LR v Saqu
[2007] QDC 151
•12 July 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
LR v Saqu [2007] QDC 151
PARTIES:
LR
(Applicant)
v
JOSEPH SAQU
(Respondent)
FILE NO/S:
BD 793/2005
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
Brisbane
ORDER MADE:
10 July 2007
REASONS DELIVERED:
12 July 2007
DELIVERED AT:
Brisbane
HEARING DATE:
10 July 2007
JUDGE:
Rafter SC DCJ
ORDER:
The respondent pay the applicant the sum of $17,250 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:
“This complainant is the 20yr old niece of the complainant in Counts 5 and 6.
At one stage in the afternoon described above this complainant was left alone in the house with the accused. He took her into a bedroom and said he could heal her and make her rich. He got her to lie down he then put a 5 cent coin in her mouth and then placed a coin on her stomach, one below her belly button and one on her abdomen. He then got on top of her and pinned her down he told her that he didn't want to sex her but he wanted to heal her. He then pulled her pants down and placed another coin on top of her pubic bone. At this time the complainant was holding her hands in front of her face and was shaking in fear.
The accused pulled her legs apart and put something hard inside the complainant’s vagina she thought that it may have been a 5 cent piece. He then pulled his finger out and said that RW just wants to help you.”
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 21 June 2006. In her report dated 27 June 2006 Dr McGuire states that the applicant exhibits post-traumatic stress disorder to a moderate degree. She says that the condition has been present since the incident. Dr McGuire states that it is probable that the applicant’s symptoms will diminish over time but she may continue to experience them for a further year or so. Dr McGuire said that the applicant’s major symptoms are:
• insecurity,
• nightmares,
• night terrors,
• an avoidance of going out.
Dr McGuire also noted that the applicant counts the switches in the kitchen. She said that the applicant has to have the back door locked in the afternoon because she cannot bear to look into the backyard at night. She has lost her self-esteem and does not trust men who are not related to her. She now believes that she will never have another partner.
Dr McGuire outlined the effects of the offence upon the applicant as follows:
“Asked the effects of the offence she said she felt unhappy and insecure. She cannot live on her own. She checks that everything is locked. She always has to have her brothers with her. She had been independent prior to the incident. She said she keeps returning to her mother who lives on the Sunshine Coast because she worries about living in Brisbane where the incident occurred.
She has repeated nightmares. She keeps seeing a black man with yellow eyes who is him. This happens in sleep and when she wakes she feels terrified and paralysed. She also experiences flashbacks during the day. She blames herself. She said that she should not have been so naïve. She lacks trust and only sees her family. In particular she has problems with Solomon Islanders and feels very wary of them. Her mother has a female friend who is from the Solomon Islands and she experiences anger towards her which is quite unprovoked. She is generally avoidant of people. If she goes out with friends she can only do it in the company of her brothers. When she goes to the shops with her brother she is hypervigilant and has an exaggerated startle reflex. Since the incident she has never gone out at night by herself. She always takes her brother with her if she goes for a walk with her daughter.
She also told me that on two occasions she has attempted suicide. Once she had been to the pub and had a few drinks and strung up a rubber hose to hang herself until stopped by her brother. The second time she took an overdose. She said that she drinks 1 or 2 drinks at a club but usually doesn't get drunk.”
The applicant told Dr McGuire that at the time of the incident she felt confused, sick and disgusted. She said that the respondent smelt, and that she found that revolting. The applicant also told Dr McGuire that she wished she had made more resistance. She told Dr McGuire that her social relationships had diminished and she has been criticised by her cousins. However, her mother and brothers have been supportive. The applicant told Dr McGuire that she felt the world is a more dangerous place but overall she is fairly optimistic that she will have a good life with her children.
In her affidavit filed 21 March 2007, the applicant described the impact of the offence upon her as follows:
“6.I was 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 am a single parent and I struggle financially. He took advantage of my circumstances and abused me.
7.Since the offence I have felt unhappy and insecure. I feel I can no longer trust in my own judgment and I have no confidence in my ability to assess the characters and honesty of other people.
8.I am unable live on my own. I am very security conscious and I have to make sure everything in my house is locked. I now always have my brothers with me. Before the offence I had been independent and lived on my own in a unit that I rented myself through the Queensland Housing Commission.
9.I still live in Brisbane but regularly return to my mother’s home on the Sunshine Coast because I worry about living in Brisbane where the offence occurred. My brothers actually live with my mother, but take turns at staying at my home to provide company and security for me when I am in Brisbane.
10.I have since the offence had nightmares. In them I see a black man with yellow eyes who is the offender. I wake feeling terrified and paralysed with fear. I have also experienced flashbacks of the offence. I blame myself. I am humiliated that I was so gullible. I should not have been so naïve and more wary of the offender.
11.I lack trust in other people and tend now to rely only on my family for support.
12.I am very wary of Solomon Islanders. My mother has a female friend who is from the Solomon Islands and I have experienced anger towards this woman, which is completely unjustified. I have spoken to her about my anger and she and I have acknowledged that the offender does not represent all Solomon Islanders and I have tried to keep this in mind.
…
19.I have been going to a doctor. I was prescribed Zoloft for depression. I stopped taking the medication as I did not think they were good for me. The medication calms you and made me feel as if I was not reacting normally. I decided they were not good for me. I thought I would be better off facing the problem and trying to work out things out. I have tried to move on and decided not to use medication.”
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
5
“(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 exhibited post-traumatic stress disorder to a moderate degree. Dr McGuire considered that the condition had been present since the incident, which occurred on 3 February 2003. At the time Dr McGuire’s report was written on 27 June 2006, she indicated that the applicant’s symptoms would diminish over time but that she may continue to experience them for a year or so. 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 mental or nervous shock. This results in an award of $11,250 in respect of the applicant’s post-traumatic stress disorder.
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 27 June 2006, Dr McGuire specifically addressed the issue of adverse impacts. She said as follows:
“ADVERSE IMPACTS
a) A sense of violation.
At the time of the incident she did experience a sense of violation. She felt that her privacy had been exploited and that she had been conned.b) Reduced self worth.
She did have low self esteem and felt she had been stupid and naïve.c) Posttraumatic stress disorder.
She has posttraumatic stress disorder.d) Disease.
She did not contract any disease.e) Lost or reduced physical immunity.
She hasn’t had lost or reduced physical immunity.f) Lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent
She has not experienced any reduced capacity.g) Increased fear or increased feelings of insecurity.
She has increased fear and feelings of insecurity.h) Adverse effect of the reaction of others.
Her family members have told her that she is stupid and she feels embarrassed.i) Adverse impact on lawful sexual relations.
She does not have sexual relations because she doesn't enjoy it and this attributes to what happened to her.j) Adverse impact on feelings.
As described in the body of the report.IN 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) Aversion to lawful sexual relations is part of the diagnosis of posttraumatic stress disorder where the trauma has been sexual abuse.
j) Not applicable.”
Ms Muirhead submits that the following matters should give rise to an award of compensation for adverse impacts:
• the applicant has been criticised by members of her extended family who have ridiculed her for being gullible. She says that she feels humiliated by their comments. She says that she was previously a trusting person and felt that the respondent took advantage of her good nature[5].
• the applicant says that she no longer trusts men. She is unable to consult male medical practitioners[6].
• the applicant has lost her independence and is very much reliant on her family[7].
• the applicant’s parenting has changed because she is now unable to trust people other than members of her family. She has become very cautious[8].
[5] Paragraph 16 of the applicant’s affidavit filed 21 March 2007
[6] Paragraph 18 of the applicant’s affidavit filed 21 March 2007
[7] Paragraph 17 of the applicant’s affidavit filed 21 March 2007
[8] Paragraph 20 of the applicant’s affidavit filed 21 March 2007
Ms Muirhead submits that it is appropriate to allow 8 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 $6,000.
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 27 June 2006 Dr McGuire said:
“I believe that she was rendered more vulnerable to the offence because of her cultural circumstances which enabled her to suspend disbelief in relation to the respondent. She talked about puri puri and told me that her mother contracted an illness and the doctors didn't know what it was. An aunt of hers in Papua New Guinea has dreams and sees crows and managed to get a medicine man to levitate, undertake ‘astral flying’ to look at Mum. He did so and told the mother that he would leave a branch from a tree which grows in Papua New Guinea outside her room to indicate that he had been there. He said that she had a white person’s disease and it transpired that she had TB. She said that this occurred when she was 12 years of age. She does believe in astral travel and witchcraft. I don’t believe that this cultural background in any way mitigated the effect of the offence upon her mental health.”
Having regard to the applicant’s vulnerability, I do not think it is appropriate to make any reduction in the award of compensation because of her own conduct.
Order
I therefore order that the respondent pay to the applicant the sum of $17,250 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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