CE v RO [2012] QDC 40

DISTRICT COURT OF QUEENSLAND CITATION: CE v RO [2012] QDC 40 PARTIES: CE (applicant) v RO (respondent) FILE NO/S: BD1061/07 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: DELIVERED ON: 20 March 2012 DELIVERED AT: Brisbane HEARING DATE: 20 March 2012 JUDGE: Samios DCJ ORDER: 1. Respondent to pay the Applicant $28,500. CATCHWORDS: COUNSEL: SOLICITORS: -- 1 of 10 -- 2 [1] This is an application pursuant to section 24 of the Criminal Offence Victims Act 1995. The applicant seeks compensation to be assessed for injury she suffered because of personal offences committed by the respondent against her. [2] The personal offences committed by the respondent against the applicant were two offences of unlawful and indecent assault. They were indictable offences. They were committed by the respondent against the applicant on the 6th of December 2002. At the time the offences were committed by the respondent against the applicant, the applicant was 19 years of age and the respondent was 29 years of age. The respondent pleaded guilty to committing these offences against the applicant before his Honour Judge Dodds at Maroochydore on the 14th of April 2004. [3] The facts upon which sentencing proceeded was that the applicant was wanting to share a house. After responding to an advertisement, she commenced living in a house belonging to the respondent. The association with the respondent was strictly that as housemate. [4] However, on the 6th of December 2002, while the applicant was asleep in her bed and the door to the room was closed, the respondent opened the door and started to rub the legs of the applicant. At one stage, he was fondling her bottom and he then rubbed across her stomach and started rubbing her breasts. The applicant told him to stop, but he did not acknowledge what she was saying. She tried to move away, but he kept leaning over her and putting his hands on her body. He once again placed his hands on her bottom and legs. The applicant realised the respondent had an erection and he was rubbing this against her body. On sentencing, the prosecutor described the feelings of the applicant to be that she started to freak out and became very scared and felt sick. [5] The respondent continued to touch the applicant on various parts of her body, and he was rubbing her bare skin. He squeezed her bottom, and she tried to move away. He also kissed her stomach and he tried to put his hand near her stomach. All this time, the applicant tried to push him away. She was struggling, and, at one stage, hurt her shoulder. She felt pain in her shoulder. Ultimately, the respondent's hand went under the applicant's underpants and he was rubbing her inner thigh. And, at one stage, his hand touched the opening of her vagina. The applicant was struggling strongly, and telling the respondent to get away from her. -- 2 of 10 -- 3 [6] Ultimately, the respondent asked the applicant if she wanted him to leave, and she replied, yes, to get off. The respondent left. That was count 1. [7] Then, in relation count 2, the respondent returned to the bedroom later that evening and again started touching the applicant. Again, he had an erect penis which he placed against the applicant's body. The applicant again tried to push him away and told him to go away and that he should not be in her room. Ultimately, the respondent left the room. The applicant said that she was terrified at these events. She was in extreme distress. Friends picked her up and took her away. And, ultimately, she made a complaint to police. [8] The application was filed on the 13th of April 2007 just inside the three year limitation period for commencing these proceedings. The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act on the 1st of December 2009. However, section 167 subsections (1) and (2) of the Victims of Crime Assistance Act 2009 provides that if the application has been commenced, but has not been finally decided before the commencement of the new Act, the Court must hear or continue to hear and decide the application under the repealed provision. [9] The application and supporting affidavits were served upon the respondent on the 18th of August 2011. The application is opposed by the respondent. Three issues arise on the hearing of the application as a consequence of the respondent's opposition to the application. [10] Firstly, the respondent says the applicant requires leave to proceed because more than two years has transpired between the last step and the hearing of this application. Also in conjunction with the issue of leave to proceed is that the respondent is in a position of having suffered prejudice by the delay with which the application has proceeded. [11] Significantly, he married in 2008; he has a daughter from a previous relationship. At the time of his marriage his wife had two children; they were all young children. Since the marriage, a son, now three, has been born of the relationship of the respondent and his wife. The three older children are in school. [12] Further, the respondent has purchased a home. It has a significant mortgage upon it and on the present estimated sale value of the home the bank manager has informed the respondent that there is only sufficient equity in the property at this time to allow -- 3 of 10 -- 4 the respondent to re-draw $10,000. He has made inquiries and he's not permitted to access his superannuation. He and his wife's financial position is such that he could not meet an order for compensation at this time. A third issue of course remains the issue of quantum if leave to proceed is granted. [13] The applicant confirms the facts put forward on sentencing to the sentencing Judge. The history of the application is one where through the years 2007 through to 2010 there have been periods of inactivity. The application for Legal Aid was posted to the applicant on the 13th of April 2007, there was a further application posted to her on the 21st of May 2007. Legal assistance was granted on the 30th of May 2007. The request for transcript of the sentencing proceedings from the State Reporting Bureau were requested by the Legal Aid office on the 3rd of September 2007 and again on the 29th of May 2008. Now that transcript was received by the Legal Aid office on the 20th of June 2008. [14] The applicant contacted the Legal Aid office and advised the Legal Aid office who was her treating psychiatrist at the time. That occurred on the 1st of September 2007. The Legal Aid office requested a report from that psychiatrist on the 7th of October 2007, and attempts to contact the applicant by mobile phone and letter asking her to - an email asking her to contact the Legal Aid office occurred on the 18th of November 2008. A medical authority was sent to the psychiatrist on the 8th of December 2008. He provided a report on the 21st of January 2009. A copy of the report was emailed to the applicant on the 2nd of February 2009, then there were attempts to contact the applicant by the Legal Aid office which were unsuccessful between March and July of 2009. The applicant did not contact the Legal Aid office again until the 21st of September 2009. [15] Unfortunately, the psychiatrist who provided the report did not make any diagnosis of a psychiatric condition and did not address the issues of adverse impacts. The Legal Aid office determined that another psychiatrist should be approached for a report. Then towards the end of 2009 the work-load of the Legal Aid office increased because of the impending repeal of The Criminal Offence Victims Act 1995. [16] An appointment was arranged with the new psychiatrist on the 7th of April 2010, the applicant did not attend that appointment. Another appointment was made for the 5th of May 2010 but was changed to the 12th of May 2010. Then this new psychiatrist -- 4 of 10 -- 5 provided a report on the 18th of May 2010 and the report was sent to the applicant on the 7th of June 2010. Then from about June 2010 to November 2010 attempts to contact the applicant by the Legal Aid office were unsuccessful and then ultimately contact was made by the applicant contacting the Legal Aid office on the 17th of November 2010 and she has remained in contact since. [17] The applicant has sworn a further affidavit. She was not aware, she says, that she could even apply for compensation until several years later after the offences were committed. She was reluctant to apply for compensation because the thought of dealing with it made her feel more anxious. However, not taking any action also had the effect of increasing her anxiety as she knew she had to deal with it but just could not bring herself to face it. She went into a spiral of trying to avoid confronting the issue but it was always there in the background and the fact of not dealing with it in turn made her more anxious. [18] She felt as if her life was put on hold, she was sick and tired all the time and found it impossible to function normally. She felt as if she was going under, drowning, and she didn’t know what to do about it. She decided to see a counsellor at the university to help her. The evidence indicates that she enrolled in a university course in New South Wales in about 2004. The evidence also before me from the applicant is that she went to New South Wales to get away from Queensland because she feared the respondent. [19] She says in her affidavit that when it came to the last day for applying for compensation, she had before that been putting it off, she was urged to apply and ultimately made the decision to apply. She says she did not always respond to telephone calls, letters and emails from her solicitors. On occasion this could have been due to her changing address and not notifying her solicitors but the main reason was because every time she received any communication from her solicitors, she would suffer a worsening of her anxiety symptoms. She couldn't sleep, she would feel so sick that she would vomit and her body would tremble all over. Her face would become hot as if she was going to faint. She would shut herself in her room and not go out to class. [20] She'd tried to avoid thinking about it but not deciding with it would make her more anxious as she couldn't stop thinking about it. She found it difficult to open up to the -- 5 of 10 -- 6 counsellor and confront her fears as at counselling she did not have to talk about the offences and the focus was how to get past the problem and get on with her life at university. When she was seeing the counsellor she expected that she would get better soon. She never thought that she would still be suffering in 2012. While it became easier with time she felt a little bit better but her fears still would not go away. [21] With regards to the therapy from the first psychiatrist she says this was cognitive- based, it was about deconstructing and trying to reshape her thought patterns. He was an older man and obviously professional and good at his job but she did not click with him. He did help her but after 18 months she felt she was not able to advance any further with him. [22] She said she failed to attend the appointment with the second psychiatrist because her flatmate had borrowed the mail key and had been collecting the mail around this time. There was only one mail key and her solicitors contacted her to ask her why she had missed the appointment. She found a letter from the Legal Aid office advising her of the date of the appointment and other items of her mail which had been left in a bundle in her flatmate's room with a bunch of her mail and catalogues. However she cannot guarantee she would have attended the first appointment had she received notification, it was certainly very difficult for her to attend the second appointment. The thought of going over all the effects and difficulties and the struggles she had endured in one sitting was sickening almost to the point of discontinuing her application for compensation. Also, having read the second psychiatrist's report and talking to her solicitors about it was difficult and she stopped communicating with her solicitors to try and limit her distress. [23] The report of the second psychiatrist, Dr Samuels, is in evidence. The applicant has described her symptoms that she has suffered since 2002 to Dr Samuels. He concludes that the applicant continues to have mild depressive and anxiety symptoms as well as symptoms suggestive of an underlying eating disorder, her depressive symptoms are not at the threshold of a major depressive disorder and he would not see her anxiety symptoms as being at the level of a post-traumatic stress disorder although she still has occasional nightmares, is hyper-vigilant and from time to time has recurrent intrusive thoughts and recollections of the trauma. She has not vomited or over-eaten for at least five weeks, he would therefore regard her, at the time of his report, as fulfilling the criteria for an adjustment disorder with mixed anxiety and -- 6 of 10 -- 7 depressed mood. [24] He would also, at that time, regard her as meeting the criteria for an eating disorder not otherwise specified. He states in his report "In the acute aftermath of the assault it seems likely the applicant would have fulfilled the criteria for an acute stress disorder. This is a condition that has most of the features of post-traumatic stress disorder but tends to settle and does not develop into a chronic condition. There is also evidence that at that time she had quite prominent eating disorder symptoms". [25] In the applicant's affidavit in support of her application she refers to her eating disorder and her fears and stress. Her social life was affected and she stopped seeing friends and withdrew from her boyfriend. She started thinking about suicide and to get away from the thoughts of the respondent she moved to Sydney. She went to a community mental health review team and was referred to various psychologists and counsellors. She tried to work but found it difficult to do so because of her fears and anxieties and eventually left that position. She ultimately has become employed in a call centre. [26] She could not cope with her university degree and left. She stopped attending her degree course in 2006 and exited the course in 2009. She says a huge part of the interference with her studies was because of the insomnia she suffered related to anxiety and hyper-vigilance. She also states that her study was affected by her sister being diagnosed with auto-immune disease. She was worried about her sister's health and needed to continue working in order to provide for her financially. [27] She states that after the incident she lost her self-confidence and self-esteem. She continues to suffer an eating disorder. She still feels quite depressed and anxious. [28] Regarding the dropping out of university, it is to be noted that Dr Samuels said that he could find no evidence that any behaviour of the applicant or any pre-existing psychiatric intellectual or other medical psychological condition has contributed to her condition. However, it does seem that a decision to drop out of university in 2009 related mainly to her sister's illness rather than the preceding events, but there was no doubt about it that her concentration and ability to study has been affected by the sexual assault that occurred in 2002. [29] With regard to leave to proceed, the decision of the Court of Appeal in Tyler v. -- 7 of 10 -- 8 Custom Credit Corp Limited and Others [2000] QCA 178, particularly the judgment of Justice Atkinson sets out the factors to be weighed in the exercise of the Court's discretion. [30] In this matter I accept the evidence of the applicant as to her explanations for the delays that have occurred. I accept that she has been ill throughout the period since December 2002 to the present time. I accept that she has understandably because of her illness been avoiding dealing with the issue of compensation and what may be involved in pursuit of the application. [31] Of course I accept that at this stage the respondent has also moved on and clearly he is in a invidious position. However, weighing up all the relevant factors, clearly there has been a delay in the progress of the application since it was filed; however I am satisfied the explanations for those delays is satisfactory in all the circumstances. While what has happened to the respondent in the meantime may now be considered to be prejudiced, I do not accept it is prejudice within the concept of the factors to be taken into account on an application for leave to proceed with this application. It just so happens that the application which was always possible to be made has come to a head now. [32] In all the circumstances I am satisfied it would be in the interest of justice, as the respondent pleaded guilty to the offence and the applicant is prima-facie entitled to compensation, that she have leave to proceed with the application, notwithstanding the respondent's change in position over the years. The application itself must be amended and I give the applicant leave to amend the application to read instead of three counts of sexual assault, that it read two counts of unlawful and indecent assault under the Criminal Code of Queensland. [33] As far as the quantum of the claim is concerned, I do conclude that the applicant's termination of university was caused by her concern for her sister rather than because of the effects of the offences. [34] Nevertheless, the applicant suffered a shoulder injury. The most that can be said about it, though, is that it caused her pain for about four months. There is no medical evidence to support that the shoulder injury was a fracture or caused loss of use. I therefore do not compensate the applicant under item 13 of the schedule. -- 8 of 10 -- 9 [35] I consider her compensation should be assessed under item 1, Bruising/laceration, et cetera, minor/moderate at three per cent, which is a sum of $2,250. [36] I am satisfied the applicant has suffered mental or nervous shock within the meaning of that term, as used, in the repealed Act. [37] I should mention that, under the Act - the repealed Act - subsection (3) of section 22 provides that the compensation provided to an applicant is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. [38] Further, subsection (4) of section 22 of the repealed Act provides that the maximum amount of compensation provided under this part is reserved for the most serious cases, and the amounts provided in other cases are intended to be scaled according to their seriousness. [39] For the mental or nervous shock, I consider the applicant should be allowed 25 per cent of the scheme maximum under mental or nervous shock severe, which is a sum of $18,750. [40] The applicant has also suffered adverse impacts. The evidence satisfies me that she has also suffered from a sense of violation, a sense of self-worth or perception, and that she's had features of an acute stress disorder and has some residual post-traumatic symptoms; that she has had increased feelings, fear and feelings of insecurity and her relationships have been difficult. And the offences have had an adverse impact on her feelings. [41] The applicant also submits that she should be allowed compensation under the regulation 1A subparagraph (k) which is the catch-all; that is anything the Court considers it an adverse impact of a sexual offence. [42] In this regard, she refers to the disruption of moving interstate, the loss of educational opportunities, the loss of occupational opportunities, the adverse effect of prescribed drugs and the ongoing costs of counselling. [43] I do not accept those claims to come within the regulation 1A. In this respect I refer to the judgment of her Honour Justice Holmes, as she then was, in Vlug v Carrasco Court of Appeal decision number 8030 of 2006 delivered 22 December 2006, where -- 9 of 10 -- 10 her Honour said: "The adverse impacts prescribed in section 1A are of the nature of symptoms likely to a greater or lesser extent to impair the individual's psychological, emotional and physical functioning. In that sense they have the quality of injury while not necessarily amounting to mental or nervous shock. Although the last of the categories, section 1A subsection (2)(k) is a catch-all. Anything the Court considers is an adverse impact of a sexual offence, it must be read ejusdem generis. The difference between those impacts and injury as defined in section 20 is not, as the applicant suggests, one of quality but merely of degree". [44] Nevertheless, there are adverse impacts and the applicant is to be compensated for them. In this regard, I allow the applicant 10 per cent of the scheme maximum, which is a sum of $7,500. The total, therefore, that I have assessed is $28,500. [45] I also find the applicant did nothing to directly or indirectly contribute to her injuries. I therefore order the respondent to pay the applicant the sum of $28,500. [46] I am unable, under the legislation, to order the respondent to pay the applicant's costs of the application. There'll be an order as per draft, initialled by me and left with the papers. -- 10 of 10 --