DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   HIS HONOUR: These are applications for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for emotional and physical injuries sustained by the applicants as a result of the respondent's robbery with personal violence committed on 19 August 2005.

2. [2]
   The first applicant was born on 11 May 1964. She was 41 at the time of the offence.  She is presently 43 years old.

3. [3]
   The second applicant is a child born on 4 November 1995. He was nine years nine months of age at the time of the offence.  He is presently 12 years old.

4. [4]
   The applicants have requested that the applications be determined without an oral hearing. The application and supporting affidavits were served on the respondent at the Maryborough Correctional Centre on 25 January 2008.  The Official Solicitor to the Public Trustee has filed two affidavits stating that the respondent has advised in writing that he does not wish to participate in the hearing.  The Public Trustee is not actively managing the affairs of the respondent pursuant to part 7 of the Public Trustee Act 1978.  The respondent has advised the Public Trustee that he has no assets with which to satisfy orders for compensation.  The Public Trustee does not hold any assets on behalf of the respondent.

Circumstances of the offence

5. [5]
   At about 3.45 p.m. on 19 August 2005 the applicants were about to leave their car at Redbank Plaza Shopping Centre when the respondent used a screwdriver to rob the first applicant.  He stole her car.  The items taken included the first applicant's handbag.  The second applicant had exited the motor vehicle shortly before the attack upon the first applicant.  He witnessed the incident.

6. [6]
   The first applicant's description of the offence in her statement to the police dated 4 January 2004 is as follows:

The Prosecution of the Respondent

7. [7]
   On 26 April 2007 in the District Court at Hervey Bay the respondent pleaded guilty to armed robbery with personal violence, unlawful use of a motor vehicle, dishonestly applying a credit card belonging to another and five other offences that are unrelated to the robbery.

8. [8]
   It is necessary to set out the count charging the offence of robbery. According to the certificate of conviction, the offence of robbery was in the following terms:

"That on the 19th day of August 2005 at Collingwood Park in the State of Queensland (the respondent) robbed JMM.  And (the respondent) was armed with an offensive instrument, namely a screwdriver.  And at the time of the robbery (the respondent) used other personal violence to JMM."

9. [9]
   The respondent was sentenced to three years' imprisonment with a parole release date after he had served 15 months, namely on 25 July 2008. In sentencing the respondent I said as follows:

"The most serious offence is, as the Crown Prosecutor indicated, that of armed robbery with personal violence.  That offence was committed on the 19th of August 2005.  On that date the complainant had parked her motor vehicle at the Redbank Plaza Shopping Centre.  Her nine year old son was a passenger in the vehicle.  As she was getting out of the vehicle you approached her and grabbed her by the blouse, pulling her from the car.  She observed that you had a screwdriver in your hand, although that was being pointed away from her.  You pulled her handbag from her despite her resistance and then you got in her car and used the keys which were still in the ignition, to drive away.  You then stole $4000 from the automatic teller machine at Mitchelton using the complainant's GE Finance Mastercard and her PIN number that was in her handbag."

10. [10]
    I also noted that the respondent had read the first applicant's victim impact statement and said as follows:

"...I'm sure having done so you can appreciate the effect that this offence has had upon her.  She says that since the event her family has been traumatised by your actions.  She has been unable to go to any shopping centre alone and has to rely on other people to accompany her.  She finds herself extremely jumpy when approached suddenly by people she is unfamiliar with.  She says that she remains affected by the event.  Her statement is dated 2 April 2007 and the offence, as I said before, was on the 19th of August 2005.  So, notwithstanding that passage of time, the incident has continued to traumatise her."

Application by the first applicant

11. [11]
    On 20 November 2007 Dr Brian Hazell, a psychologist, prepared a report after having interviewed the first applicant on 12 October 2007. The report states:

1. (a)
   After the incident the first applicant experienced a large degree of anxiety, panic attacks, and panicky sweats.  She kept the television on at night for company notwithstanding that her husband was in bed beside her.  She was unable to go to the shops by herself.

2. (b)
   The first applicant is afraid of dark men.

3. (c)
   The first applicant refused to return to Ipswich in the two years following the robbery.

4. (d)
   The robbery has placed a strain on the first applicant's relationship with her husband.

5. (e)
   The offence has affected the first applicant's relationship with her children.

6. (f)
   The first applicant has experienced a large number of dreams which feature the respondent.

7. (g)
   The first applicant suffers a disability assessed at 25 per cent on the AMA guidelines.

12. [12]
    Dr Hazell states in his report that the first applicant has suffered an adjustment disorder with features of post-traumatic stress disorder that is directly related to the carjacking, as he describes it, on the 19th of August 2005.

13. [13]
    Dr Hazell assessed the first applicant's impairment according to the American Medical Association guides to the evaluation of permanent partial impairment.

14. [14]
    He has assessed the first applicant's psychological disability at 25 per cent; that is at the lower end of a moderate impairment. He has converted that assessment to the Compensation table in schedule 1 to the Criminal Offence Victims Act 1995.  According to Dr Hazell the first applicant has suffered a moderate disability which he assesses at 14 per cent of the scheme maximum.

15. [15]
    Dr Hazell recommends that the first applicant would benefit from 12 sessions of talk therapy spread over a period of 12 months.  The recommended fee is $168 per session.  Dr Hazell adds that with a quick resolution of the first applicant's compensation issues, and talk therapy, stabilising her psychological condition will nevertheless take up to two years.  He says that even then, the first applicant will remain "sensitised" or predisposed under certain stressful environmental cues to reactive her condition.

16. [16]
    On 13 August 2007 the first applicant's general practitioner, Dr Sue Tranberg, provided a report. In that report Dr Tranberg said that she saw the first applicant on 20 August 2005.  Dr Tranberg found on examination that the first applicant had difficulty abducting her left shoulder.

17. [17]
    The first applicant has sworn an affidavit setting out the effects of the offence upon her. These include personal stress, reliving the incident during the day and in dreams, an inability to go to crowded public places alone, fear of shopping, fear of dark-skinned men and a fear of travelling in cars.  The first applicant's relationship with her family has also been adversely affected.

The Relevant Principles

18. [18]
    The assessment of compensation is governed by part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (section 22(3)). 

19. [19]
    The maximum amount of compensation provided under the Criminal Offence Victims Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.  The amount of compensation cannot exceed the scheme maximum (section 25(2)).  The award for a particular injury cannot exceed a percentage greater than that contained in schedule 1; the Compensation table (section 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (section 25(8)).

20. [20]
    The solicitors for the first applicant have submitted that the psychological injury should be assessed as mental shock under injury 32 in the Compensation table amounting to 14 per cent of the scheme maximum. That submission is based upon Dr Hazell's evidence. The solicitors have also submitted that there should be an award of 10 per cent of the scheme maximum for the injury to the first applicant's shoulder.

21. [21]
    There is no doubt that the offence has had a substantial impact upon the first applicant. Dr Hazell's assessment of 14 per cent of the Scheme maximum is not conclusive. I would classify the psychological injury under item 32 in the Compensation table being mental or nervous shock of a moderate degree.  However, in my view the appropriate percentage of the scheme maximum should be 20 per cent, leading to an award of $15,000 for mental or nervous shock. 

22. [22]
    As to the injury to the first applicant's shoulder, I note that in the written submissions filed by the solicitors they state at paragraph 7, that on 20 August 2007 the first applicant had difficulty abducting her shoulder. That seems to be an error when regard is had to the actual report of Dr Tranberg.  As I mentioned a moment ago Dr Tranberg said in her report dated 13 August 2007 that on examination the first applicant had difficulty abducting her left shoulder.  According to the report, the first applicant saw Dr Tranberg on 20 August 2005.

23. [23]
    In assessing the award for the first applicant's physical injury, I must also have regard to the contents of her affidavit. I note that at paragraphs 14-15 she states as follows:

24. [24]
    Having regard to the necessity to scale injuries according to their seriousness, I would classify the first applicant's physical injuries under item 21 of the Compensation table which relates to neck/back/chest injury (minor) and provides a range of 2 to 7 per cent of the scheme maximum. In the circumstances I would allow the first applicant 5 per cent of the scheme maximum for her physical injuries.  That leads to a further award of $3,750.  The total therefore in respect of the first applicant is $18,750.

25. [25]
    Accordingly, in the first applicant's case, the order is as follows. I order that the respondent pay to the first applicant, JMM, the sum of $18,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of armed robbery with personal violence which led to the conviction of the respondent in the District Court at Hervey Bay on 26 April 2007.

Application by the second applicant

26. [26]
    The second applicant's description of the offence is as follows:

27. [27]
    The second applicant was interviewed by Dr Hazell on 12 October 2007. There is a report from Dr Hazell dated 27 October 2007 stating that since the incident the second applicant was concerned that he did not give his mother sufficient assistance during the offence.  He has become hyper-vigilant.  He is scared of dark men, dislikes shopping and travelling in the car.  He locks the car doors immediately after closing the door.  Dr Hazell also noted that the second applicant had displayed some disturbed acting out behaviour following the incident, but had since returned to normal.

28. [28]
    The second applicant has sworn an affidavit dated 21 December 2007, in which he describes the impact of the offence. The written submissions filed on behalf of the second applicant state at paragraph 18:

"A person not personally involved in an act of violence can be compensated for any psychological injuries suffered as a result of watching the commission of the act of violence (Austin v. Hoa Duy Pham [2000] QSC 365)."

29. [29]
    I have been unable to locate the authority cited by the solicitors for the second applicant. However I note that in Summers v. Dougherty & Anor [2000] QSC 365 (which curiously is the citation of the case mentioned by the solicitors for the second applicant) the respondents had pleaded guilty to charges of housebreaking, armed robbery in company with personal violence and assault occasioning bodily harm whilst armed and in company.  The applicants for compensation were not victims named in the indictment.  In awarding compensation to each applicant White J said as follows at para [15]:

"The ex officio indictment mentions Mr Summers as the person against whom actual violence was perpetrated.  Violence was specifically offered to the three applicants personally in the course of the respondents carrying out the robbery.  In the context of section 24(2) and bearing in mind the remedial nature of the legislation their entitlement to apply for compensation is not excluded by reason only that they are not named in the indictment.  Although somewhat differently worded, the previous legislation (section 663B of the Criminal Code) was so interpreted in R v. Callaghan and Fleming ex parte Power [1986] 1 QdR 457 and approved in R. Moors ex parte Alex [1994] 2 QdR 315".

30. [30]
    In Brennan v. Smith; Grech v. Smith [2005] QSC 276 White J was concerned with applications for criminal compensation brought by patrons of a TAB where an armed robbery had occurred.  The applicants in that case had been directed to fall to the ground and a firearm was pointed at one of them.  White J undertook a careful analysis of the circumstances in which a person who is not named as the victim in the indictment can nevertheless be described as a person against whom a personal offence was committed (see paragraphs 26 to 36).  At paragraph 33 her Honour said:

"Whilst the provisions of the present legislation are differently expressed, the meaning and purpose are, in my view, no different from those of section 663B of the Criminal Code.  Only a person against whom the personal offence is committed may apply for a compensation order."

And at paragraph 34 her Honour said:

"Relying on the approach of Connolly J in Callaghan and Fleming I came to the conclusion in Summers v. Dougherty that a person was not excluded from applying for compensation pursuant to section 24 of the Criminal Offence Victims Act by reason only that the person was not named in the indictment charging armed robbery with personal violence.  In that case there was actual violence offered to those applicants."

Her Honour added at paragraph 35:

"A similar approach was taken by Mullins J in Pettingell v. Minister for Justice and Attorney-General [2003] QSC 385 reviewing a decision of the Minister to decline criminal compensation."

31. [31]
    On the state of the evidence there is, in my mind, a degree of doubt surrounding the issue of whether the second applicant is a person against whom the personal offence of armed robbery was committed, as contemplated by section 24 of the Criminal Offence Victims Act.  I would be assisted by further written submissions on this point.  It may also be desirable that the written submissions be sent to the Attorney-General so that the issue is properly considered.

32. [32]
    I note that the solicitors for the second applicant have sought a relatively modest award of compensation amounting to $3,750. Nevertheless, section 24 of the Criminal Offence Victims Act 1995 requires me to be satisfied that the applicant is a person against whom the personal offence was committed before I am entitled to make an award.

33. [33]
    Accordingly, in the case of the second applicant, the order will be as follows. I adjourn the application for compensation by the second applicant to a date to be fixed to enable the solicitors for the second applicant to file further written submissions on the issue of whether the second applicant is a person against whom the personal offence of armed robbery with personal violence was committed.