Seaby v Redshaw

[2000] QDC 333

DISTRICT COURT OF QUEENSLAND

[2000] QDC 333

REGISTRY:  ROCKHAMPTON

NUMBER:     D105 OF 2000

Applicant:                  NICHOLE LESLIE SEABY

and

Respondent:             DAMIEN SVEN REDSHAW

REASONS FOR JUDGMENT

BEFORE HIS HONOUR JUDGE BRITTON S.C.

DELIVERED the 15 day of September 2000

This is an application for criminal compensation by Nichole Leslie Seaby (“the applicant”) pursuant to section 24 of the Criminal Offence Victims Act 1995. On the 13^th November 1998 Damien Sven Redshaw (“the respondent”) was convicted on his own plea of one count of rape committed upon the applicant on the 15^th August 1998.  There was no appearance by or on behalf of the respondent.

The applicant is 30 years of age having been born on the 13^th January 1970.  She was thus 28 years of age at the time of the commission of the offence. 

The application is supported by, inter alia, an affidavit of the applicant to which is exhibited a copy of the applicant’s statement to the police setting out the circumstances surrounding the commission of the offence together with her Victim Impact Statement, a report from Mr Bruce Acutt, psychologist, and a report from Dr C Lip.

Briefly, the circumstances surrounding the offence were that the respondent entered the applicant’s house via a toilet window whilst the applicant was asleep in bed.  Whilst she was still asleep, he removed her lower clothing and had intercourse with her without her consent. 

In her Victim Impact Statement, the applicant detailed the adverse impacts upon her of the offence.  She said that when she realised that she had been raped she felt shocked, scared and angry.  She was unable to continue living in the house where the offence occurred.  She was unable to go to work for 3 or 4 days and after her return found it hard to interact with other staff.  She eventually quit her job and left Rockhampton and went to Blackall.  Over the passage of time she was becoming more emotional, was scared and lonely and found that she was unable to trust anyone, even members of her own family or her friends.  She had severe mood swings ranging from angry to totally depressed.  She had feelings of insecurity and at times felt self-conscious and embarrassed about what had happened to her.  She had been unable to share her feelings with anyone and felt unhappy since the offence.  She had constantly fought with her boyfriend and the relationship between herself and her daughter had also suffered.  She felt she could no longer trust men.  She had been unable to seek support from her family or friends as she found it hard to talk about what had happened.  She had sought counselling which had not helped her at all. 

Mr Acutt carried out psychological assessment on the 8^th October 1999.  He said that the applicant told him that she had experienced the following psychological effects:
sleep deprivation;
never feeling “rested”;
feelings of insecurity;
fear that the same situation might happen again;
increased startle response;
dreams of the incident;
lability;
inability to carry out household duties at times;
increased tearfulness/emotions;
inability to work feelings of fear and shame;
social alienation.

Mr Acutt diagnosed the applicant as suffering severe clinical depression and also a post traumatic stress disorder with severe impairment of her level of functioning.  He said that the depression would be amenable to medication and psychological intervention but post traumatic stress disorder of the severity it was was usually a long term if not life-long condition.  He said she was in urgent need of treatment from an appropriately qualified medical specialist and ongoing counselling/therapy.

The applicant’s compensation is to be assessed under Regulation IA of the Criminal Offence Victim Regulation 1995.  The prescribed amount for an injury mentioned in regulation 1A is an amount equal to an amount not less than 1% but not more than 100% of the scheme maximum.  The scheme maximum is $75,000. 

I find that the applicant has suffered an injury being an injury within regulation 1A caused by the offence of rape committed against her by the respondent.  I assess the applicant’s compensation at 75% of the scheme maximum or $56,250.

By virtue of the section 25(7) of the Criminal Offence Victim Act 1995, 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 of the applicant that directly or indirectly contributed to the injury.  I have already set out briefly the circumstances in which the offence was committed.  It is the case that prior to the commission of the offence the applicant had been walking to her home in the early hours of the morning after attending night clubs and that on her way she came upon the respondent who was unknown to her and he had walked her home.  However, she had not allowed him into the house despite his asking to be let in and went to bed thinking that he had gone away.  He, in fact, entered through the toilet window and committed the offence upon her whilst she was still asleep.  In passing sentence on the respondent His Honour Judge McLauchlan QC said inter alia:

“the result seems to be quite simply that you removed clothing from this woman who was asleep and had intercourse with her without her having been in any way responsible for that outcome.”

There is nothing in the material before me which would enable me to find that any behaviour of the applicant directly or indirectly contributed to the injury and the amount of compensation payable to the applicant should therefore not be reduced by reason of section 25(7). 

I order that Damien Sven Redshaw pay to the applicant Nichole Leslie Seaby by way of compensation the sum of $56,250.

G T BRITTON S.C. DCJ