Jordan v Mitchell

[2007] QDC 171

DISTRICT COURT OF QUEENSLAND

CITATION:

Jordan v Mitchell [2007] QDC 171

PARTIES:

JANET JORDAN

Applicant

and

JAMES MITCHELL

Respondent

FILE NO:

Stanthorpe 1 of 2005

PROCEEDING:

Application for Criminal Compensation

DELIVERED ON:

16 August 2007

DELIVERED AT:

Brisbane

HEARING DATE:

23 April 2007

JUDGE:

Judge Brabazon QC

ORDER:

Compensation of $43,400 to be paid

CATCHWORDS:

CRIMINAL LAW – Compensation – Sexual Offences - Assessment and Amount – where application was required to be served on the Public Trustee – where victim suffered “bruising/laceration”, “mental or nervous shock” and other “adverse impacts”.

Criminal Offence Victims Act 1995
Public Trustee Act 1978, Part 7, ss 90 – 97
Uniform Civil Procedure Rules 1999, r 110

SOLICITORS:

Neil Sullivan & Bathersby Solicitors for the applicant

1. This is an application for criminal compensation.  On 18 October 2002 Mr Mitchell pleaded guilty to two offences of rape, committed on 7 December 2001.  He was sentenced to eight years imprisonment.

1. This application for criminal compensation was filed on 17 October 2005.  It was served on Mr Mitchell on 4 March 2007.  He did not appear at the hearing.

1. The Public Trustee had not been served with this application. That was an oversight. Part 7 of the Public Trustee Act 1978 provides that the Public Trustee is the manager of the estate of every prisoner who is sentenced to a term of imprisonment of three years or upwards. The Public Trustee has full powers to deal with all property of the prisoner. The prisoner is incapable, except with the consent in writing of the Trustee, of bringing or defending any action of a property nature or for the recovery of debt or damage. The Public Trustee’s authority only ceases when the prisoner has undergone the full term of imprisonment to which he was sentenced. See ss 90-97.

1. Rule 110 of the Uniform Civil Procedure Rules required service of this application on the Public Trustee.

1. Because of this irregularity, it was not possible to deal immediately with the application.  However, the better course was to set out, in draft form, the court’s response to the application.  That was done. The application was then served on the Public Trustee. In a letter dated 31 May 2007, the Public Trustee advised the respondent was aware of the proceedings, but had no assets and did not wish to attend the proceedings.  As such, it is now appropriate to set out the final order.

1. It is helpful to set out the remarks of the trial Judge, in sentencing Mr Mitchell to the eight years imprisonment:

   “The complainant was your ex-wife.  She was staying over at your place so that your child, who at that stage was seven, could have some contact with you.  During the course of the night you demanded sex from her.  When she indicated that she was not interested and the relationship was over you effectively beat her into submission over, it seems, quite a long time.

   As she tried to escape you dragged her back, continued to beat her.  You then forced her to have sexual intercourse with you.  You then inserted a bottle of Galliano inside her and then performed anal intercourse on her.  It must have been very terrifying, very painful and a matter that she is not easily going to get over.

   A victim impact statement has been tendered which indicates that she suffered significant emotional trauma … It has led to a significant degree to a break in her relationship with her 16-year-old daughter.  She is still suffering significantly from the effects of this night. … At the end of the day, these are very serious rapes, accompanied by significant violence.

   It seems to me that the appropriate sentence is one of eight years imprisonment. …”

2. Ms Jordan says this in her affidavit:

   “As a result of the physical injuries I received I was treated at the Ipswich Hospital.  At that time, I was in a great deal of pain and discomfort. …

   As a result of the sexual and physical assault, I suffered a great deal of pain over my entire body.  I suffered severe pain for some three to four months.  I was treated with Panadeine Forte for the pain.  I was required to take these daily for three to four months until the pain subsided.

   The psychiatric and psychological impact of the incident has been almost crippling.  The assault has had a catastrophic effect on the quality of my life.  I can’t sleep at night unless every window in my house is barred and locked.  I suffer from anxiety and panic attacks.  I am now terrified of the dark.  I didn't suffer from any of these conditions prior to the assault.

   I have been unable to sustain a relationship with other men since the assault.  I have been unable to be sexually intimate with any person since the assault.

   I have been prescribed Zoloft and anti-depressant since the assault.  I have also been prescribed Antenex (Diazepam) as well to try and combat my panic and anxiety attacks.  I am required to take both medications daily.”

3. The photographs attached to her affidavit were taken shortly after the assaults.  They show bruises and abrasions to many parts of her body.  They are consistent with a severe beating.

1. She was seen by Dr Hoskins at the Ipswich Hospital.  His report of 8 January 2002 sets out the detail of the extensive bruising and abrasions which he saw.  He concluded:

   “In summary the overall pattern is supportive of her version of events.  The signs were consistent with a considerable systematic beating.  The absence of vaginal and anal findings does not exclude vaginal or anal penetration.”

2. Four days after the assaults she saw Dr Ma.  She complained of chest wall pain, but an x-ray did not show any fracture.  She was given symptomatic pain relief.  Dr Ma saw her on three other days during December 2001, when she complained of dizziness and headache and neck pain.  Those things were, he said, consistent with the injuries she sustained at the time of the assault.

1. She saw Dr J N M McIntyre, a psychiatrist, in October 2006.  Dr McIntyre diagnosed an adjustment disorder with mixed disturbance of emotions and conduct, chronic as a consequence of a stressor with enduring consequences.  He thought that she had moderately severe symptoms and moderate difficulty in social functioning.  He thought some further psychiatric outpatient treatment would enable her to manage anxiety and to desensitise herself from her avoidant behaviour.  He thought the likely effect of such treatment would be to ameliorate her symptoms, although a full recovery was not likely.  He said that the question of permanent impairment could be considered only after further treatment.

1. He noted that her enjoyment of life had been significantly impaired as a consequence of her injuries.  Her working capacity was limited by her avoidant behaviours and persistent anxiety symptoms.  In his view, he considered that she had suffered “mental or nervous shock” of a moderate degree as a result of the offences.

1. The psychiatrist was also, apparently, familiar with the terminology of the Criminal Offence Victims Act.  In his opinion, she suffered the following adverse impacts because of the sexual offences.

(a)        a sense of violation which persists;

(b)        a sense of reduced self-worth which persists;

(c)        elements of post-traumatic stress disorder in the form of hyper-vigilance, exaggerated startle response and intrusive phenomenon such as nightmares;

(d)        increased fear and increased feelings of insecurity;

(e)        withdrawal from sexual activity.

1. The Criminal Offence Victims Act provides for compensation for “mental or nervous shock”, and for additional “adverse impacts”.  That is, there cannot be double compensation for effects which fall into each category.  In this case, it should be accepted that the adverse impacts do include the sense of violation, reduced self-worth, increased feelings of fear and insecurity, and withdrawal from sexual activity.  There should be added to that list her migraines, which have been made worse.

1. It should be understood that the Act allows compensation, depending on a table of injuries.  Overall, the maximum amount that might be awarded to any victim is $70,000.  Particular injuries are assigned a percentage of that maximum sum.

1. Compensation for “bruising/laceration” ranges from 1% to 5%, in the severe category.  In my opinion, 5% is the appropriate award here.  Mental or nervous shock ranges from the minor, at 2% per cent, to the severe, at 34%.  Consistently with the psychiatrist’s opinion, that should be assessed at the top of the moderate range, which is 20%.  There should also be compensation for her painful neck, where some pain persists.  An appropriate award is 7%, which is at the top end of the minor category.

1. My understanding of the psychiatrist’s report is that a good deal of emphasis is to be placed on the “adverse impacts”.  The overall effect on this woman has been more severe than one normally sees in those nervous shock cases which are described as being moderate.  It is appropriate to award 30% of the scheme maximum for the adverse impacts.

1. The applicant did not in any way cause or contribute to her injuries.

1. The result is a total award of 62% of the maximum, which is $43,400.

1. It is ordered that James Mitchell forthwith pay criminal compensation of $43,400 to the applicant, Janet Jordan.