Pereira v Peterson[2005] QDC 30

DISTRICT COURT OF QUEENSLAND

1. [1]
   Mr Daniel Pereira, his mother Zoe, and his father, Humberto have made separate applications for compensation under s 24 of the Criminal Offence Victims Act 1995 (“the Act”) against Brendan Andrew Peterson, who pleaded guilty on         17 February 2004 to personal offences against each of them, committed on a single occasion in the early hours of the morning (some time before 3.45am when police apprehended) him on 17 August 2001.  Whether any defence in the nature of self-defence or otherwise might have been available to the respondent is irrelevant, given his guilty plea.  However, circumstances that might have been relevant to that potentially bear on the argument presented by Mr Kimmins for the respondent that there was behaviour by each applicant “that directly or indirectly contributed to the injury” for purposes of s 25(7) of the Act.

2. [2]
   The application in respect of Mr Pereira senior mis-states the offence, which was not one of assault occasioning bodily harm, as in the others, but one of serious assault on the basis that the victim’s age was greater than 60.  Both he and his wife were 68.

3. [3]
   On the sentence, the Crown Prosecutor informed the Court the respondent was a 27 year old customs officer (the furtherance of whose career moved me to formulate a sentence not involving the recording of a conviction) and went on:

“…he has no criminal history.  All counts on the indictment relate to a single incident which occurred when the prisoner was in the yard of the residence of Zoe and Humberto Pereira, the complainants in count 1 and 2, in the early hours of the morning of the 17^th of August 2001.

Humberto and Zoe Pereira reside on the corner of Burrendong Road and Hansford Road, Coombabah.  The home is enclosed by a high, wooden fence and access to the yard is by a front gate.  There are – that has been fitted with sensors and a padlock.

On the relevant night, Mrs Pereira was awoken by her dogs and also by the fact that the exterior sensor lights were on.  She alerted her husband and both of them looked out of the window and saw a male person in the yard.  Mrs Pereira heard a shaking noise at the front door.

The couple contacted their son, Daniel Pereira, who lives a short distance down the road and they also contacted police.

Shortly after this, Mrs Zoe Pereira heard the offender move to the back of the house.  Daniel arrived and he confronted the prisoner, who was trying to open the back pergola door.  He asked him, ‘Can I help you, mate?’  The prisoner’s reply was, ‘No, why?’  Daniel told him he would give him three seconds to leave.  Daniel directed him to leave the property and prodded him with a cricket stump that Daniel had picked up from the front garden.

He pointed the stump towards the fence because the prisoner seemed reluctant to move.  The prisoner walked towards the front of the house with Daniel continuing to prod him with the stump.  The elder Pereiras, both Zoe and Humberto, had by then moved outside into the front yard.  Mrs Pereira, Zoe Pereira, recalls Daniel repeatedly asking the prisoner to get off the premises, to which the prisoner was responding, ‘Why? Why?’

She started shouting at the prisoner to go, go.  Daniel continued to push the prisoner with the stump.  At some stage the prisoner punched Daniel in the left eye with a closed fist and this blow represents count 3 on the indictment.

A scuffle ensued between Daniel and the prisoner during which both men were punching each other. Zoe and Humberto attempted to help their son during these events. Humberto Pereira, who at the time was aged 68 - hence the charge serious assault – opened the front gate so Daniel could push the prisoner outside. He was hit by the prisoner as he did so, the blow landing behind his left ear. The blow was of considerable force, causing him to fall and hit his head against the palm tree – a palm tree, as he did so.

Zoe Pereira pushed the prisoner as he was struggling with Daniel and tried to pull him away.  The prisoner grabbed her by her nightgown, pulled her towards him and punched her to the left side of the face causing her glasses to break and her to fall down on the ground.

After his mother had been hit, Daniel struck the prisoner a number of times.  He stated three or four times across the back, ribs and head with the cricket stump, causing the stump to break.

As you would expect in the circumstances of this offence, each of the complainants provides slightly different details of the events during this period.  The prisoner left the yard, ultimately, and walked up Hansford Road.  Daniel went looking for the prisoner in his car.  He located the prisoner at the Coombabah Plaza Shopping Centre and alerted a security officer who then remained in the presence of the prisoner until police arrived.

The prisoner made comments to police when they approached him.  He stated that he had been down the road and that someone had hit him.  When asked what they hit him for, he replied that: ‘They said, ‘Get out‘ and hit me over the back with something.’  He didn’t know where this had happened.  Later, when speaking with police at the police station, he stated that someone had hit him across the back and he was sore, but he didn’t know why they had hit him.  He thought that he had been in a house.  He had jumped a fence to get away.  He stated that they had hit him and he had retaliated and he hoped he didn’t do anything wrong.”

4. [4]
   It should be made clear that in these applications I have taken the facts to be as outlined to the Court on the sentence by the Crown Prosecutor.  As she noted, the applicants’ view of the facts is more adverse to Mr Peterson in some respects.

5. [5]
   The respondent (who denies using drugs) had been drinking heavily and got separated from the mate with whom he was staying on a visit.  He had no idea how he got to the Pereiras’ place.  He surmises that he took it to be the place where he was staying.  There has been no suggestion he had any criminal intent in seeking to gain entry to the house.  He was staying at Hollywell, which is the next suburb to Coombabah.

6. [6]
   So far as physical injuries are concerned, the respondent suffered the most.  According to the Prosecutor:

“Mr and Mrs Pereira were treated by ambulance staff and taken to the hospital.      Mrs Pereira – Zoe Pereira suffered bruising and swelling to her left cheek and eye area and bruising to the ring finger of her left hand.  Humberto Pereira suffered tenderness and swelling to the area behind his left ear.  Daniel Pereira suffered bruising to the left eye.  The prisoner also sustained welts to his back and upper thighs.”

7. [7]
   The more concerning consequences of the offences for the applicants have been in the area of “mental and nervous shock” which are dealt with in items 31, 32 and 33 in the schedule in the Act.  The Court was apprised of this on the sentence by the contents of Victim Impact Statements, which became Exhibits 3, 4 and 5.  The applicants sought no professional assistance to seek to deal with what seem extreme impacts from the event.  They attended together upon Paul Elliott, a psychologist (who provided reports attached to covering affidavits) on 26 October 2004.  This was well over three years after the incident.  It was explained that a joint assessment procedure occurred because of the need for Daniel Pereira (by then 43 or 44 - according to his affidavit, “I am currently 34 years old, having been born on 30 April 2960”) to accommodate his parents’ difficulties in using English.  According to the applicants (Mr Elliott accepts it as genuine) they have become extremely nervous about their safety, to the extent of considering Australia an unsafe country in which to live, and even more security conscious than they were before.  I am not persuaded by Mr Kimmins’ suggestions that they were security-conscious to a degree indicative of some disorder all along, based on the security precautions at the residence of the parents (high fence, padlocked gate, sensor light and dogs).  Mr Elliott considered these sensible precautions in the area, ones he indicated he adopts himself.  He has effectively ranked the applicants in order of what remains to them of functioning effectively from a psychologist’s point of view:

• In respect of Mr Humberto Pereira, who now suffers a “Generalised Anxiety Disorder (DSMIV-TR)”, “51: at the bottom end of the scale of Moderate symptoms.  This indicates that he is currently functioning at 55% of his premorbid capacity.” 
• In respect of Daniel Pereira, “60: Moderate difficulty in social and occupational functioning … the probability of permanent psychological impairment, in the absence of appropriate psychological therapy, he is at least 75%.”
• Mrs Pereira has done better, with a “current level of psychological functioning at 70 – Some difficulty in social and occupational functioning.”  The probability of permanent psychological impairment is put at 90%.

There was no evidence about the scale employed which was taken to be based on 100.  Whether 100 represents a community average (or is capable of being exceeded) or represents a person with no psychological impairments whatever is unknown.  (The applications were adjourned from 7 February 2005 to permit     Mr Elliott to be made available for cross-examination.)

8. [8]
   Consistently with the foregoing, the number of one-hour therapy sessions recommended (for each of which of the professional society recommends a fee of $176) is:

• 10 hours for Humberto Pereira;
• “a minimum of 20” for Daniel Pereira;
• 5-6 hours for Mrs Pereira.

The situation of Daniel Pereira may be seen as more concerning from the point of view of his relative youthfulness and his having responsibility for a wife and child of his own, as well as for his parents.  He came to Australia at the age of 16 with his parents, as the youngest of five children, from Angola.  He has undertaken training in self-defence since the incident and frequents a gymnasium “in order to be stronger in case of a repetition”.  According to Mr Elliott, “he was ‘shattered’ by what he perceived as his ineffectual attempts to protect his parents, and became preoccupied with the fears for his own wife and children.”  He has had increased security provision made in his parents’ home and in his own.  The amount of sleep he is getting is grossly inadequate.

9. [9]
   It appears that all of the applicants have become effectively housebound, abandoning their former social activities, including even family contact.  By way of summary I would set out Mr Elliott’s conclusion in respect of Daniel Pereira:

“Impact of incident on family/social/relationships of client:

Prior to the assault, the extended family was extremely close and intact, emotionally and physically.  Since the assault, there has been a progressive fragmentation as each individual has become reclusive and fearful to leave the safety of their homes.

Thus, the emotional closeness has faltered and disintegrated.

Socially, likewise.  Mr Pereira stated that he has no social life and only leaves home for work and to take his wife and children to their ‘events’; otherwise, he leads a joyless and isolated existence.

The conjugal maintenance of Mr Pereira’s life has ceased as his wife now sleeps with their 11 year old daughter, while he ‘stands guard’.  There is a physical closeness, but an emotional numbing; the only prominent emotion is agitation.

Effect on outlook on life in general:

Mr Pereira’s life is now characterised by anxiety and depression.  He lives in constant fear of a repetition of the ‘invasion and assault’.

Need for further counselling and its scope:

Mr Pereira is psychologically naïve and was unaware of the potential for improved functioning via counselling.  I have advised him that it is my professional opinion that as consequences of the assault, his dissociative episodes and sleep deprivation have now caused a level of psychological impairment that he should not be driving, owing to his reduced concentration and impaired reflexes.  He urgently requires arousal reduction and adjustment counselling, as well as sleep hygiene.  A minimum of 20 one hour sessions over the next six months should suffice.”

10. [10]
    Mr Kimmins was not really in a position to challenge Mr Elliott’s opinions, except on the basis of pre-existing disorders, in which respect he was not able to establish anything.  It does seem odd, however, that every one of the applicants has reacted in what seems an extreme way.  From the standpoint of an outsider, Mr Daniel Pereira’s assessment of his performance as inadequate seems hard to understand.  He got the respondent off his parents’ premises, then got him apprehended, with a security officer’s assistance, until police arrived.  It is hard to see what more could have been expected.  It seems curious that none of the applicants has shown any improvement over the last 3½ years.  One might have thought that the respondent’s pleading guilty and being sentenced might have had some beneficial effect.

11. [11]
    I think the Court ought to take the approach that an offender called on to pay compensation under the Act takes his victims as he finds them, and cannot argue for more modest assessments of compensation in respect of items 31, 32 and 33 on the basis that victims who were psychologically more robust would not have suffered so much.

12. [12]
    Another possible consideration for the Court which was discussed briefly in the hearing was whether any regard ought to be had to the circumstances of the respondent.  There was no evidence of Mr Peterson’s circumstances.                  Mr Kimmins did not pursue the suggestion thrown out by the Court that whether a compensation order might prove crushing upon the offender or the offender’s family was relevant.  Such considerations may, of course, be relevant on sentencing, which is a completely separate exercise, under different legislation.  It is difficult to find any scope in the Criminal Offence Victims Act for such factors.  S 22 sets out some considerations the Court ought to bear in mind under the Act:

“Relationship or compensation under this part to rights under common law or otherwise

1. 22.(1)
   A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise.

2. (2)
   Subsection (1) is subject to section 38.¹⁸

3. (3)
   Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise.

4. (4)
   The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.”

(S 38 deals with the State’s rights of subrogation.)

Subsection (3) does not seem to have been the subject of much judicial consideration.  It may justify an approach of comparing the amount awarded under relevant schedule items with the indicated cost of providing “help” for applicants – for example, in the form of the therapy recommended by Mr Elliott.  Of course, the Act provides no mechanism for ordering payment of the costs of therapy, etc. directly.

13. [13]
    So far as contribution by the applicants themselves is concerned, Mr Kimmins’ point, bearing on the way in which s 25(7) might have operation, was that Daniel Pereira contributed by arming himself with a cricket stump and poking the respondent with it; he was the one resorting to “assault”, albeit in defence of his parents’ property.  Then, severally, the parents joined in.  As a matter of causation, they would not have been assaulted, had they not done so.  I am not really persuaded that their son needed their help.  I have accepted that certain conduct by a person assaulted by somebody who becomes a respondent under the Act, may require discounting of the compensation assessed.  This was determined to be to the extent of 50% in Hockley v Sowden [2000] QCA 9.  My view is that a common-sense approach attempting to give effect to the views and standards of ordinary people in the community should be applied for purposes of s 25(7).  Would the ordinary person say of the injured applicant: “He/she brought it on himself/herself”?  In the present circumstances, the answer has to be, No.  It was the middle of the night.  All applicants had been rudely woken from sleep.  Although it seems to me that Mr Peterson was not physically aggressive until poked with the cricket stump, it would be wrong to expect the applicants in the excitement of the event to reach the same judgment.  That parents would intervene to assist a son whom they had summoned to help them, even if he may not have needed their assistance, is completely understandable.  The conduct of Mr and Mrs Pereira would not attract criticism of any ordinary, reasonable person.  Nor would that of Daniel Pereira, in acting when he first turned up in a fairly restrained way, to ensure the removal of the respondent.  That he may have gone a lot further shortly afterwards seems irrelevant in the present applications.

14. [14]
    In circumstances where it would be inappropriate to be critical of the conduct of the applicants, or any of them, at relevant times, I do not think there is a case for reducing any assessment under s 25(7).  I gratefully note Mr Kimmins’ reference to a statement of factors likely to be relevant for purposes of s 25(7) in Hohn v King [2004] QCA 254 at [105] and Cullinane J’s statement in Grahame v Dean [2001] QSC 420 at para 34 that “The use of the words ‘direct or indirect’ suggests a broad and common-sense approach rather than a technical and narrow approach is required” cited in Albert v O'Keeffe D 2679 of 2003, 13 August 2004 (Judge Hoath) at para [15].  Mr Kimmins relied on most of the “factors” mentioned at [105] in Hohn - all except [5] and [8]; however, I am not persuaded any applies.  The “factors” were stated to be (without limitation):

“(1) whether or not the victim was committing an offence at the time of his or her injury;

2. (2)
   whether any such offence committed by the victim involved personal violence to the offender or another;
3. (3)
   whether the victim offered violence to the offender or another before, during or after the offence;
4. (4)
   whether the victim was armed or used a weapon;
5. (5)
   whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;
6. (6)
   whether the offender responded with more force than was justified for self-defence;
7. (7)
   whether the victim offered provocation to the offender;
8. (8)
   any differences in size, strength and power between the victim and the offender;
9. (9)
   whether the violence used by the offender was disproportionate to any violence offered by the victim.”

15. [15]
    Mr Elliott’s reports on the applicants indicate that he is cognisant of the jurisprudence relating to the Act, to which he makes reference as “the Criminal Defence Victims Act 1975, as considered by Thomas J of the Queensland Supreme Court in Ferguson v Kazakoff” in relation to “mental or nervous shock”.  I think the conclusion is inescapable that in stating his diagnosis in respect of     Mr Hubert Pereira he expressed the view that the disability comes at the bottom end of the range in item 32.  Reference has already been made to his clear “ranking” of the disabilities of the applicants, from which it follows that           Mrs Pereira and Daniel Pereira come within item 31.  I would assess their entitlements at 6% and 8% respectively, Mr Humberto Pereira’s entitlement being assessed at 10%.  In respect of the minor physical injuries, I adopt Mr Bagley’s submission on their behalf that $750 is the appropriate amount.  Mrs Pereira’s injuries were more numerous, but I am unpersuaded she should be assessed at the top of item 1, and would allow $1,500.  Compensation is accordingly assessed at $6,000 in her application, $8,250 in her husband’s, and $6,750 in respect of her son’s.

16. [16]
    There is a question remaining.  On the sentence, as a mark of its sympathy with the applicants, the Court ordered the respondent to pay each of them compensation of $1,000 pursuant to s 35 of the Penalties and Sentences Act 1992, which amounts have apparently been paid.  I accept Mr Kimmins’ submission that in these circumstances an appropriate way of proceeding is for the Court to determine the compensation amounts under the Act, and then deduct the $1,000 already paid.  I have reflected on whether this course is precluded by s 22(1) of the Act, and have concluded that it is not.  The orders for $1,000 were never intended as anything more than “symbolic”: they were not intended to reflect the applicants’ entitlements under the Act or at common law.

17. [17]
    In the result, the respondent will be ordered to pay compensation under the Act as follows:

• In 734/04, to Daniel Pereira $5,750
• In 735/04, to Zoe Pereira $5,000
• In 736/04, to Humberto Pereira $7,250