DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Lisa Marie Kelly seeks compensation in respect of mental or nervous shock suffered by her as a result of offences committed by the respondent, Michael Warren Sieboth on 21 January 2006 at Crestmead, Queensland. The respondent pleaded guilty (relevantly) to one count of armed robbery with personal violence and one count of deprivation of liberty, and was sentenced to four years and six months imprisonment (with respect to the armed robbery with personal violence charge) and twelve months imprisonment (concurrent) in respect of the deprivation of liberty charge.

Facts

2. [2]
   The schedule of facts tendered on the sentence before me on 13 March 2007 at the Beenleigh District Court indicates the following facts:^[1]

“[The applicant] worked as [a] shop attendant for the company Jay C Pty Ltd which operated a convenience store located at 55 Waratah Drive, Crestmead.

Shortly before 9 pm on the evening of 21 January 2006, the co‑accused, Nicholas Cross, drove himself and [the respondent] to the premises of the complainant company and parked at the rear of the store.  Nicholas Cross waited in the vehicle while [the respondent] robbed the store.

[The respondent] ran into the store wearing a stocking over his head, a beanie on top of this [sic] head and a pair of pink washing‑up gloves on his hands.  He was holding a knife with a seven inch blade.  [The respondent] walked up to [the applicant], who was standing in front of the counter, and said ‘Give me the money’.  Two other employees were behind the counter at the time.  One entered the contents of the cash register into a plastic carry bag and handed it to [the respondent].

[The respondent] then shouted ‘Get the money out of the safe’.  When none of the employees moved, he then shouted at [the applicant] ‘Get out the back’.  [The applicant] moved behind the counter, with [the respondent] following her.  [The respondent] shouted ‘What are you doing?  Stay where I can see you’ at the other two employees and waited while [the applicant] went into a room behind the counter and emptied the contents of the safe into a second plastic bag.

[The respondent] then took both plastic bags of money and fled the store to a car waiting out the back driven by Nicholas Cross.  A total of $6,550 was taken.”

3. [3]
   During the course of committing the armed robbery, the respondent also committed the offence of “deprivation of liberty” against the applicant. The facts relevant to this offence are as follows:^[2]

“During the commission of the robbery of Jay C Pty Ltd by Nicholas Cross and [the respondent] on 21 January 2006, [the respondent] threatened [the applicant] with a knife and prevented her from leaving the store.”

Injuries

4. [4]
   The applicant suffered no physical injuries as a result of the offences of armed robbery and deprivation of liberty, but suffered mental or nervous shock as a result of these offences.

The law

5. [5]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence.  R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries.  In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1.  Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.  However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[3]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[4]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[5]

Compensation

6. [6]
   Mr J Kimmins, who appeared on behalf of the applicant, seeks compensation as follows:

3. (1)
   Item 32 – mental or nervous shock (moderate) - 10%-20%

 Mr Kimmins notes that the report of Dr Gary Persley, psychiatrist,^[6] concludes that the applicant ‘has suffered a traumatic anxiety.  She does not describe all of the features of post traumatic stress disorder but for the sake of simplicity in preparing a report for the criminal compensation it would be easiest to consider that she does have co‑morbid conditions of post traumatic stress disorder and depression.  The depressive component would be an aggravation of a pre‑existing depression (the applicant was treated for post‑natal depression seven years prior to the offence and was taking an anti‑depressant medication at the time of the robbery).”^[7]  Dr Persley notes that the applicant, as well as being depressed and anxious, has been irritable, describes a loss of intimacy and reduction in libido, has a fear of dying, suffers ongoing sleep disturbance, avoidant behaviour, requires anti‑depressant medication for at least a further 12 months, and has interpersonal relationships which are strained and has reduced socialisation with others.^[8]  Dr Persley does purport to estimate a degree of impairment pursuant to what he describes as the “victims of crime table”.  Mr Kimmins in oral submissions accepted that this was, in effect, a witness “swearing the issue”.  However, Mr Kimmins stressed that the applicant has never returned to the kind of work she had been in (retail assistant in a convenience store), has been significantly affected by the commission of these two offences against her, and was considered by Dr Persley to be someone who would benefit from at least 12 sessions of psychological counselling based upon the cognitive behaviour therapy model (estimated at $2,400).  In these circumstances, Mr Kimmins submits that it would be appropriate to make an award at the top of Item 32 (20% of the scheme maximum – ($15,000).

7. [7]
   Although arriving at an appropriate assessment in such matters is never an easy process, it is my view, taking into account the pre‑existing depressive condition, and balancing that against the clear and undoubted deleterious effects of the mental or nervous shock suffered as a result of the offences, that an assessment at 18% of the scheme maximum ($13,500) is an appropriate award in the circumstances.

Contribution

8. [8]
   The applicant has not contributed in any way, directly or indirectly, to her own injuries in this matter.^[9]

Conclusion

9. [9]
   Accordingly I order that the respondent Michael Warren Sieboth pay the applicant Lisa Maree Kelly the sum of $13,500.