The Queen v Steltman[1999] QDC 244

[Before JUDGE FORDE DJC]

[Crick and Steltman and Others]

IN THE MATTER OF “THE CRIMINAL CODE”

AND

IN THE MATTER OF THE QUEEN v. ANNEBEIN STELTMAN (First Respondent)

AND

IN THE MATTER OF THE QUEEN v. SLADE CHRISTOPHER MORGAN (Second Respondent)

AND

IN THE MATTER OF THE QUEEN v. FRANK JAMES BUTLER (Third Respondent)

AND

IN THE MATTER OF THE QUEEN v. KERRY ANNE STELTMAN (Fourth Respondent)

AND

IN THE MATTER OF THE QUEEN v. IRENE THERESE HARGREAVES (Fifth Respondent)

AND

IN THE MATTER OF THE QUEEN v. GRAHAM RONALD HARGREAVES (Sixth Respondents)

AND

IN THE MATTER OF APPLICATION FOR COMPENSATION BY PAULA-MARIE DAWN CRICK

REASONS FOR JUDGMENT - FORDE D.C.J.

Judgment delivered: 17th day of September, 1999

IN THE MATTER OF “THE CRIMINAL CODE”

AND

IN THE MATTER OF THE QUEEN v. ANNEBEIN STELTMAN

AND

IN THE MATTER OF THE QUEEN v. SLADE CHRISTOPHER MORGAN

AND

IN THE MATTER OF THE QUEEN v. FRANK JAMES BUTLER

AND

IN THE MATTER OF THE QUEEN v. IRENE THERESE HARGREAVES

AND

IN THE MATTER OF THE QUEEN v. KERRY ANNE STELTMAN

AND

IN THE MATTER OF THE QUEEN v. GRAHAM RONALD HARGREAVES

AND

IN THE MATTER OF APPLICATION FOR COMPENSATION BY PAULA-MARIE DAWN CRICK

REASONS FOR JUDGMENT - FORDE D.C.J.

Delivered the 17th Day of September 1999

1. [1]
   This is an application by Paula-Marie Dawn Crick for compensation pursuant to s.663B(1) of the Criminal Code (Qld). The respondents to this application are Graham Ronald Hargreaves, who is represented by counsel, Slade Christopher Morgan, and Kerry Anne Steltman. In relation to the latter respondents, proof of service has been established. The respondents were convicted in April 1995 for kidnapping for ransom. Each received different periods of imprisonment. There is some authority to say that the damages should be assessed as at the date of the offence: R v Anell ex parte Anderson (1998) 2 QdR 174 at 184. Chong v Chong (Court of Appeal 1168/98 Judgment 13 August 1999) over-ruled that case. For present purposes, it is common ground that the applicant is entitled to a maximum of $20,000 for mental or nervous shock pursuant to s.663A(1). The applicant suffered no physical injury.

1. [2]
   The applicant is entitled to be compensated for mental or nervous shock which has resulted in economic loss: R v Bridge and Madams ex parte Larkam (1989) 1 QdR 554 at 555.

FACTUAL BACKGROUND

1. [3]
   The applicant was working at her father's bait shop at Morningside on 13 August 1994. Her father, Thomas William Crick, was indebted to the respondent Irene Hargreaves. Relying upon material referred to on sentence, it would be open to infer that it was a drug related debt. The applicant was a victim of her father's illicit activities. She was forcibly removed from the shop by two of the offenders and remained in their custody for some six days. Throughout that period she spoke to her father on a couple of occasions. She was also given marijuana to smoke each day. She was a user prior to this. On the fifth day of her ordeal, she was allowed to have a shower.

1. [4]
   Prior to her abduction, the applicant had been working in her father's shop for about 12 months and earning some $300.00 per week. After the subject events, the applicant did not obtain employment readily. In mid 1997 she attained a trainee position with the Liverpool City Council as an office administrator. Her mother has provided evidence to say that the applicant is a daily user of marijuana.

MEDICAL EVIDENCE

1. [5]
   The plaintiff has said in her affidavit that she becomes upset when discussing her experience. She does swear to any other psychological problems from which she suffered. However, there is some reference to this in a report from Dr Grady. The report is dated 29 August 1996. He says that the applicant does not suffer from any psychotic disorder but does require treatment. He commented that smoking the marijuana throughout her ordeal helped her feel “out of it”. After the experience, she lived with her father in Rockhampton and then Cairns. Thereafter she has lived with her mother. She told him that she is fearfol of going out on her own and amongst strangers. Her mother confirms this. Contrary to what her mother says, the applicant says she only smokes marijuana about once a week. Mrs Crick confirms that Mr Crick is still involved in drug dealing.

1. [6]
   Dr Grady says the applicant suffers some symptoms of post traumatic stress. Some of the symptoms and signs are masked by either disassociation or by marijuana use. A degree of agoraphobia and social phobia would be associated with this marijuana abuse. I generally accept the views of Dr Grady. He said there would be no point to her going into a program for treatment for post traumatic stress disorder whilst she is abusing marijuana. The applicant failed to seek early treatment and has continued the drug abuse.

FINDINGS

1. [7]
   The applicant underwent a traumatic event which was alleviated by her abuse of marijuana throughout the ordeal. However, I find that any problems obtaining employment were due more to her marijuana use than this incident. There would have been a short time thereafter, say one month, whereby she would have not been able to cope with employment. It is difficult to know what the cost of or likely success of treatment would be and therefore no amount is allowed in that respect. Her other contributing factors such as marijuana use have obscured the applicant's real problems. I assess the compensation at $10,000 to include a component of economic loss.

APPORTIONMENT OF LIABILITY BETWEEN THE RESPONDENTS

1. [8]
   It has been submitted that it would be fair and equitable if the award were apportioned between the respondents. It was submitted that the respondent, Mr Hargreaves, is attempting to get his life in order after serving some time in prison. Whilst one could sympathise with that view, this occasion does not invoke the equitable jurisdiction of the court. It is submitted that the compensation is not by way of further punishment.

1. [9]
   Although no cases were cited to support the proposition, there are cases which assist in determining what approach should be adopted. In R v Sainty (1979) QdR 19 Justice Demack proceeded on the following basis:

1. [10]
   In the discussion at page 21, His Honour asks “Should some apportionment be made between the criminals on the basis of the contribution they made to the injuries?” His Honour dealt with this on the basis that no attempt should be made to apportion blame upon any fine consideration of the evidence. I adopt his approach. In two other cases, the approach was:

1. [11]
   In both of those cases, the amount assessed was equal to or greater than the prescribed maximum. R v Wraight and Dakim ex parte Fullerton (1980) QdR 582; R v Bridge and Madamsop cit at 555. In R v Wraightop cit at 585 WB Campbell J said:

1. [12]
   It could be mentioned that if the orders were made against other respondents by way of apportionment, then in the absence of payment by those respondents, the Government in Council may make an ex gratia payment to the victim. It does not seem appropriate that the apportionment be made where one offender may have the resources and yet the public purse should pay for the contribution by the other respondents. The legislation has as its purpose the compensation of victims of crime. The legislation is not drafted with a view to minimizing liability of a particular offender by apportioning the compensation payable: compare the provisions of s.26(8) of the Criminal Offence Victims Act 1995. As stated by McPherson J in R v Bridgeop cit at 557, each of the accused can be ordered to pay the sum not exceeding the prescribed amount.

The apportionment occurred in each of R v Wraight and R v Bridge as the assessment exceeded that prescribed maximum.

1. [13]
   There have been two unreported cases where the court has apportioned liability: In the matter of an Application by Agnes Grace Jones 5208/99 and unreported decision of Derrington J delivered on 1/09/99 and in the matter of an Application by Desmond James Welk 4024 and 4061 of 1996 an unreported decision of McLauchlan QC DCJ delivered on 7 February 1997. In both of these cases the amount assessed exceeded the prescribed maximum. The court was able to properly compensate by making separate orders in respect of each offender in each of the cases where an apportionment occurred. In the present case that is not the situation.

ORDERS