Shyu v Fetoai[2009] QDC 83

HIS HONOUR: I order application number 62 of 2009 and application number 63 of 2009 be heard together.

These applications which are being heard together are applications for criminal compensation to be assessed pursuant to the Criminal Offence Victims Act 1995.

The applicants are husband and wife, born respectively on 22nd November 1948 and 22nd of March 1956. They were at the relevant time the owners of a convenience store in a suburb in Brisbane.

On the 11th of December 2004 they were both present at the store. The respondent to the applications entered the store and threatened them with an object that he had concealed by a blue T-shirt. When that was removed it revealed a metal pipe with a handle.

There was a confrontation between the respondent and a co-offender and the applicants.

The female applicant tried to use the phone but that was pulled off the wall by one of the offenders. The applicants kept a metal bar for their protection. The respondent grabbed the metal bar and struck both the applicants on the head. The male applicant suffered a five centimetre laceration to the forehead and the female applicant a one centimetre laceration to the forehead. The male applicant required five stitches and the female applicant required two stitches. And there was also bruising and grazing and pain felt by the applicants from the assault.

The respondent was convicted of the indictable offence committed upon the applicants, namely an assault occasioning bodily harm whilst armed and in company. He was sentenced for this offence on the 13th of March 2006.

The male applicant states that the laceration to his forehead was cleaned at the hospital and sutured. In addition, he had a large haematoma and bruising to his forehead and associated headache and painful grazes to his left flank.

In his culture the face is very important as it gives others the first impression of him as a person. Consequently when he sustained the laceration to his face he felt that his face was broken and therefore he had a broken future.

Following the assault he had difficulty sleeping. He also felt tired and miserable. He also felt nervous, anxious and suspicious of people around him. He was wary of customers. The level of service provided by him at the store declined. He was suspicious of customers entering the store. He was also vigilant when he was driving home that no-one was following him. He has felt frustrated and angry.

The male applicant has been examined by Dr Grant, a psychiatrist. The effects of the assault are confirmed by the male applicant to Dr Grant, however Dr Grant's report indicates that the subject assault was the second of three attempted armed robberies that occurred at the shop. The first one occurred sometime earlier in 2004, the second episode is the subject assault, and the third attempted armed robbery occurred in January 2005.

The male applicant, to his credit, states he had military training in Taiwan and does not scare easily. However, he has been rather unsettled by these series of attempted robberies. His attitude is he will never hand over money to robbers and will defend himself.

The applicant did indicate that since the second episode, which is the subject assault, and even more so since the third episode, he has felt rather anxious in the shop environment and is very watchful and suspicious of some people. He is particularly suspicious if he sees young people with empty backpacks. He is nervous if such characters are around his shop.

In the third attempted robbery the offender threatened the male applicant, saying that he would die. Since then the male applicant has been somewhat anxious about the offender reappearing or following him to his house.

He does not have similar concerns about the offenders who are the subject of this assault, nevertheless he feels that the incident, which is the subject assault, has produced a degree of concern on his part and hypervigilance in the work environment.

The female applicant also states in her affidavit that the respondent roughly pushed her to the ground, where she fell heavily on both knees, causing immediate pain in both knees and hands, which she had put out in an attempt to break her fall. She grabbed the knife to scare the respondent away but he grabbed her hand that was holding the knife. This caused immediate pain and injury to her fingers on her right hand. He again pushed her to the ground, where she fell heavily.

She also shares a similar concern about the injury to the face, which is a feature of her culture. She has also suffered physical injuries to the knees and to the fingers. She also had difficulty sleeping and has been suspicious, nervous and hypervigilant.

Regarding the male applicant, Dr Grant concludes that the degree of anxiety described by him is understandable in the circumstances and the level of symptomatology would not reach the threshold for psychiatric diagnosis. However, his anxieties relate to real events and he believes they are proportioned to his experience. He has not had any treat mentfor his anxiety and he does not want any. In Dr Grant's opinion there is no indication for him to undergo psychiatric treatment. He says the male applicant will not have any permanent psychiatric impairment by virtue of the fact that he does not have a diagnosable psychiatric disorder, however clearly the attempted armed holdups have had some cumulative effect upon his attitudes and caused him some anxiety in the workplace.

Regarding the female applicant, Dr Grant concludes that from a diagnostic point of view she would be regarded as suffering from an adjustment disorder with anxiety which has come on as a result of the trauma of the attempted armed robbery. This adjustment disorder has been improving, with sleep disturbance having settled, but with some ongoing anxiety in the store situation. In his opinion the anxiety was likely to gradually improve. He would expect over the next six to 12 months the anxiety will be minimal and that to all intents and purposes the female applicant will make a full recovery. There should be no permanent psychiatric sequelae. He does not believe that there is a strong indication for her to have any treatment, nor has she sought any treatment. In his opinion her symptoms should settle spontaneously with time and he does not believe that treatment would hasten her recovery particularly.

The respondent has been given notice of these applications and I can proceed to assess the compensation.

Clearly other incidents have impacted upon the applicants, however I am satisfied both applicants have suffered physical injuries and mental or nervous shock which has been materially contributed to by the offence for which the respondent was convicted.

As was said in SAY v. AZ (2007) 2 Qd R page 363 at page 370:

"Where there is a single state of injury produced by a number of factors, some or all of which warrant 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 of the kind adopted by Thomas JA in Sanderson v. Kajewski will be necessary. The exercise may be one of discounting or fixing on a lower 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 compensate his or her victim it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending."

In the present matter the evidence does not lend itself easily to a separation of what impacts the other armed robberies may have had upon what I consider to be a single state of injury suffered by the applicants and upon which Dr Grant has given his opinion.

Doing the best I can I've come to the view that for the male applicant he should be compensated under item 27, Facial Disfigurement or Bodily Scarring (Minor/Moderate) in a sum of 5 per cent, which is a sum of $3,750. Further, he should be compensated for Bruising/Laceration under item one (minor/moderate) in an amount of 1 per cent, which is a sum of $750. It is to be noted he had bruising to his body. Finally, he is to be compensated under Mental or Nervous Shock (Minor) in an amount of 3 per cent, which is a sum of $2,250. This, therefore, is a total for the male applicant of $6,750. I order the respondent to pay the male applicant the sum of $6,750.

With respect to the female applicant, there is no medical evidence of what impact the injuries to her knees and finger shave had upon her. She refers to continuing disability, however without medical evidence I am not prepared to award more than the minimum for those two items under the schedule.

For the female applicant I allow under item 27, Facial Disfigurement or Bodily Scarring (Minor/Moderate) a sum of 4 per cent. Further, under item 19, Fracture/Loss of Use of Leg/Ankle (Minor/Moderate) 4 per cent, which is a figure of $3,000. Further, under item 17, Fracture/Loss of Use of Finger, 2 per cent, which is a sum of $1500. And, finally, for Mental Or Nervous Shock (Minor), a figure of 10 per cent, which is a sum of $7,500. This, therefore, is a total for the female applicant of $15,000. I order the respondent to pay the female applicant the sum of $15,000.

...

HIS HONOUR: I should finally say that, having considered all the circumstances, even though the applicants may have sought to defend themselves in their store from the assault by the respondent and his co-offender I am satisfied they did not do anything directly or indirectly to contribute to their injuries, and therefore there is to be no reduction of their compensation accordingly.