DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent RBK pleaded guilty in the Children’s Court, Queensland at Beenleigh on 27 August 2009 to one count of armed robbery in respect of the complainant, BJS.

2. [2]
   On 27 October 2009 the respondent was the subject of an order for an indefinite referral to a Youth Justice Conference and no conviction was recorded.^[1]

Facts

3. [3]
   On 12 November 2008, when the complainant was fourteen years old, she left her home at approximately 4.00 pm to walk to the local library at 35 Chambers Flat Road, Marsden.  After the complainant had walked five minutes down the road and turned down the bike path, a boy came up to the complainant and asked her for money.  The complainant replied that she did not have any money.  The boy asked her a further two times for the money.  The boy asked the complainant to show him the inside of her bag.  The complainant showed the boy the inside of her bag which contained a mobile phone that the complainant had for emergencies.  The boy asked the complainant to give him the phone.  The complainant said “no”.  The boy showed the complainant a knife and the complainant said “no” a couple of more times.  The boy replied “I am not joking, give me the phone”.  The complainant says that before she gave the boy the phone, she said “if I give you the phone will you let me alone” and the boy said that he would.  The complainant then gave the boy the phone and the boy ran away.

4. [4]
   The complainant returned to her home and told her mother about the incident. Police shortly afterwards located four juveniles in parkland a short distance from the offence location. The respondent in a record of interview identified his co-defendants, indicated that they had come up with the idea of committing the robbery, and that a co-offender, LB, had been the person who actually committed the robbery while the respondent and the other juveniles hid a short distance away. The co-offender L returned a short time after the discussion, carrying a silver mobile phone with a camera in it. L kept the phone. The respondent told police that he felt sorry for the complainant and had said to the others “take it back, that’s sad”.^[2]

The Law

5. [5]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (COVA). COVA was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  The application was lodged on 4 January 2010, and complies with the transitional provisions of VOCAA ss. 154 and 155. The application was filed within the relevant time limit pursuant to COVA s. 40(1).

6. [6]
   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.

Jurisdiction

7. [7]
   Although the respondent was dealt with in the Children’s Court of Queensland, I accept that the District Court of Queensland has jurisdiction to hear and determine this application.^[3]

Compensation

(1)Item 32 – Mental or Nervous Shock (Moderate) – 10%-20%

8. [8]
   The complainant was examined by Dr Barbara McGuire, psychiatrist, on 4 October 2010 and a report was provided dated 6 October 2010.^[4]  Dr McGuire has diagnosed the applicant as suffering from post traumatic stress disorder which she experiences to a moderate degree.  The complainant exhibits symptoms including avoidance, sleep problems and night terrors, and flashbacks.^[5]

9. [9]
   The complainant has been diagnosed with and treated for Asperger’s Disorder and Attention Deficit Disorder.^[6]

10. [10]
    Dr McGuire notes that the complainant has suffered from two other significant traumatic experiences, the sexual molestation by a babysitter’s boyfriend when she was aged eleven and the witnessing of a car accident involving body parts strewn over the road when she was aged fifteen (events which occurred before and after the armed robbery). In addition, there had been domestic violence between the complainant’s parents and she has been the subject of bullying in most schools that she had attended. The complainant has experienced learning disabilities all her life.

11. [11]
    Dr McGuire considers that the two other significant traumatic events may have contributed to the complainant’s PTSD, and the Asperger’s Syndrome from which the complainant suffers may well have rendered her more vulnerable to the effects of the armed robbery.

12. [12]
    In SAY v AZ; ex parte Attorney General (Qld) [2006] QCA 462, the Court of Appeal indicated that, where appropriate, a broad brush approach, discounting for non-compensable causes of an injury, may be appropriate.  It is submitted here that the complainant’s mental or nervous shock should be assessed at 20% of the scheme maximum (i.e. the upper end of item 32) and a modest reduction should be made to allow for other contributing factors in the order of 2% of the scheme maximum.

13. [13]
    I consider such an approach to be entirely appropriate in the circumstances. Accordingly, I assess the applicant’s mental or nervous shock pursuant to item 32 at 20% of the scheme maximum but reduce that to 18% of the scheme maximum ($13,500) to allow for the other contributing factors to the complainant’s mental or nervous shock arising out of the armed robbery.

Contribution

14. [14]
    The applicant has not contributed in any way to her own injuries either direct or indirect.^[7]

15. [15]
    Order

1. That the respondent, RBK pay the applicant LKS on behalf of BJS the sum of $13,500.

2. That the monies are to be paid to the Public Trustee of Queensland who is authorised to receive and hold such monies of BJS until she attains the age of 18 years.

3. That the Public Trustee of Queensland is further authorised to advance monies from time to time as is appropriate for the maintenance, education or treatment (including counselling) of BJS.

4. That the Public Trustee of Queensland is authorised to pay out of such monies received the reasonable costs in respect of the present application to Legal Aid Queensland.