Parkes v Edwards[2006] QDC 175

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant Sara-Ann Parkes seeks compensation arising from events which occurred on 10 March 2005, resulting in the respondent pleading guilty before me at the District Court, Goondiwindi on 25 July 2005 in respect of one count of stalking (which occurred on 14 January 2005 at Cairns) and counts of enter a dwelling with intent at night, indecent assault, deprivation of liberty and stealing (all of which occurred on 10 March 2005 at Toobeah).

2. [2]
   The respondent was sentenced to an effective head sentence of three and a-half years’ imprisonment, suspended after serving a period of 12 month’s gaol, with an operational period of four years.

FACTS

3. [3]
   The applicant and the respondent were in a de facto relationship for approximately by two and a-half years prior to the commission of the relevant offences. The applicant and respondent met in Toowoomba. The relationship was marked by violence, and in late 2003, a domestic violence order was taken out against the respondent. At one stage in the relationship, the applicant and the respondent separated, at a time when, unknown to the applicant, she was pregnant to the respondent. The applicant also had a two-year-old daughter from a previous relationship.

4. [4]
   Subsequent to the domestic violence order being made permanent (presumably in late 2003 or early 2004), the abuse and violence stopped for awhile, but started again after the applicant and respondent shifted from Toowoomba to Boggabilla in New South Wales. In December 2004 the applicant and respondent left Boggabilla and moved to the applicant’s mother’s house at Toobeah (some 55 kilometres west of Goondiwindi on the Darling Downs).

5. [5]
   The abuse and violence from the respondent continued to the point where the applicant decided she wanted the relationship to end, but was too scared to ring police because of previous threats by the respondent that he would bash her if police were called. The applicant and the respondent moved back to Toowoomba very briefly, and then on 2 January 2005 they drove from Toowoomba to Cairns, because the respondent wanted to get as far away from as possible from the applicant’s family.

6. [6]
   On 12 January 2005, the applicant separated from the respondent while he was absent from the house, packed her belongings and went to stay at another person’s house in Cairns. During the course of 14 and 15 January 2005, the applicant received a series of text messages, including at least one message which threatened to use violence against the applicant. These messages form the factual basis of the stalking count.

7. [7]
   The applicant then shifted back to Toobeah where she moved into a house a short distance away from her mother’s house. The respondent rang both the applicant’s mother and the applicant’s sister a number of times, and eventually obtained the applicant’s phone number, which he then rang, pleading for the applicant to take him back. The applicant told him that she was not going to take him back.

8. [8]
   On 10 March 2005, at about 10.30pm, the applicant was preparing a bottle of milk to feed her daughter when the respondent appeared inside her house and stepped into her kitchen. The respondent picked up a small utility knife in the kitchen and put it on a cupboard, before picking up a hammer and threatening to hit the applicant, who by then was screaming. Not surprisingly, the applicant says that she was “in absolute fear”^[1].  The intent alleged by the Crown in respect of the offence of “enter a dwelling” was an intended offence of deprivation of liberty, based on the respondent’s assertion to the applicant that “he had come to take her and [her daughter] away”^[2].

9. [9]
   After the applicant and the respondent had sat in the lounge for about an hour, the respondent told the applicant to pack their bags, and then said that he wanted the applicant to come and join him in the shower. The respondent insisted that the applicant get in the shower, and fearing that he would be violent if she did not, the applicant got into the shower with the respondent, stood in the corner, and was crying. While the applicant was in the shower, the respondent was touching her on the breast and in the area of the vagina and trying to kiss her, although she was trying to keep away from him. That conduct constitutes the count of indecent assault.

10. [10]
    The applicant said that she was cold and was getting out. The respondent also got out of the shower, asked the applicant to leave her pyjama bottoms off, and then when they went out into the lounge, the respondent asked for sex. The applicant originally declined to have sex with the respondent, but then agreed to have sex with him because she was concerned that if she did not agree, he would become violent.

11. [11]
    The respondent was originally charged with rape, but as a result of negotiation based on the equivocal evidence and a potential Criminal Code s 24 defence, that count did not form part of the indictment to which the respondent pleaded guilty before me in the District Court on 25 July 2005.

12. [12]
    After the act of intercourse concluded with the respondent ejaculating inside the applicant, the respondent got up, grabbed their bags that had clothes in them, and the applicant, her daughter and the respondent then walked to the applicant’s car, which had been left some distance up the road from the applicant’s house, with the keys in it. As they left the house, the respondent threatened the applicant that if she screamed he would “jump all over her and kill the baby”^[3].  The applicant was pregnant to the respondent at this time.

13. [13]
    Once they reached the car, the respondent drove the three of them to the Caltex service station in Goondiwindi, where he used the applicant’s key card to withdraw $700 without her permission, utilised part of those funds to pay for fuel and then retained the balance. The applicant was told to stay in the car and “she did so out of fear of what would happen if she didn’t”^[4].  The respondent drove them towards Moonie and then headed north, arriving at Morven (just east of Charleville) as dawn was breaking.

14. [14]
    The applicant and the respondent stopped at the truck stop at Morven for about an hour. The applicant was eventually able to persuade the respondent that he should take her and her daughter home. The respondent eventually agreed to do so. He drove the applicant most of the way back to Toobeah, before getting out of the car and taking his luggage, allowing the applicant to drive the respondent’s car back to her mother’s house at Toobeah.

15. [15]
    The respondent was arrested shortly afterwards and took part in an interview in which he made “very full admissions to everything except the alleged rape”^[5].

INJURIES

16. [16]
    The applicant did not suffer any physical injuries as a result of the relevant offences. However, the applicant did suffer significant psychiatric injuries.

THE LAW

17. [17]
    This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence.  R v Ward ex parte Dooley [2001] 2 Qd R 436 held that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the Compensation Table (Schedule 1) for the relevant injuries.  In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1.

18. [18]
    R v Attwell ex parte Jullie [2002] 2 Qd R 367 held that “adverse impacts” can be compensated under Criminal Offence Victims Regulation 1995 (“COVR”) only in respect of the totality of the adverse impacts of a sexual offence suffered by a person, to the extent that those impacts were not an injury under COVA s 20, which they will be if the injury amounts to “nervous or mental shock”.  Mental or nervous shock has been interpreted broadly^[6] as being “not limited to cases where there is a diagnosable mental disorder or psychiatric illness resulting from the criminal offence, although it must be more than fear, fright, unpleasant memories or anger, or other adverse impact on feelings”^[7].

COMPENSATION

19. [19]
    Mr Lynch, counsel for the applicant, seeks compensation on two bases as follows:

3. (1)
   Item 33 – mental or nervous shock (severe):

The report of Steve Morgan^[8] concludes that “Ms Parkes experiences post-traumatic stress disorder (DSM-IV – TR 309.81) chronic”^[9] and “depressive symptoms of variable levels of severity over the course of the last 12 months … secondary to her trauma symptoms …[but not] suggestive of any additional diagnosis, such as major depressive disorder”^[10].

20. [20]
    Mr Morgan considers that the applicant’s “past and present experience of distress would be best understood as being in the severe range in terms of severity and in the severe range in terms of functional impairment”^[11] and considers that she would be likely to require an extended period of psychological intervention with at least 12 months’ treatment^[12].

21. [21]
    In the circumstances, I consider that an appropriate assessment under item 33 is 30 per cent of the scheme maximum ($22,500).

22. [22]
    (2) Adverse impacts – (COVR s 1A):

Mr Lynch submits that there are “adverse impacts” as contemplated by COVR s 1A, arising from the sexual offence^[13], which are impacts that are not an injury under COVA s 20^[14].  In supplementary written submissions from Mr Lynch dated 21 March 2006 he submits the following as being “adverse impacts”:

1. (a)
   The report by the applicant to Steve Morgan that she had a “loss of appetite and stated she often misses meals”^[15]; Mr Lynch submits that this could be considered an “adverse impact” under COVR   s 1A(2)(f) “lost or reduced physical capacity” or COVR              s 1A(2)(k) “anything the Court considers is an adverse impact of a sexual offence.”

2. (b)
   The report by the applicant to Steve Morgan that she was “too fearful and without confidence to have any further relationships”^[16]; Mr Lynch submits that this is an adverse impact of the sexual assault under COVR s 1A(2)(i) “adverse impact on lawful sexual relations.”

3. (c)
   The report by the applicant to Steve Morgan that she was having “continuing periods of lowered moods”^[17]; Mr Lynch submits that this depression is not a manifestation of post-traumatic stress disorder but is rather an adverse impact of the sexual assault pursuant to COVR s 1A(2)(j) “adverse impact on feelings.”

23. [23]
    Mr Lynch frankly concedes the difficulties in assessing “adverse impacts” in this case, given:

1. (i)
   the potential cause of the adverse impacts may have been events before the indictment period and/or events within the indictment period which were not charged and/or a consequence of offences which were not “a sexual offence”^[18]; and

2. (ii)
   the issue as to whether the “impacts” are an “injury” under COVA as opposed to an “adverse impact” under COVR s 1A.

24. [24]
    Mr Lynch’s ultimate submission is that, given that the applicant was, in fact, sexually assaulted, then it is open for the Court to find on the balance of probabilities:

1. (a)
   there would be adverse impacts occurring from such  an assault;

2. (b)
   the adverse impacts [for which compensation is sought] would be likely manifestations of such an assault;

3. (c)
   on the balance of probabilities the applicant suffered the adverse impacts from the sexual assault and the uncharged act of sexual intercourse;

4. (d)
   any such assessment be ameliorated by the cause being also from an uncharged act;

5. (e)
   the [asserted adverse impacts] are not an “injury” within the meaning of COVA^[19].

25. [25]
    There is no doubt that there are significant difficulties in assessing “adverse impacts” pursuant to COVR s 1A, even in an apparently straightforward case confined to criminal compensation arising out of solely or substantially sexual offences only. It is, of course, far more complicated where the “adverse impacts” arise out of a series of offences, only one of which is a relatively minor sexual assault, and where the prosecution did not proceed in respect of an indictment alleging (in addition to the sexual assault charge) the count of rape. In all of those circumstances, I consider on the balance of probabilities that the asserted adverse impact of being “too fearful and without confidence to have any further relationships”^[20] is a compensable “adverse impact” under COVR s 1A.  I do not consider that the other two asserted “adverse impacts,” namely, “loss of appetite” and “continuing periods of lowered moods” are “adverse impacts” that could, on the material, be causally linked to the relevant “personal offence of a sexual nature”^[21].  I consider that an appropriate assessment for the compensable “adverse” impact, in the circumstances, to be 10 per cent of the scheme maximum ($7,500).

CONTRIBUTION

26. [26]
    It is clear in my view that the applicant did not contribute in any way to her own injuries^[22].

CONCLUSION

27. [27]
    Accordingly, I order that the respondent Gregory Allen Edwards pay the applicant Sara-Ann Clarissa Parkes Criminal Compensation in the sum of $30,000.