Ferguson v Watterson[2008] QDC 224

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant is a sixty year old man who has previously been convicted of sexual offences against young children. He was released from prison in New South Wales on 15 December 2004 and returned to Queensland in December 2004 initially living in the Brisbane area with friends.  From December 2004 to January 2005 he moved to Ipswich and was living with a friend in temporary accommodation. 

2. [2]
   During the days leading up to this offence he and his friends had been subjected to an extreme amount of harassment from the media who had in turn engendered public support to hound the applicant out of town. On 1 February 2005 he was helping friends move to rental accommodation in Murgon. He was the subject of further abuse on that day in Murgon and was told by the police he would be safer if he left and he returned to Ipswich.  When they arrived back at Ipswich there were members of the media and a crowd of people outside the premises waiting for them. The applicant could not see what was going on as he was under a blanket in the rear of the vehicle but he was told that Mr Watterson was in the crowd and that Watterson did not like him. 

3. [3]
   Because of the hostility of the crowd outside the house they drove immediately to the Yamanto Police Station. When they arrived the media was there as well. His friends went into the police station while he stayed under the blanket in the car. They requested assistance from the police and then they went back to the Ipswich address driving around to the back of the premises.  The media and the respondent were still there.  The car was stopped and as he lay under the blanket he heard many people yelling things like, “Get out you filthy kid fucker”, “You’re dead”, “We don’t want you here.”  He became scared that if he got out of the car people would hurt him.  He heard the back door of the car being opened by the applicant and he heard the applicant and others yell at him, “Get out of here!”.

4. [4]
   Things quietened down a bit and he eventually left the car and entered the house. As he went to the house he heard more abuse and people yelling that he was dead and that they would get him. The respondent was one of those who yelled at him saying, “No sleep tonight Mr Ferguson, the black fellas in Murgon never got you but I will”. He was scared that people would break in and injure him and that the media were inciting the crowd.

5. [5]
   When the police arrived the yelling and the rock throwing stopped. He remained in the house all night and throughout the next day he was worried that Watterson would break in and injure him or burn the house down. He was especially concerned once he saw television footage of Watterson threatening him and trying to get him out of the car. He was taken away from the house the next day.

6. [6]
   On 19 October 2005 the respondent pleaded guilty to one charge of making threats, contrary to s 359 of the Criminal Code.

7. [7]
   Mr Ferguson applies for compensation under the Criminal Offence Victims Act 1995.  The Act came into force in December 1995 and was established to provide compensation for an applicant’s injury consequent upon a personal offence committed against the applicant^[1]. The scheme was introduced to ensure compensation for all victims of crime.  It does not provide that compensation be awarded only to victims who are good citizens. The explanatory notes of the Act when introduced into parliament in Bill form provides insight into the purposes of the criminal compensation scheme:

“The principle reforms are:

…

2. (b)
   court applications will be dealt with informally;

3. (c)
   amounts will be assessed according to a “compensation table” with the objective of simplifying the process and reducing the inconsistencies in the awards made.

The system for compensation is intended to provide some measure of compensation in a summary way to the victim of a crime without the delay, cost and formality of a civil action for damages, for example, for assault or trespass.” 

8. [8]
   It would be a very rare case that a victim of crime would be denied compensation altogether. In Hohn v King [2004] QCA 254 the court discussed this proposition at paragraph 100:

“The behaviour of the victim of the crime is relevant and is one of the matters to be taken into account.  However, the legislation is not in terms limited to “good citizens who are the innocent victims of criminal behaviour”.  Crime, its causes and incidents, is more complex than such an attitude would suggest.  Demographically, the group responsible for the majority of assaults, young people, particularly young males aged 15 to 24, is the same group most likely to be victims of assault.  As s 25(7) recognises, criminal offending does not only occur in a world neatly divided between the innocent and guilty, the good and the bad, but one which contains many shades of grey.  Compensation awarded to victims of crime does not depend on a simplistic approach but takes into account all the relevant factors including any behaviour of the applicant which contributed, whether directly or indirectly, to the injury.”

9. [9]
   The first question in this case is whether the offence of making threats under the Criminal Code is a personal offence as defined in the Criminal Offence Victims Act^[2] Compensation is only payable for offences committed against the person of someone.  This phrase was considered in detail in RZ (by his litigation guardian) v PAE (2007) QCA 166 at paragraph 45:

“For an offence to be an “offence committed against a person of someone”, it is not necessary that there be actual contact with the body of the person.  To return to an earlier example, the offence of robbery is frequently committed by pointing a weapon at victims and threatening them with violence in order to obtain property with no actual physical contact with the person or body of the victims.  Such victims are commonly awarded compensation under the Act because the offence to which they were subjected is planning an indictable offence committed against the person of someone within s 21 of the Act.  An attempted robbery involving threats alone is no less an indictable offence committed against the person of someone than a like offence involving some actual bodily contact.

Although the respondent’s offence against the appellant child did not involve physical contact with or a threat of physical contact with the child’s person or body, it was certainly not an offence against property.  The respondent proposed that the child let the respondent “suck his dick”, an act which, had it been carried out, would unquestionably have involved the child’s person or body.  It is not suggested (nor could it sensibly be) that, had the attempted offence actually been committed, it would not have been “an offence committed against the person” of the child.  The respondent desisted before committing the principle offence and in committing the offence of attempted indecent treatment of a child did not make physical contact with the child but the thirteen year old heard the forty six year old respondent’s graphic proposal to procure the child to commit the indecent act permitting the respondent to suck the child’s penis; the child apprehended the proposal knowing something of the respondent’s criminal history for like offences and offences of serious violence; the child understandably became upset.  In these circumstances the respondent’s attempt to unlawfully procure the applicant child to commit an indecent act was offence against the child’s personal body and “an offence committed against the person” of the appellant child under s 21 of the Act.”

10. [10]
    That interpretation of those words is consistent with the remedial nature of the Act:

“To provide compensation to injured victims of crime against the victim’s person.”

11. [11]
    Whilst taking into account the actual language of and the meaning open on the words of s 21, they should not be construed narrowly if that would prevent the discharge of the legislative purpose of the Act; Khoury v Government Insurance Officer (NSW) [1984] 165 CLR 622 at 638.  The words of that section make it very clear that this offence is an offence against the person of someone and in fact Mr Boustead for the Crown has not challenged that interpretation of the Act.  It is clear that the act of threatening to kill Mr Watterson was a threat to be taken seriously and one that would constitute an assault by threat.

12. [12]
    He is therefore entitled to compensation under the Act. It is clear from the facts of the matter that he did not contribute to the offence. He did not commit any act on that day to incite the crowd to violence or threats. He remained hidden from the sight of the crowd during the day and the only incitement to the crowd was the fact that he had previously committed offences and been released from custody at the completion of his term of imprisonment. At the time of the offence he was simply endeavouring to move into a house as an invited guest.

13. [13]
    The applicant in his affidavit says that he was especially scared of the respondent breaking in because he had seen him on the television and he thought he was the ring leader in all the threats and rock throwing in the house over the two day period that this harassment took place.

14. [14]
    The applicant was interviewed by Dr Michael Beech, a psychiatrist on 30 May 2008. Dr Beech has provided a report in relation to this application. Dr Beech notes that in January 2005 the applicant was the first person placed on the Child Protection Offender Register and from that stage he began to experience harassment from the media. He was unable to keep his appointments with Dr Rosevear, his psychiatrist, as the media would stake out the doctor’s room. He was also unable to associate with friends so his support network was curtailed. At that stage he had physical symptoms including feeling generally nervous, headaches, dizziness and palpitations. He would suffer blackouts and his memory would lapse. He had been to Murgon to help his friend move from Ipswich and while he was there a reporter and cameraman came to the house.  He chased them away and then the reporter called the police.  The police arrived as did neighbours who in effect forced the police into removing him and he was taken back to his Ipswich address where there were media and a crowd outside.

15. [15]
    Dr Beech refers to his symptoms as follows:

“His physical health remained compromised.  He said that his sleep was disturbed by initial insomnia and was broken throughout the night.  He had distressing dreams of being accosted and attacked in public.  His eating was disturbed and his weight fluctuated.  He became fearful of going out in public.  He said he was very wary when out of the house.  He would only travel to Brisbane during broad daylight for arranged visits.  He would go directly to the visit and return straightaway to Miles.  When he visited Brisbane, he would change the place where he was due to stay overnight on short notice to avoid detection.  He would stay at places where he knew there was good security.  This went on for sometime.”

16. [16]
    The history of Mr Ferguson’s harassment is complicated. On multiple occasions during previous incarcerations he has been attacked by prisoners. Some have been convicted of grievous bodily harm and there have seven incidents of serious assault. He has been knocked out and badly beaten during the attacks. He still has continuing intrusive memories of some of these attacks and they make him anxious. As a result in prison he is anxious and easily startled. He now fears that he will also be attacked in the community as well as in the prison.

17. [17]
    There are also events from his childhood which he would not discuss with Mr Beech but they are apparently unsettling memories. Dr Beech saw a report from Dr Rosevear which has not been put before this court but it indicated that he has counselled the applicant on many occasions.

18. [18]
    In 2003 a report indicated that he showed signs of Post Traumatic Stress Disorder consistent with the fact that he had been repeatedly bashed and attempts were made on his life in prison. There was also history of child abuse which had not been resolved. In a further report in 2005, Dr Rosevear stated he continued to see Mr Ferguson in relation to his stress. He had phoned him on many occasions because he could not attend due to fear of public harassment. He had considered suicide and he believed that Mr Ferguson displayed evidence of chronic Post Traumatic Stress Disorder.

19. [19]
    Dr Beech opines that his chronic Post Traumatic Stress Disorder would likely have arisen from earlier events including prison assaults. He describes anxiety prior to the 2005 incident, avoidance and thoughts of persecution and in 2003 was noted to be nervous, hyper-vigilant and had difficulty concentrating. He said there is also a history of abuse noted by Dr Rosevear and intrusive memories that are highly suggestive of Post Traumatic Stress Disorder that goes back to childhood. He had past episodes of depressed mood with features consistent with either a major depressive episode or an adjustment disorder. He says:

“In my opinion, the incident in 2005 is likely to have added to burden of morbidity that Mr Ferguson had already suffered up until that time.  The incident was one of many traumatic and frightening events that had occurred in his life.  It happened when he was already anxious about previous bashings and feared a conspiracy to harm and prevent his allegations of negligence proceeding.  He already feared for his safety.  It is likely I believe that his anxiety had been further aroused by the events in Sydney and heightened by the events in Murgon. He had by the time he arrived back in Ipswich become fearful of public harassment.

These pre-existing circumstances I believe made him vulnerable to further anxiety and distress when he was threatened in Ipswich.  They were further aggravated by his poor eyesight, being covered by a blanket, being accosted by a crowd, and being trapped in a car.  To this sense of helplessness was added his belief that the crowd was being incited and that there was no help at hand…

I believe however that it has added to his PTSD and exacerbated and expanded it.  He described continuing anxiety and recollections of the event.  It has now made him more anxious about being in the community generally, more so than before.  Prior to his return to custody, his avoidance was increased.  It is likely to worsen again if he is released into the community.”

20. [20]
    He was unable to quantify the damage done by the 2005 events. More particularly he is unable to quantify the damage done by Watterson.

21. [21]
    It is said that the events of 2005 led to the exacerbation of his Post Traumatic Stress Disorder. However, the harassment was occurring on an almost daily basis and not just at the Ipswich address. Even on the day in question the harassment was produced not only by this respondent but by others present including the media. The resultant mental and nervous shock cannot all be placed on the shoulders of this respondent.

22. [22]
    In Say & AZ; Ex parte AG 2006 QCA 462, Holmes JA discussed the difficulties in trying to apportion compensation where there was more than one cause.  Her Honour stated there at paragraph 23:

“Where there is a single state of injury produced by a number of factors, some or all of which warranted a reduction in the award, the court must do its best to make allowance for their contribution although the evidence may not lend itself to any precision.  Often a broad brush approach, or the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary.  The exercise may be one of discounting, or fixing another percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.  In that exercise, it is legitimate to consider the nature of the other contributing factors.  Given that the Act scheme is to require an offender to compensation his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent will be given considerably more weight than those merely reflecting part of the continuing of offending.  Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely stipulated it was to the relevant offences and the relationship of victim and offender in which it occurred.  The basis on which any reduction or compensation is made must have of course been clearly identified”.

23. [23]
    Because an apportionment is impossible to do clearly in this case, a broad brush approach will have to be applied. Whilst one of a crowd, the respondent was at the forefront of the harassment, the one opening the car door and the one making death threats which were clearly audible to the applicant. Further he was later on television reinforcing the nature of those threats and his intention to carry out the threats if given a chance. He was, in effect, the public face of the harassment over the two day period and a person who lived in close proximity to the house in which Ferguson had sought refuge.

24. [24]
    Of course, there was also the stress occasioned by the harassment that occurred in Sydney and Murgon with which Mr Watterson was not at all tied. 

25. [25]
    The applicant clearly suffers from severe Post Traumatic Stress Disorder and would be entitled to an award of 30% of the scheme maximum if this were the only cause of his disorder. However, taking into account the fact that there were many other incidents of harassment and trauma caused to the applicant both before and since these events, that award would have to be discounted considerably.

26. [26]
    In my view, the award should be reduced to 3% of the scheme maximum and I order that the respondent pay the applicant the sum of $2,250 by way of compensation.