Spek and Repatriation Commission
[2005] AATA 756
•9 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 756
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2002/784
VETERANS' APPEALS DIVISION )
Re TONY SPEK Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, Member Date9 August 2005
PlaceBrisbane
Decision The Tribunal finds that:
(a) The applicant suffers from the conditions of Borderline Personality Disorder and Generalised Anxiety Disorder (not defence caused); and the applicant suffers from Dysthymia (defence caused); and
(b) Notwithstanding the findings in (a) above, the decision under review is affirmed as section 70(9) of the Veterans’ Entitlements Act 1986 operates to prohibit Mr Spek from compensation for his condition of Dysthymia.
..............................................
Member
Administrative
Appeals
Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
)No Q2002/784
VETERANS’ APPEALS DIVISION ) Re TONY SPEK Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM
Tribunal Dr KS Levy, Member Date4 January 2006
PlaceBrisbane
I DIRECT that:
(a)paragraph 23 of the Tribunal’s reasons for decision as presently numbered be amended so that the second last sentence reads:
“In other words, the fact that it was on the official record, it could not be removed.”;
(b)paragraph 80 of the Tribunal’s reasons for decision as presently numbered be amended so that the word “Re” in Re Measures and Repatriation Commission (2003) AATA 909 be removed and that the words “the comments” appearing in the next sentence be removed; and
(c)that the reasons for decision should commence at paragraph 1 and not at paragraph 2 as presently shown.
KS Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS – s70(9)Veteran’s Entitlement Act – Borderline Personality Disorder – Dysthymia – defence caused injury – depressive disorder – personality disorder – anxiety disorder – decision affirmed.
Veterans’ Entitlements Act 1986
Defence Force Discipline Act 1982
Army Act 1880 (UK).Benjamin v Repatriation Commission (2003) 70 ALD 622
Repatriation Commission V Hancock (2003) FCA 711
Fogarty & Repatriation Commission (2003) FCAFC 136
Lees and Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission [2004] FCA 633
Hillier and Repatriation Commission [2004] AATA 897.
Stonehouse v Repatriation Commission [2004] AATA 707
Repatriation Commission v Law (1980) 31 ALR 140 at 149).Repatriation Commission v Stoddart [2003] FCA 334
Re Nelson and Repatriation Commission (1988) 15 ALD 49
Re Lester and Repatriation Commission (1991) 23 ALD 69
McPherson v Repatriation Commission (1989) 87 ALR 275
Repatriation Commission v Levi (1994) 61 FCR 189
Re Measures and Repatriation Commission (2003) AATA 909.REASONS FOR DECISION
9 August 2005 Dr KS Levy, Member 2. The applicant, Tony Spek, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for review of a decision of the Veteran’s Review Board dated 18 June 2002.
3. That decision made a finding of a diagnosis of anxiety disorder but affirmed the rest of the original decision which determined that spondylolisthesis at L5/S1 and depressive disorder were not defence caused within the meaning of section 70 of the Veterans’ Entitlements Act 1986 (the Act).
4. On 28 June 2004, the application withdrew the aspect of his claim for pension which related to spondylolisthesis. The application being considered by this Tribunal is therefore based on the applicant’s contentions that his claimed disability of Depressive Disorder satisfies the diagnostic criteria for that condition and is related to his defence service. That claim is made notwithstanding the applicant’s pleading guilty to a number of service offences, which he submits does not disqualify him by virtue of section 70(9) of the Act. The applicant has no other recognised disabilities under the Act.
5. The applicant was represented by Mr Robert Anderson of Counsel and was instructed by Mr T O’Connor. The respondent’s Advocate was Mr Darryl McAninly.
6. the following material was admitted into evidence as documentary exhibits:
§Exhibit 1 documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
§Exhibit 2 the applicant’s Statement of Facts and Contentions
§Exhibit 3 the respondent’s Statement of Facts and Contentions
§Exhibit 4 Statement of the applicant dated 6 February 2002
§Exhibit 5 Statement of the applicant dated 14 November 2002
§Exhibit 6 Statement of the applicant dated 9 September 2003
§Exhibit 7 Statement of the applicant dated 10 May 2005
§Exhibit 8 Statement of Mr John Burns of 18 December 2003
§Exhibit 9 Report of Dr John Gibson, Psychiatrist, dated 19 February 2002
§Exhibit 10 Report of Dr John Gibson, Psychiatrist, dated 2 November 2004
§Exhibit 11 Transcript of Proceedings from the Department of Defence dated 22 November 1993
§Exhibit 12 Report of Dr William Kingswell, Psychiatrist, dated 24 March 2004
§Exhibit 13 Report of Dr William Kingswell, Psychiatrist, dated 10 March 2005
§Exhibit 14 Extract of records from the Caboolture hospital dated 25 March 2004
§Exhibit 15 Report of Dr G Spragg, Psychiatrist, dated 18 July 1991
§Exhibit 16 Clinical notes of Dr Wendell J Rosevear, dated 24 September 2003
7.Oral evidence was admitted from the following:
(a)The applicant, Mr Tony Spek (oral evidence)
(b)Dr William Kingswell, Psychiatrist (telephone evidence)
(c)Mr John Byrnes (telephone evidence)
(d)Dr Gibson, Psychiatrist (telephone evidence)
8. All of the oral evidence and all of the documentary evidence has been carefully considered in arriving at the decision in this matter.
Issues for Determination
(i)What is the diagnosis suffered by Mr Spek – a Depressive Disorder , namely Dysthymia and/or a personality disorder?
(ii)Are the accepted diagnoses caused by his eligible defence service in the Australian Army i.e. does his condition fit the Statements of Principles (SoPs) (for any diagnosis accepted)?
(iii)Is there a serious default under section 70(9) of the Act which would disqualify him from entitlement to pension or compensation, or are there exculpatory grounds to negate the affect of that provision?
Findings of Fact
9.The following findings of fact are made:
(a)In relation to Borderline Personality Disorder , the applicant has suffered from this condition from late adolescence and was not a direct result of military service;
(b)In relation to Generalised Anxiety Disorder , the applicant has suffered from this condition from adolescence or early adulthood and it is a co-morbid condition with Borderline Personality Disorder;
(c)The applicant suffered form Dysthymic Disorder, which is a direct result of his service in the Army, and specifically, it emanates from the military investigation and disciplinary proceedings;
(d)Mr Spek was unfairly treated in his Unit during the course of the military investigation and disciplinary proceedings, by allocation of duties at a greater frequency than other soldiers;
(e)Mr Spek was subjected to rumour, assault by fellow soldiers and was ostracised by his Unit;
(f)The applicant pleaded guilty to 5 serious offences under the Defence Force Discipline Act.
Background
10.The applicant is now 40 years of age. His date of birth is 11 January 1965.
11. He served in the Australian Army from 25 September 1990 to 4 March 1994. He was allotted to the Corps of Royal Australian Electrical and Mechanical Engineers and held the rank of Craftsman (a private soldier). He had no operational service.
12.The applicant has no recognised service related disabilities.
Legislative Framework
13. The following legislative provisions contained in the Act are relevant in determining this application. These are:
“Sect 5D - Injury/disease definitions
War-caused injury; war-caused disease; defence-caused injury; defence-caused disease
(2) In this Act, unless the contrary intention appears:
(a)…
(b)a reference to the incapacity of a person who is a member of the Forces, or a member of a Peacekeeping Force (as defined by subsection 68 (1)), from a defence-caused injury or a defence-caused disease ;
is a reference to the effects of that injury or disease and not a reference to the injury or disease itself.
Note: for war-caused injury and war-caused disease see section 9.
Sect 68(1) - Interpretation
"defence service" means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
(b) in the case of a person who:
(i)was rendering continuous full-time service as a member of the Defence Force immediately before the commencement of this Act;
(ii)continued so to render continuous full-time service until and including the day immediately before the terminating date; and
(iii)was, immediately before the terminating date, bound to render continuous full-time service as such a member for a term expiring on or after the terminating date;
includes the continuous full-time service rendered by the person as a member of the Defence Force on and after the terminating date and before:
(iv)the expiration of that term or, if that term is deemed to have been extended by subsection (4), (5) or (6), the expiration of the extension of that term; or
(v)the lawful termination of the person's service as a member of the Defence Force otherwise than by reason of the expiration of the term for which the person is bound to serve;
whichever occurs first; and
(c) hazardous service rendered before or after the terminating date;
but does not include any period of peacekeeping service.
Sect 70 - Eligibility for pension under this Part
(1)
Where:
(a) …
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …
(d)in the case of the incapacity of the member—pension by way of compensation to the member;
in accordance with this Act.
(9)The Commonwealth is not liable under this section in respect of the death of a member of the Forces or a member of a Peacekeeping Force, or the incapacity of such a member, from injury or disease:
(a)in a case where the death occurred, or the injury was suffered, or disease was contracted, by the member in circumstances described in subsection (4) or in paragraph (5)(a), (b) or (c) or in paragraph (5A)(a), (b) or (c)—if the death, or the injury or disease, as the case may be:
(i)resulted from the member's serious default or wilful act; or
(ii) arose from a serious breach of discipline committed by the member or from an occurrence that happened while the member was committing a serious breach of discipline; or
(b)in the case of an injury suffered, or disease contracted, by the member to which paragraph (5)(d) or (5A)(d) applies:
(i) if the aggravation of the injury or disease:
(A) resulted from the member's serious default or wilful act; or
(B) arose from a serious breach of discipline by the member; or
(ii)unless the member has rendered hazardous service or the period of defence service or peacekeeping service that contributed to the injury or disease in a material degree, or by which the injury or disease was aggravated, was 6 months or longer”.
Standard of Proof
14. In determining whether an injury or disease satisfies the required standard of proof, recourse is had to section 120 of the Act. This provides:
“Sect 120 - Standard of proof
…
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
15. Where a claim is lodged after 1 June 1994, section 120B applies. This section requires that the reasonable satisfaction standard is to be assessed by reference to the Statements of Principles (SoPs) issued by the Repatriation Medical Authority (RMA). Section 120B relevantly provides as follows:
“Sect 120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)
…
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
16. It is clear that section 120B applies where the RMA has issued SoPs under section 196B(2) or (11). In the case under review, relevant SoPs exist in relation to the following conditions:
§ SoP No 144 of 1995 (as amended by SoP No 14 of 1997 - Personality Disorder)
§ SoP No 59 of 1998 – Depressive Disorder
§ SoP No 2 of 2000 – Anxiety Disorder
17. The standard of proof applicable therefore during the applicant’s eligible defence service and/or the determination of eligibility for compensation or pension is that of “reasonable satisfaction” (section 120(4)). This is synonymous with the balance of probabilities standard adopted in the civil jurisdiction (Benjamin v Repatriation Commission (2003) 70 ALD 622; Repatriation Commission V Hancock (2003) FCA 711; Fogarty & Repatriation Commission (2003) FCAFC 136.
Factual Evidence
§ Evidence of the Applicant, Mr Tony Spek
18. The applicant was referred to his statements in Exhibits 4, 5, 6 and 7. He declared under oath that these were true and correct. He was referred also to Exhibit 11. This was the transcript of proceedings whereby the applicant was charged as a soldier under the Defence Force Discipline Act (1982) with five charges of unlawful possession of service property as follows:
First Charge: Being in unlawful possession of a half tonne hoist
Second Charge: Being in unlawful possession of a Land Rover tail light, two Hella tail lights and a 12 volt battery heavy duty.
Third Charge: Being in unlawful possession of (a) light globes; (b) retractable compressor hose.
Fourth Charge: Being in unlawful possession of the following service property: a machete, field pack large, pouch ammunition, patrol pack, camouflage material, seven plastic drinking cups and five balls of string.
Fifth Charge: Being in unlawful possession of the following service property: a 2kg gas cylinder, 26 GJ kits (in box or boxes), one welding rod, two packets of black plastic rubbish bags and a tool box.
19. To each of the above five charges the applicant pleaded guilty before a Defence Force Magistrate. The Magistrate accepted those pleas and he was found guilty on all five charges. The penalties imposed were:
On the first charge: sentenced to 28 days detention
On the second charge: sentenced to 7 days detention
On the third charge: sentenced to 14 days detention
The three sentences above were all to be served concurrently, that is a maximum of 28 days detention.
On the fourth charge: sentenced to 21 days detention to be cumulative with the 28 days above
On the fifth charge: sentenced to 7 days detention to be also concurrent.
20. The penalty therefore comprised 28 days detention for the first three charges plus a cumulative 21 days detention for the fourth and fifth charges, making a total of 49 days detention. The Defence Force Magistrate then directed that all of those sentences be wholly suspended.
21. The applicant’s evidence was that he had served with an Infantry Unit 3RAR and then an Artillery Unit 8/12 Medium Regiment, where he was employed as a storeman. The applicant had skills in the area of wood carving and his skills were in demand by senior soldiers of the Unit. In particular he was requested to carve wooden objects such a gun cradles an item which had some attraction to those in an Artillery Regiment. Much of the work that the applicant did as wood carving was done at his married quarters and with the use of service property for that purpose. The proceedings before the Defence Force Magistrate traversed the circumstances and the applicant claimed during those proceedings that he had permission to take the tools to his home to undertake that work of behalf of the Regiment.
22. The disciplinary proceedings were preceded by an investigation by the Army’s Special Investigation Branch (SIB) of the Military Police. This investigation involved a lengthy record of interview with the applicant, a search of his married quarters and the cancellation of a posting to a trade course which he particularly desired. The investigation took some 16 months, in which time the applicant claims that not only did he lose the opportunity to undertake a trade course, he was largely unsupported by his Unit and was not given access to legal or counselling services. As a result of being stood down from his normal Unit duties, much of the work he did in woodcarving for the Unit was done at home. In addition, he undertook duties with the Garrison Military Police which he believed was more onerous in the allocation of duties to him in comparison to other soldiers. He also stated that he was physically assaulted, ostracised, intimidated and humiliated by members of his Unit because his association with the investigation.
23. The applicant was also questioned about his admission to the Caboolture Hospital and the records held as a result of that admission. Specifically there was reference to him performing sexual acts with dogs. The applicant told the Tribunal that that record was made after a statement made by his ex-wife to the hospital staff and occurred following his unfortunate marriage breakup. He maintained that he subsequently rang the Caboolture Hospital and was told that if the record was on there, then they cannot do anything about it. In other words, that fact that it was on there it could not be removed. When asked about this matter by his Counsel, he denied it. He stated that when he was interviewed by Dr Kingswell, he told him that the matter was given to the Caboolture Hospital by his wife.
24. Under cross-examination by Mr McAninly, he agreed that he pleaded guilty to the five offences before the Defence Force Magistrate. He pleaded guilty and accepted responsibility for these offences as the items in his possession were not signed out on the ledger. He gave evidence that the compressor hose (page 20 of Exhibit 11) was not used by him although he had intended using it for making the gun cradles. The half tonne hoist was used and he also mentioned that a Unimog truck was taken home “because it was ours to use”. He stated that was signed out officially to him. However, he admitted bringing in four car batteries from home all of which were dead and unserviceable and swapping them for new batteries through the main Q Store. In relation to the excess Military equipment in his possession, he indicated in his testimony that he was keeping these things for training and often went bush walking on weekends. There was also reference to an indecent dealing charge to which the applicant pleaded guilty. The charge was indecent dealing with a child under the age of 16, the child at the time being his step daughter. He was convicted of that offence.
25. The applicant referred to the evidence in Exhibit 16 by Dr Wendell Rosevear. Dr Rosevear referred to the applicant having an overdose after his marriage break-up in 1999. The applicant expressed his frustration. He told Dr Rosevear that he feels like joining “Osama Bin Laden”. He also stated that he trusts no one any more, not even his wife who was present in the Hearing room.
26. In relation to the offence of indecent dealing, he pleaded guilty and was convicted and given a suspended sentence. That was in September 2002. Five months later in February 2003, the applicant was caught shop lifting and was convicted and fined $100.
27. He was then questioned about various references in the records of the Caboolture Mental Health Services (see Exhibit 14). There was reference to his first referral there from his GP after he had attempted suicide. There was reference also to sexual deviance about his previously admitted sexual interference with his sister when she was four years of age and he twelve years of age. He said that he does not recall mentioning that to the Caboolture Mental Health Services. However, he clarified the incident and that he has since reconciled the matter with his sister and with his parents as the incident related to he and his sister playing “doctors and nurses”. He does not now believe that there was any inappropriate sexual behaviour by himself at that time.
28. There was also reference to his marriage break-up and that his wife was having an affair with a Senior Non-Commissioned Officer who was appointed to be a counsellor for them during the course of the investigation with the Army.
29. On re-examination by Counsel for the applicant, Mr Spek claimed that an answer on page 49 of Exhibit 11 given to the hearing before the Defence Force Magistrate was wrong. He was referring in his evidence to the unlawful possession of the compressor hose and that he meant that he originally took it home to do Army work. It was signed out on a loan book. He further stated that he had thought of using it on his own car, but he did not use it.
30. In relation to the conviction for indecent dealing against his step daughter, he stated that incident involved his step daughter massaging his foot and that it rubbed against her underpants. However he was charged on indictment by the Director of Public Prosecutions. He pleaded guilty because of expensive legal costs which he said “would go on and on”. He also referred to the fact that he was charged with that offence while he was he was in the Caboolture Hospital, the day after his birthday.
Evidence of John James Burns
31. Mr Burns gave telephone evidence that this statement dated 5 December 2003 was correct. His statement indicates that he served in the Australian Army from 1983 to 1995 and was in the Royal Australian Artillery. He was posted to 8/12 Medium Regiment from September 1992 to January 1995 and he held the rank of Bombardier. He knew Mr Spek reasonably well and said that he was a keen soldier. In his statement, he mentioned that after a long investigation, Mr Spek had charges levelled against him for “a couple of chisels” which, to Mr Burns seemed “ludicrous”. His statement indicates that whilst he had seen incidents of “bastardisation” against soldiers in his service, he had not seen it to the degree to which it was levelled against Mr Spek. He was also attacked and assaulted by fellow soldiers. In fact, his statement indicates that Mr Spek was “almost a permanent member of the Guard and was given all the other manual tasks that were not attractive for other people to do”.
Medical Evidence
32. Medical evidence was received from Dr Wendell Rosevear, Dr Michael Likely, Dr John Gibson and Dr William Kingswell. Written evidence was available from Drs Rosevear and Likely. Telephone evidence was provided by Dr Gibson and Dr Kingswell.
33. Dr Rosevear provided a report (Folio 46-52) of T documents which indicated that the applicant had declared mood swings, disturbed sleep and aggressive outbursts. He had an inability to concentrate and was anxious sitting in his waiting room. He was also anxious when he saw the number of pages which he had to fill out. Dr Rosevear said that the applicant worries about many things and attends at his rooms 1 hour before visits and worries after the visits. He is usually labile and cannot concentrate when undertaking work that he enjoys e.g. woodturning. Dr Rosevear’s initial diagnosis was that of anxiety and depression.
34. Dr Michael Likely related the applicant’s military history and that he is now on a disability support pension. On the evidence he took in February 2002, the applicant said he drank very little and denied use of illicit substances. There was no history of maladaptive coping. However, in relation to his personal history, he cited that his formative years were happy and contented and could not recall any difficulties. Dr Likely said that the applicant maintained good eye contact although his mood was one of depression and he was close to tears at times. He concluded that Mr Spek needs pharmaco-therapeutic and psycho-therapeutic treatment and concluded a diagnosis of major Depressive Disorder , although he has noted in his report also a diagnosis under DSM-IV of personality disorder. He also noted that the applicant’s inability to work is due to his back condition and not to his mental health.
35. Dr Gibson gave oral evidence by telephone. He stated he had been treating Mr Spek since February 2002 about every two months. His initial diagnosis was one of Generalised Anxiety Disorder. He subsequently determined a diagnosis of Dysthymia after he had seen him more frequently. He noted however, that Mr Spek does have some anxiety and feelings of agitation were evident. He worried excessively.
36. In relation to the difference of view between himself and Dr Kingswell, Dr Gibson said that a personality disorder can co-exist with an axis one disorder such as Dysthymia.
37. Dr Gibson also stated that some indicia of personality disorder can influence of the presentation of an axis one disorder. Therefore, he said that some personality traits can be accentuated by depression. In other words, the two conditions can cause some confusion and they can in fact, be bi-directional. He also stated that a change of mood can be a feature of some personality disorders. He was also questioned about Dr Kingwell’s opinion and was asked for his view about the fact that he, Dr Gibson, and Dr Likely had not had access to the Caboolture hospital records. In the opinion of Dr Gibson, he said there was no confirmed history of paraphilia but there may well be a manifestation of personality disorder.
38. Dr Gibson was also asked about aspects of the Statement of Principles. Dr Gibson explained that the diagnosis of Dysthymia was based on chronic mood disturbance for at least two years. There was also loss of interest, loss of concentration and suicidal ideation. In relation to paragraph 5 of the SoP, Dr Gibson said that clinical onset was probably attributable to the time of the investigation, that is, 1993 or 1994. Under cross-examination, Dr Gibson admitted that he was aware of substance abuse, but was not aware that the applicant had been convicted of sexual abuse of his step daughter and was not aware that he had been convicted of shop stealing. He referred to a report of Dr Spragg which referred to the applicant being a loner, having smoked pot and mixing with the wrong crowd. He was aware of a fight where the applicant broke his opponent’s jaw. Dr Gibson concluded that this new information altered the personality disorder factors but that he did not resile from his diagnosis of Dysthymia but with co-morbid borderline personality traits.
39. Dr Kingswell had provided extensive reports and he also gave detailed evidence. He concluded that the applicant had a personality disorder owing to many inconsistencies in the evidence and the fact that the presentation with a depressive disorder after attempted suicide and admission to the Caboolture, was not in his view a sustainable diagnosis. He noted that the applicant had been convicted of shop stealing and indecent dealing of a child under 16 years of age. He stated also that there was a domestic violence order issued by the Magistrates Court against the applicant between 1999 and 2002. He also referred to evidence of a property settlement after his divorce where the applicant received $60,000. Contrary to the accounts given to other psychiatrists, the applicant stated that he used the $60,000 and it was “pissed up against the wall on grog and poker machines”. Dr Kingswell diagnosed a Borderline Personality Disorder and Paraphilia and Benzodiazepine abuse. Dr Kingswell referred to the Borderline Personality Disorder being evident by December 1992 but on questioning by the Tribunal, Dr Kingswell indicated that it would have been present by definition by late adolescence, although it was probably not detectable at that time. He indicated that personality disorders might only be manifest in particular circumstances, e.g. when relationships were threatened. However, he raised concerns about the Paraphilia or paedophilia offending and said that this requires a number of psychosocial functions to be overcome as well as overcoming important social barriers for a person to engage in such behaviours.
40. In attempting to explain his diagnosis, Dr Kingswell informed the Tribunal that personality disorders only exist at the extreme end of the spectrum when it makes people’s lives unpleasant. He mentioned that particularly, the applicant’s unstable relationships and his incapacity to tolerate stress were indicative of his personality disorder. There was a propensity to respond to stress by very reckless, self damaging behaviours such as significant overdoses. He also referred to marked psycho-social difficulties which he said were evidenced by unusual sexual behaviours - sexual abuse of his sister as a child, progressing to sexual involvement with animals, and being convicted of a paedophiliac offence. On the basis of these facts, Dr Kingswell believed that a personality disorder was the more appropriate diagnosis. He also differentiated the personality disorder from anxiety or depressive disorder by explaining that Mr Spek’s behaviour was very impulsive and self damaging, particularly steroid use. He described it as an unstable mood by a person who is consumed by diagnosis of personality disorder.
41. Dr Kingswell also differentiated the diagnosis of Depressive Disorder by referring to the records of the Caboolture hospital. While the applicant was admitted after an impulsive overdose, he said within hours he was settled and socialising with residents on the ward that night. He thought that was quite unusual and not characteristic of a pervasive depressive illness. The record shows that there was a complete reversal within days and on the 10th January, the record noted that he had “no psychiatric illness”. Dr Kingswell stated that the information that he had available was not characteristic of a depressive illness which required a morbid alteration of mood and dysfunctional aspects of a person’s life including social relationships, the capacity to sleep, eat and concentrate. According to Dr Kingswell, none of those symptoms were present.
42. Dr Kingswell also referred to the diagnosis by Dr Gibson of Generalised Anxiety Disorder and Dysthymia. Dr Kingswell stated that these were chronic and episodic disorders but he maintained that Mr Spek had unstable functioning from an early age, unusual sexual behaviours, unstable relationships and self-damaging behaviours. He said this was in the context of a background where the applicant had very strict parents who expelled him from home at age 18. The applicant had very poor relationships, he hated school, was very much a loner and was often caned at school. He was also concerned about a failure in empathy when his wife was in hospital after a motor vehicle accident and the applicant was relieved not to have her around and nagging at him.
Submissions
43. Counsel for the applicant argued that the diagnosis of personality disorder and Dysthymia can co-exist but argued that there was no personality disorder. He also argued that there was no admission of sexual behaviour with animals. If Dysthymia is accepted as a diagnosis, Counsel stated that paragraph 5(a) of the SoP is satisfied. However, he stated that whether there is a psycho-social stressor or loss of employment or other indicia relied upon, one or more of those occurred within a year before clinical onset. In relation to section 70(9) of the Act, it was argued that there is sufficient reason to differentiate the authorities which exist about this provision.
44. The advocate for the respondent argued the investigation and the unlawful removal of property were intentional and that the applicant pleaded guilty. He submitted that these were serious charges. It was also submitted that these were not wilful acts of a man in combat conditions who was under stress or being fired upon etc. He says the applicant took this property because he wanted to take them home. He argued that section 70(9) does apply to disqualify the applicant from compensation.
Consideration of the Issues
45. The Tribunal has reached the decision in this matter after taking account of all the oral evidence and the documentary exhibits, the legislation and the relevant case law.
Issue 1 – Diagnoses
46. The psychiatric evidence displays a wide variance in the opinions of the medical professionals and these views are strongly held. The diagnoses of border-line personality disorder, Generalised Anxiety Disorder and a Depressive Disorder (Dysthymic Disorder ) have all been diagnosed. However, Dr Kingswell advocates that a personality disorder best describes the applicant’s conditions and that Dysthymia and Generalised Anxiety Disorder are not justifiable. The other psychiatrists do not discount a co-morbid personality disorder but argue that the mood disorders, particularly Dysthymia, are the better view as the primary diagnosis.
47. The Tribunal’s role is not to make a diagnosis but based on the evidence it must determine, where necessary, the most appropriate diagnosis consistent with the evidence. (Benjamin v Repatriation Commission 2001 (70) ALD 622).
48. In this case, the evidence which characterises the applicant’s behaviour, demonstrates unstable personal relationships, impulsiveness, frequent mood shifts, inappropriate anger, recurrent suicidal threats and apparent chronic feelings of emptiness. These are all characteristics of Borderline Personality Disorder . In DSM-IV, the diagnostic features reveal all of the above and also show unstable and intense relationships which can oscillate from being very supportive of others to quickly devaluing them. It seems to be an identity problem where the person with this disorder experiences “intense abandonment, fear and inappropriate anger …”. There is also reference to their impulsivity and self-damaging behaviours. DSM-IV also states “they may gamble, spend money irresponsibly, binge eat, abuse substances, engage in unsafe sex, or drive recklessly”. This condition is one of inappropriate development and usually is evident in early adulthood. DSM-IV indicates the impairment and risk of suicide is usually greatest in the young adult years and that “during their 30s and 40s, the majority of individuals with this disorder attain greater stability in their relationships and vocational functioning. From the evidence available about Borderline Personality Disorder and the behaviours exhibited by the applicant, it is accepted that he has Borderline Personality Disorder and that its onset was most likely, as stated by Dr Kingswell, to have been in late adolescence. On that basis, it has not been caused by his Army service although the stress of the investigation undoubtedly heightened the chronicity of it.
49. In relation to Generalised Anxiety Disorder , DSM-IV indicates a person with this disorder would have anxiety and worry associated with three or more of the following six symptoms (with at least some symptoms present for more days than not for the past six months):
(a) Restlessness or feeling keyed up or on edge;
(b) Being easily fatigued;
(c) Difficulty concentrating or mind going blank;
(d) Irritability
(e) Muscle tension;
(f)Sleep disturbance (difficulty falling or staying asleep or restless or unsatisfying sleep).
50. There is evidence from some of the psychiatric reports that the applicant is often anxious and worries excessively and that items (i), (iii), (iv) and (vi) above, at least are satisfied. In the description of the diagnostic features for this condition, DSM-IV in describing the course of the disorder states that “…onset occurring after age 20 years is not uncommon. The course is chronic but fluctuating and often worsens during times of stress”. On the basis of the evidence provided by the psychiatrists of Mr Spek’s behaviours, and having regard to DSM-IV criteria, it is accepted that he also has Generalised Anxiety Disorder and that it is co-morbid with border personality disorder. It may have been evident in some respects before Mr Spek’s military service, but the investigation also undoubtedly worsened that condition.
51. In relation to Dysthymia, the diagnostic criteria for this disorder in DSM-IV shows that a person would have depressed mood for most of the day, for more days than not as indicated either by subjective account or observation by others for at least two years. There would also be evidence that, while the person was depressed, two or more of the following would also be present:
(a) Poor appetite or overeating;
(b) Insomnia or hypersomnia;
(c) Low energy or fatigue;
(d) Low self esteem;
(e) Poor concentration or difficulty making decisions;
(f) Feelings of hopelessness.
52. While there is evidence that the applicant has back pain also, which may aggravate the stress and the level of depressed feeling, there is evidence that the applicant suffers at least from factors (i), (ii), (iv) and (vi) above. Therefore, it is accepted that the applicant has Dysthymia and that the Army investigation has had a cumulative effect on his personality disorder and his anxiety condition such that he now has this depressive illness.
53. In relation to the differential diagnoses of paraphilia (paedophilia) and benzodiazepine abuse, no determination is made about these diagnoses. In relation to the diagnostic criteria for paedophilia, there needs to be recurrent, intense sexually arousing fantasies, sexual urges or behaviours involving sexual activity with a pre-pubescent child or children (generally aged 13 years or younger). These fantasies or sexual urges must cause clinically significant impairment in social, occupational or other important areas of functioning. The person must also be at least 16 years of age and at least 5 years older than the child with whom they may be sexually involved. While there seems to be multiple references to sexual activity with children in relation to the applicant, his denial of these offences and/or providing and account of why he pleaded guilty results in the Tribunal deciding there is insufficient evidence to point to his satisfying the diagnostic criteria for paedophilia.
54. As a result, no determination is made in relation to those diagnoses.
Issue 2 – Do these disorders satisfy the criteria in the relevant SoPs?
§SOP No 144 of 1995 – Personality Disorder
55. In relation to personality disorder, the requirement of SoP No. 144 of 1995 (as amended by SoP No. 14 of 1997) must be satisfied. it must be shown that on the balance of probabilities, the “personality disorder” is connected with circumstances of military service. The following considerations are relevant:
(a)Suffering a catastrophic experience that immediately preceded an enduring personality change to the level of disorder (Paragraph 1 (a)).
(b)The “personality disorder” is defined in paragraph 4 and includes in paragraph (f)(v) of that definition, Borderline Personality Disorder.
(c)There must be an “enduring personality change” as a result of a “catastrophic experience”. An “enduring personality change” is defined in paragraph 4 of the SoP as:
“enduring personality change” means a psychiatric condition that is present for at least two years immediately following exposure to catastrophic stress; where
(a)the catastrophic stress must be so extreme that it is not necessary to consider personal vulnerability in order to explain its profound effect on the personality; and
(b)the personality change is characterised by a hostile or distrustful attitude towards the world, social withdrawal, feelings of emptiness or hopelessness, a chronic feeling of “being on edge” as if constantly threatened, and estrangement;”
56. On any view, the military investigation could not be regarded as a “catastrophic stress” such that a profound change to personality would be understandable without consideration of personal vulnerability to explain that change. In fact, based on the evidence of psychiatrists and the DSM-IV requirements, this disorder would be more properly explicable the result of social and emotional developmental factors and environmental experiences. On the balance of probabilities, the disorder was present at the time of late adolescence. Therefore, the requirements of the SoP for personality disorder is not satisfied.
§SoP No 2 of 2000 – Generalised Anxiety Disorder
57. In relation to Generalised Anxiety Disorder, the relevant SoP and the appropriate paragraphs are as follows:
“Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, anxiety disorder or death from anxiety disorder is connected with the circumstances of a person’s relevant service are:
(a) for Generalised Anxiety Disorder or anxiety disorder not otherwise specified, only
(i)experiencing a severe psychosocial stressor within one year immediately before the clinical onset of anxiety disorder; or
(ii)having a clinically significant psychiatric condition within one year immediately before the clinical onset of anxiety disorder; or
(iii)having a major illness or injury within one year immediately before the clinical onset of anxiety disorder;
or
(iv)experiencing a severe psychosocial stressor within one year immediately before the clinical worsening of anxiety disorder; or
(v)having a major illness or injury within one year immediately before the clinical worsening of anxiety disorder; or
(vi)having a clinically significant psychiatric condition within one year immediately before the clinical worsening of anxiety disorder; or
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), major illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
58. Of particular importance is consideration of the terms “clinical onset” and “severe psychosocial stressor”. In relation to “clinical onset”, this has been considered by the Full Federal Court in Lees and Repatriation Commission (2002) 125 FCR 331 at [16] which stated that the determination of clinical onset is:
“…intended to establish sufficient proximity to the experiences during operational service and the manifestation of the disease to point to a causal link …”
59. There must therefore be a causal link between the condition of Generalised Anxiety Disorder and Mr Spek’s eligible defence service. Critically, it requires a determination of when the onset of the disease occurred, in relation to the psychosocial stressors. As required by paragraph 5 of the SoP, the disorder must occur within two years before the clinical onset of Anxiety Disorder . If it is to have a sufficient causal link. When taking account of the incidents which have been submitted by the applicant and comments by the assessing psychiatrists and evidence of DSM-IV there is evidence that the onset of this condition was in late adolescence. It has been determined that this is linked to the condition of personality disorder but given the onset which is found to be in late adolescence, this also is not due to military service. However, it is possible that investigation caused an aggravation of a pre-existing illness and therefore the claim must be assessed in that light.
60. In assessing the relevant claims of the applicant, the Tribunal considered White v Repatriation Commission[2004] FCA 663, where reference was made to the benchmarks which have been defined in the SoP as being the standards of severity of threat or injury. It would seem that if these examples in the SoP are not used as the guide to the standard to be applied, then the SoP would be ineffectual as a means of assessing claims under the Veterans’ Entitlements Act. The examples are therefore regarded as an important guide to the assessment at this stage.
61. In White v Repatriation Commission(supra) Spender J held that a “severe psychosocial stressor” has both a subjective and objective element. The application of the principles required to arrive at a reasoned decision consistent with the definitions and the decision in White, was delineated in Hillier and Repatriation Commission [2004] AATA 897. At [65], Deputy President Jarvis set out the considerations to be applied as follows:
“(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it “evokes feelings of substantial distress in an individual” and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause “substantial” distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
62. The subjective element of a severe psychosocial stressor involves an event which is dangerous, frightening and which causes distress. “An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension.” (Stonehouse v Repatriation Commission [2004] AATA 707.The decision in Hillier also underscored at [67] that the objective requirements should be evaluated not by the reasonable person test but should be measured against an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”. The wide variability and experience of servicemen and veterans was noted as affecting the objective assessment of this standard.
63. Considering now the material relevant to the stressors alleged in this case and the authorities of White, Stonehouse and Re Hillier (supra), the stressors must firstly be seen to be “an occurrence”. An occurrence is defined as an “incident” or “event”. An “event” is an “incident or mishap” which can be differentiated from the ordinary course of life (Repatriation Commission v Law (1980) 31 ALR 140 at 149). I consider the word “event” and the word “occurrence” to be effectively synonymous in the present context.
64. The applicant’s evidence must be assessed in the light of Factor 5(a)(v), that is, experiencing a severe psychosocial stressor within two years immediately before the clinical worsening of the Anxiety Disorder. If one accepts Dr Gibson’s timing of the onset of this disorder or in accordance with the findings of fact, the clinical worsening of the disorder, it would satisfy the two year requirement specified under Factor 5(a)(v).
65. But has there been a “severe psychosocial stressor”? The investigation undoubtedly is “an occurrence” as identified in Repatriation Commission v. Law (1980) 31 ALR 140.But the occurrence, that is, the military investigation, must evoke feelings of “substantial distress” as exemplified in the definition e.g. “… being shot at, death or serious injury… experiencing a loss such as divorce or separation … or legal problems”. Using the test of the standard or benchmarks as shown in the examples, on the face of it, one might say that “substantial distress” would not be ordinarily envisaged in the circumstances described. However, taking account of the fact that there is a pre-existing disposition to Generalised Anxiety Disorder , and taking account also of the victimisation of the applicant, including extra duties, assault and the period of time during which the psychological distress would have multiplied in the applicant’s mind, the Tribunal is satisfied that the applicant would have experienced feelings of “substantial distress”. On that basis, the Tribunal finds that the applicant has experienced a severe psychosocial stressor to the extent that it would have been a clinical worsening of his anxiety disorder.
§SoP No 59 of 1998 – Depressive Disorder
66. In relation to Dysthymia, this must be assessed on the balance of probabilities in accordance with the SoP No 59 of 1999 – Depressive Disorder. The relevant parts of the SoP are as follows:
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
(b)having a clinically significant psychiatric condition within the one year immediately before the clinical onset of depressive disorder; or
(c)having a major illness or injury within the one year immediately before the clinical onset of depressive disorder; or
…
(f)having a major illness or injury within the one year immediately before the clinical worsening of depressive disorder;
…
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
67. In this case, the applicant needs to show that he has experienced a severe psychosocial stressor within two years before the clinical onset of the depressive disorder (Factor 5(b)):
68. The relevance of the word “experience” in this context is to appreciate the impact on the applicant. It is also to indicate that the veteran must have “experienced” the stressor in the ordinary meaning of that term, that is, “actual observation of or practical acquaintance with facts or events; …event that affects one (an unpleasant experience)” (The Concise Oxford Dictionary (Sixth Edition)). It implies a situation involving personally encountering a situation which utilises some or all of the person’s senses, and which could have a consequential effect mentally or emotionally. There is therefore a subjective element to this aspect of factor 5(b). This has also been recognised by Mansfield J in Repatriation Commission v Stoddart [2004] FCA 633.
69. The reference to a “severe psychosocial stressor” is amplified by its definition in paragraph 8 of the SoP. In White v Repatriation Commission [2004] FCA 633, Spender J also held that this term relates to an occurrence which “objectively is an occurrence the nature of which is such as to evoke feelings of a particular kind in a person exposed to that occurrence and which subjectively, evokes feelings of substantial distress in the particular person concerned. Both aspects are relevant and necessary” [at 30].
70. As outlined previously when considering Generalised Anxiety Disorder, Hillier held that a “severe psychosocial stressor” must take account of five considerations. Those are relevant here also.
71. This is a case where the Tribunal must determine whether a particular occurrence satisfies the definition of “severe psychosocial stressor”. It must do so with reference to a soldier who is inexperienced in many aspects of functioning of the Army, particularly when the offences first occurred. But, the examples included in the definition of “severe psychosocial stressor” provide some guidance in this determination.
72. Considering now the incidents purported by the applicant to be “severe psychosocial stressors”, I am mindful of the reasoning of Mansfield J in Stoddart v Repatriation Commission [2003] FCA 334. In considering the examples in the definition of “experiencing a severe stressor” Mansfield J attempted to distinguish an actual threat as opposed to a perceived one. At [50], he said “It contemplates an objective and assessable state of affairs. I do not think it provides for idiosyncratic and personal perception of events which, judged objectively, do not in fact fall within the adjectival clause. But it does not follow that the “threat” there referred to must involve events which judged objectively with free information involve an actual threat of death or serious injury”.
73. The Tribunal has considered the application of the evidence and the considerations relevant for Generalised Anxiety Disorder and that these are also relevant to this condition. Taking account of the considerations in Stoddart and Hillier, the isolation and treatment within his unit and the lengthy duration during which the psychological distress would have been experienced by Mr Spek, the Tribunal finds that he has suffered from Dysthymia as a consequential effect of having pre-existing vulnerabilities with Borderline Personality Disorder and Generalised Anxiety Disorder .
Issue 3 – Does section 70(9) apply to the applicant?
74. The ultimate question in this case in any event is whether there are any exculpatory circumstances to negate the provisions of section 70(9) which operate to disentitle a member to pension or compensation that might otherwise apply.
75. Counsel for the applicant argued that this gives rise to two questions. Firstly, whether the injury resulted from a particular act and secondly whether the particular default or wilful act or the breach of discipline was serious within the meaning of that term. The provisions which denies entitlement to compensation arise out of two provisions, which are disjunctive:
(a)If the injury or disease resulted from the member’s serious default or wilful act; or
(b)Whether the injury or disease arose from a serious breach of discipline committed by the member…
76. It would seem that clause 1 above is relevant as the applicant did commit wilful acts. Clause 2 above is clearly relevant as the wilful acts committed were central to what were in fact breaches of the Defence Force Discipline Act, or in other words, a serious breach of discipline committed by the member. When dealing with the application of these provisions, Counsel for the applicant referred to Re Nelson v Repatriation Commission (1988) 15 ALD 49 at 53 where Senior Member Hayes said that the bar on entitlement under section 9(3), which is in equivalent terms to section 70(9) “…requires direct causation for its operation. A condition can be regarded as having resulted from a previous act or omission, but for which it would not otherwise occurred, notwithstanding that, in order to bring it about, some intervening act or omission was also required”. He also referred to ReLester and Repatriation Commission (1991) 23 ALD 69 at 76 where at paragraph 23 it was stated:
“Whilst it may seem harsh that a veteran is precluded from making a claim under part 2 of the Act after being mistreated in prison, the purpose of the Act is not to provide compensation in such circumstances. It is to provide compensation to those who have suffered by reason of their having rendered war time service.”
77. Counsel then argued that there were distinguishing factors in Mr Spek’s case. In particular, he said that the applicant did not complain about his official punishment, that of a wholly suspended term of imprisonment. He complained however, of having suffered because of circumstances which existed in the Unit during the time of the investigation and which it is argued caused his Depressive Disorder . It was said this arose out of Mr Spek’s relationships and interactions with the members of the Unit and did not arise as a result of his unlawful possession of official property.
78. The condition of Dysthymia may, given the personality disorder and anxiety disorder from which Mr Spek suffered from before the date of the offences, be caused by his being ostracised in the Unit due to “rumours” that he was “a thief” (see the evidence of the applicant’s witness, Mr John Burns). Mr Burns stated that the applicant was ostracised and he had even heard that the applicant had been assaulted by fellow soldiers (see Exhibit 8 – paras 25 and 26). Therefore, the applicant’s argument that circumstances might be distinguished on that basis from Nelson’s case has some merit. In addition, Nelson’s case referred to an example of a soldier attempting desertion and being struck by a truck on the highway. Even though the truck driver was negligent, the injuries were still regarded as being the result of his serious default in attempting desertion in the first place. In Nelson’s case also it was said that intervening negligence will rarely break the chain of causation between the threshold conduct and the injury. Nelson’s case also referred to anxiety developed by a soldier while in prison but it was held that:
“…his anxiety state must nevertheless be regarded as the result of a serious default which led him to prison in the first place. Thus his entitlement to pension for anxiety state is prevented by section 9(3) of the Veterans’ Entitlements Act.”
79. However, I believe the applicant’s argument that his position is differentiated from the principle in Nelson’s case must fail as that case succinctly covers the facts of the applicant in this case.
80. The other question raised in the context of section 70(9) is whether the offences to which the applicant pleaded guilty are “serious” within the meaning of that term in the Act. In that context, Counsel referred the Tribunal to McPherson v Repatriation Commission (1989) 87 ALR 275 at 280 where the Federal Court of Australia held that the Tribunal must take account of the applicant’s motivation in determining whether the applicant’s conduct is so blameworthy as to warrant depriving him of a pension. In that regard, Counsel also referred to the decision of Morling J in McPherson’s case where he referred to the meaning of the word “serious” and held that the deprivation of a pension could not have been intended by the legislature “…in the absence of conduct warranting severe condemnation”. Counsel also referred to Repatriation Commission v Levi (1994) 61 FCR 189 which is cited in Re Measures and Repatriation Commission (2003) AATA 909. There, the comments Einfeld J in Levi’s case said that “in the expression ‘serious breach of discipline’ in section 9(3)(b)(i) the word ‘serious’ required no technical definition or gloss”. In this regard it was argued that Mr Spek suffered injuries as a result of perceptions about his involvement in activities which were being investigated. It was said that he did not contract his condition by actions outside his proper functions as a member of the Defence Force. Also, that the word “serious” used by the Defence Force Magistrate in his sentencing remarks should not be taken out of context.
81. It was also suggested that the value of the property to which Mr Spek pleaded guilty was not significant. However, when one looks at the value of the items mentioned in the transcript of proceedings before the Defence Force Magistrate, the equipment is worth approximately $1,400. In the ordinary criminal courts, people may be charged on indictment for property offences of this value. However, Counsel for the applicant also argued that the offences are “not serious” and are “at the lower end of the scale”.
82. I find that those arguments are not sustainable. Offences under Military Law were from the time of settlement of Australia, dealt with under British common law. They were subsequently governed by the Army Act 1880 (UK). There were then British and Australian Statutes and Regulations which governed Military discipline. But in 1985, the Defence Force Discipline Act (DFDA) was introduced after a long gestation period, which was initially recommended by Mr Justice Reed in 1946 as a result of an enquiry.
83. The DFDA has regard to internationally accepted standards of human rights. However, it seeks to balance these with appropriately high standards of personal conduct necessary for an effective Defence Force. In relation to the offence with which the applicant was charged, section 45 – Unlawful Possession, this is an offence which can be dealt with by a summary authority (subordinate summary authority or superior summary authority). In more serious cases, such offences can be referred to a Defence Force Magistrate. A Defence Force Magistrate has the same jurisdiction and powers of a restricted Court Martial (including the power of a Judge Advocate) of a restricted Court Martial (section 129(1) DFDA). This is an indication of the seriousness of the offences.
84. Defence Force Magistrates generally will not deal with matters involving substantial questions of service customs practice or procedures or which is manifestly injurious to service discipline. Section 45 is an offence which deals with matters akin to a criminal offence in the ordinary criminal courts. It carries a maximum punishment of imprisonment of six months. But in sentencing a serviceman, sentencing principles similar to those applied by the Civil Courts are used to assess any mitigating or aggravating circumstances prior to a Service Tribunal determining the sentence or punishment. The principles involved include the person’s rank, age and maturity, his physical and mental condition, his personal history, absence or existence of previous convictions, whether there was a victim, the soldier’s behaviour before, during and after the commission of the offence and any consequential effects of his conviction or proposed punishment (section 70 DFDA).
85. In considering the seriousness of the offences concerned, a scale of punishment is set out in section 68 of DFDA. In decreasing order of severity, these punishments are:
(a)Imprisonment for life;
(b)Imprisonment for a specified period;
(c)Dismissal from the Defence Force;
(d)Detention for a period not exceeding two years;
(e)Reduction in rank;
(f)Forfeiture of service for purposes of promotion;
(g)Forfeiture of seniority;
(h)Fine, being a fine not exceeding:
(i) Where the convicted person is a member of the Defence Force – the amount of his pay for 28 days; or
(ii) In any other case - $500.
(i)Severe reprimand;
(j)Restriction of privileges for a period not exceeding 14 days;
(k)Stoppage of leave for a period not exceeding 21 days;
86. In considering the scale of punishments, the Defence Force Magistrate did not consider dismissal from the Defence Force to be warranted. However, he said while he did not feel that was appropriate, he regarded the offence as serious and ordered detention for each of the five offences. It is to be noted that the first two categories of imprisonment require under the DFDA, a mandatory dismissal from the Defence Force also. Consequently, apart from the most serious categories (a), (b) and (c), detention is the next most serious. Excluding reduction in rank which would not have been an option for the Defence Force Magistrate in this case, there were six other options of penalty, yet he chose to order detention for all five offences. Detention is designed to serve three purposes: to deter members of the Defence Force from committing similar offences; to punish offenders and to rehabilitate offenders so that they may be able to render further effective service.
87. In relation to the awarding of the penalty of detention, as in other penal statutes, periods of detention are statutorily presumed to be served concurrently unless the Tribunal orders that periods of detention are to be served cumulatively (section 74(1), (2) and (3) of DFDA). Therefore, in this case, the Defence Force Magistrate clearly regarded these offences as not only serious by virtue of the scale of punishment awarded, but he chose to specifically award that some of those penalties would be served cumulatively. While they were wholly suspended, should there have been a default and the suspended punishment implemented, it is clear that the penalty to be served would not be regarded as a standard punishment even for a punishment of detention (section 78(2)) of the Act.
88. In the context of considering the seriousness of the offences also, the punishment of dismissal is reserved for the most serious offences which are in themselves regarded as dishonourable. Examples of such offences would be theft, fraud, indecent assault, selling drugs, violet assault and desertion. On the other hand, offences which are purely service offences such as absence without leave would not be regarded in the same category as those which would be appropriate offences for considering the penalty of dismissal. Therefore, offences of dishonesty and violence and other offences such as drug offences or desertion are also regarded so seriously as they may lead to dismissal.
89. Undoubtedly, the circumstances of Mr Spek’s case which involved more senior soldiers, and the fact that he had been ostracised and poorly treated during the period of investigation would have weighed on the mind of the Defence Force Magistrate in considering the sentencing principles arriving at what was regarded in the circumstances as an appropriate penalty. Clearly, the nature of the offences and the penalties imposed imply that they were “serious”. In the circumstances, given the deceit involved, the duration over which the offences occurred, including the fact that they continued after the investigation was commenced and taking account of the treatment of Mr Spek by his Unit, I find that the principles set out in Re Nelson are applicable in the present case and the condition of Dysthymia must be regarded as being part of the chain of causation between the initiating behaviours (or breaches of discipline) and the injury or conditions from which the applicant currently suffers.
90. While the applicant is seriously unwell and his mental health has suffered from the military investigation and disciplinary proceedings, section 70(9) of the Act as it currently stands operates to prohibit Mr Spek from entitlement to compensation for his condition of Dysthymia. There is no other provision which provides any remedy for the applicant.
91. In all of the circumstances, the Tribunal finds that:
(a)The applicant suffers from the conditions of Borderline Personality Disorder and Generalised Anxiety Disorder (not defence caused); and the applicant suffers from Dysthymia (defence caused); and
(b)Notwithstanding the findings in (a) above, the decision under review is affirmed as section 70(9) of the Act operates to prohibit Mr Spek from compensation for his condition of Dysthymia.
I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, Member
Signed: J Mills
Legal Research Officer
Date/s of Hearing 9 June 2005
Date of Decision 9 August 2005
Counsel for the Applicant Mr Anderson of Counsel
Solicitor for the Applicant Mr Terrence O’Connor, Solicitor
For the Respondent Mr D McAninly, Departmental Advocate
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