DG v LDK [2011] QDC 10

DISTRICT COURT OF QUEENSLAND CITATION: DG v LDK [2011] QDC 10 PARTIES: DG (applicant) v LDK (respondent) FILE NO/S: 121/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 18 February 2011 DELIVERED AT: Beenleigh HEARING DATE: 20 December 2010 JUDGE: Dearden DCJ ORDER: The respondent LDK pay the applicant DG the sum of $22,500 CATCHWORDS: LEGISLATION: CASES Application – Criminal Compensation – sexual assault – mental or nervous shock – adverse impacts Criminal Offence Victims Act 1995 s.24. Victims of Crime Assistance Act 2009 s.167. Criminal Offence Victims Regulation s.1A. JMR obo SRR v Hornsby [2009] QDC 147. JI v AV [2002] 2 Qd R 367. COUNSEL: Ms P James (solicitor) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The respondent LDK pleaded guilty (relevantly) in the Beenleigh District Court on 7 September 2007 to a count of sexual assault of the applicant DG. The respondent also pleaded guilty on 7 September, 2007 to counts of burglary, and burglary by breaking in the night. [2] The respondent was sentenced to three years imprisonment in respect of the sexual assault count, and concurrent sentences in respect of the other two counts. The effective head sentence of three years was suspended after the respondent had served a period of nine months imprisonment. A period of 139 days pre-sentence custody was declared time served pursuant to the sentence. Facts [3] The respondent and the applicant were both present at a party on the evening of 1 November 2005 at a house nearby the applicant’s residence. As the evening progressed, the respondent made advances to the applicant, although these advances were not the subject of any criminal proceedings. [4] In the early hours of 2 November 2005, the applicant, the respondent, and the complainant in respect of a second burglary by the respondent, all left the party. The applicant returned to her house and went to bed. The respondent broke in to the house of another woman who had been at the party, but when that woman discovered the respondent, she kicked him out of her house. [5] The respondent then came to the applicant’s house, outside her bedroom window, and requested that the applicant come outside, which she refused to do. The applicant also refused to allow the respondent to come inside. The applicant, who was intoxicated, then fell into a deep sleep. The next thing the applicant recalls was what she thought was a dream about being kissed on the vagina. The applicant recalls the sound of a belt buckle making a noise. By the time the applicant had awoken and yelled out, there was no one else in her room. [6] The applicant made a complaint to police. The applicant’s residence and room were examined. The applicant herself was medically examined and swabs were taken from her. The forensic evidence indicated that the respondent’s saliva was present in the upper region of the applicant’s right thigh. Further, after the respondent was arrested and his clothing was taken and examined forensically, traces of the applicant’s DNA were located inside the crotch of the respondent’s underpants. [7] The plea of guilty proceeded on the basis that the prosecution was able to prove that the respondent must, in fact, have kissed the applicant on the outside of her vagina, at last, or in the area of her upper thigh, for the saliva to have been left there, and further that the respondent had either touched the applicant in the area of her vagina and then touched himself, or alternatively touched the applicant in the area of her vagina with his penis, which then left traces of the applicant’s DNA on the inside of the respondent’s underwear.1 1 Exhibit B (sentencing submissions) pp 3-6, affidavit of Debbie Richardson sworn 9 October 2009 -- 2 of 4 -- 3 Injuries [8] The applicant suffered mental or nervous shock, and adverse impacts2 as a result of the offence committed against her by the respondent. The law [9] This is an application for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995 (COVA), repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The application in these proceedings was filed on 24 September 2009, and the transitional provisions of VOCCA s.167 preserve the applicant’s right to apply for criminal compensation pursuant to COVA s.24. [10] I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of JMR obo SRR v Hornsby [2009] QDC 147. Compensation [11] Ms James, who appears for the applicant, seeks compensation as follows:- (1) Item 32 – Mental or Nervous Shock (Moderate) – 10%- 20% The applicant was diagnosed by Dr Barbara McGuire, psychiatrist, as exhibiting post-traumatic stress disorder (PTSD) as indicated by symptoms of nightmares, flashbacks, avoidant behaviour, lack of trust, exaggerated startle reflex and security fears. Dr McGuire considered that the PTSD was initially severe, but as at the date of the applicant’s examination by Dr McGuire (22 April 2009), the PTSD was exhibited to a moderate degree.3 [12] In these circumstances, Ms James submits that an appropriate award would be at the top of the Item 32 (Mental or Nervous Shock (Moderate)) range namely 20% of the scheme maximum. I accept, in the circumstances, given the nature of the PTSD and its chronicity, that this is an appropriate submission, and accordingly I award 20% of the scheme maximum ($15,000) pursuant to Item 32. (2) CRIMINAL OFFENCE VICTIMS REGULATION (COVR) s.1A – Adverse Impacts [13] Dr McGuire’s report notes that at the time of the offence, the applicant suffered a significant sense of violation; that the applicant has (as a result of the offence) suffered low self esteem and feels dirty; the applicant did not sustain disease but worried about it; the applicant believes she will be over protective if she has children (although she currently doesn’t have any children); the applicant experiences increased fear and feelings of insecurity; the applicant states that aunts and cousins talk about her, stigmatise her and tell others that she “asked for the 2 Criminal Offence Victims Regulation s.1A 3 Exhibit A (Report dated 29 April 2009) p.3, affidavit of Barbara McGuire sworn 1 October 2009 -- 3 of 4 -- 4 rape”; and that the applicant experiences flashbacks during sexual activity and is avoidant.4 [14] Ms James submits that in addition to the adverse impacts identified by Dr McGuire in her report, the applicant in her affidavit identifies the trauma she felt when she gave police her statement and the further trauma of the medical examination, as well as the applicant’s avoidance of wearing clothes that make her look attractive, as amounting further adverse impacts.5 [15] Only those adverse impacts which are not part of or a feature of the diagnosis of PTSD are separately assessable as adverse impacts pursuant to COVR s.1A.6 The relevant assessable adverse impacts then are the applicant’s worry about disease; the concern of the applicant that she will be over protective if she has children; the reaction of family members; the trauma of reporting the offence to police and the subsequent medical examination; and the change in the applicant’s dress sense. [16] The submission by Ms James is that these adverse impacts should receive an award of 15% of the scheme maximum. With respect, in the circumstances I consider that a more appropriate award reflecting the nature of those adverse impacts which are not subsumed within the diagnosis of PTSD would be an award of 10% of the scheme maximum ($7,500). Contribution [17] The applicant has not contributed in any way to her own injuries, either direct or indirect.7 Order [18] I order that the respondent LDK pay the applicant DG the sum of $22,500. 4 Exhibit A p.3, affidavit of Barbara McGuire sworn 1 October 2009 5 Affidavit of DG sworn 22 September 2009, paras 21 and 26 6 JI v AV [2002] 2 Qd R 367, 372, 382 7 COVA s.25(7) -- 4 of 4 --