San v LJC

[2010] QDC 349

DISTRICT COURT OF QUEENSLAND

CITATION:

SAN v LJC [2010] QDC 349

PARTIES:

SAN

(Applicant)

V

LJC

(Respondent)

FILE NO/S:

BD92/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

20 August 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 July, 13 August 2010

JUDGE:

Irwin DCJ

ORDER:

The respondent pay the applicant the sum of $21,000 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offence of assault with intent to commit rape, which lead to the conviction of the respondent in the District Court at Brisbane on 27 August 2009

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – where the respondent was convicted of one count of assault with intent to commit rape – where the applicant suffered physical injury, a post-traumatic stress disorder to a moderate degree which was likely to persist indefinitely, and an adverse impact under reg 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) as a result of the offence – assessment of compensation

Criminal Offence Victims Act 1995 (Qld) (repealed), s 20, s 21, s 22, s 24, s 25, s 26, s 30, Schedule 1

Criminal Offence Victims Regulation 1995 (Qld) (repealed), s 1A, s 2, s 2A

Uniform Civil Procedure Rules 1999 (Qld), r 110(a), r 112(d)

Victims of Crime Assistance Act 2009 (Qld), s 149, s 155(1)(a), s 155(2)(b)

AT v FG [2004] QCA 295, applied

R v Kazakoff; ex parte Ferguson [2001] 2 QD R 320, cited

JMR obo SRR v Hornsby [2009] QDC 147, cited

KMS v LJC [2010] QDC 284, considered

PAJ v AAK [2010] QCA 78, applied

R v Atwell; ex parte Jullie [2002] 2 Qd R 367, applied

R v Tiltman; ex parte Dawe (1995) QSC 345, applied

R v Ward; ex parte Dooley [2001] Qd R 436, applied

Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, applied

RMC v NAC [2009] QSC 149, applied

SAY v AZ; ex parte A-G (Qld) [2007] 2QdR 295; [2006] QCA 462, applied

SMR v LJC [2010] QDC 285, considered

STH v LJC [2010] QDC 303, considered

Wren v Gaulai [2008] QCA 148, applied

COUNSEL:

K. Worsnop (Solicitor) for the applicant

No appearance by or on behalf of the respondent

SOLICITORS:

Delaney & Delaney for the applicant

No appearance by or on behalf of the respondent

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 on 19 July 2006.  The Act was repealed by
section 149 of the Victims of Crime Assistance Act 2009 (Qld)
(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 12 January 2010.  This was within
two months after the commencement of the 2009 Act as required
by section 155(2)(b), it being the earlier of the dates
required in that subsection.

On 27 August 2009 the respondent pleaded guilty to one count
of assault with intent to commit rape upon the applicant.  He
was sentenced to 10 years' imprisonment.  I am satisfied that
the originating application was served in accordance with rule
110(c) of the UCPR by service on the person in charge of the
prison in which he is imprisoned, in this case the
correctional supervisor of the Wolston Correctional Centre.  I
am also satisfied he was served by post with all supporting
affidavits pursuant to rule 112(d) of the UCPR. The covering
letter advised him the hearing date was 19 July 2010 at 10
a.m.  The mail attendant at the correctional centre confirmed
this correspondence was received by him.

In addition, the Public Trustee has received written
confirmation from the respondent that he has been served with
this material and was aware of the hearing date; and he has
advised in writing that he wishes to take no further part in
these proceedings.  As a consequence he did not appear when
the matter came on for hearing on that date.  I therefore
proceeded in his absence and adjourned the matter to 13 August
2010 to hear oral submissions.

Circumstances of the Offence

As I said in my sentencing remarks, the respondent grabbed the
applicant from behind as she walked along The Gap bikeway.
The respondent had gone there with the intention of attacking
a woman.  This happened at about 2 p.m. when the applicant was
engaging in her regular exercise routine along the bike way.
After grabbing her the respondent attempted to pull her
towards some bushes.  He covered her mouth with his hand.  She
bit his index finger.  She thought he bled as a result.

He ran his hands down her breasts.  She was screaming and
struggled with him to get away.  In the course of this he
punched her in the head.  This knocked her over and her head
hit the ground heavily.  She was face down on her knees with
him standing behind her holding her down with one leg either
side of her back.  She was able to break free and run to a
nearby house.  As a result the police were called.  The
applicant was then 23 years of age.  She is now 27 years.

Injuries and Medical Reports.

The applicant's description of her physical injuries as a

result of the attack in her statement is:

"I suffered minor physical injuries in the attack.  I had a
cut and bloodied lip, a bruise on my left temple and abrasions
on my knees.  These injuries have since healed."

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 I observed, the victims were simply
trying to enjoy and obtain pleasure from their environment as
they went about their daily exercise.  This was the case with
the applicant.

In her affidavit sworn on 28 June 2010, almost four years
after this offence, the applicant deposes that:

"Without a doubt the most significant impact from the attack
on me has been my emotional well-being."

She says that her life and lifestyle have been permanently
affected as a result of the attack.  She sums this up as
follows:

• She is constantly thinking about her safety;

• She no longer exercises in public;

• She is hypervigilant whenever she is in public places;

• She has lost her sense of security;

• She has trouble trusting people, particularly men;

• She has not had a stable personal relationship with a man

since the incident;

• She becomes very emotional when the event comes into

conversation or when she hears of a similar event in the media or when she sees sexual violence in films or on television.  This has been exacerbated by the media interest in the case;

• She gets upset at constant reminders of the incident;

• She has been unable to see a counsellor because she finds it emotionally distressing to talk about the attack;

• She had several nightmares leading up to her appointment with Dr McGuire for the purpose of the medico-legal report which has been prepared for these proceedings;

• She has trouble sleeping and recurring nightmares of being suffocated by the attacker or dreaming that he is in her bedroom.  She sleeps with the bedroom light on for peace of mind;

• She has developed some obsessive tendencies such as turning lights on and checking that the doors and windows are locked;

• She thought she had seen the attacker on several occasions and on one of these occasions she phoned the police to investigate;

• She often feels depressed as a result of the offence.

She was subject to an assessment by Dr McGuire, a
psychiatrist, on 23 February 2010.  This was about three and
a-half years after the attack.  Her findings are consistent
with the applicant's subsequent affidavit.  For her part the
applicant confirms the facts attributed to her in Dr McGuire's
report.

Consistent with the applicant's concerns leading up to her
assessment by Dr McGuire, she presented as highly anxious,
distressed and resistant to talking about the incident.  She
was frequently fearful.  Dr McGuire opines that as a result of
the offence the applicant exhibits nightmares, flashbacks,
avoidant behaviour, irritability, hypervigilance, some
obsessionality and low mood.

With reference to these symptoms, in addition to what the
applicant has said, Dr McGuire refers to the applicant
developing migraines after the incident.  These episodes are
triggered by reminders of the attack.  She experiences a
pounding headache and vomiting which usually lasts about 12
hours and sometimes experiences numbness of her hand and
blurred vision.

With reference to the flashbacks, Dr McGuire says that the
incident is always in the back of the applicant's mind.
Dr McGuire says of the applicant's avoidant behaviour that she
doesn't walk in parks any more.  This is an activity she had
previously enjoyed.  Although she can go out on her own to
places like supermarkets she is hypervigilant when she is on
the street.  Her hypervigilance extends to not liking to walk
into her car park at night after finishing work.  She always
looks in the back of her car before getting in.

There is a reference to the applicant having an exaggerated
startle reflex.  Dr McGuire also refers to the applicant's
security fears in her own home, including her having thoughts
that the respondent was in her room, when the attack first
happened.

She confirms that the applicant has not had counselling
because of the perception it would make it much worse if she
had to talk about the incident rather than forget it.

Dr McGuire notes that the applicant enjoys her work which
involves managing a hairdressing salon.  Although she didn't
take any time off work following the attack, the applicant
believes her work has been affected by the incident.  She has
difficulties travelling to and from work.  Her colleagues have
noticed a change in her temperament.

The report describes a period after the incident when the
applicant drank to excess.  The applicant believes her anxiety
led her to do so.

Dr McGuire opines that the applicant's psychological trauma
suffered as a result of the offence is a post-traumatic stress
disorder, that she suffers to a moderate degree.  This has
developed in circumstances where the applicant had never
experienced a pre-existing trauma in her life and has no past
history of mental illness.

Dr McGuire expresses the view that if the applicant's aversion
to talking about the incident settles with time she would
benefit from counselling and possibly also from antidepressant
medication.  Her belief is that the applicant would need at
least 10-15 sessions.

The report also addresses the issue of whether the applicant
has suffered any adverse impacts of this sexual offence for
the purpose of section 1A(1) of the Criminal Offence Victims
Regulation 1995 (the regulation).  In doing so the nature of
the post-traumatic stress disorder is described in further
detail.  In Dr McGuire's opinion the applicant suffered a
sense of violation which is a prerequisite to a diagnosis of a
post-traumatic stress disorder.  Reference is made to the
applicant feeling terrified and thinking she was going to be

killed or raped.  In her opinion the applicant's increased
feelings of insecurity and hypervigilance are also a feature
of the disorder.

Further, in her opinion where, as in this case, sexual abuse
is the precipitant of a post-traumatic stress disorder, the
adverse impact on lawful sexual relations experienced by the
applicant is a feature of the disorder.

Consequently, the only adverse impact identified by Dr McGuire
which is not included in the diagnosis of post-traumatic
stress disorder is that because the applicant bit the
respondent in the course of the struggle and had his blood on
her face she was worried for some months about having acquired
a disease, although the applicant did not suffer a disease.

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 or 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 make an order for the prescribed amount.  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 of 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 Qd R 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] 2 Qd R 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 section1A 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 at 382-383; Hornsby at [6]. They would be such an injury if they were nervous or mental shock; AT v FG 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

Ms Worsnop, who appears for the applicant, submits that she
has suffered the following injuries and should be compensated
for:

Item 1 - bruising/laceration etc (minor/moderate) - 2 per cent
- $1,500.

Item 32 - mental or nervous shock (moderate) - 20 per cent -
$15,000.

Regulation 1A - adverse impact of a sexual offence - 7 per
cent - $5,250.
Therefore an award is sought of 29 per cent of the scheme
maximum which is $21,750.

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 Dr McGuire as a result
of the indictable offence of assault with intent to commit
rape committed against her person by the respondent on 19 July
2006.

I am satisfied that those injuries involved bruising, a
laceration and abrasions, mental or nervous shock and a
separate adverse impact within section 1A of the regulation.

Item 1 - bruising/laceration etc (minor/moderate) - 1 per
cent-3 per cent.

Ms Worsnop's submission is that her injuries which amounted to
a cut and a bloodied lip, a bruise to her left temple and
abrasions on her knees should be awarded at the mid-point for
this type of injury.  As I have noted these injuries have
healed.  In Ward at 438-439, [9] 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.  The bruising and 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 2 per cent for moderate areas of swelling to
the upper lip, right side of the mouth, three fingers and an
elbow.  They could find nothing in the evidence that this
swelling was long lasting or causative of significant pain.
There were no lacerations.  I do not consider that the
injuries suffered in this case are more serious than in Ward
or at least not sufficiently more serious so as to cause me to assess the award at a higher level.

While comparisons of awards in cases under this legislation
can be fraught with difficulty because no two cases are
exactly alike, I also take into account my assessment at 2 per
cent of the scheme maximum of the injuries suffered by the
applicant in STH v LJC [2010] QDC 303, a decision which I
delivered on 19 July 2010 compensating STH as a result of an
attack as part of the 27 month course of offending by the same
respondent.  The offence against the applicant was committed
as part of that course of offending.

In that case the applicant suffered a small one centimetre
scratch to the right lower jaw, bruising to her right upper
lip and adjacent gum, grazing to her left elbow and a small
bruise above her right knee.  These injuries had healed with
very minor scarring.  However the scarring was not of major
concern to the applicant.  I do not regard the injuries
suffered by the applicant in the present case as markedly
different to those suffered by STH.

In these circumstances I assess an award of 2 per cent of the

scheme maximum for item 1 of the compensation table, that is
$1,500.

Item 32 - mental or nervous shock (moderate) - 10 per cent-20
per cent.

It is submitted that item 32 of the schedule is appropriate
for application in this case and the award be at 20 per cent
of the scheme maximum.  This was at the top of the moderate
range for mental or nervous shock or at the bottom of the
severe range for it.  Reliance is placed on Dr McGuire's
opinion that the applicant is suffering from post-traumatic
stress disorder of a moderate degree as a result of the
offence.  Reference is also made to Dr McGuire's observation
that the applicant has:

"Nightmares, flashbacks, avoidant behaviour, irritability,
hypervigilance, some obsessionality, low mood."

Particular emphasis is placed on Dr McGuire's statement that
the applicant requires counselling but is not presently ready
for treatment as she has an aversion to talking about the
incident.  Ms Worsnop also stresses the significant impact
that the applicant identifies in her affidavit the attack had
on her life.  I note in addition, as I have already observed,
that the applicant, according to Dr McGuire, has developed
migraines since the incident.  These episodes are triggered by
reminders of the attack and involve a pounding headache and
vomiting which usually lasts about 12 hours with associated
numbness of her hand and blurred vision on some occasions.
This is expressed by Dr McGuire in such a way as to suggest
that those consequences of the attack continue.

In RMC v NAC [2009] QSC 149, Byrne SJA took the view that
mental or nervous shock within the Act is confined to a
recognised psychiatric illness or disorder.  In coming to this
view his Honour preferred the view of Lee J in R v Tiltman; ex
parte Dawe [1995] QSC 345 to that of Thomas JA in R v
Kazakoff; ex parte Ferguson [2001] 2 QdR 320.

Because I find that a post-traumatic stress disorder is a
recognisable psychiatric illness or disorder, it is not
necessary for me to determine whether to follow the decision
of Thomas JA in that case.  As it is a recognisable
psychiatric illness or disorder it constitutes mental or
nervous shock that is compensable under the Act.

In AT v FG [2004] QCA 293 Jerrard J A made reference to:

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

Having regard to Dr McGuire's opinion I am also satisfied that
the respondent's conduct constituting the offence against the
applicant was a material cause of that disorder and therefore
it is a proper subject for compensation. 

In making this assessment it is again relevant to have regard to the assessment made for mental or nervous shock in compensating other victims who were attacked as part of the same course of offending by LJC.

In SMR v LJC [2010] QDC 285 I categorised the symptoms
suffered by that applicant for the purpose of her
post-traumatic stress disorder as follows:

• Panic attacks and anxiety when she is not with her husband - this is described as "long term chronic anxiety";

• Nightmares;

• Flashbacks;

• Sleep disturbance;

• Control issues;

• Her persisting sense of injustice about the attack and

generally;

• Excessive worrying including her obsession with her appearance and worries as to what others think about her;

• Concurrent thoughts.

Given that this post-traumatic stress disorder with its
serious consequences in most areas of her life had persisted
for just over four years, and was likely to persist
indefinitely with a recommendation of two years of
psychologist sessions to reduce her anxiety I assessed the
compensation as submitted on her behalf at 20 per cent of the
scheme maximum.  Her career had been affected and at the time
of the application she was searching for work in an unrelated
area of employment which did not use her professional skills.

In that case, having regard to the manner in which the
psychiatric opinion was expressed, I did not assess the effect
of the post-traumatic stress disorder as including an adverse
impact on sexual relations with her husband.  This was
assessed as an adverse impact for the purpose of section 1A of
the regulation.  I consider that case as involving more
serious consequences to the victim than those suffered by the
present applicant.

I assessed compensation at 12 per cent of the scheme maximum
in the cases of KMS v LJC [2010] QDC 284 and STH v LJC [2010]
QDC 303.  The victims in both those cases experienced
heightened anxiety following the assault, became
hypervigilant, constantly scanning their environment, being
highly suspicious and fearful of men, particularly those
wearing similar clothes to the respondent when he attacked and
having struggled to do things away from home.

KMS also lost interest in sex.  The severity of her original
injury had moderated in the three and a quarter years since
the attack although I assessed her compensation on the basis
of the moderate mental or nervous shock she had originally
suffered. 

Although STH had not lost interest in sex her condition had continued for approximately 18 months at the time of her affidavit and was described by her psychologist as a post-traumatic stress disorder involving a severe to extreme
impairment which was ongoing and required the assistance of a
clinical psychologist.  She continued to be anxious, insecure
and fearful of attack as well as suffering social phobias.

In the present case I accept Dr McGuire's opinion that the
applicant's post-traumatic stress disorder is of a moderate
degree and therefore falls within item 32 of the compensation
table.

In assessing where in the scaling of item 32 this case falls I
consider that the applicant has suffered less serious
consequences than SMR who had lost her professional career as
a result.  However, I consider that she suffered more severe
consequences than KMS and STH on the evidence before me.  Not
only has this offence had an adverse effect on her lawful
sexual relations but the post-traumatic stress disorder
persists after almost four years such that she remains unable
to see a counsellor because she finds it emotionally
distressing to talk about the attack.  This is consistent with
Dr McGuire's experience of her during the assessment.  She
found the applicant, as I have observed, to be highly anxious,
stressed, frequently tearful and resistant to talking about
the incident.  Dr McGuire considers she would benefit from
counselling which would involve at least 10-15 sessions.  She
also considers that the applicant would possibly benefit from
antidepressant medication.

In these circumstances I consider that the post-traumatic
stress disorder is likely to continue to affect her at the
same level for the indefinite future.

Taking these matters into account I find the injury suffered
by the applicant as a result of the incident was moderate
mental or nervous shock within item 32 of the compensation
table.  I assess compensation for this degree of mental or
nervous shock within that item at 16 per cent of the scheme
maximum, namely $12,000.

Regulation 1A - adverse impact of sexual offence - 1 per
cent-100 per cent.

As I have said, a compensable injury under the Act includes an
injury under a regulation. Under section 1A(1) of the
regulation 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 section 20 is
prescribed as an injury and "adverse impact" of a sexual
offence is then defined by section 1A(2).

"Sexual offences" are defined in section 1A(3) of the
regulation to mean a personal offence of a sexual nature.
There is no doubt that the offence committed by the respondent
against the applicant is a sexual offence.  As stated by
McMurdo P (with whom Muir and Chesterman JJA agreed) in PAJ v
AAK [2010] QCA 79 at [28]:

"The clear terms of reg 1A(1) of the regulation provide
that to be compensable under the Act the adverse impacts under
reg 1A must be additional to the mental or nervous shock
injury under section 20 of the Act.  The onus was on the
applicant to establish her claim on the balance of
probabilities."

It was for this reason Jerrard JA stated in AT v FG at [25]:

"Applicants for compensation who are diagnosed as suffering
from post-traumatic stress disorder or from depression or
anxiety will benefit from their legal representatives
insisting upon the diagnosing practitioner specifically
describing the matters experienced by the applicant which are
not relied on in support of the diagnosis; those matters may then be capable of being adverse impacts."

Dr McGuire has done this in the present case.  As I have
observed, the only adverse impact she has identified which is
not included in the diagnosis of post-traumatic stress
disorder is that the applicant was worried for some months
about having acquired a disease because she had bitten the
respondent in the course of the struggle and had his blood on
her face.

In the written outline it was submitted that the Court should
compensate for this impact under section 1A(2)(d) which
describes the adverse impact as "disease".  It was also
submitted compensation should be awarded for future
counselling needs and the impact on her of the notoriety of
the case. Under section 1A(2)(k) which allows an award to be
made for "anything the Court considers is an adverse impact of
the offence", it was submitted that taking into account the
totality of these adverse impacts an award in the order of 7
per cent of the scheme maximum or $5,250 would be appropriate.

Ms Worsnop accepted during oral argument that the applicant's
further counselling needs and the impact of notoriety were
properly compensated as part and parcel of the post-traumatic
stress disorder and are not to be considered as an adverse
impact under section 1A. Accordingly, I have taken them into
account in assessing compensation for mental or nervous shock.

Ms Worsnop also accepted that fear of disease is not the same
as disease for the purpose of section 1A. Where that
provision identifies fear as a specific adverse impact, it is
capable of expressly doing so. For example, section 1A(2)(g)
includes "increased fear or increased feelings of insecurity"
as an adverse impact.  It was therefore submitted that I
should compensate for this fear under section 1A(2)(k). I
agree.
I consider that at this time in our history fear by a female
of contracting a communicable disease as a result of coming
into contact with the blood of a male person who has attacked
her for sexual purposes is a serious matter.  Particularly
whereas in this case it is a fear which inevitably persists
for some months until a negative result is indicated.  As a
matter of commonsense a fear of this nature is likely to be
have a profound effect on the victim's quality of life for the
period it persists.

Under section 2A of the regulation the prescribed amount which
can be awarded for the effect of adverse impacts is up to 100
per cent of the scheme maximum.  Having regard to the
seriousness of the applicant's fear of acquiring a disease, I
assess this as, in itself, warranting an assessment of 10 per
cent of the scheme maximum.  That is $7,500.

Section 25(7) of the Act - Contribution

Finally, I conclude that nothing in the applicant's actions on
19 July 2006 contributed to either her bodily injury, mental
or nervous shock or prescribed injuries that was suffered by
her.  For this reason there is no requirement for any further
allowance to be made or a lower percentage of compensation to
be fixed as a consequence of section 25(7) of the Act.

The applicant did not in any way, either directly or
indirectly, contribute to her injuries.  She was engaging in
outdoor exercise in a public place as she was entitled to do.
The applicant was the unfortunate woman who he chose
to attack.

She had no previous dealings with the applicant.  She did
nothing that could be considered any kind of provocation nor
can the circumstances surrounding the offence in any way be
construed to involve behaviour or prior conduct of the
applicant which might somehow have been contributory to what
happened to her.

Consistently with what I have already said, I noted in my
sentencing remarks that the applicant (along with other
victims) was 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 the right to
feel safe and secure."  The applicant in no way contributed to
her injuries.  There is nothing else in the evidence that
suggests anything in the applicant's background in any
way contributed to her injuries.

Accordingly, 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/moderate) - 2 per cent
- $1500.

Item 32 - mental or nervous shock (moderate) - 16 per cent -
$12,000.

Regulation 1A - adverse impact of sexual offences - 10 per
cent - $7,500.

Therefore, the total assessment is 28 per cent of the scheme
maximum, that is $21,000.

I order the respondent pay to the applicant the sum of $21,000
by way of compensation pursuant to section 24 of the Act for
injuries sustained as a result of the offence of assault with
intent to commit rape which led to his conviction in the
District Court Brisbane on 27 August 2009.

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