Chapman v Pakura[2010] QDC 61

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for emotional injuries caused by a robbery in which the respondent participated on 27 February 2006.

2. [2]
   The Criminal Offence Victims Act 1995 was repealed by s.149 Victims of Crime Assistance Act 2009 which came into force on 1 December 2009.  The originating application was filed on 20 November 2009.  The transitional provision in s.155 Victims of Crime Assistance Act 2009 requires the application to be determined according to the Criminal Offence Victims Act 1995.

3. [3]
   On 16 October 2008 in the District Court at Beenleigh the respondent pleaded guilty to armed robbery in company and other offences. She was sentenced to 3 years imprisonment with a parole release date fixed after approximately 16 months on 24 December 2008.  The respondent had served 414 days pre-sentence custody from 29 August 2007 to the date of sentence which was declared to be imprisonment served under the sentence.

4. [4]
   The respondent was served with the application and supporting affidavits on 2 March 2010. There was no appearance by or for the respondent.  

Circumstances of the offence

5. [5]
   The applicant was employed at a service station at Booval. On 27 February 2006 the applicant’s co-offender, a male person entered the service station armed with a knife. He demanded money and cigarettes. The respondent was the driver of the motor vehicle utilised in connection with the robbery. The applicant’s co-offender was charged but absconded. As at the date the respondent was sentenced on 16 October 2008 he had not been apprehended.  I was informed that as at the date of the hearing of this application the co-offender had still not been apprehended.

Injuries and medical reports

6. [6]
   The applicant was examined by Dr Barbara McGuire, psychiatrist on 24 March 2009. It emerges from Dr McGuire’s report dated 26 March 2009 that the applicant was the victim of three robberies while employed at the service station. The first robbery occurred on 23 August 2004.^[1]  The offender was charged, and convicted of the offence on 21 April 2005.^[2]  The second robbery occurred on 8 October 2005.^[3]  The offender has not been apprehended.^[4]  The third robbery is the offence of which the respondent was convicted which occurred on 27 February 2006.

7. [7]
   According to Dr McGuire’s report the offender who committed the first robbery on 27 August 2004 was armed with a large spanner. The offender who committed the second robbery on 27 October 2005 wore a balaclava and was armed with a knife.

8. [8]
   Dr McGuire describes the applicant as hypervigilant, irritable and depressed. She states that he has experienced nightmares and flashbacks.

9. [9]
   The applicant’s employment at the service station was terminated following the third robbery.

10. [10]
    Dr McGuire states:^[5]

“He thinks of the robberies constantly, particularly when he goes past the place where they happened.  He said that whilst his mother’s death was the worst he has experienced the robberies are the second worst thing.  He has not experienced any other violence.

At the time of the first robbery he was fearful, had a sense of unreality; later felt agitated and shaken but stayed at work.  With the second and third robberies he felt that they were worse because knives were involved.  He was angry and paranoid.  He is not getting better and he is glad that he was sacked.  He said he is normally a resilient person.”

11. [11]
    Dr McGuire is of the opinion that the applicant has suffered post traumatic stress disorder to a moderate degree. She is of the view that the applicant’s symptoms will persist for an indefinite period.

12. [12]
    Dr McGuire did not attempt to apportion the applicant’s post traumatic stress disorder symptoms between the three robberies. It would of course be difficult to do so, particularly based on a one hour assessment that occurred a number of years after the robberies. The applicant’s post traumatic stress disorder seems to have been caused by the three robberies.

13. [13]
    The applicant says in his affidavit filed 23 February 2010 that he doesn’t recall that the first robbery affected him in his personal life.^[6] He says that the first robbery hasn’t worried him as much as the subsequent robberies, partly because of the unprofessional manner in which the first robbery was carried out.^[7] The applicant says that the third robbery affected him more than the two previous robberies.^[8] He says that he continues to suffer nightmares and flashbacks of the second and third robberies.^[9]

The applicable principles

14. [14]
    The assessment of compensation is governed by Part 3 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 (s 22(3)).

15. [15]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)).  The amount of compensation cannot exceed the scheme maximum (s 25(2)).  The scheme maximum provided by s 2 Criminal Offence Victims Regulation 1995 is $75,000.00.  The award for a particular injury cannot exceed a percentage greater than that contained in schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

16. [16]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[10]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the appropriate compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%.  This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.”^[11]

17. [17]
    In SAY v AZ,^[12] the Court of Appeal considered the approach to be adopted where a single state of injury was caused by a number of factors.  This required the application of s 25(7) which provides:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

18. [18]
    Holmes JA said:

The applicant’s submissions

19. [19]
    Mr Love for the applicant submitted that all three robberies have led to the applicant suffering post traumatic stress disorder which has resulted in an overall condition of moderate to severe mental or nervous shock which would be assessed under item 33 in the compensation table at 22% of the scheme maximum, namely $16,500.00. Recognising the need to apportion the applicant’s mental state between the three robberies, it was submitted that 15% be attributed to the first robbery, 30% to the second robbery and 55% to the third robbery. This would lead to an assessment of $9,075.00 in respect of the third robbery.

20. [20]
    The applicant has applied to the State for an ex gratia payment under ss 32 and 33 in respect of the second robbery where the offender has not been apprehended and in relation to the respondent’s co-offender, Jason Scott Goody, who has absconded.^[14]

21. [21]
    Mr Love for the applicant submits that the overall assessment in respect of the third robbery should be apportioned so that the respondent be required to pay less than 30% reflecting her limited involvement in the offence.

Assessment

22. [22]
    The applicant suffered moderate post traumatic stress disorder which is a recognisable psychiatric injury and therefore capable of constituting an injury under s 20: RMC v NAC.^[15]

23. [23]
    The range for moderate mental or nervous shock in item 32 of the compensation table is 10% to 20% ($7,500.00 to $15,000.00).

24. [24]
    As I have mentioned, Dr McGuire did not attempt to apportion the applicant’s post traumatic stress disorder between the three robberies. The earlier robberies occurred on 23 August 2004 and 8 October 2005. The present offence was committed on 27 February 2006.  Dr McGuire said “There was a cumulative effect with each successive robbery; the last two were worse than the first.”^[16]

25. [25]
    The assessment must be undertaken on the basis that the applicant’s mental state has been caused by the three robberies.

26. [26]
    This assessment is concerned only with the impact of the third robbery on 27 February 2006.

27. [27]
    Section 26 of the Criminal Offence Victims Act 1995 provides:

28. [28]
    Where it is practical to make a separate assessment of compensation for a separate state of injury, that is the course that should be adopted: Wren v Gaulai.^[17]  However Dr McGuire’s report treats the applicant as having suffered a single state of post traumatic stress disorder arising from the three robberies.  She is of the opinion that the applicant suffers the condition to a moderate degree.^[18]

29. [29]
    If I was assessing the applicant’s injury resulting from all three robberies I would assess mental or nervous shock at the upper end of the range in item 32 of the schedule (mental or nervous shock (moderate)) which is 20% of the scheme maximum ($15,000.00). However the present assessment relates only to the third robbery. It may be accepted that the use of knives by the offenders in the second and third robberies would have been more frightening. It is necessary to adopt the broad brush approach to the assessment as outlined in SAY v AZ.^[19]  Adopting that approach I would apportion 20% of the applicant’s condition to the first robbery, 40% to the second robbery and 40% to the third robbery.  This leads to an assessment of $6,000.00 in respect of the third robbery.

30. [30]
    If the male co-offender had been convicted of the offence it may have been desirable to make orders providing for separate liability according to each of the offenders direct and material contribution to the applicant’s injuries pursuant to s 26(6). In the circumstances that is not necessary and the respondent should be ordered to pay the entire assessment. Mr Love for the applicant accepted that in the circumstances it was not necessary for the ex gratia application to the State in respect of the co-offender Jason Goody to proceed.

Order

31. [31]
    I therefore make the following order: the respondent pay to the applicant the sum of $6,000.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of armed robbery in company which led to the conviction of the respondent in the District Court at Beenleigh on 16 October 2008.