AP v Di Pino [2011] QDC 32

DISTRICT COURT OF QUEENSLAND CITATION: AP v Di Pino [2011] QDC 32 PARTIES: AP (Applicant) AND CONSTANTINO DI PINO (Respondent) FILE NO/S: OA3139/09 DIVISION: PROCEEDING: Originating application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 17 March 2011 DELIVERED AT: Brisbane HEARING DATE: 23 February 2011 JUDGE: McGill DCJ ORDER: Order the respondent to pay the applicant $22,500 compensation in respect of the injuries suffered by the applicant as a result of the offence of which the respondent was convicted on 10 December 2003. CATCHWORDS: CRIMINAL LAW – Compensation – mental or nervous shock –scarring caused by self harm caused by psychiatric condition which is injury. JI v AV [2002] 2 Qd R 367 – cited. L v L [2008] QDC 71 – not followed. NJHE v WAE [2007] QDC 170 – cited. PAJ v AAK [2010] QCA 78 – applied. Riddle v Coffee [2002] QCA 337 – applied. SAY v AZ; ex parte Attorney-General [2007] 2 Qd R 363 – applied. Stannard v Lane [2000] QSC 86 – cited. Vlug v Carrasco [2006] QCA 561 – applied. Wren v Gaulai [2008] QCA 148 - applied. Zaicov v Jones [2002] 2 Qd R 303 – applied. COUNSEL: M. Holmes (Solicitor) for the applicant M. Black for the respondent -- 1 of 10 -- 2 SOLICITORS: Murphy Schmidt Solicitors for the applicant John P. Buzza Solicitor for the respondent [1] This is an application for compensation under the Criminal Offence Victims Act 1995. Although that Act has now been repealed, the relevant incidents occurred while it was in force, as did the respondent’s conviction, and the applicant’s application was filed on 4 November 2009. The matter can therefore proceed to be heard and determined under the repealed Act. [2] On 10 December 2003 the respondent was convicted after a trial of one count of indecent treatment of a child under 16. The offence was committed on the applicant around lunchtime on 15 January 2002. The respondent operated a shop, and the applicant, whose mother seems to have been a friend of the respondent, would spend time at the shop doing small tasks in return for small sums of money. When not occupied with customers, the respondent would watch television in a room at the back of the shop. On this occasion the applicant was there watching it with him. The applicant had a sore back which she was rubbing, and the respondent then rubbed, and while doing that he put his hand under her arm and rested it on her left breast, on the outside of clothing, where he shook his hand on the breast.1 [3] The respondent had been charged with two other counts, alleged to have been committed on the same day. Each involved touching the applicant in the area of her vagina but outside her clothing. The jury acquitted on each of those two counts. [4] Following the incident the applicant avoided the respondent, and then walked home. It appears that after the incident the respondent gave a version of what had occurred to the applicant’s mother, as a result of which the mother asked the applicant about what had happened, but when the applicant responded, would not believe what she had been told, and indeed forced the applicant into the presence of the respondent where she called the applicant a liar in front of the respondent.2 [5] The applicant said that after the assault everything started to go downhill for her. “Everyone knew what had happened and the depression started to set in.” She said that she started to drink because it was the only thing that made her happy, and started to self harm, cutting or scratching her wrists; the assault and what followed significantly affected her relationship with her mother, which effect is continuing. [6] Once she cut herself so badly she was hospitalised. Later she started cutting herself on her upper legs where other people could not see. At one point she went to a counsellor at the Child and Youth Mental Health Service, who recommended admission to a psychiatric inpatient unit. She remained there for two weeks; it appears that she left because she wanted to rather than because she was discharged. Nevertheless, there were further incidents of self harm, and on one occasion she cut herself substantially on the upper leg, for which she did not seek medical treatment, so that she has been left with a significant scar. She said that the scar is a constant reminder of what the respondent did to her and how it has affected her life. 1 The description of the conduct constituting the offence of which the respondent was convicted is based on what was said of the circumstances of the offending by the Chief Justice in the Court of Appeal in R v De Pino [2004] QCA 39. This is the most authoritative statement of that matter. 2 Affidavit of applicant filed 1 November 2010 p 9. The rest of this history also comes from this affidavit. -- 2 of 10 -- 3 [7] The applicant moved at one stage to Victoria, where she says she was drinking heavily, but subsequently returned to Queensland where she started an apprenticeship in hairdressing but could not continue this because of the difficulty in having to work with male customers. She continued abusing alcohol and self harming until she had her first child; the affidavit does not disclose the circumstances giving rise to her pregnancy. She has subsequently had a second child with a man she married in August 2009. With the responsibilities of being a parent she has reduced her alcohol consumption, and finally stopped self harming in early 2010. She still has difficulty sleeping, she is nervous and has difficulty with any form of intimacy, even with her husband. She cannot bear to be touched by anyone on the back. Medical evidence [8] She was seen for the purposes of a report by a psychiatrist, Dr Oelrichs, on 1 March 2010.3 Dr Oelrichs was of the opinion that the applicant was suffering from chronic post traumatic stress disorder. She said that at the time the applicant was functioning at a moderate level, with marked impairment in social functioning and moderate impairment in activities of daily living, concentration and adaptation. The report also referred to a diagnosis of depression which had been made by the mental health service some time ago; in oral evidence Dr Oelrichs said that the applicant had a depressive condition which was secondary to a post traumatic stress disorder: p 11. At the time of the examination the applicant was taking medication for her depression, which I would expect would have reduced the symptoms of that condition. She remains very uncomfortable among other people, particularly with strangers, and in public places. [9] The report noted that there had been a good deal of psychiatric treatment and counselling over the years, and that Dr Oelrichs thought that that was useful, as the symptoms were not as bad as in the past. The condition was one where the symptoms tend to wax and wane, depending on the level of stressors prevailing at the time: p 2. She also said that substance abuse was associated with post traumatic stress disorder, because of a tendency for suffers to self medicate in this way: p 3. That is consistent with the applicant’s description of what occurred in her affidavit. [10] It appears that there was some misunderstanding on the part of Dr Oelrichs as to the precise nature of the respondent’s activity. At p 3 of the report she referred to the respondent touching the applicant on the breasts and vagina, while at p 14 she spoke of reports of three assaults occurring on three different occasions. It is not entirely clear that she understood that what the applicant alleges was three different assaults on the one day, and there is the added complication that the jury only convicted in relation to one assault, touching the breast. Nevertheless Dr Oelrichs said that the separation of the assaults was artificial and that it was not possible to separate out each assault as having any particular impact. The applicant says that all three occurred, and sees herself as having been affected by all three, but I suspect in the light of all of the evidence that the consequences of the applicant would have been similar if only the offence of which the respondent was convicted had occurred. [11] On the face of it, the psychiatric consequences suffered by the applicant seem out of proportion to what was objectively a relatively minor example of indecent 3 Affidavit of Dr Oelrichs filed 2 November 2010. -- 3 of 10 -- 4 treatment. Dr Oelrichs spoke of other contributing causes, but the overall tenor of her evidence was that the assault by the respondent was the principle cause of the problems the applicant has subsequently had. Ultimately what matters for the purposes of compensation is the severity of the injury, not the seriousness of the offending, and I do not doubt that it is possible for a particular victim to have a very severe reaction to what seems to have been a relatively minor example of offending. 4 Dr Oelrichs was not cross-examined as to the existence of any particular predisposition on the part of the applicant, but in view of Dr Oelrichs’ evidence about contributing causes it is going to be necessary to consider the question of apportionment on the basis of causation, a matter to which I shall return. Causation [12] Counsel for the respondent submitted that it had not been shown that the offending of which the respondent had been convicted had caused the applicant’s psychiatric problems. It is true that the original report did not distinguish between the effect of the different matters of which the applicant complained, and that difficulty was not entirely overcome by a subsequent report provided after a discussion with the applicant’s solicitor. It seems to me, however, that the overall effect of Dr Oelrichs’ evidence, bearing in mind what was said during oral evidence, is that the offending of which the respondent was convicted was at least a material cause of the psychiatric injury, which is sufficient to satisfy the test of causation, so that it can be said that that injury was one suffered by the applicant because of the offence: s 24(2).5 I accept that compensation can only be awarded in relation to injuries suffered because of the offence of which the respondent has been convicted. [13] One way to consider the matter, where the applicant alleges additional conduct apart from that constituting the offence of which the respondent has been convicted, is to consider whether on the balance of probabilities the relevant injury, that is mental or nervous shock, would have been caused if only the offence of which the respondent had been convicted had occurred. In some cases it would be possible to associate particular injuries, or particular aspects of injuries, to particular offences.6 In other cases where it is not possible to tease out particular consequences of particular aspects of the respondent’s behaviour, it may nevertheless be appropriate to conclude that the offence of which the respondent was convicted was a material cause of the condition suffered. On the whole of the evidence, I think that that is the situation here. Assessment of overall injury [14] The next issue is as to the assessment of compensation. The applicant has been diagnosed with post traumatic stress disorder, to which a depressive condition is said to be secondary. The submissions of the applicant also referred to adjustment disorder, on the basis of a diagnosis made by the Mental Health Services in April 2003, reported by Dr Oelrichs on p 5 of her report. I suspect that this is really the 4 Dr Oelrichs said that the severity of the reaction was more related to the victim’s perception of the threat to her at the time: p 8. 5 In my view, the Court of Appeal decision in SAY v AZ; ex parte Attorney-General [2007] 2 Qd R 363 did not alter this as the test for causation for the purposes of that subsection, though it did conclude that for the purposes of s 25(7) it was relevant to consider whether there were contributing causes of a particular injury. 6 An example of that is Stannard v Lane [2000] QSC 86. -- 4 of 10 -- 5 same condition as the one identified by Dr Oelrichs as post traumatic stress disorder rather than an additional condition which is cumulative upon it. It probably does not matter very much, because the relevant mental or nervous shock is the combined effect of all the psychiatric consequences to the applicant of the offending. [15] The next step is to assess the seriousness of that condition as a whole as suffered by the applicant. Although Dr Oelrichs spoke of these having a moderate effect on her functioning, it is all of the aspects of the psychiatric condition which must be taken into account when determining which of the three items applicable for mental or nervous shock is appropriate here, bearing in mind the process of scaling required by s 22(4). Consideration of the level of functioning does not directly take into account the impact from a psychiatric condition on the applicant’s feelings, which on the evidence in this matter is an important aspect and consequence of the psychiatric injury: p 12. In the present case, the applicant’s psychiatric condition has been notable for persistent self harm, serious substance abuse, multiple instances of hospitalisation, and a fairly lengthy history of psychiatric treatment, and long-term psychiatric medication. That is a formidable combination, and with the evidence as to the effect on the applicant in terms of her employment and her social functioning, as well as what seems to be a prevailing sense of misery whenever she is sober, leads me to a conclusion that the appropriate classification of the psychiatric injury in this case is in Item 33, severe mental or nervous shock. Indeed, even within that item it seems to me that it is a fairly serious example of such an injury. Scarring from self harm [16] One related matter here is the appropriate treatment of the scarring from the self harm. It was submitted for the applicant that this should be assessed separately under Item 27, particularly in view of the severity of the scar on the leg. It was submitted that this had also been caused by the offence, on the basis that the offence had caused the psychiatric injury and that the self harm was a consequence of the psychiatric injury, particularly the depression, with the scarring being a consequence of the self harm. The difficulty with that reasoning for the present purposes is that there is authority that the items in the Schedule, and in particular the mental or nervous shock items, include the disability, consequences or effect which flow from the injury. [17] In Vlug v Carrasco [2006] QCA 561 the Court of Appeal rejected an argument that a distinction existed, where it was submitted that various matters which were consequences of a psychiatric injury, which fell within the mental or nervous shock items, were something separate from it so that they could be compensated under the deemed injury provided for in the regulation, namely the totality of the adverse effects of the sexual offence. That argument was rejected, with Holmes JA who delivered the principle judgment rejecting as unsustainable a dichotomy between injury and consequence: [11]. It is true that the court there was considering the boundaries between the Schedule injury of mental or nervous shock and the deemed injury under the regulation, in circumstances where there was a Schedule injury of mental or nervous shock, but it seems to me that in principle the proposition that mental or nervous shock includes the consequences of the psychiatric condition itself must be applicable as well in other situations, such as here where the issue is whether a separate award can be made in respect of other physical injuries which are consequences of the psychiatric condition. In my view the effect of the decision -- 5 of 10 -- 6 in Vlug is that consequences of the psychiatric condition are matters properly taken into account when assessing the severity of the psychiatric condition, and compensated for by the award under one of the items for mental or nervous shock in the Schedule. [18] I was referred by counsel to the decision of another judge in L v L [2008] QDC 71; in that matter a psychiatric injury following offending led to an aggravation of a previously existing practice of self harming which produced a large number of scars on various parts of the applicant’s body. In that matter the scarring associated with the self harm was claimed as an adverse impact for the purposes of the injury under the regulation. It appears his Honour was not referred to the decision of the Court of Appeal in Vlug, which is contrary to such a submission, though his Honour appears to have rejected the argument on the basis that the bodily scarring was otherwise an injury under s 20, in Items 27 and 28, so that it could not form part of the adverse impacts for the purposes of the deemed injury. Nevertheless, his Honour made no allowance under Items 27 or 28, apparently because no such argument was advanced. It does appear, however, that his Honour when assessing the allowance for adverse impacts took into account that the offence produced such severe adverse impacts on her feelings and on her perception of self worth and self esteem as to increase materially her propensity to self harm. With all due respect, it seems to me that that approach is equally contrary to the decision of the Court of Appeal in Vlug. Overall, I do not find this decision persuasive. [19] I note that the question of whether a specific allowance should be made for scarring, in circumstances where scarring is a consequence, and sometimes a necessary consequence, of another injury appearing in the Schedule, has been the subject also of some consideration in the Court of Appeal.7 Broadly speaking, the effect of the Court of Appeal’s analysis in such matters is that it is important when dealing with the question of scarring to bear in mind the important principles that full compensation should be awarded in accordance with the Act in respect of all injuries and all aspects of the injuries suffered by the applicant, but that there ought not to be double compensation, and that so long as those principles are adhered to, in a particular case an award may or may not make specific allowance for scarring.8 [20] In my view, the operative principle here is that which comes from the decision in Vlug dealing specifically with the matters covered by an award for mental or nervous shock. As long as the existence of the scarring is taken into account in assessing the severity of the mental or nervous shock, and hence the award under the appropriate item in the schedule for that injury, it seems to me that that is consistent with the approach laid down in the other more general scarring cases. That is the approach, therefore, I intend to adopt, and accordingly I will not make a separate allowance for the scars associated with self harm. [21] Bearing that scarring in mind, however, I consider that overall an assessment close to the upper limit of Item 33 is appropriate. The ranges in the Schedules are to be applied in the manner laid down in ss 22(4) and 25(4)(b) of the Act. It is possible to imagine, and indeed I have on at least one occasion had before me, a worse case than the present, but there will not be many and they will not be much worse than 7 Zaicov v Jones [2002] 2 Qd R 303; Riddle v Coffee [2002] QCA 337; Wren v Gaulai [2008] QCA 148. 8 Zaicov at p 307; Riddle at [23]; Wren at [23]. -- 6 of 10 -- 7 the present. Accordingly, as a starting point I would make an assessment of the applicant’s overall psychiatric injury under Item 33 of 33%. Contributing causes [22] There was no evidence that any behaviour of the applicant contributed to the offence, or to the process of causation of the injury by the offence. The other matter for consideration is whether the assessment should be reduced because of contributing causes of the mental or nervous shock. This follows from the decision of the Court of Appeal in SAY v AZ; ex parte Attorney-General [2007] 2 Qd R 363. Holmes JA with whom the other members of the court agreed said: “[22] The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. … In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded. [23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad brush approach … will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.” [23] Apart from the allegations of other offending on the same day of which the respondent was not convicted, there were other factors which were recognised by Dr Oelrichs as being contributing causes to the applicant’s ultimate psychiatric injury. Dr Oelrichs referred to the documentation from the Mental Health Services as identifying other stressors in close proximity to the sexual assault which were other factors contributing to the psychiatric state constituting the relevant injury. A document prepared in 2003 by the Mental Health Services refers to predisposing -- 7 of 10 -- 8 factors as parental separation, a number of school and house moves since that time, exposure to her mother’s many partners over a period of some years and her uncertainty regarding the extent of her father’s love and concern for her. [24] That documentation included a reference to a presentation in October 2001 which appears to have been initiated by the mother complaining of stress from the applicant’s demands (unspecified in the report) and referring to the applicant fighting with her older sister with whom she did not get on, which was producing frustration in the applicant. Her parents had separated when she was in Year 5, that is a few years before the offending, and she had generally been living with her mother since then, although for two months she tried living with her father. She said she did well at school until the offending. There was no reference to any other presentation prior to January 2002, when the relevant offending occurred. [25] After the relevant offending, the applicant was the victim of some further offending in July or August 2002 when she alleges she was raped by her then boyfriend. This occurred in a context where both of them were severely intoxicated, and the applicant in her affidavit says that she has been able to deal with this issue and move on from it in a way that has not been possible for her in relation to the respondent’s offending.9 However, Dr Oelrichs thought that another main precipitating factor for the current presentation was this alleged rape by the boyfriend. 10 . It is not clear that there was any instance of self harm prior to the occasion when the applicant was raped. There was also the complicating feature that the assault and the mother’s reaction significantly affected the applicant’s relationship with her mother. [26] Bearing in mind the matters discussed by the Court of Appeal in SAY v AZ, I do not consider that I this case a deduction should be made for the other behaviour of the respondent. Nevertheless, in my view some allowance should be made for the effect of the other predisposing factors or causes, particularly the rape by the boyfriend. Assuming that there was psychiatric injury in place prior to this as a result of the respondent’s offending, it is the sort of thing that one would expect would have a significant effect on the severity of that psychiatric condition. Nevertheless, the applicant’s subjective assessment and Dr Oelrichs’ professional opinion both support a conclusion that the offending is the most important single factor, and indeed the dominant factor in the overall psychiatric injury. [27] Bearing that evidence in mind, in my opinion the appropriate approach in this case is one of discounting the percentage on the compensation scale to allow for the role of other factors. Without more precise evidence, a broad brush approach must be adopted, guided by the evidence to which I have referred. On that basis, I will reduce the percentage allowed under Item 33 to 22%, in effect a discount of one- third, to cover all of the factors contributing to the applicant’s current single state of psychiatric injury other than the offence of which the respondent was convicted. Adverse impacts [28] The next issue is as to adverse impacts. It was submitted on behalf of the applicant that there were a number of adverse impacts in the form of a sense of violation, 9 Affidavit of the applicant paras 15-18. 10 Report of Dr Oelrichs p 5. It appeared to be a main precipitant for her treatment: transcript p 7. -- 8 of 10 -- 9 reduced self worth or perception, increased fear and increased feelings of insecurity, the adverse effect of the reaction of others, the adverse impact on lawful sexual relations, and an adverse impact on feelings. In addition, it was submitted that the substance abuse, particularly alcohol abuse, difficulties in controlling her anger, difficulties with memory and concentration, being uncomfortable at having her back touched or being massaged, having difficulty in maintaining employment because she did not respond well to people in authority, and being unwilling to visit her father because her father lives not far from where the respondent lives, so she is afraid of seeing him if she visits her father, were other adverse impacts revealed by the evidence. However, almost all of these were, in the light of the evidence of Dr Oelrichs, matters which were related to, aspects of, or consequences of the applicant’s psychiatric injury.11 [29] Two of these were raised with Dr Oelrichs in the course of cross-examination, and a number of others were raised specifically by me. With regard to the matters identified as adverse impacts, Dr Oelrichs referred (indeed, during evidence-in- chief) to substance abuse being a common consequence of post traumatic stress disorder: p 3. The other matters referred to in her report as being adverse impacts present were also said to be related to, or a consequence of, the psychiatric injury: pp 10–12. The other factors referred to as other adverse impacts, relied on in paragraph 85 of the applicant’s submissions, strike me as being also matters associated with the applicant’s psychiatric condition, and there was no evidence that that was not the case.12 It seems to me, therefore, that the only matter where there is an adverse impact which is not an aspect or consequence of the psychiatric injury, and therefore excluded from the deemed injury on the principle in Vlug, is the adverse effect of the reaction of others. [30] Two matters were relied on here in paragraph 82, one being that after the assault the applicant felt that everyone knew what had happened and that this was when everything started going down hill. However, there was no reference there to any reaction of others. This is simply a statement about how the applicant felt after the assault, and her feelings there are likely to be associated with her psychiatric injury caused by the assault. In any event, there was no evidence to the contrary. On the other hand, the reaction of the mother was not due to any psychiatric injury, but was due to the mother’s believing the respondent rather than the applicant, and apparently being hostile to the applicant. It does appear that there were problems in the relationship between the applicant and her mother prior to this incident anyway, but there are a number of indications in the material that the mother’s reaction made the situation worse for the applicant. Indeed, Dr Oelrichs mentions the mother’s reaction as one of the factors contributing to the applicant’s psychiatric state.13 [31] Bearing in mind that the mother’s reaction and the applicant’s reaction to it was itself a consequence of the offending, I have not treated this as a factor separate from the offending to be taken into account when making the discount for the other causes of the psychiatric state referred to above. Accordingly, insofar as the applicant’s psychiatric injury has been caused in part by the mother’s reaction, that has already been taken into account, so it should not be taken into account again in 11 I summarised the authorities on this point in NJHE v WAE [2007] QDC 170, and will not repeat what I said there. 12 PAJ v AAK [2010] QCA 78. 13 Report of Dr Oelrichs p 15. -- 9 of 10 -- 10 making an allowance in respect of the deemed injury. But apart from its impact on her psychiatric state, the adverse effect on the relationship with the mother was in itself I think a matter of some significance, and some allowance should be made in respect of the deemed injury for this factor. [32] I was referred to some other decisions where other judges have made allowances under the deemed injury in the regulation which are sometimes quite generous. The possible adverse impacts of sexual offences are many and varied and can in some cases be quite severe, but, with all due respect to my colleagues, my impression is that in many cases assessments have been made of deemed injuries which have not had sufficient, or possibly any, regard to the decisions of the Court of Appeal in JI v AV [2002] 2 Qd R 367 and Vlug v Carrasco (supra). Accordingly I find that decisions in other matters are generally of little assistance in relation to assessment of the deemed injury under the regulation. [33] Doing the best I can, and bearing in mind that there were obviously some difficulties with the relationship with the mother prior to this incident and that apparently the relationship improved to the point where for three years the applicant was working for her mother,14 and that I am not here dealing with the impact on the applicant’s psychiatric injury on the loss of the relationship with the mother, in my opinion an appropriate allowance is 8%. Because of the way this figure has been arrived at, it is not appropriate to make any further reduction for any other contributing cause; the only other relevant one would be the other offending by the respondent of which he was not convicted, and I would not make any reduction on that basis. [34] Accordingly, adding these percentages produces a total amount of 30% which when applied to the scheme maximum is a figure of $22,500. I therefore order the respondent to pay the applicant $22,500 compensation in respect of the injuries suffered by the applicant as a result of the offence of which the respondent was convicted on 10 December 2003. There is no power to make any order for costs in this matter. 14 Ibid p 8, p 11. -- 10 of 10 --