the Criminal Offence Victims Regulation 1995, namely the totality of the adverse impacts of sexual offences suffered by the applicant, to the extent to which the impacts are not otherwise an injury under s 20.

The offences

1. Because of the issues that arise in this matter, it is necessary to identify with some precision the content of the offences of which the respondent was convicted.  That depends on the sentence hearing,[1] a transcript of which is in evidence.[2]  At the hearing the Crown Prosecutor relevantly described the offence in the first count as occurring while the applicant and the respondent and others were in a car, with the applicant and the respondent at either end of the back seat, someone else being in the middle.  The respondent reached over the person in the middle, reached inside the top of the applicant’s bra and touched her left breast.  The applicant moved and turned away.…