CJM v JDA
[2010] QDC 207
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CJM v JDA[2010] QDC 207
CJM v JDA[2010] QDC 207
[2010] QDC 207
DISTRICT COURT
CIVIL JURISDICTION
JUDGE KOPPENOL
No 38 of 2010
CJM | Applicant |
v | |
JDA | Respondent |
IPSWICH
DATE 05/05/2010
ORDER
HIS HONOUR:
- This is an application for a compensation order, under part 3 of the Criminal Offence Victims Act 1995 (the Act).
- The respondent was served with the application and supporting material but did not appear today when the matter was called on.
- At the relevant time, the applicant was a boy aged between eight and nine. He was indecently dealt with by the respondent who, at the time, was in his late teens or perhaps 20 years of age. The respondent and the applicant engaged in mutual oral sex and masturbation. Those events occurred in 1994.
- On March 20, 2009, the respondent was convicted of those offences (four offences of indecent dealing with a child under 12) and I sentenced him to two years imprisonment with a parole recommendation after six months.
- The amount sought by the applicant was comprised of (a) $11,250 for post-traumatic stress disorder with a degree of mental and nervous shock (moderate) (15%, item 32) and (b) $11,250 for a major depressive disorder with anxiety (chronic) which was said to constitute an adverse impact of the sexual offence.
- In Parkes v Edwards [2006] QDC 175, Judge Dearden said, at paragraph [18], that:
"R v Attwell ex parte Jullie [2002] 2 QdR 367 held that "adverse impacts" can be compensated under the Criminal Offence Victims Regulation 1995, 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 the Act, which they will be if the injury amounts to "nervous or mental shock". Mental or nervous shock has been interpreted broadly 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".
- His Honour also said, at paragraph [25], that:
"There is no doubt that there are significant difficulties in assessing "adverse impacts" pursuant to the Criminal Offence Victims Regulation 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".
- His Honour then said that:
"In all of those circumstances, I consider on the balance of probabilities that the asserted adverse impact [in the case before his Honour] of being "too fearful and without confidence to have any further relationships" is a compensable "adverse impact" under the regulations.”
and went on to say that:
"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"."
- I respectfully agree with the approach adopted in Parkes v Edwards.
- In the present case, the psychological report by Ms Rachelle Hampson satisfies me that the applicant did suffer psychological and psychiatric injuries as a result of the respondent's actions towards him, and that the applicant has suffered and is suffering from a post‑traumatic stress disorder with a degree of mental and nervous shock (moderate). However on the material before me, I am not satisfied that the major depressive order with anxiety (chronic), which was said to constitute an adverse impact of the sexual offence, is separate from the post‑traumatic stress disorder with a degree of mental and nervous shock (moderate). I therefore decline to award the additional $11,250 claimed.
- Having considered the written and oral submissions made by the applicant and all relevant provisions of the Act, I am satisfied that a compensation order in favour of the applicant should be made against the respondent in the amount of $11,250 for the injury suffered by the applicant, caused by a personal offence committed against him by the respondent.
- Accordingly, pursuant to section 24(3) of the Act, I order that the respondent pay $11,250 to the applicant because of the injury.