D v Mills [2007] QDC 270

DISTRICT COURT OF QUEENSLAND CITATION: D v Mills [2007] QDC 270 PARTIES: D (Applicant) v ANTHONY JOHN MILLS (Respondent) FILE NO/S: BD 842 of 2007 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 9 November 2007 DELIVERED AT: Brisbane JUDGE: Griffin SC DCJ [1] This is an application pursuant to provisions of the Criminal Offence Victims Act 1995 for an order for compensation to be paid by the respondent in respect of alleged injuries caused to the applicant by the respondent as a result of the commission of the offence of rape. The legislation [2] In relation to a sexual offence, compensation is to be assessed pursuant to the provisions of the legislation and also by reference to categories of compensable injury in Sch 1 of the Act and by reference also to reg 1A of the Act. Injury is defined1 as follows: “Injury is bodily injury, mental or nervous shock, pregnancy or any injury specified in the Compensation Table or prescribed under a regulation.” 1 See s 20 of the Act -- 1 of 7 -- 2 [3] Something more must be shown than mere fear, fright, unpleasant memories or anger towards an offender, or even a combination of such reactions2. The facts [4] The facts and indeed the resulting medical condition (to use a neutral phrase) of the applicant are largely uncontested. The issues in this application lie elsewhere. [5] On or about 20 April 2005, the applicant attended a social occasion at which she met the respondent whom she knew through work circumstances. She invited him to her home. No sexual intention was suggested in that invitation. The applicant had been drinking and the uncontested facts are that after the applicant had fallen into an unconscious state the respondent digitally raped her. When the applicant awoke the next morning she realised that something of the kind had occurred, having regard to her physical condition. The respondent subsequently admitted removing the applicant’s pants and penetrating her vagina with his fingers. Furthermore, he admitted fondling her breasts and fondling her vagina. The facts of the plea before me were that the respondent admitted lying naked beside her when the criminal activity took place. [6] On 10 February 2006 the respondent pleaded guilty to one count of rape and was sentenced to a term of imprisonment. The Question of Compensable Injuries [7] The applicant consulted Dr Andrew Byth, psychiatrist who was provided not only with a victim impact statement3, but also conducted a personal interview with the applicant and was provided with other materials, including sentencing proceedings. 2 Per Thomas JA Ferguson v Kazakoff [2000] QSC 156 at para 21 -- 2 of 7 -- 3 No issue in these proceedings concerns Dr Byth’s expertise nor, indeed, the opinion which he formed. [8] The issue in this application is the extent to which compensation may be awarded and whether Dr Byth’s opinion as stated goes no further than disclosing “mental or nervous shock” or whether the symptoms complained of by the applicant and the conclusions reached by Dr Byth extend beyond that particular injury and incorporate a further notion of injury as disclosed by the provisions of s 1A of the regulations to the Act. It is relevant to set out that regulation in detail. On 18 December 1997 the Governor in Council amended the Criminal Offence Victims Regulations 1995 by inserting SS1A and 2A (the regulation). [9] Section 1A relevantly provides: “1A.(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’ or a sexual offence included 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.” [10] For the applicant it is argued that not only does the material disclose that she has suffered an injury compensable as mental or nervous shock but that there is also 3 See affidavit of D sworn 31 May 2007, Exhibit ALD-1 -- 3 of 7 -- 4 evidence of a constellation of symptoms and effects beyond the bounds of properly considered mental or nervous shock which themselves are independently compensable pursuant to reg 1A referred to above. [11] The issues involved in this application appear, in large measure, to reflect the collision between, on the one hand, psychiatric jargon and, on the other, the relevant legal boundaries of both “mental or nervous shock” and what the legislation records as adverse impacts of a sexual offence. Evidence of Psychiatric Issues and Factors [12] In a report dated 16 December 20064, Dr Byth opined: “10.1 Her diagnosis under DSM-iv is of Adjustment Disorder with anxiety and depressed mood, with accompanying features of Posttraumatic Stress Disorder (PTSD). 10.2 Following her being raped in 2005, she developed a psychological reaction of anxious and depressed mood, accompanied by social withdrawal, crying spells and suicidal thoughts. 10.3 She also developed frequent nightmares about being raped which were suggestive of PTSD, without having any daytime flashbacks of the event. 10.4 Her depressive symptoms have been of moderate severity. They have caused marked subjective distress, and have been more severe than are usually seen under such circumstances, as is required for the diagnoses of Adjustment Disorder under DSM-IV.” Furthermore Dr Byth considered that the applicant, with treatment was likely to be left with chronic mild to moderate anxiety and depression. He considered that the applicant was currently (at the time of examination) very depressed and anxious and he assessed the applicant’s impairment by using AMA Guidelines to Impairment 1994 as 25 to 50 per cent and, pursuant to the 5th Edition, as mild to moderate impairment. 4 At p 6 -- 4 of 7 -- 5 [13] Dr Byth’s report records that the applicant at the time of examination still complained of crying, suicidal thoughts, poor concentration, nightmares and a lack of motivation. She had undergone counselling and was taking antidepressant medication and sedatives. [14] The effects upon the applicant are supplemented by reference to her Victim Impact Statement. The evidence discloses, I accept, that her ability to work has been mildly to moderately impaired and further, that she experiences feelings of reduced self worth, guilt and hopelessness. [15] For the applicant, it is contended that beyond what may fairly be described as mental or nervous shock responsive to the act of digital rape there are other effects or reactions of an adverse kind suffered and independently compensable under Reg 1A. It is clear enough, in my view, that the legislature intended, when enacting Reg 1A that there may conceivably be in cases of sexual offences, effects beyond the bounds of what may properly be regarded as the (full impact of) mental or nervous shock. The evidence [16] The evidence in my view discloses the following features of the applicant’s condition: “(a) avoiding being around people and drinking alcohol which reminded her of the incident and she decided to move to live in the country (p 3, par 3.7 Dr Byth’s report). 1A(2)(g), (k). (b) Reduced libido (p 3, par 3.8 Dr Byth’s report) – 1A(2)(i); (c) No longer trusts new acquaintances and does not like being around people (p 4, par 4.4 of Dr Byth’s report) – 1A(2)(g) and (k). (d) Less social and has lost friends because she declines invitations to go out (p 5, par 8.8 Dr Byth’s report – 1A(2)(k). -- 5 of 7 -- 6 (e) The Applicant has had trouble eating (par 121 of the Applicant’s statement 4/5/2005) – 1A(2)(k). As at 1/9/2005 the Applicant has lost 10kg or 11kg (p 3 of Victim’s impact statement). (f) The Applicant was unable to sleep in her bedroom for a long time (p 2 of Victim’s impact statement) – 1A(2)(k). (g) The Applicant feels insecure, mainly sexually, which was a key factor in the demise of her previous relationship. (p 3 of Victim impact statement) – 1A(2)(k) and 1A(2)(h). (h) The Applicant is not comfortable going most places on her own especially if it involves meeting new people – 1A(2)(k).” [17] I am satisfied that there is evidence both to support this catalogue of effects or reactions and furthermore, that those are independent of what is properly considered to be mental or nervous shock. So much is clear, I think, merely by a comparison between the effects which I accept the applicant has suffered and continues to suffer from and the catalogue of reactions under Reg 1A. This approach is approved by the majority in JI v. AV [2001] QCA 510. [18] There is no room, of course, for “double accounting” when assessing these effects in the sense that they may not be accounted for both in a proper consideration of what amounts to mental or nervous shock and as a separate effect under reg 1A. [19] The view that I have formed is that these adverse effects or reactions are separate from and independent of what I regard as the expression by Dr Byth of the applicant’s overall condition expressed as it is in the language of an expert in psychiatry. [20] It follows, then, that I reject the respondent’s submission that every effect, symptom and reaction described by the applicant and referred to by Dr Byth is merely a facet of the one compensable injury, that is to say, mental or nervous shock. -- 6 of 7 -- 7 [21] It is, I think, appropriate to take a global view of the constellation of effects that I have referred to above as amounting to “adverse reaction”. [22] I am satisfied, therefore, that the applicant has suffered mental or nervous shock, which I regard as falling into the mild or moderate category. That I set at 18 per cent, $13,500. The combination of adverse reaction effects, taking again a global view, I set at 12 per cent - $9,000. [23] I do not consider that the behaviour of the applicant in any way contributed to her injuries. [24] I order that the respondent pay to the applicant the sum of $22,500 by way of compensation. -- 7 of 7 --