Criminal Injuries Compensation Act 1983 and Lola Widera [1995] ACTSC 109 (12 October 1995)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and LOLA WIDERA
No. CIC126 of 1995
Number of pages - 3
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

CATCHWORDS

Criminal Injuries Compensation - Assault with intent to engage in sexual intercourse - Elderly victim - Post Traumatic Stress Disorder - Major depressive disorder - High blood pressure - Increased use of alcohol and cigarettes - Development of respiratory problems - Anxiety.

HEARING

CANBERRA, 7 September 1995
12:10:1995

Counsel for the Applicant: Ms T. Kyprianou

Instructing Solicitors: Pamela Coward and Associates

Counsel for the Territory: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $40,669.00.

DECISION

MASTER A HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 19 August 1994 Alan James Lindsay, on his plea of guilty, was committed to this Court for sentence on a charge of assaulting the applicant with intent to engage in sexual intercourse. On 10 February 1995 he was sentenced to imprisonment for 3 years, suspended upon his entering into a recognizance to be of good behaviour for 3 years. The Director of Public Prosecutions appealed on the ground that the sentence was inadequate, but the appeal was not successful.

3. The applicant is a pensioner, born on 19 October 1929 in Poland. She came to Australia about 45 years ago. At the time of the assault she had been living independently at an address in Narrabundah for about 17 years. She suffered from asthma and hypertension.

4. On Friday 24 June 1994 she had been to the shops at Narrabundah to visit her doctor, and then to Civic to do some shopping. As she waited at the Civic bus centre to return home, the offender spoke to her and asked for a light for his cigarette. Although she did not know it, he joined the bus that she got on, and followed her when she alighted. As she entered her street he grabbed her from behind with his arm around her neck and covered her mouth with his hand. He told her not to scream or he would kill her. He held her scarf around her neck. She fell to the ground. He said he wanted to have sex with her. She offered him money. He said he did not want money, he wanted sex. She cried out, and pleaded with him not to hurt her, as she was an old lady. He forced her on to her back and pulled off her clothing. He put his fingers in her vagina. He said that he wanted to have sex from behind and rolled her onto her stomach. For some reason he then ceased the attack. He helped her to her feet and picked up her scattered groceries, while she adjusted her clothing.

5. She was alone with him and still terrified. So that he would not attack her again she asked him to come to her home. He apologized to her and agreed not to touch her at home. When they arrived she noticed blood on her hands and clothing, but it came from a cut on his finger. She rang a friend to whom she spoke in Polish, and asked her to call the police. They arrived soon afterwards and took him into custody. He told police that he had been drinking heavily all day.

6. The police took the applicant to the police doctor, who noted her distress and a number of bruises and blood stains. She went home and her children came to stay with her for some nights.

7. On 27 June 1994 she consulted Dr. Moulding, her general practitioner. He noted tenderness to the neck and behind the shoulders, a raised blood pressure, a complaint of severe stress, causing a lack of appetite and insomnia, and an increase in her use of cigarettes and alcohol. For several weeks she was afraid to leave her house. About two weeks after the attack she developed severe respiratory problems and was admitted to hospital for 9 days. She was advised to give up smoking and drinking, but when she went home she was too depressed and frightened to do so. On her birthday in October 1994 she decided that she must stop drinking and smoking to stay alive.

8. In October 1994 she began to receive counselling, and was referred to the Alcohol and Drug Service, where she was assessed as being ongoing support and counselling for drinking problems and anxiety. Although a series of counselling sessions were arranged, she felt unable to attend all of them because of her anxiety while travelling by public transport. A friend was able to accompany her in March 1995, when the counsellor recorded her fear of being alone at home. She was still abstaining from alcohol and cigarettes.

9. Her solicitors arranged her examination by Dr. White, consultant psychiatrist. He diagnosed a post traumatic stress disorder and related major depressive disorder directly resulting from the assault. Factors that made her more vulnerable were her age, her asthma and the fact that she was living alone. He advised psychotherapy, and thought that there was a likelihood of some improvement with time and treatment. Treatment would take several months, and even with it there would probably be long term residual effects of chronic anxiety and lack of trust.

10. On 21 April 1995 she reported her ongoing sleep problems and fear of leaving the house to Dr. Moulding. He commenced to prescribe Aurorix, an anti depressant medication. In July 1995 he certified that she was still suffering emotionally from the assault, and that she would require medication for a long time.

11. Despite her medical condition before the assault, the applicant felt very independent and lived a full life. She was accustomed to do her own shopping, did not need any help from her children, attended a number of clubs with friends and visited them in their homes. Since the attack she has become isolated and fearful, and no longer enjoys any social life. She intends to sell her house in Canberra where she has lived happily for 17 years, and to go to live with one of her daughters in Coffs Harbour.

12. For her pain and suffering and loss of amenity of life I would award her $40,000. The costs of bringing the application are $669.

13. I make an award of compensation of $40,669.