Harper v Dodd[2010] QDC 515

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for criminal compensation by the applicant, Sky Louise Harper, against the first respondent, William John Dodd, and the second respondent, Billy-Joe Agnus Bell.

2. [2]
   The first respondent was sentenced by me at the Beenleigh District Court on 4 September 2007 to 12 months' imprisonment wholly suspended with an operational period of two years in respect of one count of robbery in company. The second respondent was sentenced by me at the Beenleigh Children's Court on 2 February 2007 to three months' detention to be served by way of a three month conditional release order.

Facts

3. [3]
   I note in respect of the facts that there are slight differences in respect of the schedules which are respectively Exhibit 4 on the sentence of Dodd (first respondent) and Exhibit 1 on the sentence of Bell (second respondent). The substance of the offence as alleged though is similar.

“At the time of the robbery on 20 September 2005 the complainant, Sky Louise Harper, was an 18 year old student who was leaving the Woodridge train station with two friends she knew from school. As they left the station and turned onto Railway Parade, Sky saw [the first respondent and second respondent] sitting on the corner outside a block of shops, they were 'chroming' by inhaling spray paint fumes from inside a Coke bottle. As they passed [the second respondent] said to them, 'Got any money, bro?'  Sky answered, 'No.'  They continued walking but could hear voices behind them and knew they were being followed. Sky was scared that they would be mugged.

Suddenly [the second respondent] grabbed Sky's hair, pulling it back very hard and hurting her. 'Give me your money' [the second respondent] demanded. Sky gave [the second respondent] all the money she had on her, which was only about $2 in silver coins.

Sky then saw that [the first respondent] was standing behind [the second respondent]. [The first respondent] said, 'Get her back. Get her phone.'  And [the second respondent] grabbed Sky's hair again and pulled her head back, forcing Sky to the ground and grazing her right knee and right hand.

[The first respondent] then turned to Sky's friends and said that if they helped her he would hit them.

Sky grabbed her bag away from [the second respondent] and ran away."  (Sentence Exhibit 4) (Schedule of facts) (re sentence of Dodd).

4. [4]
   I note that the schedule of facts in respect of the second respondent (Sentence Exhibit 1 - sentence of Bell) has a further reference to the first respondent holding "a long dark-coloured metal pole in his hands" when he said to the second respondent, "Get her bag, get her phone." The schedule in respect of Bell also notes that the first respondent said to Sky's friends, "If you help her I'll hit you with this stick. If you touch Billy-Joe I will hit youse. Tell her to drop her bag, please."

5. [5]
   The single schedule of facts supplied in this application was obtained from the Director of Public Prosecutions office (presumably from a file in relation to both defendants), but upon examination of the original sentence file was a copy of the schedule tendered on the sentence of Dodd and differed in some respects (although not in a great sense practically) from the schedule in respect of Bell. As I've indicated during the course of submissions this morning, in my view applications for criminal compensation when presented to this court should exhibit a copy of the schedule of facts, as actually presented to the court on the sentence (easily obtained from the relevant District Court registry) as that is, of course, the "best evidence" of the facts as placed before the sentencing Judge.

Injuries 

6. [6]
   The schedules of fact (Exhibit 1 - sentence of Dodd and Exhibit 4 - sentence of Bell) indicate that the applicant had her hair pulled, suffered grazing to her right knee and right hand, and (as is obvious from the report of Dr Keane) suffered mental and/or nervous shock.+

The law 

7. [7]
   The application in this matter was filed on 27 January 2010. It was filed within the relevant timeframe of the transitional provisions of the Victims of Crime Assistance Act 2009 (VOCAA) - see ss. 154 and 155, in accordance with the provisions of the Criminal Offence Victims Act (COVA) 1995, repealed on 1 December 2009 - see Kennedy v Faafeu [2010] QDC 21 paragraph 6.

8. [8]
   I refer to and adopt my exposition of the relevant applicable law in Paterson v Chand & Chand [2008] QDC 214.

Compensation

9. [9]
   Ms Muirhead, who appears for the applicant, submits as follows:-

1. (1)
   Item 1 - bruising/laceration (minor/moderate) - 1% - 3%.

Ms Muirhead submits that the relatively minor physical injuries (grazing/laceration) should be the subject of an award at the bottom of the item 1 range, namely one per cent of the scheme maximum ($750). I accept this submission and accordingly I award one per cent ($750) pursuant to item 1.

1. (2)
   Item 33 - mental or nervous shock (severe) - 20% - 34%.

The applicant has been diagnosed by Dr Shelley Keane, clinical neuropsychologist, as suffering from major depressive disorder and post-traumatic stress disorder (PTSD), of moderate range of severity, with a GAF (global assessment of functioning) of 61 out of a possible 100. Dr Keane attributes this "mental or nervous shock" directly to the attack by the first and second respondent on the applicant.

Dr Keane considers that the applicant "requires intense cognitive behaviour therapy in order to learn effective emotion coping strategies" (Exhibit A p.8 affidavit of Shelley Keane sworn 1 September 2010).

It is clear that the applicant has suffered a significant degree of mental and nervous shock from this offence, with long term and serious consequences. I accept in those circumstances that an appropriate award would be (as submitted) 23 per cent of the scheme maximum ($17,250) and accordingly I award that amount pursuant to item 33.

Contribution

10. [10]
    The applicant has not contributed in any way, direct or indirect, to her own injuries (COVA s. 25(7)). The applicant was truly an "innocent abroad" who was going about her own business when she was attacked in what was clearly a terrifying experience outside a railway station.

Order

11. [11]
    I order that the first respondent, William John Dodd, and the second respondent, Billy-Joe Agnus Bell, jointly and severally pay the applicant the sum of $18,000.