Croft v Johnson [2010] QDC 195

DISTRICT COURT OF QUEENSLAND CITATION: Croft v Johnson [2010] QDC 195 PARTIES: NATELIE ANNE CROFT (Applicant) v WAYNE GEORGE JOHNSON (Respondent) FILE NO/S: 237 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 17 May 2010 DELIVERED AT: Cairns HEARING DATE: 7 May 2010 JUDGE: Everson DCJ ORDER: I order that the respondent pay the applicant the sum of $13,500.00 by way of compensation. CATCHWORDS: Criminal compensation – physical injuries – psychological injuries – sexual offence Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 R v Atwell ex parte Julie [2002] 2 Qd R 367 at 373 Vlug v Carrasco[2006] QCA 561 at [11] COUNSEL: SOLICITORS: Daniel Towne & Associates for the applicant [1] This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). [2] The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 4 December 2006 namely indecent assault. Facts [3] On 27 September 2005 the respondent attacked the applicant in a carpark at Cairns after she had left a nightclub in his company. Her hit her on the back of the head and in her face and tried to rip her pants off (“the incident”). -- 1 of 4 -- 2 Injuries [4] The applicant suffered the following injuries as a consequence of the incident:- • facial lacerations; • Abrasions to her knees, right arm and body; • Psychological sequelae. The relevant law [5] COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.” [6] Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov1 Homes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” [7] Relevantly the Compensation Table prescribes: • Item 1 Bruising/laceration etc (minor/moderate) … 1% - 3% • Item 27 Facial disfigurement or bodily scarring (minor/moderate) … 2% - 10% • Item 32 Mental or nervous shock (moderate) … 10% - 20% [8] Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.2 [9] Section 1A of COVR is also relevant to this application. It is in the following terms: 1 [2002] 2 QdR 303 at 310 2 s 25 (8) referring to s 22 (4) -- 2 of 4 -- 3 “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. An adverse impact of a sexual offence includes the following – (a) a sense of violation; (b) reduced self worth or perception; (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. In this section- Sexual offence means a personal offence of a sexual nature.” The effect of section 1A was considered in R v Atwell ex parte Julie3 as “creating a new category of injury, but one which excluded the existing categories, those found in s 20.” As Holmes J noted in Vlug v Carrasco:4 “the regulation in its terms recognises its role as expansive, rather than as providing a discrete addition to what is classed as injury: it prescribes as injury “the totality of 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…” [10] Pursuant to section 2A of COVR the prescribed amount of compensation pursuant to section 1A is up to 100% of the scheme maximum. The Assessment [11] A report dated 5 August 2009 from Dr Finn a consultant medical practitioner in the Emergency Department of the Cairns Base Hospital, records the lacerations and abrasions suffered by the applicant in the incident. These included a 1.5 cm laceration to her right parietal region, a 2 cm laceration to her left parietal region and a laceration of less than 1 cm to her upper lip which did not extend to the vermillion border. Dr Finn noted that the applicant declined treatment for her injuries including suturing of her lip despite this wound being at greater risk of scarring as a consequence. Dr Finn expressed the view that the applicant’s injuries were likely to heal with minimal scarring. I have not been provided with any medical or photographic evidence that the applicant did suffer any scarring as a consequence of the injuries she sustained in the incident. There is a reference to a 3 [2002] 2 Qd R 367 at 373 per Chesterman J. 4 [2006] QCA 561 at [11] -- 3 of 4 -- 4 scar to her lip in the report of Dr Richardson, psychologist dated 14 April 2007, which the applicant alleges is more noticeable when she drinks. This is the only reference to any scarring in the material before me and I can only conclude that it is extremely minor and that she contributed to it by declining treatment at the Cairns Base Hospital following the incident despite the repeated urging of the treating doctor. I decline to make an award in this regard. [12] In her report Dr Richardson states that the applicant is suffering from a Post Traumatic Stress Disorder (“PTSD”) in the moderate range. Dr Richardson attributes any adverse impacts pursuant to s 1A of COVR to the PTSD. They are therefore not separately compensable. [13] Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table and section 1A of COVR as follows: • Item 1 – 3% $ 2,250.00 • Item 32 – 15% $11,250.00 $13,500.00 Order [14] I order that the respondent pay the applicant the sum of $13,500.00 by way of compensation. -- 4 of 4 --