Seiler v O'Neill

[2001] QDC 218

DISTRICT COURT OF QUEENSLAND

CITATION:	Seiler v O’Neill [2001] QDC 218
PARTIES:	KYLIE ANN SEILER (Applicant) MICHAEL KENNETH O’NEILL (Respondent)
FILE NO/S:	102 of 2000
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING	Cairns
COURT:
DELIVERED ON:	22/5/01
DELIVERED AT:	Cairns
HEARING DATE:	15/12/2000
JUDGE:	White DCJ
ORDER:	That the respondent, Michael Kenneth O’Neill, pay the applicant the sum of $38,000 by way of compensation.
CATCHWORDS:
COUNSEL:	Mr. McCreanor for the applicant No appearance for the respondent
SOLICITORS:	Phillip Bovey & Co. for the applicant

[1] The respondent was convicted in the District Court at Cairns on 18 October, 1999
of the following offence:-

“That on 10th day of July, 1999 at Cairns in the State of Queensland he

assaulted Kylie Ann Seiler with intent to rape.”

This is an application by Kylie Ann Seiler for compensation pursuant to s.24 of the
Criminal Offence Victims Act 1995.

1. In the early hours of the morning of 10 July, 1999 the applicant was asleep alone in her room in a house which she shared with a few other people. She had gone to sleep with the bedroom light on and woke to hear it being switched off. She assumed that another member of the household had done this. But within seconds of the light going off she was grabbed by her hair and pulled up roughly. She was then punched about the head, face and belly. She was 14 weeks pregnant at the time. The assailant was the respondent. The applicant screamed for help and the respondent continued to punch her about the head and body telling her to shut up. She stopped screaming for a moment and he said “I’m going to have sex with you.” By this time the struggle had resulted in the applicant moving to the floor next to the mattress upon which she had been sleeping. She started to scream again and the respondent resumed punching her repeatedly whilst holding onto her hair. During the struggle she managed to get to her feet. The respondent stopped punching her and ran from the room but was subsequently apprehended by a male member of the household.

2. The applicant was born 1 September, 1981 and was therefore aged 17 at the time of the commission of the offence. Following the incident she was taken to the Emergency Department of the Cairns Base Hospital where she was examined by Dr. David Roones. Dr. Roones reports as follows:-

   “This 17 year old woman who was 14 weeks pregnant at the time attended Cairns Base Hospital Emergency Department following alleged home invasion and assault. She had been punched in the head and abdomen and had had hair pulled. She complained of mild abdominal pain which had settled but there was not PV bleeding, loss of consciousness or other injuries. Apart from the pregnancy there were no other relevant past medical history. On examination she was mildly distressed and had crescentoric scratches on her right upper arm consistent with fingernail injuries. She also had bruising on her left upper arm and left forearm. There was a small lump on her skull on the right parietal region, there was a bruise on her right shoulder. Full neurological examination was normal. Abdomen was soft and non-tender and the uterine fundus was not palpable. No specific treatment was required and she was advised to return if she should experience PV bleeding or abdominal pain.”

   The applicant also states, and I accept, that she had clumps of her hair pulled out by the respondent.

3. It is clear that the applicant has suffered significant emotional trauma as a result of this incident. With respect thereto there is a report of a clinical psychologist, Christine Bovey, the contents of which I accept. Ms. Bovey reports that the applicant “suffers from the moderate symptoms of chronic Post Traumatic Stress Disorder”. In her affidavit, the contents of which I accept, the applicant describes her reaction to the incident as follows:-

   “As a result of the incident I suffered regularly from nightmares and depression. I attempted suicide two days after the incident because I feared my baby would be hurt by the incident. At that stage I was still pregnant. I have been unable to live by myself and require that friends and/or family members stay with me overnight. I have been unable to establish a substantive relationship with a man since and I have been more distant from friends and family. This is because I am fearful to trust people. My relationship with my daughter’s father has demised because of this. My life has been very stressful since this incident occurred and I am fearful of going out to public places alone and in the evening. This has made me less sociable. I feel angry that the event occurred, however I also feel helpless that I cannot change what happened. This makes me feel confused and like I have done something wrong. I have difficulty sleeping at night, am afraid at night and have a constant fear of people generally, particularly males. All of which did not exist prior to the incident taking place.”

   Ms. Bovey recommends, which I accept, that the applicant needs ongoing psychological counselling which would cost approximately $3,800.00.

[5]

I am satisfied that the applicant would be entitled to compensation in respect of the
following items in the table to the Act:-

1.	Bruising/laceration etc. (minor/moderate)
32.	Mental or nervous shock (moderate)

I am also satisfied that the applicant is entitled to compensation for the adverse impacts of a sexual offence as provided for in Regulation 1A to the Act. Because there is a degree of overlapping in respect of these separate items, in my view it is not appropriate to attempt to assess compensation in respect of each such item. However, I am satisfied that an appropriate overall amount of compensation would be $38,000.00.