DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation pursuant to the Criminal Offence Victims Act 1995 (“the Act”).  On 14 March 2002 the respondent pleaded guilty to entering premises and stealing on 3 April 2001 at Brisbane, and was sentenced to a term of imprisonment:  Exhibit 3.  On that day he was sentenced in respect of a number of charges, including 19 counts of entering premises and stealing and various other charges.  In this case, and apparently in a number of others, the offences were committed by reaching over a counter and snatching money from the till:  Exhibit 4.

2. [2]
   The offence in question was committed by the respondent at a takeaway food store called “Fisherman’s Feast” on 3 April 2001 when the applicant was working there. She was working on a voluntary basis; her sister had signed a contract to purchase the business. She was the only person in the shop at the time. The respondent entered and said he was buying a drink and offered a five dollar note. When she opened the till he jumped across the counter, pushed her away and grabbed money from the till. She called to her husband who was at the rear of the shop but he did not hear her. She became quite frightened during the robbery, momentarily losing control of her bladder, and initially being unable to scream. She did however eventually scream whereupon the respondent ran off. After the incident she was shaking and her heart was pounding.

3. [3]
   Subsequently she experienced for a long time after the incident flashbacks of it, became tense and her personality changed, she was unable to complete a course that she had been pursuing, she could not continue to work in the shop, and she moved away from Brisbane to Hervey Bay which she regarded as a safer environment. She has suffered panic attacks and nervousness and is hyper-vigilant, and her condition worsened until she received some counselling from the Victims of Crime Association in October and November 2001: Exhibit 2.

4. [4]
   The applicant was seen for the purposes of a report on 27 July 2002 by a psychologist, Ms Collins: Exhibit 1. There were various complaints to the psychologist including difficulty in concentrating or focusing, being easily startled, she has become apprehensive, has trouble sleeping, finds herself fearful when she sees individuals similar to the respondent, and has great difficulty relating to people. Testing showed scores depression and stress in the severe clinical range and anxiety in the extremely severe clinical range. On an impact of event scale, which tends to reflect the intensity of the post-traumatic phenomena, she scored moderate in the intrusive and avoidance sub-scales, and had a total stress score in the severe range. Ms Collins regarded the extremely high test scores as not being consistent with her presentation but it was likely that she suffered moderate to severe levels of depression anxiety and stress. The psychologist concluded that she was suffering from chronic post-traumatic stress disorder, and required further counselling.

Personal offence

5. [5]
   By s 24 of the Act a person against whom a personal offence is committed may apply to a court before whom a person has been convicted on indictment of committing that personal offence for an order that that person pay compensation to the applicant for the injury suffered because of the offence. It follows that an order may only be made in circumstances where the respondent has been convicted on indictment of a personal offence committed against the applicant. The term “personal offence” is defined in s 21 of the Act as “an indictable offence committed against the person of someone”. There is no doubt that the offence of which the respondent was convicted in the present case was an indictable offence; the question is whether it was committed “against the person of someone”, specifically against the person of the applicant.

6. [6]
   The applicant relied on the decision of Judge Noud in Denny v Allen (OA 3446/99, 15.2.2000, unreported) where the respondent had been charged with robbery, and the applicant was not mentioned in the indictment.  The robbery was alleged to have been committed against a bank where the applicant was working as a teller.  The respondent was armed, and had focused his attention on a particular teller other than the applicant, although at one stage the firearm was pointed at the applicant.  In that case his Honour regarded the fact that the applicant was a person against whom violence was offered as being sufficient to enable it to be said that the particular offence of which the respondent had been committed in that case, robbery, had been a personal offence committed against the applicant.  His Honour noted the facts were similar to R v Callaghan & Fleming; ex parte Power [1986] 1 Qd R 457, a decision under the provisions in the Criminal Code.

7. [7]
   When this matter was argued I had some recollection that the Court of Appeal had considered the question of when an offence is a personal offence committed against the person of the applicant. However, I have been unable to identify any such decision, and my recollection must have been in error. There were however decisions of the Court of Appeal dealing with the situation when applications for compensation were made under the Criminal Code.  In R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457, Connolly J held that a person who had suffered anxiety as a result of being a bank teller threatened by a pistol during an armed robbery was entitled to apply for compensation under the Code from two individuals who had been convicted of the offence of armed robbery with violence.  The person named in the indictment as the person the subject of the actual violence was a different person, but his Honour held that it was not necessary to be the person named in the indictment so long as the applicant was a person or one of the persons to whose person the violence was offered:  p. 458.  This approach was adopted on the ground that the legislation was remedial.

8. [8]
   The position was clarified by the decision of the Court of Appeal in R v Moors; ex parte Alex [1994] 2 Qd R 315, where a majority of the Court of Appeal held that, in circumstances where the respondent had fired a number of shots at a car occupied by three people and killed one of them, and had been convicted of the manslaughter of that person, one of the other persons who had been in the car at the time was not entitled to apply for compensation even though he had suffered psychiatric injury, as the offence of which the respondent had been convicted, manslaughter, related to the person only of the deceased.  MacKenzie J at p. 320 said:  “The concept of an offence relating to the person of any person is in my view used in contradistinction to an offence relating to property.  The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed.  The relevant offence is the offence referred to in the indictment.”  Thomas J (as he then was) agreed, and added that he accepted the correctness of the decision in R v Callaghan on the basis that proof of actual violence against some person or persons was an element of the offence charged, and said that it was necessary for the applicant to be a person to whose person the offence related:  p. 319.

9. [9]
   That decision was approved and followed by the Court of Appeal in French v Green (CA 4481/97, 19.12.97, unreported, BC9707425).  There an application for compensation in respect of psychiatric injury occasioned by an offence of dishonesty was unsuccessful, on the ground that the offence of which the respondent had been convicted did not relate to the physical person of the applicant.

10. [10]
    The solicitor for the applicant helpfully referred me to a decision of Brabazon DCJ in Bushell v Ryder [2001] QDC 328, where an application for compensation under the Act failed on the ground that there had been no personal offence committed against the person of the applicant.  His Honour referred to Callaghan and Moors and said that, because of differences between the Act and the provisions of the Code the reasoning in those cases had to be applied cautiously to applications under the Act.  I respectfully agree.  Nevertheless, it seems to me that there is some similarity between the way in which the test under the Code was formulated by MacKenzie J in Moors at p. 320 and the wording of s 21 and s 24(2) of the Act.  It could well be that the legislature was attempting in this Act to enshrine the tests established by the majority in Moors.

11. [11]
    Whether or not that was the case, however, a person can only apply for compensation if a person against whom a personal offence is committed and the respondent has been convicted on indictment of the personal offence, or convicted on indictment and the personal offence was taken into account on sentence. As to the latter alternative, there are parts of the decision in Bushell which suggest his Honour thought it was sufficient to satisfy this limb if the facts given by the sentencing judge as the basis of the sentence involved the commission of an indictable offence against the person of the applicant.  It is not entirely clear whether his Honour was intending to express the opinion that the statute went that far, but if he was then, with great respect, I would not agree.

12. [12]
    Section 189 of the Penalties and Sentences Act 1992 provides that in certain circumstances a court may take offences other than those charged on indictment into account on sentence, provided that the offender is legally represented, pleads guilty to the offence and asks that they be taken into account.  This procedure has the effect of preventing further proceedings for the offences so taken into account to be brought against the offender (ss 5) and the legislature may well have thought that unless some provision such as this was made an offender could by use of the procedure under s 189 avoid exposing himself to liability for compensation under the Act.  The Juvenile Justice Act 1992 s 117 adopts s 189 of the Penalties and Sentences Act.

13. [13]
    Furthermore, for the purposes of imposing sentence a judge may not take into account any other offence or offences of which the defendant has not been charged and convicted: R v Cooksley [1982] Qd R 405 at 417, R v Tootoo [2000] QCA 312.  If the sentencing judge had taken into account the assault on the applicant he would have breached the principles in R v D [1996] Qd R 363.  In circumstances where the Penalties and Sentences Act provides a specific mechanism by which an offence is taken into account on sentence when a person is convicted on indictment, and where it is and was prior to the passing of the Act established law that apart from some such provision offences of which a person has not been convicted may not be taken into account on sentence, in my opinion the inference is irresistible that the reference in s 24(1)(b) to a personal offence “taken into account on sentence” is a reference to an offence in respect of which the sentencing court proceeded under s 189 of the Penalties and Sentences Act 1992, or some equivalent provision.

14. [14]
    It follows that it is not enough for the facts recited by the sentencing judge to be capable of constituting an indictable offence which would have been a personal offence against the applicant. That in my opinion does not amount to taking into account that personal offence on sentence. I have dealt with this point because the solicitor for the applicant submitted that I should assume that the sentencing judge would have taken into account an assault on the applicant. There is no evidence that that judge was even told that the applicant had been assaulted, but for these reasons it would not have assisted the applicant’s case to show that he had.

15. [15]
    There is also the consideration that a judge in dealing with an application for criminal compensation is bound by the limits of the criminal conduct determined in the criminal proceedings, including the view adopted of the facts by the sentencing judge. In Facer v Bennett [2001] QCA 395 the Court said that:  “In the criminal compensation hearing, the judge should take a view of the evidence consistent with that taken at sentencing;  to do otherwise would result in an unfairness and would be incongruous.”  Accordingly, if the sentencing judge proceeded on the basis that no violence was offered to anyone in the course of committing the offence, or that the violence was offered only to a specific person or persons other than the applicant, that would necessarily preclude an application for compensation by the applicant.

16. [16]
    Subject to that consideration however, it may be that the reasoning in Callaghan (supra) is still applicable under the Act, although that is something I do not need to decide and upon which I express no opinion.  The present application is founded on the commission by the respondent of the offence of entering premises and stealing:  Criminal Code s 421(2).  It is not an element of that offence that anything be done or threatened to the person of any person.  That may be contrasted with the offence of robbery in s 409,^[1] an offence in respect of which compensation orders are made under the Act from time to time.  In my opinion an offence under s 421(2) of the Code is not a “personal offence” as defined in s 21 of the Act, unless the indictable offence referred to in s 421(2) is itself a “personal offence’ as defined in s 21 of the Act.  That was not the case here;  the indictable offence referred to here was the offence of stealing.  It would not matter for present purposes if at some point the respondent had been charged with some offence which would be a personal offence committed against the applicant, since compensation can only be ordered in respect of an injury suffered because of an offence of which the respondent has been convicted on indictment:  s 24.  I acknowledge that the Act is remedial legislation, but in the present case the applicant falls outside its scope.

17. [17]
    It follows that there has been no personal offence of which the respondent has been convicted, and the applicant is not a person against whom was committed the personal offence of which the applicant was convicted, or which was taken into account on sentence pursuant to s 189 of the Penalties and Sentences Act.  It follows that the application must fail.  The applicant’s case really is that there was a personal offence committed against her person by the respondent in the course of committing the offence of which he was convicted.  But he was not convicted of that personal offence, and therefore compensation cannot be ordered in respect of it.  Indeed, it may be that evidence of the commission of that personal offence was irrelevant and inadmissible in the present proceedings:  Ellacott v Bilston (CA 158/98, 5.5.98, unreported).  The application is therefore dismissed.

Precautionary assessment

18. [18]
    However, in case a different view might be taken elsewhere, I should proceed to make an assessment of the amount of compensation which would have been ordered to be paid on the basis of the material before me if I had been satisfied that the application came within s 24 of the Act. The applicant’s submissions relied only on the psychological injury, described in the schedule as nervous shock. In view of the evidence of Ms Collins and the other material I am satisfied that the applicant has suffered mental or nervous shock for the purposes of item 32 of the schedule, within the moderate range, and would assess the compensation by reference to the higher end of the moderate range, at 20 per cent. This is a case where the life of the applicant has been significantly disrupted as a result of this incident, she has been unable to continue working in the shop, has had to discontinue training for a proposed career as a counsellor, and has had to move away from Brisbane to another area. She has shown moderate or severe results when tested for various psychological conditions, and is in need of further counselling. Accordingly I assess the injury at 20 per cent. That produces an assessment of $15,000.

19. [19]
    However, for the reasons given earlier the application is dismissed. There is no jurisdiction to award costs.