STH v LJC
[2010] QDC 303
•26 July 2010 (ex tempore)
DISTRICT COURT OF QUEENSLAND
CITATION:
STH v LJC [2010] QDC 303
PARTIES:
STH
(Applicant)
V
LJC
(Respondent)
FILE NO/S:
BD268/2010
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
26 July 2010 (ex tempore)
DELIVERED AT:
Brisbane
HEARING DATE:
19 July 2010
JUDGE:
Irwin DCJ
ORDER:
The respondent pay the applicant the sum of $21,750 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 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 rape – where the applicant suffered abrasions, bruising and scratches, moderate mental or nervous shock on the basis of a post-traumatic stress disorder which had persisted for about 17 months 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 – where mental or nervous shock was assessed as being in the minor range – where this assessment was made by giving the mental or nervous shock a PIRS rating under the Civil Liability Regulation 2003 (Qld) and then translating this to a score under Sch 1 of the Criminal Offence Victims Regulation 1995 (Qld) – whether this approach was correct
Civil Liability Regulation 2003 (Qld), Sch 4, Pt 2
Criminal Offence Victims Act 1995 (Qld) (repealed), s 20, s 21, s 22, s 24, s 25, s 26, s 30, Schedule 1
Criminal Offence Victims Regulation 1995 (Qld) (repealed), s 1A, s 2, s 2A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(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
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:
R. V. Bowler for the applicant
No appearance by or on behalf of the respondent
SOLICITORS:
John M. O’Connor & Company 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 16 July 2008. 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 27 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
of rape committed upon the applicant. He was sentenced on
28 August 2009 to 25 years' imprisonment for this offence. 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 success of the appeal is
irrelevant to the determination of the application.
The application and the supporting affidavits relied upon were
served on the respondent at the Wacol Men's Correctional
Centre on 11 June 2010 by serving them on an officer, who is
authorised by the Manager of the centre to accept service for
inmates confined at the centre. This was in accordance with
Rule 110(c) of the Uniform Civil Procedure Rules 1999 (Qld)
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. In this case the
documents have been served on a person who is effectively
authorised to accept service of such documents on behalf of
the person in charge of the prison where the respondent is
imprisoned. 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.
CIRCUMSTANCES OF THE OFFENCE
As I said in my sentencing remarks, this attack occurred on a
woman who was then aged 27 years as she was jogging at the
foot of the cliffs at Kangaroo Point at 12.30 p.m.
Accordingly, she was victimised in a public place in broad
daylight. The applicant was exercising during her lunchbreak.
She ran past the respondent who had gone to this location with
the intention of attacking a woman. He had changed from his
work clothes before the attack to facilitate his not being
identified. It was the applicant whom he chose randomly for
this purpose.
He grabbed her by the shoulders as she ran past him and flung
her to the ground. He put a hand over her mouth and nose so
she felt she could not breathe. He penetrated her anus with
his finger through the outside of her shorts for about 10 seconds. Therefore, the rape was digital rather than penile. Not surprisingly, she was screaming throughout the attack and after he let her go she was hysterical. She gained assistance from persons in the vicinity and the police were contacted.
INJURIES AND MEDICAL REPORTS
As a result of the attack she suffered a cut, bruises and
grazes. These physical injuries are described by Dr Reynolds
in her report, which is an exhibit before me, as a small one
centimetre scratch to her 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.
Mr Perros, the psychologist who interviewed and assessed her
on 30 December 2009, states in his report, which is also an
exhibit in these proceedings, that the injuries healed with
very minor scarring. The applicant told him the scarring was
not a major concern for her.
In sentencing this 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.
As far as is known she was his last victim. Somebody nearby
recorded the registration number of his motor vehicle. His
apprehension for this offence led him to be charged with the
other offences to which he also pleaded guilty.
In her Victim Impact Statement, which was an exhibit before me
during the sentencing proceedings and is also an exhibit in
these proceedings, the applicant describes her emotional
injuries as a result of the attack as follows:
her sense of trust of other people has been taken away
from her;
her behaviour has changed since the attack;
she has gone from being an independent, confident athlete
to a person who does not like being in public alone;
she looks all men in the eye, including strangers, to
make sure they will not attack her, and then she turns
around to make sure she is safe;
if she does not like the look of certain men,
particularly if they are wearing work clothes, she will
go to great lengths to avoid contact;
she feels she has lost her freedom.
In her affidavit sworn on 25 January 2010, approximately
18 months after the attack, she describes how this has
affected her life and how she has ceased being the independent
person she was previously. Although she deposes her life
gradually improved, after the attack she says:
she finds it hard to do things by herself;
her relationship with her husband took a few weeks to
return to normal;
she started running again 10 days afterwards, but only
did one to two runs a week and only in very public
places, such as main roads. If she saw a man she would
cross the road;
when she went shopping at a major suburban shopping
centre about two weeks afterwards, although it was
extremely busy it was the worst experience for her.
Anyone coming too close caused her to jump out of her
skin and she was disgusted by men looking at her;
she still has the same reaction to anyone coming too
close and men looking at her;
she will not go into her backyard while alone, even to
put out the rubbish or hang out the washing, she keeps
thinking someone is waiting for her there;
if she needs to go out, she rushes to the car with her
daughter, locks the doors and then puts her in the car
seat;
she will not go outside at night-time, if she needs to
pick her husband up from work late at night. She drives
to her sister's home and waits there until he is ready to
go;
she will not be outside in the dark by herself;
the attack plays on her mind more than once every day,
she is reminded of it by people coming too close to her,
people looking at her, having to go to her car alone and
having people knock on her door while she is home alone;
she has a reduced social life due to her insecurities
about being outside alone. The attack has turned her
into somewhat of a hermit.
This is consistent with her interview and assessment by
Mr Perros about a month before she swore her affidavit. He
observed she has suffered psychologically as a result of the
attack and noted she has become anxious and insecure. In
relation to this, he refers to her not going into the backyard
alone and a compulsive counting ritual which she has
undertaken. He considers this ritual is associated with a
post traumatic anxiety condition. Although she told him that
she had been obsessional since childhood, these symptoms have
become much worse (and seemingly suddenly quite intrusive)
since the attack.
With reference to her status before the injury, he says she
had no major psychological problems and she was an elite
sponsored athlete. Because she has now changed from a person
who ran daily to running once a week, her weight has increased
marginally. She only runs if her husband is nearby keeping an
eye on her. She worries that someone might just pop up out of
nowhere and assault her. She does not answer the door if her
husband is not at home and hates answering the telephone,
using an answering machine to pick up the calls before picking
up the handset. She will not go outside unless necessary and,
as she deposed in her affidavit, she feels that if she goes
into her backyard there will be someone hiding there waiting
to hurt her. Therefore, she waits until her husband is home
before hanging the washing on the clothesline. She has become
fearful of people but forces herself to socialise with her
husband and friends. However, when she is out she is
constantly hypervigilant and fearful of being assaulted. She
finds it difficult to relax.
Her relationship with her husband has not suffered. She
returned to work a few days after the assault. No employment
problems were reported or identified at interviews. She was
not receiving any treatment at the time of her interview with
Mr Perros.
Her responses to the tests administered by him reflect severe
to extreme symptoms of post traumatic stress and impairment,
including avoidance and re- experiencing the traumatic event.
In his opinion, these symptoms meet the criteria for post
traumatic stress disorder.
Mr Perros used the PIRS methodology described in the Civil
Liability Regulation 2003 (Qld) to assess psychological
impairment. She received a final PIRS rating of five compared
to a median score of two. This equates, according to his
report, to an injury scale value (Schedule 4 Part 2 of this
Regulation) falling in the lower end of the range for moderate
mental disorder (2-10 per cent of total injury scale value).
He then attempts to translate this psychological injury to
Schedule 1 of the Criminal Offence Victims Act and concludes
that this places the score in the minor range, allowing for
statistical scale incongruities. Although, as he concludes,
he believes that the true impact of the attack falls at a
greater level than this.
As he opines, the applicant has, probably from her days of
competition, learnt to control her emotions and put on a brave
face, behaviour which she displayed at the interview. He
says, however, the formal assessment of post traumatic stress
disorder reveals quite serious psychological problems masked
by a visage of control and contentment in motherhood. I note
she fell pregnant a few weeks after the attack.
Mr Perros says it concerns him greatly the applicant is
displaying ongoing psychological problems and not getting
treatment. He considers she has anxiety disorder which is
affecting her quality of life. Therefore, he considers it
appropriate for her to discuss her post traumatic adjustment
with a clinical psychologist.
In fact, he also describes per post traumatic stress disorder
as a severe to extreme impairment in circumstances where on
objective self-report measures she continues to display
psychological symptoms of post traumatic distress, social
withdrawal, cessation of once cherished hobbies and social
phobia which takes away from her enjoyment of life. Mr Perros
classified the post traumatic stress disorder as severe to
extreme when expressing his opinion on the adverse impacts the
applicant has suffered for the purpose of section 1A of the
Criminal Offence Victims Regulation. The other adverse
impacts he has identified are:
a sense of violation;
a reduced self-worth or perception;
increased fear or increased feelings of insecurity;
adverse impact on feelings.
He considers her sense of violation to be a severe impairment.
He says she coped with this by disassociating while the
assault took place and screaming after the respondent walked
off. Her score on the tests for experiencing
depersonalisation, derealisation, or other diagnostic
reactions during the trauma was extremely high, being 90
compared to an average of between 44 to 56. He observes she
felt the respondent's actions were callous. In particular, he
says:
"She said it took several weeks to get over the sense of being
violated, but she still engages in disassociation and
obsessional rituals intended to be anxiety reducing."
He describes the reduction of her self-worth or perception as
a mild impairment. She claims she has not suffered a marked
reduction in self-worth and still feels good about herself. However, she is unhappy about the weight she has gained since
the attack and misses being a successful sponsored runner.
In his opinion, her increased fear or increased feelings of
insecurity is a severe impairment. He says she experiences
high anxiety and panic attacks if left home alone. He refers
to her not venturing into the backyard in these circumstances
and fears of being attacked when outside the house.
With reference to the adverse impact on her feelings, he
considers this anxiety involves a mild to moderate impairment.
To support this he refers to the unusual counting rituals she
engages in to reduce her 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 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 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 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
In his written submissions, Mr Bowler, for the applicant,
submits that she has suffered the following injuries:
Item 1 - bruising/laceration, etc, (minor/moderate) -
3 per cent - $2,250;
Item 27 - facial disfigurement or bodily scarring
(minor/moderate) - 5 per cent - $3,750;
Item 31 - mental or nervous shock (minor) - 5 per cent -
$3,750;
Regulation 1A - adverse impact of a sexual offence -
35 per cent - $26,250.
Therefore, an award is sought of 48 per cent of the scheme
maximum, which is $36,000.
ASSESSMENT
I am satisfied on the balance of probabilities that the
applicant suffered the physical and psychological injuries
documented in the evidence before me as a result of the
indictable offence of rape committed against her person by the
respondent on 16 July 2008. I am satisfied that those
injuries involved bruising, abrasions and scratches, 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
Mr Bowler's written submission is that the injuries
compensable under this item of the table are the grazing to
her left elbow and the small bruise above her right eye. He
submitted in that outline of submissions that a separate
assessment should be made under Item 27 for the small one
centimetre scratch to her right lower jaw and bruising to her
right upper lip and adjacent gum. This item permits
compensation for minor or moderate facial disfigurement or
bodily scarring within a two per cent to 10 per cent range of
the scheme maximum. However, he accepted during oral argument
that these injuries were all properly assessed under Item 1,
particularly having regard to Mr Perros' evidence that the
injuries healed with very minor scarring which was not a major
concern for her. This is emphasised by her failure to mention
it in her Victim Impact Statement or affidavit.
Nonetheless, the written submission was that the two injuries
relied upon of grazing and a bruise should be awarded at the
top of the minor/moderate scale for this type of injury. This
is also the bottom of the severe range for this type of
injury.
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. 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 delivered by me on 18 June 2010, compensating KMS as a result of an attack as part of the 27 month course of offending by the same respondent. The offences against this applicant were
committed as part of that course of offending. In that case
the scratches, abrasions and weals 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
painkillers to assist in the management of pain."
I consider the injuries suffered by KMS to be more serious
than those suffered by the present applicant. In these
circumstances, for the totality of the injuries within this
item, I assess an award of two per cent of the scheme maximum
for Item 1 of the compensation table. This is $1,500.
ITEM 27 - FACIAL OR BODILY SCARRING (MINOR /MODERATE) -
TWO PER CENT - 10 PER CENT
For the reasons I have given, I assess the award for the
injuries on which this application is based as part and parcel
of the injuries on the basis of which I have assessed the
award for Item 1; therefore, I do not assess it separately.
ITEM 31 - MENTAL OR NERVOUS SHOCK (MINOR) - 2 PER CENT -
10 PER CENT
It is submitted that Item 31 of the Schedule is appropriate
for application in this case and the award be at five per cent
of the scheme maximum. This is on the basis of Mr Perros'
opinion that the applicant meets the criteria for post
traumatic stress disorder with a PIRS rating of five per cent
on the injury scale value for moderate mental disorder under
the Civil Liability Regulation and this translates to the
minor range (around 3 per cent - 5 per cent) under Schedule 1
of the Criminal Offence Victims Act.
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."
Because the applicant has suffered a recognisable psychiatric
disorder as a result of the attack, it is not necessary for me
to determine whether RMC v. NAC or Ferguson v. Kazakoff
expresses the correct principle. In these circumstances,
proceeding on the basis of RMC v. NAC and Tiltman, I find the
post traumatic stress disorder is compensable as mental or
nervous shock within the meaning of those words in the Act,
and having regard to the opinion, I am satisfied that the
respondent's conduct constituting the offence, which I have
identified, was the material cause of that disorder and is a
proper subject for compensation.
However, I have come to a different conclusion as to the item
of the compensation table under which the mental or nervous
shock should be assessed and as to the percentage of the
scheme maximum at which I assess the compensation. This
conclusion is reached against the background of the approach
taken to the assessment of compensation for post traumatic
stress disorder in the written submission on behalf of the
applicant, which is based on the approach by Mr Perros in his
report.
In the written submission a dichotomy is sought to be drawn
between mental or nervous shock on the one hand and adverse
impacts, including post traumatic stress disorder, on the
other hand for the purpose of section 1A of the Criminal
Offence Victims Regulation. This may flow from Mr Perros'
approach of making what appears to be separate assessments of
mental or nervous shock for the purpose of Schedule 1 of the
Act and then to include post traumatic stress disorder in
giving his opinion on the adverse impacts for the purpose of
the Regulation.
Because, as Mr Bowler recognises in oral argument, the post
traumatic stress disorder is the basis of the finding of
mental or nervous shock, it cannot be relied upon again to
assess the existence or the extent of adverse impacts.
Section 1A of the Regulation is inapplicable to the assessment
of compensation if any of the adverse impacts of the sexual
offence are also relied upon to support the diagnosis of
mental or nervous shock.
As stated by McMurdo P (with whom Muir and Chesterman JJ
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 that 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
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.
Therefore, as Mr Bowler conceded in oral argument, he cannot
"double dip". Accordingly, he does not now seek to rely upon
this dichotomy, but, instead, seeks an assessment for mental
or nervous shock on the basis of the post traumatic stress
disorder and to exclude this disorder from the determination
of whether there are any matters capable of being adverse
impacts. He suggested on the basis of this approach, the
assessment could be made as high as 10 per cent of the scheme
maximum.
This submission is based on the assessment being made under
Item 31 for mental or nervous shock (minor). This is the top
of the range available under this item. It is also the bottom
of the range available under Item 32 for mental or nervous
shock (moderate). In making the submission, Mr Bowler is
clearly influenced by Mr Perros' assessment of mental or
nervous shock in the minor range of around three per cent to
five per cent. However, this must be considered in the
context that in drawing the dichotomy between this and post
traumatic stress disorder, Mr Perros described the latter as
severe to extreme.
This dichotomy is not the only problem with the manner in
which Mr Perros has expressed his opinion. The threshold
difficulty is that he has arrived at his assessment of mental
or nervous shock being in the minor range by giving it an PIRS
rating for the purpose of the Civil Liability Regulation and
then translating it to a score under Schedule 1 of the
Criminal Offence Victims Act. This approach is contrary to
section 22(3) of the Act, which makes it plain that an award
of criminal compensation is intended to help the applicant,
not to reflect the compensation to which the applicant is
otherwise entitled. Therefore, it is no more intended to
reflect compensation liability under the Civil Liability
Regulation than it is intended to invoke the principles
applicable to common law damages (see: section 25(8)(a) of
the Act).
Mr Perros himself demonstrates his appreciation that such an
approach as he adopted will not help the applicant when he
concludes he believes the impact of the attack falls at a
level greater than that identified by the PIRS score
translated into a score on Schedule 1 of the Criminal Offence
Victims Act. Although I do not reject the PIRS score as a
relevant factor to be taken into account in assessing
compensation under the Act, it is not determinative. The
correct approach is for me to assess compensation on the basis
of the nature and severity of the injury suffered by the
applicant as a result of the attack on her by the respondent,
in this case her psychological injuries.
In making this assessment, it is again relevant to have regard
to the assessment made for mental or nervous shock in
compensating not only KMS but also SMR arising from attacks as
part of the same course of offending by LJC. Both decisions
were delivered on 18 June 2010.
SMR has suffered the most serious psychological consequences
of LJC's offending of the applications I have dealt with to
date, including the offending against the present applicant.
In her case, I categorised the symptoms she suffered for the
purposes of her post traumatic stress disorder as:
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.
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 psychology
sessions to reduce her anxiety, I assessed the compensation as
submitted at 20 per cent of the scheme maximum. Additionally,
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. I
considered the case as involving more serious consequences
than those suffered by KMS, to whom I awarded 12 per cent of
the scheme maximum.
On the other hand, I consider the consequences to the
applicant in the present case to have similarities to those
suffered by KMS, who was also the victim of digital rape, in
her case vaginal rape. They both experienced heightened
anxiety following the assault, became hypervigilant,
constantly scanning their environments, being highly
suspicious and fearful of men, particularly those wearing
similar clothes to the respondent when he attacked her, and
have struggled to do things away from home.
Unlike the applicant in this case, KMS lost interest in sex.
Further, in the case of KMS the severity of the original
injury had moderated in three and a quarter years since the
attack, although I assessed her compensation on the basis of
moderate mental or nervous shock which she originally
suffered.
Although this applicant has not lost interest in sex and her
condition had continued for approximately 18 months at the
time of swearing her affidavit, what she has suffered has
nonetheless been described by Mr Perros as a post traumatic
stress disorder involving a severe to extreme impairment,
which is ongoing and requires the assistance of a clinical
psychologist. She continues to be anxious, insecure and
fearful of attack, as well as suffering social phobia.
I do not consider I am constrained by the descriptors of the
post traumatic stress disorder used by Mr Perros, which are
variously "in the minor range" and "severe to extreme". In my
view, as I have said, it is for me to assess compensation on
the basis of the nature and severity of the psychological
injury suffered. This must be done having regard to the
categories and levels of injury itemised in the compensation
table.
In this case, for the reasons I have given, 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 the compensation for this degree
of mental nervous shock within that item at 12 per cent of the
scheme maximum, namely $9,000.
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 to include the four impacts that
Mr Perros 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 offence committed by the respondent
against the applicant is a sexual offence. As I have said,
these adverse impacts can only be an injury pursuant to the
Regulation to the extent that they are not symptoms of mental
or nervous shock for which I have already compensated the
applicant.
SENSE OF VIOLATION
I accept Mr Perros' opinion that this was a severe impairment,
given not only did the applicant deal with the attack on her
at the time it was occurring by disassociation to an extent
well above the average, but having taken several weeks to get
over the sense of being violated, she continues to engage in
this behaviour approximately 18 months after the incident.
According to Mr Perros, her obsessional rituals are intended
to reduce her anxiety and these are ongoing. I consider that
despite some childhood obsessional traits, it is the attack
which is the material cause of her present intrusive symptoms
of this nature.
REDUCED SENSE OF SELF-WORTH
I proceed on the basis of Mr Perros' report that this is a
mild impairment.
INCREASED FEAR AND INCREASED FEELINGS OF INSECURITY
I do not take this into account in assessing adverse impacts
because I consider her high anxiety and panic attacks if at
home alone, particularly her fear of being attacked when
outside the house, are part and parcel of her post traumatic
stress disorder, which, in my view, incorporates her
hyperarousal and avoidance behaviour. As such, it is not
additional to the mental or nervous shock and cannot be
assessed as an adverse impact for the purpose of compensation.
ADVERSE IMPACTS ON FEELINGS
As this is based only on her engaging in the counting rituals,
this is part and parcel of the matters I have taken into
account in considering the seriousness of her sense of
violation; therefore, I do not take this into account in
assessing the adverse impacts she has suffered as a result of
this attack.
In recognising that the adverse impacts must be assessed
without reference to the post traumatic stress disorder,
Mr Bowler conceded that he could not sustain the original
submission to the extent of assessing this at 35 per cent. He
ultimately submitted it could not be put much higher than
15 to 20 per cent of the scheme maximum.
Taking into account that I assessed the adverse impacts in the
more serious case of SMR, which included the accumulation of
six such impacts, one of which was an adverse impact on sexual
relations with her husband at 20 per cent, I consider an
assessment of this level would be excessive in the case of
this impairment. As with the post traumatic stress disorder,
there are continuing impacts which are expected to persist.
Given the severity of the sense of violation, I assess the
adverse impacts at 15 per cent of the scheme maximum; that is,
$11,250.
SECTION 25(7) OF THE ACT - CONTRIBUTION
Finally, I conclude that nothing in the applicant's actions on
16 July 2008 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:
bruising/laceration, etc, (minor/moderate) - 2 per cent -
$1,500;
Item 32 - mental or nervous shock (moderate) -
12 per cent - $9,000;
Regulation 1A - adverse impact of sexual offences -
15 per cent - $11,250.
Therefore, the total assessment is 29 per cent of the scheme
maximum; that is, $21,750. I order the respondent to pay to
the applicant the sum of $21,750 by way of compensation
pursuant to section 24 of the Act for injuries sustained as a
result of the offence of rape which led to the conviction of
the respondent in the District Court at Brisbane on 27 August
2009.
The formal order of the Court will, therefore, be that LJC,
whose name will be spelt in full in the order, pay to STH,
whose name will be spelt in full in the order, the sum of
$21,750.