DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Ashley Graham seeks criminal compensation arising out of an offence of robbery, while armed, in company, committed against him by Benjamin Joel Croft (first respondent), Samuel Robert Hodgkiss (second respondent) and AC, on 20 October 2008. AC pleaded guilty in the Children’s Court, Beenleigh on 8 June 2010^[1] and as this conviction occurred subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) on 1 December 2009, no claim is able to proceed against AC pursuant to COVA.^[2]

2. [2]
   The first respondent, Benjamin Joel Croft, was sentenced at the Beenleigh District Court on 1 June 2009 (relevantly) to two and half year’s imprisonment, with a parole release date of 2 June 2009.^[3]  The second respondent, Samuel Robert Hodgkiss, was sentenced at the Beenleigh District Court on 29 October 2009 (relevantly) to two years imprisonment, with a parole release date of 26 February 2010.^[4]

Facts

3. [3]
   The schedule of facts tendered on the sentences of the first and second respondents indicates the following facts:-

“At the time of the offence [20 October 2008] the [applicant] was 16 years of age and the owner of a blue mini trail bike.  In late 2007 the [applicant] was diagnosed with cancer of the throat.  As a result of this, he was required to undergo chemotherapy and radiation therapy and doctors had to construct a new oesophagus for his stomach.  To do this the [applicant] was required to undergo major surgery which resulted in scarring to his stomach and neck.

On 20 October, 2008 at approximately 7.00 pm the [applicant] was at the air-compressor area of the United Fuels Service Station located at 466 Johnson Road, Forestdale.  The [applicant] was attempting to repair his trail bike which had stopped working while he was riding in the above bushland.

The [applicant] noticed three males who were unknown to him.  They were [AC], Benjamin Joel Croft [first respondent] and Samuel Robert Hodgkiss [second respondent].  The three males approached the [applicant] on foot.  The [applicant] noticed that the members of the group were staring at him as they walked past before entering the shop part of the service station.  The [applicant] became worried and moved with his bike to hide behind the ice machine near the doorway into the shop.  A short time later the [applicant] noticed the group leave the shop and [AC] and Hodgkiss walked away towards Dickman Road.  However, Croft walked up behind the [applicant] and accused the [applicant] of riding his bike on Croft’s lawn.  While he was speaking, the [applicant] noticed that Croft repeatedly pulled up his shirt exposing his stomach and appeared to have a handle of something sticking out of the waistband of his shorts.

Croft then grabbed the [applicant] by the helmet that he was wearing and began to pull his around before whistling to his associates.  [AC] and Hodgkiss then ran back to where the [applicant] was standing [with] Croft.  Hodgkiss “flying” kicked the [applicant] in the stomach.  [AC] and Hodgkiss then continued to punch and kick at the [applicant’s] stomach.  Croft then produced a hunting style knife with a 15 to 20 cm blade from his shorts and held it at his side and said something like “give me your phone and whatever is in your pockets and your bike or I will stab you.”  The [applicant] then pushed his bike at the group and ran inside the service station to seek help.  Once inside the service station the [applicant] noticed the group running with his trail bike in the direction of Dickman Road.

The [applicant] then called his family and a short time later they arrived and took him home where he began to vomit blood. …

On 21 October 2008, the [applicant] was taken to the PA Hospital Ward by his mother and was told that he should remain under observation because the various assaults on his stomach region may have ruptured the sutures used during his operation and he may have internal bleeding requiring further surgery.”^[5]

Injuries

4. [4]
   The applicant was kicked and punched in the stomach, in the area where he had received surgical scarring from cancer treatment.^[6]  The applicant suffered soft tissue injuries as a result of the kicks and punches.^[7]

5. [5]
   The applicant also suffered mental or nervous shock as a result of the offence.^[8]

The Law

6. [6]
   The applicant’s submissions appear to indicate that the first respondent pleaded guilty to the offence of robbery, while armed, in company, in the Children’s Court at Beenleigh. However, an examination of the relevant file makes it clear that the indictment in respect of the first respondent was presented in the District Court, and the first respondent was sentenced as an adult, in that Court.

7. [7]
   This application was filed on 25 January 2010, subsequent to the repeal of COVA on 1 December 2009, but compliant with the transitional provisions of Victims of Crime Assistance Act 2009 (VOCAA) ss. 154 and 155.^[9]

8. [8]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

9. [9]
   Ms F. Muirhead, who appears on behalf of the applicant, seeks compensation as follows:-

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

Ms Muirhead seeks an assessment at 4% of the scheme maximum (impliedly an assessment pursuant to Item 2 – bruising/laceration (severe).

The report of Dr Jayasuriya (based on his examination of the Princess Alexandra Hospital Emergency Department notes) refers to “right upper level quadrant tenderness”, with CT scans revealing no internal injuries.  Dr Jayasuriya’s assessment was “soft tissue injuries” which he noted were managed “conservatively” with analgesics.  Dr Jayasuriya observes that “no mention with regard to involvement of staples or stitches is noted.”^[10]

In my view, the material does not warrant an assessment in excess of 2% of the scheme maximum (pursuant to Item 1).  Accordingly, I award 2% ($1500) pursuant to Item 1.

3. (2)
   Item 33 – mental or nervous shock (severe) – 20%-34%

The applicant was examined by Dr Barbara McGuire, psychiatrist, on 20 July 2010.  Dr McGuire diagnosed the applicant as suffering from post traumatic stress disorder (PTSD), which had not improved in the period of almost two years between the incident and her examination.  Dr McGuire considers that the applicant suffers PTSD “to a severe degree”, although the applicant’s pre-existing disability (cancer with consequent surgery, chemotherapy and radiotherapy) and his other life experiences (parental separation and the applicant’s mother’s unstable relationship situation) made the effects of the offence on the applicant more serious.

Ms Muirhead submits that an award should be made at the upper end of the Item 33 scale, namely 30% of the scheme maximum.  I consider that such an award is justified given the ongoing and chronic nature of the PTSD, and its “severe” level.  I also consider that such an award should not be discounted, despite other potential contributing factors^[11]

Accordingly I award 30% of the scheme maximum ($22,500) pursuant to Item 33.

Contribution

10. [10]
    I do not consider that the applicant has contributed in any way, direct or indirect, to his own injuries.^[12]

Conclusion

11. [11]
    I order that the first respondent, Benjamin Joel Croft, and the second respondent, Samuel Robert Hodgkiss, be jointly and severally liable^[13] to pay criminal compensation to the applicant Ashley Graham in the sum of $24,000.