MA v Lincoln[2010] QDC 426

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation pursuant to s 24 of the Criminal Offences Victims Act 1995 (“the Act”).There were seven counts on the indictment.Each respondent pleaded guilty to Counts 1 and 4 on the indictment and the remaining charges were the subject of a nolle prosequi.The offences were as follows:

Count 1That on the 19^th day of May 2007 at Brisbane in the State of Queensland Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney entered the dwelling of CA with intent to commit an indictable offence in the dwelling.

And Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney used actual violence.

And Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney were armed with a dangerous weapon.

And Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney were in company with other persons.

Count 2That on the 19^th day of May 2007 at Brisbane in the State of Queensland Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise and Michael Shawn Sweeney robbed CA.

And Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney were armed with a dangerous weapon, namely a gun.

And Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney were in company with other persons.

And at the time of the robbery,Christopher Gordon Lincoln, Ann-Marie Lugg, Nicole Louise Rose and Michael Shawn Sweeney wounded CA and AJA.

2. [2]
   The respondents were convicted in the District Court at Brisbane.  The first, third and fourth respondents were convicted of these offences on 13 October 2008.  The second respondent was convicted of these offences on 14 October 2008.  The fourth respondent was sentenced on 13 October 2008 and the other three respondents were sentenced on 15 October 2008. 

3. [3]
   I am satisfied that each of the respondents has been served with the application and relevant material. The affidavit of Joshua David Brown filed 2 August 2010 disclosed reasonable but unsuccessful attempts to locate and personally serve the fourth respondent. Consequently, the applicant caused an appropriate notice to be published in the Courier-Mail newspaper on 21 July 2010. The fourth respondent was therefore served and notified pursuant to an order for substituted service made by this court on 12 August 2010 in the terms sought in the application for substituted service. There was no appearance by or on behalf of the second, third or fourth respondents. Mr Fenton of counsel appeared on behalf of the first respondent.

Facts

4. [4]
   The offences arise out of a home invasion on 19 May 2007. The applicant was 12 years of age at the time. At the time of the offending, CA (the mother of the applicant), her baby AJA and the applicant all resided at 5 Guard Street in Stafford.  At about 6 am on 19 May 2007, the applicant was asleep in the loungeroom of the house and was awoken by knocking at the front door.  CA opened the front door whilst nursing her baby and she was then confronted by the third respondent pointing a shotgun towards her face.  All four respondents entered the house and CA was forced into her bedroom.  The fourth respondent remained in the loungeroom with the applicant.  It is clear from the circumstances of the offending that the fourth respondent stayed with the applicant to guard against her raising an alarm. 

5. [5]
   The applicant was in a position to hear her mother being abused in very offensive terms and to know that her mother’s bedroom was being searched.

6. [6]
   At some point in time the shotgun was handed to the second respondent. The second respondent stood in the doorway between the loungeroom and the bedroom. The learned Crown Prosecutor in the course of reciting the facts stated as follows:

“This prisoner Rose kept watch over AA in the loungeroom.  At one stage AA went to go to the toilet and had to walk past the bedroom.  Lugg asked Rose what she was doing and reminded her that she was supposed to be watching AA.  Lugg allowed AA to go to the toilet and told her to empty her pockets as she came out.  She retuned to the loungeroom.  While she was in the loungeroom she could hear the others insulting her mother and talking about jewellery belonging to Lincoln’s mother, a woman named Colleen.  She said that this prisoner Rose searched the loungeroom looking for property.  In the bedroom, though, suddenly and it seems without warning, the gun discharged.  CA heard a loud bang and felt immediate pain in her right side and legs.  At the time she was holding AJA the baby and Sweeney was standing next to her.  Lugg was still standing at the doorway holding the gun, and Lincoln was searching property.  All four accused then started yelling and ran from the house.  AA who had been in the loungeroom heard a clicking noise just before the gun went off.  She heard a gunshot and she heard AJA screaming and she said the four offenders then ran out of the house and CA her mother started screaming.  AA ran into her mother’s room and saw blood coming from her hip.  She ran outside then to use a neighbour’s telephone to call an ambulance.  She saw the four offenders get into a black sports car that had two doors and personalised number plates.  AA did call 000 …”.

The first respondent’s argument

7. [7]
   Section 21 of the Act provides:

“A ‘personal offence’ is an indictable offence committed against the person of someone”.

Section 24 of the Act provides, relevantly, as follows:

“(1)This section applies if someone (the ‘convicted person’) –

(a)is convicted on indictment of a personal offence

…

(2)The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.”

8. [8]
   At the end of the day, the first respondent’s primary argument was that an application for compensation under the Act could not succeed unless the applicant was a person named in the indictable offence.^[1]  At the time of making this submission, Mr Fenton had not had the benefit of reading the judgment of White J in Brennan v Smith; Grech v Smith [2005] QSC 276, nor the cases referred to therein.  There is clear authority against the first respondent’s proposition.^[2] 

9. [9]
   In Brennan v Smith; Grech v Smith, the applicants were customers in a TAB when an armed robbery occurred.  The facts concerning the applicant Brennan are set out as follows:

“[8] Mr Brennan, in his statement given to police on 28 March 2000, said that he was standing near the front door when he saw two men walking quickly towards the door with white hoods on their heads and one of them carrying something which he thought was a gun.  As they walked in he heard a voice yelling, ‘Get down’, and he went to the floor, lying down inside the front door.  He heard a voice saying, ‘Get the money, there’s more than this’.  In Mr Brennan’s opinion, they were inside for about 40 seconds then left, and he stayed on the ground until they had done so.”

10. [10]
    I have highlighted the case of Brennan over Grech because of the parallels to the case with which I am dealing.  White J determined that both applicants were entitled to compensation:

“[36]Here both applicants were the victims of the indicted offence of armed robbery with actual violence.  They were not mere bystanders but had been commanded to get down on the floor and were threatened generally, in the case of Mr Brennan, and particularly, in the case of Mr Grech, with the firearm.  They would have been under no illusion that had they attempted to disregard the order they would have sustained injury.”

11. [11]
    In the case before me, two personal offences were committed. However, in my view, it is the commission of the offence of armed robbery which entitles the applicant to compensation under the Act.

12. [12]
    The definition of “robbery” in the Code is as follows:

“409Any person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of ‘robbery’.”

13. [13]
    In this case, initially one of the offenders (the fourth respondent), had the job of guarding the applicant in the loungeroom whilst other offenders carried out the activities in the bedroom. All of this conduct was part and parcel of the offence of robbery. The submission on behalf of the first respondent that there was no evidence of a threat against the applicant^[3] is without merit.  With the fourth respondent guarding the applicant, there was the implied threat that if the applicant attempted to move from the loungeroom she would be prevented from doing so.  This state of affairs became more obvious when the second respondent, armed with the shotgun, positioned herself at the door between the bedroom and the loungeroom.  The applicant was only able to use the toilet with the permission of the second respondent and she had to empty out her pockets after being in the toilet.

14. [14]
    There can be no doubt that this conduct towards the applicant amounted to an implied, but clear, threat to use “actual violence” against her if she failed to comply with the directions and/or tried to raise an alarm. This conduct formed part of the offence of robbery. The respondents stole property and at, or immediately before, the time of stealing, threatened to use actual violence to the applicant in order to obtain the thing stolen and to prevent resistance to it being stolen. It must be remembered that “actual violence” may involve no more than the smallest amount of physical force.^[4]

15. [15]
    The first respondent also argued that Dr McGuire, psychiatrist, overstated the basis on which the respondents’ were sentenced, and that this then “creates difficulties in separating out what can and can’t be compensated”.^[5]  The submission was that Dr McGuire proceeded on the incorrect basis that the gun was pointed at the applicant and that she was yelled at. 

16. [16]
    In my view, it is of no moment whether, during the commission of the offence, the gun was pointed at the applicant nor whether she was yelled at. Unsurprisingly, Dr McGuire was clearly of the opinion that it was the incident on 19 May 2007 which has caused the applicant the severe posttraumatic stress disorder from which she suffers. Whether the incident involved yelling or a pointing of the gun at the applicant is not to the point. The applicant was subjected to a devastating ordeal. I have already determined and articulated above that the incident to which the applicant was subjected comprised the personal offence of armed robbery committed against the applicant.

Injury

17. [17]
    There is clear evidence that the applicant is suffering mental shock or nervous shock as a result of the offence committed by the respondents. Dr Barbara McGuire interviewed the applicant on 2 September 2009 and prepared a report based on her clinical findings. Dr McGuire noted that the applicant “suffers posttraumatic stress disorder to a severe degree as demonstrated by her exhibition of nightmares, flashbacks, avoidant behaviour, poor concentration, irritability etc”.

18. [18]
    Dr McGuire notes in her report that the applicant has experienced suicidal thoughts and has, on more than one occasion, attempted to commit suicide. Dr McGuire states:

“She has been suicidal.  She has walked in front of a car about 3 months ago and attempted to suffocate herself about a month ago.  She is not on antidepressant medication.

…

She has self harmed.  She showed me some scars on her forearms.”

19. [19]
    Dr McGuire states that at the time of offence, the applicant thought she was going to be killed and experienced absolute terror. As a result of the incident, the applicant is now unable to trust people, suffers sleep disturbance, and has developed a perpetual fine tremor. Furthermore, Dr McGuire concludes in her report that the applicant “exhibits a depressed mood”.

20. [20]
    Dr McGuire was specifically asked the following question: “Would the applicant have suffered the level of posttraumatic stress you have diagnosed had the applicant’s only experiences been that of the assault?” Dr McGuire replied “yes”.

Furthermore, Dr McGuire was asked:  “Is it possible to separate the effects of the offences for which the offender was convicted from the applicant’s other life experiences.”  Dr McGuire replied “the symptoms she exhibits are entirely related to the incident”.

Dr McGuire recommends that the applicant undergo psychiatric treatment. 

21. [21]
    I accept the opinions of Dr McGuire.

Assessment

22. [22]
    The applicant seeks an award of 28% of the scheme maximum under Item 33 of the Compensation Table. I agree that this is the appropriate award to be made under the Act.

Liability

23. [23]
    In the circumstances of this case, there is no reason to distinguish between the direct and material contribution which each respondent made to the injury suffered by the applicant. The respondents were in company with each other and each performed his or her part in the commission of the armed robbery. It is my view that the respondents ought be held jointly and severally liable to pay the compensation awarded to the applicant.

Order

24. [24]
    It is ordered that the respondents pay compensation pursuant to the Criminal Offences Victims Act 1995 (Qld) to the applicant in the sum of $21,000, for which the respondents are jointly and separately liable to the applicant, in respect of the injury suffered by her as a result of the personal offence of armed robbery with circumstances of aggravation for which the respondents were convicted in the District Court at Brisbane in October 2008.