CW v CB [2012] QDC 113

DISTRICT COURT OF QUEENSLAND CITATION: CW v CB [2012] QDC 113 PARTIES: CW (Applicant) v CB (Respondent) FILE NO/S: 18/2010 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 25 May, 2012 DELIVERED AT: Beenleigh HEARING DATE: 15 May 2012 JUDGE: Dearden DCJ ORDER: That the respondent CB pay the applicant CW sum of $25,500. CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – Queensland – General – rape – mental or nervous shock – adverse impacts LEGISLATION: Criminal Offence Victims Act 1995 (Qld) Victims of Crime Assistance Act 2009 (Qld) CASES: R v CAJ [2009] QCA 37 JMR obo SRR v Hornsby [2009] QDC 147 SAY v AZ; ex parte Attorney-General of Qld [2006] QCA 462 RMC v NAC [2010] 1 QD R 395 COUNSEL: R J Byrnes for the applicant No appearance for the respondent SOLICITORS: Shine Lawyers for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The respondent, CB, pleaded guilty at the District Court, Beenleigh on 14 December 2007 to two counts of rape of the applicant CW. The respondent was sentenced to 10 years imprisonment with a serious violent offender declaration. The sentence was appealed, but the appeal was refused.1 Facts [2] The facts in respect of this offending were summarised by Fraser JA in his reasons for judgment refusing an application for an extension of time to appeal: “On 24 February 2007 the [respondent], who was then 19 years old, approached the 15 year old [applicant] at about 8.20pm. The [respondent] … a complete stranger to [the applicant], was holding a beer bottle and he asked the [applicant] for water which, the sentencing judge, inferred was a trick to enable the [respondent] to get inside the [applicant‟s] house. The [applicant] felt obliged and walked to her house with the [respondent] and gave him a glass of water. When the [applicant] denied the [respondent‟s] request to have sex with her, the [respondent] followed her into her bedroom, closed the door and turned off the light, slapped the [applicant], striking her on the left-hand side of her face, and told her to be quiet. The [respondent] forced the [applicant] to take her clothes off, forced her on to a bed and threatened to kill the [applicant] and her family if she told anyone. The [respondent] removed the [applicant‟s] clothes and attempted to penetrate her vagina. After the [applicant] begged the [respondent] to use a condom, he put one on and penetrated the [applicant] vaginally, while she cried. The [respondent] later had anal intercourse with the [applicant] to ejaculation and continued to threaten her whilst he did so. The [respondent] also obtained the [applicant‟s] phone number … as a result of his threats.”2 Injuries [3] The applicant suffered “physical injuries, which included internal and external bruising and tears in both the vaginal and anal areas.”3 The applicant also suffered mental or nervous shock and adverse impacts as a result of the offences. The law [4] The application in these proceedings was filed on 15 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (“COVA”) by the Victims of Crime Assistance Act 2009 (“VOCAA”) which commenced on 1 December 2009. The application complies with the relevant transitional provisions of the VOCAA ss 154 and 155, and has been brought in compliance with the relevant timeframe pursuant to COVA s 40(1). 1 R v CAJ [2009] QCA 37. 2 R v CAJ [2009] QCA 37. 3 R v CAJ [2009] QCA 37 per Fraser JA at [9]. -- 2 of 4 -- 3 [5] I refer to and adopt my exposition on the relevant applicable law under COVA as set in paragraph 6 of JMR obo SRR v Hornsby [2009] QDC 147. Compensation [6] Mr Byrnes, for the applicant seeks compensation as follows: (1) Item 2 – bruising/laceration etc (severe) – 3% - 5%. [7] The applicant sustained “internal and external bruising and tears to her vaginal and anal areas, as well as a blow to the face and a „love bite‟ to her neck.”4 I consider that the injuries sustained by the applicant should be assessed at 4% of the scheme maximum ($3,000) pursuant to item 2. (2) Item 31 – mental or nervous shock (minor) – 2% - 10%. [8] The applicant was examined by Dr Gary Larder, consultant psychiatrist on 18 May 2009 and he provided a report dated 27 October 2009.5 [9] Dr Larder diagnosed the applicant as suffering from “an anxiety disorder [not otherwise specified] which has remitted with the passage of time and is now of a sub-clinical nature”.6 I accept this amounts to a psychiatric injury.7 In the circumstances, I consider an award should be made at the top of the item 31 range, namely, 10% of the scheme maximum ($7,500). (3) Criminal Offence Victims Regulation (“COVR”) s 1A. [10] It is submitted that the applicant has suffered a range of adverse impacts, including a sense of violation;8 the adverse effect of the reaction of others, in particular, the relationship that she was in at the time;9 engaged in a period of promiscuity;10 had difficulty in forming lasting relationships; increased her use of alcohol and other substances; and endured subsequent difficulties with accommodation and relationships with family members.11 [11] It is submitted that a global award should be made at 20% of the scheme maximum ($15,000). I accept that submission and accordingly I award 20% of the scheme maximum ($15,000) pursuant to COVR s 1A. Causation [12] Pursuant to SAY v AZ; ex parte Attorney-General of Qld [2006] QCA 462, a broad- brush approach should be taken to causation. In this case, there were a range of pre- existing injuries, conditions and pre-disposing factors, as well as a subsequent 4 Exhibit PJD 2 (Victim Impact Statement) affidavit of Paula Dorries sworn 3 April 2012. 5 Exhibit GPL 1 affidavit of Dr Gary Larder sworn 10 November 2009. 6 Exhibit GLP 1, p 10 affidavit of Dr Gary Larder sworn 10 November 2009. 7 RMC v NAC [2010] 1 Qd R 395, 399-402. 8 COVR s 1A(2)(a). 9 COVR s 1A(2)(h). 10 COVR s 1A(2)(i). 11 COVR s 1A(2)(k); Exhibit GPL 1, p 11 affidavit of Dr Gary Larder sworn 10 November 2009. -- 3 of 4 -- 4 sexual attack on the applicant,12 but in my view none of these matters require a reduction pursuant to the broad-brush approach of SAY v AZ. Contribution [13] The applicant has not contributed in any way, either directly or indirectly, to her own injuries.13 Conclusion [14] I order that the respondent CB pay the applicant CW the sum of $25,500. 12 Exhibit GPL 1, pp 9, 11 and 16, affidavit of Dr Gary Larden sworn 10 November 2009. 13 COVA s 25(7). -- 4 of 4 --