W v Thompson

[2004] QDC 208

DISTRICT COURT OF QUEENSLAND

CITATION:	W v Thompson [2004] QDC 208
PARTIES:	W

Applicant

v

IAN RAYMOND THOMPSON

Respondent

FILE NO/S:	693/2004
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 $18,750 by way of criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (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
respondent had only a partial recollection of the incident –
and one count of unlawful and indecent assault – Where the whilst he was in an unconscious state – Where the applicant awoke during the assault – Where the applicant suffered post- traumatic stress 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 respondent
SOLICITORS:	Carne Reidy Herd for the applicant Price & Roobottom for the respondent

1. This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (Qld).

2. 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 a count of causing the complainant to take a noxious thing with intent to disable and a count of unlawful and indecent assault.

3. The applicant was introduced to the respondent by a mutual male friend. That friend was also a complainant with respect to other charges against the respondent. The applicant was at the respondent’s home with friends. The applicant was given a drink by the respondent. The drink had an unusual taste and shortly thereafter the applicant became semi-conscious. That state lasted over many hours, from the early morning until nine o’clock that night. During a time when the applicant became conscious, he found the respondent wiping his stomach and pubic area and he also found that he was wearing a pair of boxer shorts that were not his own. The applicant’s memory of the incident was hazy because of his drugged state.

4. The offences committed by the respondent on this applicant were consistent with a pattern of behaviour by the respondent in systematically drugging young men, keeping them isolated and indecently assaulting them.

5. The applicant was eventually driven home by the respondent. The applicant was still visibly ill. He was taken to Wynnum Hospital and admitted. He was off work for some three days as a result. Some months later the applicant became aware of other allegations concerning the respondent’s behaviour with other complainants. The applicant then made a complaint to the police and the respondent was eventually charged.

6. A victim impact statement by the applicant was tendered on the sentence proceedings. For three days after the incident he suffered the impacts of whatever substance had been administered to him. He was vomiting, experienced asthma and headaches and was physically weak. He lost track of time and experienced memory deficits. He stated that he continued to suffer sleep disturbances with regular nightmares. He had lost appetite and was more stressed. He had distanced himself from his friends and had restricted his socialising. His lifestyle had totally changed and he lived in fear. He did not receive any counselling as he was embarrassed to talk about the incident.

7. In a statement provided in relation to this application, the applicant stated that because of the incident he began questioning his sexuality. He was not interested in girls for some time after the incident. He experienced intrusive thoughts about the respondent. He now had an intense distrust of dentists (the respondent was a dentist). He felt some guilt about the incident and constantly questioned himself as to why it had happened to him.

8. The applicant was assessed by Mr P Jordan, psychologist, on 28 and 30 January 2003 and again on 3 May 2004. Mr Jordan has provided two reports dated 13 February 2003 and 8 May 2004. During the first interview the applicant became extremely distressed at having the relive the traumatic event. Mr Jordan’s view was that the applicant was very traumatised by the incident. Mr Jordan’s primary diagnosis was chronic post-traumatic stress disorder with delayed onset. The onset was delayed because of the applicant’s lack of realisation of what had happened to him until some six months after the date of the offence. The post-traumatic stress disorder was moderate to severe in intensity. Mr Jordan’s view was that the applicant was also suffering from a sexual aversion disorder. The central feature of that disorder was an aversion to genital sexual contact. That disorder was due to the psychological factors associated with the sexual assault committed upon him. Mr Jordan’s view was that the applicant was at risk of developing depression if the post-traumatic stress disorder was not treated. The offences had had a lasting and severe impact upon the applicant. He had a clear need to be treated for his psychological problems. He had in the past been unwilling to talk to anybody about the trauma. Mr Jordan noted that the applicant understood the importance of receiving treatment and was keen to undertake such treatment.

9. In the more recent assessment, Mr Jordan noted that the applicant continued to experience symptoms of post-traumatic stress disorder and also symptoms of a sexual aversion disorder. The post-traumatic stress disorder would be classed in the mild range while the sexual aversion disorder was moderate to severe in intensity. He continued to be in need of counselling.

10. The applicant’s initial claim was based 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 abandoned the argument based on the regulation as Mr Jordan was of the view that all of the impacts suffered by the applicant were the result of mental or nervous shock.

11. Initially the applicant submitted that the range that should be awarded for nervous shock was between 15 to 18 percent of the maximum. This, however was based on the assumption that other impacts would be awarded compensation pursuant to Regulation 1A. That is no longer the case. It was submitted on the hearing that the award for mental or nervous shock should be at a higher level.

12. The respondent submitted that the appropriate level of compensation should be in the moderate range (10-20%). The respondent submitted that the extent of the indecent assault charge was a touching to the genital area. The extent of the impact on the applicant, as disclosed in Mr Jordan’s report, indicated that the applicant had concerns of a more serious assault because of his inability to remember the incident and because of his knowledge of what was alleged by the other complainants. It was also submitted that the applicant had failed to mitigate his damages by not attending counselling, at least from the date of the initial consultation with Mr Jordan. It was submitted that an award at the lower end of the scale (ten percent) was appropriate.

13. I am satisfied that the applicant suffered injury as a result of the personal offences committed upon him by the respondent. In my view no behaviour of the applicant contributed either directly or indirectly to the injuries he suffered.

14. Part of the severity of the impact on the applicant may well be as a result of his inability to recall details of the incident because of his drugged state. As it was the respondent who caused that drug state and as one of the offences which has founded the claim for compensation relates to the respondent causing the applicant to take a noxious thing with intent to disable, it is my view that the compensation should be awarded on the basis of the entire impact the offences have had. The administering of the noxious thing has clearly had a causative impact on the applicant’s condition. The impact is no less real or pervasive. There is no basis to reduce the compensation because of that factor.

15. With respect to any failure by the applicant to mitigate his damages by not seeking treatment, it is my view that this also should not reduce the award. Mr Jordan noted that the applicant was embarrassed and reluctant to talk about the incident. He had a grave mistrust of medical professionals as a result of his treatment by the respondent. The most recent assessment had also noted some improvement in the post-traumatic stress disorder. There was however a continuing need for counselling. In any event, Mr Jordan noted in his initial report that it was not possible to give a determination as to the likelihood of whether or not treatment would be successful in the long term. Mr Jordan’s view was that 40 sessions of psychological counselling was required. The cost of those would be the order of $165 per session. Presumably the compensation to be awarded can now fund those sessions. For these reasons, I am of the view that it is not appropriate to reduce the award because of any failure to seek counselling.

16. Considering the severity of the post-traumatic stress disorder and the sexual aversion disorder and the extensive impact that those disorders have had on the applicant’s life, I would class the mental or nervous shock in the severe range. Considering the scheme of the Act that the maximum award should be reserved for the most serious cases, I would set it at 25 percent.

17. The respondent is to pay the applicant the sum of $18,750 by way of criminal compensation. There is no power under the Act to award costs.