RW v Thompson
[2004] QDC 209
•1 July 2004
DISTRICT COURT OF QUEENSLAND
CITATION:
RW v Thompson [2004] QDC 209
PARTIES:
RW
Applicant
V
IAN RAYMOND THOMPSON
Respondent
FILE NO/S:
694/2004
DIVISION:
Civil
PROCEEDING:
Originating application
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
1 July 2004
DELIVERED AT:
Brisbane
HEARING DATE:
17 May 2004
JUDGE:
Shanahan DCJ
ORDER:
The respondent pay the applicant the sum of $22,500 by way of criminal compensation pursuant to s 24 of the Criminal Offence Victims Act1995 (Qld).
CATCHWORDS:
CRIMINAL COMPENSATION – CRIMINAL OFFENCE VICTIM ACT 1995 QLD – ASSESSMENT OF INJURY – MENTAL OR NERVOUS SHOCK – Where respondent, a dentist, had been convicted of one count a administering to the applicant a noxious drug with the intent to disable him and two counts of unlawful and indecent assault – Where the criminal conduct had occurred in the context of dental treatment – Where the applicant had been kept in the respondent’s house whilst he was in an unconscious state – Where the applicant awoke during the assaults – Where the applicant suffered post-traumatic stress disorder, major depressive disorder and sexual aversion disorder – Whether the applicant’s injury could be compensated under the statutory scheme – Whether the applicant had failed to mitigate
Statutes cited:
Criminal Offence Victims Act 1995 (Qld), s 24
COUNSEL: Mr C O’Meara for the applicant
Mr A J Kimmins for the respondentSOLICITORS:
Carne Reidy Herd for the applicant
Price & Roobottom for the respondent
This is an application for criminal compensation pursuant to the Criminal Offence Victims Act1995 (Qld).
On 24 January 2003 the respondent pleaded guilty before me to a number of offences. He was sentenced to various terms of imprisonment. The offences involving this applicant were one count of causing the applicant to take a noxious thing with intent to disable and two counts of unlawful and indecent assault.
The first offence of unlawful and indecent assault occurred between 31 December 1999 and 6 June 2000. The other two counts occurred between 6 June and 11 June 2000.
The applicant had met the respondent, a dentist, at a clothing store at which the applicant worked. The respondent befriended the applicant. The respondent performed dental work on the applicant over a period of time. Some of this work was performed on weekends and after hours. On occasions during the dental work the applicant was administered a general anaesthetic. Between April 1999 and December 1999 the applicant received dental treatment and would recover from the anaesthetic at the respondent’s home. In September 1999 the applicant began living as a flatmate in the respondent’s home.
Dental treatment continued to be carried out at the respondent’s surgery. The applicant would then be taken to the respondent’s home. Further drugs were administered to the applicant by the respondent at that home. The applicant was kept in a sedated state for long periods of time. The effects of the drugs administered also included that the applicant could remember little of what had occurred to him during those periods.
On one occasion the applicant had awoken from anaesthesia to find that he was naked with the respondent, who was also naked, holding the applicant’s knees raised to his chest. This behaviour constituted the first charge of unlawful and indecent assault. The applicant was concerned about the incident but was persuaded by the respondent that his recollection was inaccurate.
On the morning of 7 June 2000 the applicant had another dental procedure and was again administered anaesthesia. After the procedure, the applicant was returned to the respondent’s home. The applicant has little memory of the next three or four days. After that time, because of concerns of his family, his was admitted to hospital. He was found to have numerous needle marks on his arms. The respondent also admitted to an act of sexual assault occurring during this period consisting of an act of sponging the accused’s pubic area.
In sentencing the respondent in relation to the offences against this applicant I said,
“… it involved some unique and unusual relationship between you as a dentist and he as a patient. You carried out various dental work on him, over a period of time, in a way in which that has seen you struck off from your profession. It involved the supply by you to him, of various drugs in the course of that treatment and ultimately it involved you supplying drugs over a period of days which saw him kept in an unconscious or semi-conscious state. It was during that last period that an act of indecent assault was committed upon him. Count two involves an earlier indecent assault also apparently during a time when he was affected by drugs, although you are not charged in relation to the supply of those drugs. The indecent assaults themselves are somewhat ambiguous. That may well be as a result of the drugs that were supplied to [R], however, it is clear that you took advantage of the state that this man was in, and indecently assaulted him on two occasions.”
A victim impact statement from this applicant was tendered on the sentence. In it the applicant spoke of losing four or five days as a result of the respondent’s actions. He developed depression leading to suicidal thoughts. His family support assisted him in overcoming this. He could not afford to seek counselling. He recounted that he suffered from stress on many occasions and still suffered headaches. He had difficulty with his memory. He had to undergo testing for HIV. He also blamed himself for introducing his brother and his best friend to the respondent. They were also complainants in relation to other offences committed by the respondent.
In an affidavit filed with respect to this application, the applicant attests to ongoing impacts. He suffered depression and suicidal thoughts. He felt his memory had been affected. He was unstable in his work and had poor performance reviews. He left one position as a result. He continuously thought about the incident. He became inhibited in his sexual relations with his girlfriend and that relationship ended. He suffered sleep disturbances. He had also become more isolated in his social life.
The applicant was assessed by Mr P Jordan, psychologist, who has also provided two reports. Mr Jordan was of the view that the applicant had suffered a severe trauma that was going to affect him for the rest of his life. He diagnosed the applicant as suffering post-traumatic stress disorder, major depressive disorder of mild to moderate severity and sexual aversion disorder. The applicant’s psychological difficulties had impacted on his ability to form lasting relationships. His social network had been destroyed. He was in desperate need of counselling. Mr Jordan noted that the psychological pain that the applicant had suffered could not be underestimated. He might require counselling for the rest of his life at intermittent periods.
In the second report, which followed a consultation in May 2004, Mr Jordan noted that the applicant exhibited a smouldering anger and resentment in relation to his life and what had occurred to him. Mr Jordan was of the view that the level of severity of some of his symptoms had worsened. His most distressing symptoms were recurrent memories and flashbacks. He continued to suffer all of the impacts noted in the earlier report. He continued to suffer post-traumatic stress disorder (chronic). Mr Jordan noted that the applicant had had some counselling which had not helped. Mr Jordan was of the view that the applicant needed ongoing psychotherapy and perhaps anti-depressant medication.
The applicant’s initial submission was founded on two aspects of the statutory scheme: mental or nervous shock and the adverse impacts of a sexual offence (Regulation 1A). After receiving evidence, the applicant accepted that the assessment should be made with respect to mental or nervous shock alone as Mr Jordan was of the view that all of the impacts fell under that category. It was submitted on behalf of the applicant that the compensation should be assessed in the upper limits of the severe range.
The respondent submitted that it was clear that the applicant had suffered mental or nervous shock. It was submitted that the applicant had failed to mitigate his losses by refusing to undertake counselling or drug therapy. It was submitted the appropriate assessment should be 15 percent of the scheme maximum.
I am satisfied that the applicant suffered injury as a result of the three personal offences committed upon him by the respondent. That injury is mental or nervous shock. In my view no behaviour of the applicant contributed either directly or indirectly to the injuries that he suffered.
I am not persuaded that any failure of the respondent to seek counselling or undertake drug therapy should reduce the compensation. Mr Jordan’s view was that the conditions are pervasive and may well require therapy on an intermittent basis for the rest of the applicant’s life. The applicant has an aversion to drugs as a result of the respondent’s offences. He has attempted some therapy although this ultimately proved unsuccessful. The applicant also suffered financial constraints, as disclosed in his victim impact statement, which limited his recourse to counselling.
The impact of these offences on the applicant has been pervasive and has perhaps irreversibly altered his way of life. He suffers from three diagnosable conditions including depression and a sexual aversion disorder. The offences have obviously had a very significant impact on his quality of life. I am of the view that the mental or nervous shock should be classified in the severe range and at the upper levels of that range. I would assess it at 30 percent of the scheme maximum.
The respondent is to pay the applicant the sum of $22,500 by way of criminal compensation. There is no power under the Act to award costs.
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