SMR v LJC

[2010] QDC 285

DISTRICT COURT OF QUEENSLAND

CITATION:

SMR  v LJC [2010] QDC 285

PARTIES:

SMR

(Applicant)

V

LJC

(Respondent)

FILE NO/S:

BD294/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

18 June 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

18 June 2010

JUDGE:

Irwin DCJ

ORDER:

The respondent pay the applicant the sum of $31,500 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offences of rape and sexual assault, 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 each of rape and sexual assault – where the applicant suffered abrasions, bruising and swelling to her back, left hand and arm, right knee and thigh, and moderate mental or nervous shock on the basis of a moderate post-traumatic stress disorder which had persisted for about 4 years and was likely to persist indefinitely, and adverse impacts under reg 1A(2) as a result of the offences – assessment of compensation

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 applicant suffered mental or nervous shock injuries compensable under s 20 of the Criminal Victims Act 1995 (Qld) as a result of the respondent’s sexual offending – whether the applicant also suffered discrete adverse impacts under reg 1A(2) of the Criminal Offence Victims Regulation 1995 (Qld) which were not a part of the applicant’s s 20 injuries

Criminal Offence Victims Act 1995 (Qld) (repealed), s 20, s 21, 24, s 25, s 26, s 30, Schedule 1

Criminal Offence Victims Regulation 1995 (Qld) (repealed), s 1A, s 2, s 2A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 110(c)

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

AT v FG [2004] QCA 295, applied

Ferguson v Kazakoff [2001] 2 QD R 320; [2000] QCS 156, cited

Hall v Dizo [2010] QDC 71, applied

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

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

Wren v Gaulai [2008] QCA 148, applied

COUNSEL:

T. Whitaker (Solicitor) for the applicant

No appearance by or on behalf of the respondent

SOLICITORS:

Reardon & Associates 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 the physical and emotional injuries caused by the
attack of the respondent on 28 April 2006.  The Act was
repealed by section 149 of the Victims of Crime Assistance Act
2009 (QLD) (The 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 28 January 2010. This was before the end of two months after the commencement 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
each of rape and sexual assault committed upon the applicant.
He was sentenced on 28 August 2009 to 25 years' imprisonment
for the rape and to three years' imprisonment for the sexual
assault.  The sentences were to be served concurrently.

On 16 February 2010 the Queensland Court of Appeal set aside
the sentence of 25 years' imprisonment and substituted a
sentence of 16 years' imprisonment.  The sentence for the
sexual assault was confirmed.  The success of the appeal to
this extent is irrelevant to the determination of the
application.

The application and the supporting affidavits from
Dr Thompson, and an affidavit of Ms Dunlop exhibiting the
transcript of my sentencing remarks, and the relevant
certificate of conviction was served on the respondent at the
Wolston Correctional Centre by a letter addressed to the
general manager and mailed on 19 May 2010 by ordinary prepaid
post.  This was in accordance with rule 110(c) of the Uniform
Civil Procedure Rules 1999 (QLD) (The UCPR) under which a
document required to be served personally on a prisoner must
be served on the person in charge of the prison in which the
prisoner is imprisoned unless the Public Trustee is managing
the prisoner's estate or the prisoner has a litigation
guardian.  The affidavit of Mr Miles deposes that the Public
Trustee is not actively managing the affairs of the
respondent.  There is no suggestion that the respondent has a
litigation guardian.

Both the letter to the general manager and the letter dated 19
May 2010 which was addressed to the prisoner at the same
correctional centre state:  "It is intended to rely on an
affidavit of the applicant which would be forwarded to him.
The respondent was advised that this would happen in due
course.  The general manager was advised that this would
happen in the near future."  The letter to the respondent also
advised this matter was listed for hearing on 4 June 2010 at
9 a.m.  Out of an abundance of caution, the same material was
served on the Public Trustee in purported reliance on rule
110(a) of the UCPR by being forwarded by ordinary post on 19
May 2010.

The affidavit of Ms Dunlop states that this included advice
that the matter was listed for hearing on 4 May 2010.
However, I take this to be an error in that the intention was
to refer to 4 June 2010 in the affidavit.  This matter has
never been listed for 4 May 2010.

In any event, since that date, as Ms Dunlop deposes, she has
served both the respondent and the Public Trustee with the
applicant's affidavit by letters sent on 31 May 2010.  This
confirmed the date of the hearing of the application as 4 June
2010 at 9 a.m.

The Public Trustee has been served on the basis that a staff
member of that office advised that the Public Trustee was able
to accept service in the manner adopted on behalf of the
respondent.  Because the Public Trustee is not actively
managing the prisoner's affairs, rule, 110(a) of the UCPR is
inapplicable.  However, as Mr Miles' affidavit demonstrates,
this has had the effect of the respondent writing to the
Public Trustee on 2 June 2010 advising he had received the
application and supporting affidavits, was aware of the date
of the hearing, and he did not desire to take part in the
proceedings.  This was after the applicant's affidavit had
been sent to him.

I am, therefore, satisfied that the respondent has been served
with and is aware of the application and all relevant material
relied on in support of it.  The Public Trustee has not
surprisingly indicated that it has no wish to participate in
the proceedings.  As indicated, the respondent has expressed
he does not desire to do so.  As a consequence neither
appeared when the matter came on for hearing before me at
9 a.m. on 4 June 2010.  On that date, I adjourned the matter
to today, 18 June 2010, for hearing.

CIRCUMSTANCES OF THE OFFENCES

As I stated in my sentencing remarks, these offences occurred
early in the morning when the respondent lunged from behind a
car and tackled the applicant who was proceeding past him so
as to bring her to the ground.  In relation to the charge of
sexual assault, he put his hand over her face and pinned her
head to the ground.  He put his hand up under her bra and
pinched her nipples firmly.

In relation to the count of rape, he inserted fingers into her
vagina and moved them from side to side for two to three
seconds.  She suffered abrasions to her body and neck pain as
a result.

I observe that the respondent hid behind a car in a driveway
to provide him with cover to facilitate his actions in lunging
out and taking the applicant by surprise.

According to the applicant's statements, which are exhibited
to her affidavit, she left home at approximately 5 a.m.  She
was then 36 years of age.  She took a route which she ran
regularly.  At about 5.45 a.m., she was walking or slowly
running up a hill along a footpath when she past the car,
which was parked at the crest of the hill.  The respondent
lunged at her from the vicinity of the driver's side door.
She described him as rushing at her.  He tackled her forcing
her down on the road so that she ended up on the middle of the
road.

The respondent pushed the applicant's head on the road and
placed one of his hands on her face.  She tried to struggle
away from him, but he was very strong and was kneeling over
her.  She struggled as hard as she could and screamed as loud
as she could for help.  While kneeling over the applicant, the
respondent moved his free hand up under her top and squeezed
her nipples two or three times.  He fondled her chest for
several seconds before moving his hand in behind her shorts
and underwear.  He then forced his fingers into her vagina
leaving them in there for about two or three seconds.  She
thought he used two fingers.  He then removed his hand, stood
up and ran away.

As I have said, during the assault she screamed out as loudly
as she could.  Residents of homes in the street emerged and
provided assistance.  However, she thought that she also sat
on the road and cried for a while.  The residents called the
police on her behalf.  After they attended at the scene, the
police took her to the hospital for examination and treatment.

INJURIES AND MEDICAL REPORTS

The applicant's description of her physical injuries in her
statement 10 months after the attack is:  "He hurt my neck at
the time from when he was pinning my head down during the
attack.  I kept trying to get up and he was forcing me down
which strained my neck.  I also suffered some cuts to my right
shoulder."

When Dr Mobbs examined her at 8.30 a.m. on that date, less
than three hours after the offence, she identified the
following physical injuries:

• Two red lines on the right side of the midline of her back.  It was thought that they may be early bruising.  These measured seven centimetres and five centimetres respectively.

• A one-centimetre circular abrasion on the back of her left elbow

• A boomerang-shaped abrasion with dried blood on the middle finger of her left hand.  The part of the finger nearest the hand was swollen and tender.

• 0.2 centimetre linear abrasion on the left thumb.

• An area of six abrasions within eight centimetres by six centimetres on the outside of her right knee.

• On the outside of her right thigh there was a red area with some small abrasions.  This was possibly an early bruise.  It measured 12 centimetres by eight centimetres at the back, and four centimetres at the front.

For completeness, I add there was no abnormality revealed by
the genital examination.

Dr Mobbs makes no reference to the applicant's neck.  This is perhaps not surprising given that this was more in the nature of discomfort than a visible injury.  The discomfort to her neck may also have developed in the days following the attack because as the applicant says about it in her affidavit:  "In the days following the attack, my neck began to cause me discomfort due to the fact that I was straining against the respondent when he pinned my head to the road.  I took Panadol to assist me manage the discomfort.  As time progressed, the injury healed itself."

There is no claim for an award of compensation made on the
basis of the neck injury under item 21 of schedule 1 of the
Act or otherwise.  The claim is confined to minor or moderate
bruising and lacerations under item 1 of the schedule.
Therefore, I will not further refer to the neck injury.

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 particularly
the case with the applicant.

In her affidavit sworn on 27 May 2010, four years and one
month after these offences, the applicant sums up her
emotional injuries as a result of the attack as follows:

• Panic attacks

• Nightmares

• Flashbacks

• Sleep disturbance

• Security fears

• Avoidant behaviour

• Low self-esteem

She describes this in detail in that affidavit as follows:

"7) At the time the offence was committed against me, I felt I
was living some bizarre nightmare...although I survived the
attack that morning, I didn't feel lucky.  I felt violated.  I
was utterly and embarrassingly at the respondent's mercy.  I
felt humiliated when a kind homeowner on the street where I
was attacked, following the offence, took me into their home
while the police were called..."

In paragraph 8, she describes the medical examination as a
humiliating experience which made her feel like something was
wrong with her.  She describes in paragraph 9 how she
continued to feel embarrassed while being driven home from the
hospital by the police.  She started wondering if she had been
foolish to go jogging in the morning.  When she returned home
she felt scared, and with more embarrassment called her
brother to return from work because she felt scared.

The affidavit continues:

"11) That night I hung towels over the windows to block out
the night.  The TV stayed on with no sound to illuminate the
room.  I sobbed into my pillow until I fell into an exhausted
sleep only to wake the next day agitated and anxious.  This
night-time ritual continued for months.  As time went on it
became more and more difficult for me to sleep.  I suffered
from nightmares when I did manage to fall asleep.  I found
that I would suffer from periods where I simply couldn't stop
crying.  I attended upon my GP who prescribed me Valium to
help manage my anxiety and emotions.  I still suffer from
episodes of anxiety and have suffered from panic attacks.  I
have had flashbacks to the incident.

...

"13) I became terrified of the dark - a grown woman unable to
leave my house until the sun was well and truly up.  I had
simply lost the ability to trust that other people would not
hurt me.  I had lost the feeling of loving my life.  I could
no longer go running.  Running gave me confidence and cleared
my mind; gave me a sense of joy.  I felt good about my ability
to exercise and it kept me lean and fit.  Running would help
me to sort out ideas and would assist me to renew my
determination in meeting my goals.  It helped me feel in
control of my life.  I lost that.  I stopped running.  I just
couldn't be outside on my own.  I hated the thought of
exercising and hated myself for being weak.  I felt that my
love of running had made this all happen.  With the help of my
elder brother I gradually began to go running again.  He was
always with me.  I could never go alone.  I am now able to run
with my husband and have finally allowed myself to walk
alone - provided that it is well and truly daylight and only
in very public places like main streets.  I panic if I find
myself in an area where I can't see other people close by and
am hypervigilant about obstacles and corners where people
could be hiding.

...

15)...My now husband has now waited in the wings while I have
tried to straighten myself out and learn to trust again.  I
met him a few months before the offence and he has been in my
life ever since.  I have developed intimacy problems as a
result of the offence.  We have worked very hard to reach the
point in our relationship where we were able to marry.  The
intimacy we share as a couple has not come easily or quickly,
but I now know that he is one of the people that I can
completely love and trust.  However, I do continue to
experience intimacy problems with my husband.  I sometimes
have an aversion to sexual encounters.  After the offence
there were times that I did not want my husband to desire me.
The thought of sexual intimacy made me feel dirty, dangerous,
shameful and embarrassed.  I have been able to overcome some
of these intimacy problems.  However at times some of the
things my husband does continues to remind me of what happened
with the respondent and I cannot continue with such intimate
behaviour.

16)  My self-confidence has been eroded by this
incident.  Prior to the offence, I considered myself to be
outgoing and extroverted.  Now, I do my best not to draw
attention to myself.  I am very self-conscious.  After the
offence in 2007, I tried to reinvent myself.  I spent all of
my money and wages as well as exhausting my credit cards.  I
found great comfort in shopping and even calls from my bank
didn't slow my spending...It goes without saying that my plan
failed miserably.  I was miserable...All I seemed to do was to
shop and cry.  I am still paying off my credit card.  I closed
myself off to my many friends...

17) I have become obsessed about my appearance and constantly
worry about what other people will think.  I can go through
three (3) or four (4) outfits in one day.  I keep thinking
about what others must be thinking of me and cannot
control these feelings.  At times I can become so distressed
with the day's events that I need to take Valium in order to
calm myself enough for sleep.

"18) My career has been affected by the offence.  In 2007, I
had to take time off from work because I was finding it
difficult to manage.  When I went back to work, I felt flat
and unmotivated.  Following my marriage, I moved [interstate]
where I have found it particularly difficult to find work.  I
was required to complete further study to gain the necessary
qualifications to work as a full-time teacher in the
[jurisdiction].  I found studying particularly difficult as I
was unable to concentrate and worried incessantly.  On
occasions it would take me half the day to overcome my fear of
making a mistake in public and particularly in new surrounds.
As a result I officially withdrew from my studies at the
university...and sought work as a relief teacher...After a few
weeks of relief teaching, I felt unable to return to the
classroom.  I'm currently unemployed, though I have applied
for some advertised secretarial positions.

19) Since the offence was committed against me, I have found
it difficult to form close relationships with people of both
sexes due to a lack of trust in others.  I do not really like
to go out to restaurants and bars and would prefer to stay
home where I feel safer.  Since I have moved [interstate] I
particularly feel fearful of meeting new people.  The move has
been tough.  I would like to socialise and resume my interests, but I can only do this with my husband to accompany me.  I have become very dependent upon my husband for company".

She was subject to an assessment by Dr Thompson on 8
February 2010.  This was about three years nine months after
the attack and before the applicant swore her affidavit.
Dr Thompson's findings are consistent with that affidavit,
although it does appear that the applicant's hopes to return
to teaching which she expressed to Dr Thompson have not been
fulfilled.

Dr Thompson has 39 years' experience as a psychiatrist.  She
has a certificate in forensic psychiatry which she has held
for 18 years.  She was a psychiatrist to the Mental Health
Review Tribunal in the jurisdiction in which she practises.
This was for 10 years.  She has worked with the prison service
and takes referrals from probation and parole.

In her opinion, the applicant is suffering from a
post-traumatic stress disorder as a result of the offence.

While she describes this as moderate, she also says the
applicant cannot function alone in most areas of her life.
Her opinion is that it is likely to persist indefinitely.  She
considers it unlikely that the applicant can return to
teaching and, as I have said, despite the applicant's hopes in
that regard, her optimism has not been fulfilled as her
affidavit reveals.

Dr Thompson also opines that the applicant continues to have:

• A sense of violation

• Reduced self worth

• Reduced physical capacity in her running

• Increased fear and increased feelings of insecurity

• Adverse impact on her sexual relations with her husband

• Adverse impact on feelings

These are "adverse impacts of a sexual offence under
regulation 1A of the Criminal Offence Victims Regulation 1995
(QLD) (The Regulation).  In Dr Thompson's opinion, these
impacts are moderate in severity and separate to the
post-traumatic stress disorder and not simply symptoms of this
disorder.  This is an important matter in the assessment of
compensation to which I will return.

In her report, Dr Thompson describes how before the attack the
applicant was never afraid.  She would take risks and was
optimistic.  The applicant was a vibrant, active staff member
who enjoyed socialising.  She was gregarious and had fun.

After the attack, Dr Thompson observes she would often burst
into tears in the staff room and her "stomach would drop"
every time this attack, which was well publicised, would
appear in a newspaper.  Although in the applicant's second
statement 10 months of the attack, she said she was speaking
to a psychologist after the attack and this had helped her a
lot, Dr Thompson says that after seeing the psychologist
twice, she was too overwhelmed, scared and confused to return.
The applicant had not sought further treatment.

Dr Thompson says that the applicant felt that it was all her
fault and also felt it was not fair that this had happened to
her.  Importantly, the psychiatrist says:  "Any injustice now
overwhelms her; she gets carried away emotionally worrying
about any injustice and avoids watching or listening to the
news.  Once upset, it takes time to calm herself down".
Dr Thompson notes that shopping is almost an addiction.

In the mental state examination, I make particular reference
to the following observations:

• Effect and mood during the interview appeared distressed and tearful particularly talking about the incident.  She is still upset about the injustice of the incident and the consequences.

• She was anxious to an abnormal degree with some obsessional thoughts and ruminations.  She has had panic attacks, but not with her husband present.  She is obsessional about her appearance, always wants to present well.  With others she has "waves of embarrassment" and has to leave the situation in the company of her husband.  She can get dressed and when she walks out, she completely loses confidence, has to change clothes, worried about what people think.  She might go through three or four different outfits a day.  It does not stop, ruminating "what do people think of me?".  She cannot control what she feels.  She knows she needs to stop thinking and analysing.  She knows she needs better ways of coping, but she can't stop the thoughts.  She takes Valium if she becomes excessively distressed.

• She was hypervigilant and defensive.

• She has been unable to do her normal activities such as running without support.

• She has difficulty sleeping, and when she does sleep she has bad dreams and disturbed nights often waking at about 2 a.m.  She often has nightmares about the man.

• Avoidant behaviour; she avoids people and is fearful of any new situation.

• She has control issues.  She felt she was unable to control the Court process and her family response to the Court process and needs to obtain control on her life

• She is very dependent on her husband.  She feels that it is stupid, but she cannot control her feelings.  She feels insecure all the time fearing the reaction of others.

• She did have flashbacks but not many recently.

• She still has the feeling of being violated; she has reduced self-worth.

• No manic episodes.

Dr Thompson describes the applicant suffering from severe
immediate effects of the offence.  She says the initial
effects of the attack on the applicant were as follows:  "She
was deeply shocked and ashamed, very upset and tearful.  She
did not sleep and was given Valium.  She had nightmares when
she did sleep.  She tried to pretend it did not happen and
went to work, but she became very distressed.  She had trouble
going to work and being around people; she was frightened to
leave the house.  She needed and got a lot of support from her
family and told her school principal.  The incident was widely
publicised in Brisbane and although her name was not
mentioned, people could identify her.  It took over a year
before she regained her confidence at work.  She tried to

"reinvent herself" and spent a lot of money ($30,000) trying to change herself.  She is still paying off the credit card."

Dr Thompson describes the long-term effects as:  "She has
long-term chronic anxiety with complete lack of confidence.
She has problems with intimacy with [her husband] although he
is very supportive.  She did not tell him initially, but has
felt better since telling him.  They were good friends for two
years before coming intimate.  Her social circle diminished as
she trusts very few people.  Only the immediate family were
told and she has tried to keep it a secret from the extended
family even trying to maintain the now family secret at the
wedding.  She has trouble making decisions.  She has become
very serious, never having fun.  She is now 'routine oriented'
and she does not deviate from her day schedule".

As to the effect of the incident on the applicant's life,
Dr Thompson says:  "She has greatly diminished confidence,
poor self-esteem, poor self-worth and everything she does is
affected by her severe anxiety.  She has "dreadful" fears
which affect her all the time.  To try anything, she worries
incessantly and she takes half a day to overcome her fear of
making a mistake.  She seeks constant reassurance from [her
husband] and demands his presence to have confidence to do
anything.  She has difficulty trusting anyone apart from [her
husband].  When she was at work teaching, she had been there
for a long time before the incident and she was able to seek
their support at times.  In my opinion, she will have great

difficulty in a teaching situation even though she is a very
experienced teacher."

As I have observed, that observation about the applicant's
career has proved to be insightful.

Dr Thompson says that the effect of the incident on the daily
living skills of the applicant is:  "She can drive alone at
night, but she has to know exactly where she is going and she
does not get out of the car without checking or knowing the
people she sees.  She can cook and shop, but she cannot walk
on the streets alone even in daylight.  She has to keep to the
middle of the footpath and stays where other people are
present."

Dr Thompson emphasises her recurrent thoughts about the
incidence, her flashbacks and her recurrent memories of the
assault.  She refers to the applicant not wanting anyone to
know and of her fears of losing control and feeling powerless.
She refers to the applicant becoming more dependent on her
husband and his parents.  She also says:  "Her outlook on life
is limited to surviving everyday.  She rigidly plans her day
and any deviation causes extreme distress."

Dr Thompson recommends that the applicant have about weekly
sessions with a psychologist for about two years to reduce the
anxiety and anger she feels about the incident.  In concluding
that the applicant has a post-traumatic stress disorder, Dr
Thompson expresses the opinion that it is directly due to the
incident.  She rules out any other contributing factors and
says there has been no behaviour by the applicant which may
have contributed to the impact, severity or inevitability of
the condition.

The applicant has a diagnosis of hemochromatosis.  Dr Thompson
says that in the normal course of events, this condition does
not produce symptoms of the disorder.  Dr Thompson could also
not elicit any pre-existing psychiatric, intellectual or other
medical or psychological conditions.

In concluding that the post-traumatic stress disorder is
likely to persist indefinitely, Dr Thompson says that in her
opinion the applicant will always have difficulty with
excessive worrying, recurrent thoughts and severe anxiety.

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
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
making an order for the prescribed amount.  The prescribed
amount for an injury mentioned in section 1A of the Regulation
is an amount not less than one per cent but not more than 100
per cent of the scheme maximum: section 2A of the Regulation.
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 QdR 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] 2QdR 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 section 1A 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 J at 382-383; Hornsby at [6]. They would be
such an injury if they were nervous or mental shock;
AT v. FG [2004] 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

In her written submissions, Miss Whitaker for the applicant
submits that the applicant has suffered the following injuries
and should be compensated on the following basis:

• Item 1 - bruising/laceration etc. (minor/moderate) -three per cent - $2,250

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

• Regulation 1A - adverse impact of a sexual offence - 20 per cent - $15,000.

Therefore an award is sought of 43 per cent of the scheme
maximum which is $32,250.

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 Thompson as a
result of the indictable offences of rape and sexual assault
committed against her person by the respondent on 28 April
2006.  I am satisfied that those injuries involved bruising,
abrasions and swelling, mental and nervous shock and separate
adverse impacts within regulation 1A of the regulation.

Item 1 - bruising/laceration, etc. (minor/moderate) -
1 per cent-3 per cent."  Ms Whitaker's submission is that the
injuries which amount to abrasions, swelling and bruising to
various parts of the applicant's back, left hand and arm,
right knee and right thigh should be awarded at the top of the
moderate range for this type of injury.  This is also the
bottom of the severe range for this type of injury.  In
resolving this issue, I proceed on the basis that what the
doctor saw within three hours after the incident and which she
considered were possible early bruising did become bruises on
the balance of probabilities.

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;
but 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 two per
cent for moderate areas of swelling to the upper lip, right
side of the mouth, three fingers and the right elbow.  They
could find nothing in the evidence that this swelling was long
lasting or causative of significant pain.  There were no
lacerations.

Putting aside the neck injury, which is not relied on, I do
not consider that the injuries suffered in this case are more
serious than in Ward, or at least not sufficiently more
serious to cause me to assess the award at a higher level.

While comparisons of awards in cases involved under this
legislation can be fraught with difficulty because no two cases are exactly alike, I also take into account my assessment at three per cent of the scheme maximum of the injuries suffered by the applicant in KMS v. LJC, a decision that I delivered earlier today, compensating KMS as a result of an attack as part of the 27-month course of offending by the same respondent.  The offences against the applicant were committed as part of that course of offending.

In that case, as submitted to me by Ms Whitaker, the
scratches, abrasions and wheals were to nearly all areas of the applicant's body.  Reference was made to her face, head, arms, torso and legs being injured.  The applicant also suffered from a puncture wound to her upper lip which bled.  The pain and discomfort, the injuries caused the applicant lasted for "some time and required the applicant to take pain killers to assist in the management of the pain".

I consider the injuries suffered by KMS to be more serious
than those suffered by the present applicant.  In these
circumstances, I assess an award at two per cent of the scheme
maximum for item 1 of the compensation table, this is $1,500.

"Item 32 - mental or nervous shock (moderate) - 10-20 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 mental or nervous shock.  Reliance is
placed on Dr Thompson's opinion that the applicant is
suffering from a moderate post-traumatic stress disorder
directly due to the incident and which is likely to persist
indefinitely.

Reference is also made to the applicant suffering from "severe
immediate effects of the offence.", the adverse effect it has
had on her relationship with her family and friends and the
significant effect on her career such that despite her
hopefulness when she spoke to Dr Thompson, the applicant as
predicted is now unable to work as a teacher.

In RMC v. NAC (2009) QSC 149, Byrne SJA preferred the view of
Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345 to that of
Thomas JA in Ferguson v. Kazakoff [2001] 2 QDR 320; [2000] QSC
156, and held that nervous shock within the Act is confined to
a recognisable psychiatric illness or disorder. 

In AT v. FG [2004] QCA 293, Jerrard JA made reference to:

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

In these circumstances, I accept Dr Thompson's opinion and
proceeding on the basis of Tiltman and RMC v. NAC  that for
the purposes of Item 32 of the table, there must be a
recognisable psychiatric illness or disorder, I find that the
applicant's post traumatic stress disorder is compensable as
mental or nervous shock within the meaning of those words in
the Act, and having regard to that opinion, I am satisfied
that the respondent's conduct constituting the offences which
I have identified, was the material cause of that disorder and
is a proper subject for compensation.

In addressing this issue, it is relevant that on the basis of
Dr Thompson's opinion, it is submitted the applicant is
also entitled to an award of compensation because she meets
the criteria under section 1A of the regulation for a
prescribed injury, in particular, that she has been adversely
affected by those offences.  In such cases, the threshold
issue is whether any of the adverse impacts of the sexual
offences are relied upon to support the diagnosis of mental or
nervous shock.  If the answer is in the affirmative, section
1A is inapplicable to the assessment of compensation to that
extent.

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 s20 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 [2004]
QCA 295 at [25]:  "Applicants for compensation who are
diagnosed as suffering from post-traumatic stress disorder or
from depression or from anxiety will benefit from having their
legal representatives insist 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."

An attempt has been made to do this in the present case by
Dr Thompson identifying six of the adverse impacts listed in
regulation 1A and adding that they are separate to
post-traumatic stress disorder and are not simply symptoms of
that disorder.

However, because she has detailed those impacts in her report,
in conjunction with the symptoms of the disorder, it is not
entirely clear what are the symptoms and what are the
additional adverse impacts upon initially reading her report.
The resolution of this issue is relevant in determining what
are the separate post-traumatic stress disorder symptoms which
are to be taken into account in scaling where a particular
case falls in the appropriate item in schedule 1.

This is not an issue with clearly identifiable adverse impacts, such as reduced physical capacity with running and adverse impact on sexual relations with her husband.  Dr Thompson has also referred separately to the applicant suffering from reduced self-worth and a sense of violation.  However, there is a question as to where low self-esteem and avoidant behaviours fall.  Are they symptoms of a post-traumatic stress disorder or are they part of an adverse impact on feelings and security fears respectively?

Issues arise as to whether having regard to Dr Thompson's
opinion they are to be taken into account as a symptom of the
post-traumatic stress disorder or an adverse impact in scaling
the award for those items.  It would have been better if
Dr Thompson had separately identified the symptoms of the
post-traumatic stress disorder which he diagnosed.  As a
result, it has been left to me to attempt this exercise on an
analysis of her report.

Having carefully considered the report in conjunction with the
applicant's affidavit, I am satisfied on the balance of
probabilities that the separate post-traumatic stress disorder
symptoms are:

• 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 worry as to what others think about her.

• Concurrent thoughts.

There may be some overlap between these symptoms and some of
the terminology used by Dr Thompson may be a way to express
the same symptom.

Without attempting to be exhaustive and repeating all of what
I have said before, I note that in the applicant's affidavit,
she said at the time the offences were committed against her,
she felt she was living some bizarre nightmare.  This was
undoubtedly exacerbated by being forced to relive the events
through the news broadcasts of the attack on her and other
attacks linked by the media to the respondent.

In her affidavit, she refers to having difficulty sleeping and
having nightmares when she did sleep.  She told Dr Thompson
she was still having difficulty sleeping and experiencing
nightmares about the respondent.  She also said that there
were periods following the attack when she could not stop
crying.  Dr Thompson describes her as being distressed and
tearful at the interview, and describes her as becoming
excessively distressed.

As a result of being unable to concentrate and her incessant
worrying, her career has been affected.  She has felt flat and
unmotivated.  This has continued since moving interstate.  As
a result she has withdrawn from study she has undertaken with
a view to progressing her career interstate and is currently
searching for work in an unrelated area of employment which
does not use her professional skills.  Therefore, as
submitted, these symptoms have had a significant detrimental
effect on her life for over four years, and in accordance with
Dr Thompson's opinion, can be expected to continue for the
indefinite future.

As stated in Ward, at 438, (5):  "But in our opinion, the
proper method is to fix the compensation for, say, severe
mental or nervous shock, at the appropriate place in the
range, 20 per cent to 34 per cent of the scheme maximum, which
is done by considering how serious the shock is in comparison
with the 'most serious' case which must be compensated by an
award of the maximum, 34 per cent.  This illustrates the point
that the compensation table has no relationship to what would
be awarded as damages in tort; a crime victim permanently
institutionalised by the psychological results of an assault
should, on that account, get no more than $25,000."

In this case, Dr Thompson describes the post-traumatic stress
disorder as moderate.  I am satisfied it comes within item 32
of the schedule for the moderate range of mental or nervous
shock.

The next task is for me to fix compensation for this at the
appropriate place in the range of 10 per cent to 20 per cent
of the scheme maximum by considering how serious the shock is
in comparison with the "most serious" case, which must be
compensated by an award of 20 per cent.  Given that this
post-traumatic stress disorder with its serious consequences
in most areas of her life has persisted for just over four
years to date and is likely to persist indefinitely with a
recommendation of two years of psychology sessions to reduce
her anxiety, I assess the compensation as submitted at 20 per
cent of the scheme maximum.  This is $15,000.  It is relevant
that while this is at the top of the range for item 32, it is
at the bottom of the range for severe mental or nervous shock
under item 33.

In coming to this conclusion, I have had regard to my award at
12 per cent of the scheme maximum to KMS for moderate mental
or nervous shock.  However, as serious as the attack on her
was, the nature and the extent of the post-traumatic stress
disorder to the applicant in the present case is greater
especially having regard to the persistence of the disorder,
its effect on her career and the likely persistence of the
disorder in future.  In the case of KMS, there had been a
degree of abatement or moderation of her post-traumatic stress
disorder over time.  That does not exist in the present case.

"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 to include the six impacts that
Dr Thompson has identified as being suffered by the applicant.

"Sexual offences" are defined in section 1A(3) of the
regulation to be a sexual offence of a personal nature.  There
is no doubt that the two offences committed by the respondent
against the applicant are sexual offences.

As I have said, these adverse impacts can only be an injury
pursuant to the regulation to the extent they are not symptoms
of the mental or nervous shock for which I have already
compensated the applicant.  Based on Dr Thompson's report, the
six impacts she has identified are separate to the
post-traumatic stress disorder.  On the basis of the exercise,
I have conducted to base this decision on what I consider to
be the symptoms of the post-traumatic stress disorder on the
one hand and the separate adverse impacts for the purposes of
regulation 1A on the other, I approach the assessment of the
award of compensation for this item in the following way:

"Sense of violation."  In her affidavit the applicant
describes immediately feeling violated, embarrassed and
humiliated.  I rely upon this in making my assessment.

"Reduced self-worth."  In her affidavit, the applicant
refers to suffering from low self-esteem as a consequence of
the attack upon her.  She describes how her self-confidence
has been eroded by the incident to such an extent that she has
changed from being an outgoing and extroverted person to a
self-conscious person who takes great comfort from shopping.
That has become almost an addiction.  I take that into account
in assessing the award of compensation under this item.

"Reduced physical capacity".  This is with reference to her
running without support.  She has changed from a person who
enjoyed running and running alone, to, as she said in her
second statement about 10 months after the attack, being
someone who wouldn't run unless she was with someone such as
her elder brother or her husband.  She would not even walk by
herself.  Although, according to her affidavit, she will now
do so if it is truly daylight and she is in a very public
place such as the main street.  I take this into account in
assessing an award of compensation for this item.

"Increased fear and increased feelings of insecurity."
There is an overlap with her fear of running alone and walking
except in certain very public places to which I have referred.
In addition, as she deposes in her affidavit, and I take into
account in assessing an award for this item, she suffers fears
for her security, she is terrified in the dark, she is
hypervigilant about obstacles and corners where people could
be hiding, she is defensive, and she prefers to stay at home
rather than go out because it feels safe to stay at home.

"Adverse impact on her sexual relations with her husband."
This speaks for itself and I have referred to it by quoting
passages from her affidavit and also from her examination by
Dr Thompson.  This has clearly been a significant impact which
continues and can be expected from the way in which her
affidavit is framed to continue in the future.  It can be
expected to result in some difficulties or tensions within the
marriage and can rightly be considered to have enhanced the
accommodations that are required to be made in the early
stages of establishing a marital partnership.

"Adverse impact on her feelings".  This is dealt with in
her affidavit where she talks about her inability to trust
that other people would not hurt her.  As she has deposed, it
has been necessary for her to learn to trust again.  She
speaks of losing the feeling of loving her life.  As a result of
this lack of trust, she has found it difficult to form chose
relationships with people outside her husband and immediate
family members.  She says she feels fearful of meeting people
and is insecure all the time.

I take this and all of the other matters that I have referred
to in relation to the various adverse impacts that have been
described by Dr Thompson and by the applicant in assessing
compensation for this item.

As with the post-traumatic stress disorder, these have been
continuing impacts.  There is no suggestion in her affidavit
that they do not persist to the present and will not continue
to do so despite some improvements.  As submitted by
Ms Whitaker, the impact upon her has been to restrict her
ability to undertake even the most simple, everyday tasks that
are often taken for granted, on her own including being in
public places where she finds the need to be hypervigilant.

Dr Thompson describes these as moderate impacts.  I agree and
I assess them as 20 per cent of the scheme maximum.  This is
$15,000.

Section 25(7) of the Act - contribution

Finally, I conclude that nothing in the applicant's actions on
28 April 2006 contributed to either her bodily injury, mental
or nervous shock or prescribed injuries that were 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 on a public road as she was entitled to do.  She had
no previous dealings with the respondent.  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.

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 every right to feel safe and secure."  The applicant in no
way contributed to her injuries.  Therefore, 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) - two per cent - $1,500.

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

• Regulation 1A - adverse impact of sexual offences - 20 per cent - $15,000

Therefore, the total assessment is $31,500.  I order the
respondent pay to the applicant the sum of $31,500 by way of
compensation pursuant to section 24 of the Act for injuries sustained as a result of the offences of rape and sexual assault which led to the conviction of the respondent in the District Court at Brisbane on 27 August 2009.

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