C v Porter [2010] QDC 484

DISTRICT COURT OF QUEENSLAND CITATION: C v Porter [2010] QDC 484 PARTIES: C (applicant) v STEPHEN BRUCE PORTER (respondent) FILE NO/S: 82/10 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 14 December 2010 DELIVERED AT: Brisbane HEARING DATE: 13 December 2010 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $39,750 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of burglary with violence, deprivation of liberty, robbery with personal violence, sexual assault and rape which led to the conviction of the respondent in the District Court at Brisbane on 17 January 2008. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – where applicant was the victim of sexual offences – where the applicant suffered “mental or nervous shock” – where the applicant suffered “adverse impacts” – assessment of compensation. Criminal Offence Victims Act 1995(Qld), s 20, s 22, s 24, s 25 Criminal Offence Victims Regulation 1995(Qld), s 1A, s 2, s 2A Victims of Crime Assistance Act 2009(Qld), s 149, s 155 Michael v Christiansen [2010] QDC 157 M.R. v Webb [2001] QCA 113 JI v AV [2002] 2 Qd R 367; [2001] QCA 510 R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395 -- 1 of 8 -- 2 R v Ward, ex parte Dooley [2001] 2 Qd R 436; [2000] QCA 493 RMC v NAC [2009] QSC 149 COUNSEL: S J Hamlyn-Harris for the applicant The respondent appeared on his own behalf SOLICITORS: Legal Aid Queensland for the applicant The respondent appeared on his own behalf Introduction [1] The applicant seeks compensation for emotional injuries caused by personal offences including sexual offences committed by the respondent on 20 February 2007. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. However the application was filed on 12 January 2010 which is before the two month expiry period contained in the transitional provision in s 155(2)(b). Therefore the court is required to hear and determine the application under the Criminal Offence Victims Act 1995(s 155(3)). [2] On 17 January 2008 the respondent was convicted by a jury of one count of burglary with violence, one count of deprivation of liberty, one count of robbery with personal violence, two counts of sexual assault and three counts of rape. On 18 January 2008 the respondent was sentenced to 15 years imprisonment in respect of Count 7, a count of rape consisting of sexual intercourse. Lesser concurrent sentences were imposed in respect of the other counts. The convictions for the offences of burglary with violence and rape were declared to be convictions of serious violent offences. A period of 322 days pre sentence custody from 2 March 2007 to the date of sentence on 18 January 2008 was declared to be imprisonment already served under the sentence. [3] The respondent’s appeal to the Court of Appeal was dismissed on 25 July 2008. 1 [4] The application and supporting affidavits were served at the correctional facility where the respondent is imprisoned on 22 October 2010.2 An affidavit has been filed by the Deputy Director of Client Services at the Public Trustee of Queensland stating that the Public Trustee is not actively managing the respondent’s affairs pursuant to Part 7 Public Trustee Act 1978.3 Exhibited to the affidavit is a document signed by the respondent in which he acknowledges receipt of the application for criminal compensation and states that he is aware of the hearing date. The respondent also indicated that he wished to take part in the proceedings.4 [5] The application was listed for hearing on 8 December 2010. The respondent appeared and requested an adjournment to enable him to obtain legal advice. The hearing was adjourned to 10 December 2010. In the meantime the respondent saw a solicitor. The respondent appeared at the hearing on 10 December 2010 of the 1 R v Porter [2008] QCA 203. 2 Rule 110(c) Uniform Civil Procedure Rules 1999. 3 Affidavit of Clinton James Miles filed 25 November 2010 at para [1]. 4 Exhibit A to the affidavit of Clinton James Miles filed 25 November 2010. -- 2 of 8 -- 3 application and represented himself. He indicated that he wished to cross-examine the psychiatrist who assessed the applicant. The hearing was further adjourned to 13 December for that purpose. Circumstance of the offences [6] When sentencing the respondent on 18 January 2008 I outlined the offences as follows: “These offences involved a prolonged and frightening attack upon a 19 year old girl in her own home. There was, in my view, a degree of premeditation. It is clear that you entered the dwelling with the intention of committing sexual offences upon the complainant. At about 10.15am on 20 February 2007 you knocked on the complainant’s door. You claimed to be seeking directions and asked for a street directory. The complainant detected that you had a strong smell of body odour and a slight smell of marijuana. After you departed, the complainant had a shower and continued looking for a watch that she had misplaced. A short time after that she noticed a similar smell which became stronger. She was grabbed from behind. You placed a hand over her mouth. She screamed, but the sound was muffled by your hand. You directed her to the front of the house. You tied her hands behind her back using an electrical cord. You blindfolded the complainant using a pillow case. You said you were looking for money. The complainant told you that she had $250 in her wallet that was on the kitchen bench. You stole that money. You then pulled her shirt down and rubbed her breasts. That act constitutes Count 4, one of the offences of sexual assault. While the complainant was still blindfolded you led her towards the kitchen. She bravely tried to escape and managed to break free from the electrical cord. She also pulled the blind fold down. You pushed her to the floor. She crawled towards the bathroom. At that stage you began strangling her. The complainant’s next recollection is being in the doorway to her bedroom where her hands were again tied behind her back with the electrical cord. Once again, you placed the blind fold, which was pillow case, around her eyes. You forced her to perform an act of oral sex upon you. That act constitutes Count 5 on the indictment, a count of rape. You then performed an act of oral sex upon the complainant. That act comprises Count 6, a further count of rape. You then had sexual intercourse with the complainant against her will. That is Count 7, a further count of rape. You then led the complainant to the bathroom where you directed her to get into the bath tub. She was terrified that you were going to drown her. She then felt cold water on her body. You rubbed -- 3 of 8 -- 4 your hands all over her body, including over her breasts. That act constitutes Count 8 on the indictment, a further count of sexual assault. You did not wash her vaginal area. This was a clear attempt to avoid detection. It failed. Scientific tests revealed semen containing your DNA on a vulval swab, a peri anal swab, a swab from the complainant’s upper inner thigh and on her underwear. Your efforts at avoiding detection included removing the sheet from the complainant’s bed and taking her t- shirts that were initially used to try to tie her up.”5 Injuries and medical reports [7] The applicant was examined by Dr Margaret Mobbs at the Royal Brisbane and Women’s Hospital following the attack. In her statement dated 20 February 2007 Dr Mobbs noted that the applicant suffered bruising and abrasions to her arms, legs and back. There was also a suction bruise to an area above the left nipple as well as a cluster of three small bruises on the left side of the left breast. The genital examination revealed generalised redness of both labia. At the back of the vagina there was an area of intense localised redness and behind that there was a 0.5cm split type abrasion.6 [8] The applicant had counselling at the Brisbane Sexual Assault Service at the Royal Brisbane and Women’s Hospital. The reports of the counsellors dated 12 June 2007 and 24 September 2007 show that the applicant experienced a range of problems stemming from the attack. These problems included constant and overwhelming fear, sleep disturbance, nightmares, flashbacks, loss of appetite, tearfulness, and feelings of depression, anxiety and anger.7 [9] When sentencing the respondent I referred to the substantial impact of the offences upon the applicant in the following terms: “The offences have had a significant impact upon the complainant. She said in her victim impact statement: ‘On the 20 th February 2007 my home was invaded, and also my body, and my sense of safety. On the day of this invasion I was certain it would be my last; I repeatedly begged my perpetrator not to kill me. I have never felt so threatened in my entire life; nor have I ever felt so disempowered.’ The complainant had moved into her residence at (suburb deleted) only six days earlier. Not surprisingly, she was not able to return to that residence. Her university studies were disrupted. You are Hepatitis C positive, which caused the complainant additional distress. She has experienced nightmares and flashbacks. 5 Transcript of sentencing remarks, District Court Brisbane 18 January 2008 at pages 3-5. 6 Statement of Dr Margaret Mobbs dated 20 February 2007, exhibit C to the affidavit of Elizabeth Francis filed 20 October 2010. 7 Exhibits D and E to the affidavit of Elizabeth Francis filed 20 October 2010. -- 4 of 8 -- 5 She was seen by Dr Matheson, a psychiatrist on the 12th and 26 th April 2007. According to Dr Matheson, the complainant ‘presented with symptoms of post traumatic stress disorder, major depressive episode and panic disorder. In particular she reported intrusive flashbacks to the alleged assault, nightmares about the alleged perpetrator and hypervigilance.’ None of that is at all surprising.” [10] The applicant was examined by Dr Barbara McGuire, psychiatrist on 13 July 2010. In her report dated 14 July 2010 Dr McGuire states: “She (the applicant) exhibits post traumatic stress disorder to a severe degree. Although she is managing to work and ostensibly lead a normal life she continues to suffer nightmares, flashbacks, avoidant behaviour, exaggerated startle reflex, hypervigilance and experiences a feeling of impending doom. I believe that the likelihood is that she will suffer the condition for an indefinite period despite counselling. She also suffers from depression and anxiety.” Dr McGuire also stated that the applicant suffered a number of “adverse impacts”, although some were components of the diagnosis of post traumatic stress disorder. The “adverse impacts” that are a prerequisite or at least part of the post traumatic stress disorder are the applicant’s sense of violation, reduced self worth, significant fear and feelings of insecurity and aversion to normal sexual relations. Apart from these features the applicant also suffered the “adverse impact” of suffering a fear of disease for 12 months before she was assured that she had not contracted any disease. [11] The respondent cross-examined Dr McGuire. His cross-examination was largely confined to contentions that the applicant had made contradictory statements. The Court is required to determine the application for compensation consistently with the verdicts of the jury and the facts accepted at sentence.8 The cross-examination of Dr McGuire did not provide any basis for rejecting her opinion or the applicant’s evidence. [12] The applicant’s affidavit filed 20 October 2010 sets out in detail the effect of the offences upon her relationships with others. The applicant rightly says that she has “endured a tremendous adversity.” 9 She says that there are times when this continues to get on top of her. However the applicant seems to have a positive outlook and it is to be hoped that with the passage of time and appropriate counselling her situation will markedly improve. The applicable principles 8 R v Bennett, ex parte Facer [2002] 2 Qd R 436 at page 300 para [18]. 9 Affidavit of the applicant filed 20 October 2010 at para [56]. -- 5 of 8 -- 6 [13] The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). [14] The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). The assessment of compensation does not apply principles used to decide common law damages for personal injuries (s 25(8)). [15] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.10 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained: “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% to 34% 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%. 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 could, on that account, get no more than $25,500.00.” 11 [16] If more than one injury in the compensation table is applicable the amounts are to be added together and if the total exceeds the scheme maximum then only the scheme maximum may be awarded (s 25(3)). [17] The Regulation provides in s 1A that the totality of the adverse impacts of a sexual offence, to the extent to which the impacts are not otherwise an injury under s 20, is prescribed as an injury. Pursuant to s 2A, the prescribed amount for adverse impacts of a sexual offence is 100% of the scheme maximum. [18] Section 1A of the Regulation provides: “(1) For section 20 of the Act, 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. (2) An adverse impact of a sexual offence includes the following – (a) a sense of violation; (b) reduced self worth or perception; 10 [2001] 2 QdR 436. 11 [2001] 2 QdR 436 at 438 para [5]. -- 6 of 8 -- 7 (c) post-traumatic stress disorder; (d) disease; (e) lost or reduced physical immunity; (f) lost or reduced physical capacity (including the capacity to have children), whether temporary or permanent; (g) increased fear or increased feelings of insecurity; (h) adverse effect of the reaction of others; (i) adverse impact on lawful sexual relations; (j) adverse impact on feelings; (k) anything the court considers is an adverse impact of a sexual offence.” [19] It is necessary to bear in mind that adverse impacts can only be an injury pursuant to the regulation to the extent that they are not an injury under s 20: JI v AV.12 “Nervous shock” within the Criminal Offence Victims Act 1995 is confined to a recognisable psychiatric illness or disorder: RMC v NAC. 13 However it was recognised in M.R. v Webb14 that “…the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness.” This has led to the view being expressed that contrary to RMC v NAC a diagnosable psychiatric disorder is not required for an award for mental or nervous shock: Michael v Christiansen.15 It is only additional adverse impacts that may be compensated under the Regulation: JI v AV.16 The effect of the regulation is that “… post traumatic stress disorder can only be an adverse impact where it does not amount to mental or nervous shock, which will rarely, if ever be the case.”17 The applicant’s submissions [20] Mr Hamlyn-Harris for the applicant submitted that the following injuries were applicable: Item Injury Percentage of Scheme Maximum Amount 2 Bruising/laceration (severe) 3% $2,250 33 Mental or Nervous Shock (Severe) 30% $22,500 s 1A Adverse impacts of sexual offences 20% $15,000 [21] Mr Hamlyn-Harris therefore sought an assessment of $39,750. Although the respondent cross-examined Dr McGuire he did not challenge the amount sought by Mr Hamlyn-Harris. Assessment 12 [2002] 2 QdR 367 at para [20] per Chesterman J. 13 [2009] QSC 149 at para [38] per Byrne SJA. 14 [2001] QCA 113 at para [16]. 15 [2010] QDC 157. 16 [2002] 2 QdR 367 at para [57] per Atkinson J. 17 JI v AV [2002] 2 QdR 367 at 372 para [22] per Chesterman J. -- 7 of 8 -- 8 [22] The applicant suffered multiple abrasions and bruises. The range for minor/moderate bruising and lacerations in Item 1 of the Compensation Table is 1% to 3% of the Scheme maximum. The range for such injuries which are classified as severe provided by Item 2 in the Table is 3% to 5% of the Scheme maximum. In the circumstances the amount sought by Mr Hamlyn-Harris for the applicant which is 3% of the Scheme maximum is reasonable. I therefore allow $2,250 for those injuries. [23] Dr McGuire expressed the opinion that the applicant suffers severe post traumatic stress disorder. She is of the view that the applicant will suffer that condition for an indefinite period despite counselling. The range for severe mental or nervous shock provided in Item 33 of the Compensation Table is 20% to 34% of the Scheme maximum. In the circumstances I consider that the amount sought by Mr Hamlyn- Harris for the applicant which is 30% of the Scheme maximum is reasonable. I therefore allow $22,500 for severe mental or nervous shock. [24] In relation to the assessment for “adverse impacts” of sexual offences I have had regard to the following features: • The applicant was justifiably fearful of having contracted Hepatitis C. She underwent testing for 12 months; • The applicant has encountered the adverse reaction of others; • The applicant was required to move from her residence; • The applicant had difficulties with her university studies; • The applicant has not enjoyed the same active social life that she did previously. [25] In the circumstances 20% of the Scheme maximum which is the amount sought by Mr Hamlyn-Harris is reasonable. I therefore allow $15,000 for the adverse impacts of the sexual offences. [26] The total assessment is therefore $39,750. Order [27] I order that the respondent pay to the applicant the sum of $39,750 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of burglary with violence, deprivation of liberty, robbery with personal violence, sexual assault and rape which led to the conviction of the respondent in the District Court at Brisbane on 17 January 2008. -- 8 of 8 --