Street v Fitzgerald[2002] QSC 235

SUPREME COURT OF QUEENSLAND

1. MULLINS J:  Mr Larry Donald Street (“the applicant”) has made two applications pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”) arising out of an incident on 25 January 1997 when the respondents Shane Arthur Shield (“Shield”) and Darren Michael Fitzgerald (“Fitzgerald”) and another man called Ky Clements entered the applicant’s residence at Vulture Street, East Brisbane.  The respondent Rhonda Michelle Davison (“Davison”) did not go to the residence, but had counselled and procured the others to do so.  The application against Davison was adjourned on 28 June 2002 due to short service, but was heard on 9 August 2002.

2. There was no appearance at the hearing on 28 June 2002 on behalf of either Fitzgerald or Shield. Each of them had signed an acknowledgement of receipt of the application and supporting affidavits and indicated to the Public Trustee of an intention not to take part in the proceeding. There was no appearance at the hearing on 9 August 2002 on behalf of Davison.

3. On 5 May 1998 Fitzgerald pleaded guilty to one count of burglary and one count of armed robbery in company with personal violence arising out of the incident and was convicted of both offences. He was sentenced to a period of imprisonment of 16 years for the first count and a period of imprisonment of 10 years for the second count. Arising out of the same incident (but not relevant to the applicant’s application) Fitzgerald was found guilty of the murder of one Alexandra Doran who was present at the applicant’s home at the time of the incident.

4. Shield was also charged with burglary and armed robbery in company with personal violence. He pleaded not guilty, but was found guilty of both counts on 20 April 1999. For the burglary he was sentenced to imprisonment for 6 years and for the armed robbery was sentenced to imprisonment for 12 years. He was also convicted of the murder of Ms Doran.

5. Davison pleaded guilty on 13 April 1999 to one count of burglary and one count of armed robbery in company with personal violence arising out of the incident on 25 January 1997. Prior to being sentenced on 23 November 2000 Davison had been in custody on remand for these offences for 599 days. Because of the extensive pre-sentence custody, Davison was sentenced on both charges to probation for a period of 3 years.

6. The application against each of Fitzgerald, Shield and Davison is based on the conviction of the offence of armed robbery in company with personal violence. It is that offence which invokes s 24(1)(a) of the Act, as that offence can be characterised as an offence committed against the person of the applicant: see s 21 of the Act.

Facts

7. On 25 January 1997 the applicant was at home with friends who had called to visit, one Mick Turner and Ms Doran. The applicant used his residence to deal in small quantities of cannabis and amphetamines. That was known to Davison who had lived at the residence for a couple of weeks in 1996 and she passed that information onto Fitzgerald, Shield and Clements. This was what prompted the visit by the three men to the applicant’s home at approximately 11pm on that day, as they were looking for money and drugs. Fitzgerald was armed with a sawn-off loaded shotgun. The three men burst into the house.

8. Fitzgerald pointed the gun at the applicant’s head. The applicant and his two visitors were ordered to lie on the lounge room floor. The applicant was then pulled up by the hair by Fitzgerald who wanted to know where the drugs were. The applicant took Fitzgerald to another room where he had some cannabis. Fitzgerald hit the applicant in the head with a part of the rifle a number of times. The applicant took his wallet out and handed his money to Fitzgerald and gave him the little amount of cannabis that he had. Fitzgerald then took the applicant back into the dining room. Fitzgerald then pushed the applicant into his bedroom and continued to threaten him. The applicant ripped the carpet up and picked up two envelopes, one of which contained $100 in notes and the other was empty. Fitzgerald assaulted the applicant again and the applicant was knocked unconscious and left on the floor of the bedroom.

9. After the offenders had gone, Mr Turner came into the applicant’s bedroom, roused the applicant and informed him that Ms Doran had been shot. The applicant saw Ms Doran lying on the floor with blood around her head. The applicant then called for police and an ambulance.

Applicant’s injuries

10. From the blows that the applicant received to his head, he was left with a bruise to his left eye which caused it to swell immediately, a lump to the rear of his head behind his right ear and a few lumps over his head under his hairline.

11. The applicant attended at Princess Alexandra Hospital on 26 January 1997 with pain and bruising around the left eye and cheek, some double vision and difficulty in biting his teeth together. He was diagnosed with a fractured left mandibular condyle with minimal displacement. His injuries did not need surgical treatment.

12. When reviewed in maxillofacial outpatients at the hospital on 11 March 1997, it was noted that the occulsion from the fracture was improving and there was no need for operative intervention. According to the report from the maxillofacial unit at the hospital dated 22 January 2002, the injuries suffered by the applicant to his face would have resulted in moderate pain and discomfort around the left face and pain and discomfort on chewing for at least 6 to 10 weeks but there would be no long term problem. Photographs of the applicant’s injuries show the bruises and abrasions to the applicant’s face, consistent with the description in the medical reports.

13. The applicant attended the Queensland Health Alcohol and Drug Service on 27 March 1997, because his substance use had increased significantly following the incident on 25 January 1997. He reported that he had been using psychoactive substances as a method of coping with the symptoms he experienced following the incident. These symptoms were broken sleep, nightmares, poor appetite, thoughts of suicide, feelings of anxiety, mood swings and low energy. The applicant attended for counselling until February 1998. During his period of attendance the applicant reported a substantial reduction in his level of substance use, although at his last session, he reported continued difficulty in sleeping, low energy levels and feelings of isolation and insufficient social contact.

14. In each of the affidavits of the applicant sworn in support of the application, the applicant stated at para 11:

“The events of the 25 January 1997 have had a devastating effect on my life.  At the time of the attack I was terrified as I did not know what would happened (sic) and I was appalled by the death of my friend.  After the attack I suffered flashbacks which were distressing and upsetting.”

15. Although the applicant has made reference to the death of Ms Doran in describing the effect of the incident on his life, for the purpose of these applications the applicant can be compensated only for the injuries he suffered which can be attributed to the offence of armed robbery in company with personal violence committed by each of the respondents. This distinction appears to have been understood by Professor HA Whiteford, psychiatrist, who examined the applicant for the purpose of providing medico-legal reports dated 27 November 2001 and 8 February 2002.

16. Professor Whiteford interviewed the applicant on 26 November 2001 and concluded that as a result of the offence in which the applicant was named as the complainant, he suffered from post-traumatic stress disorder for a period of 12 months. Professor Whiteford noted that on examination the applicant exhibited no abnormality which could be attributed to the assault. Although the applicant reported to Professor Whiteford of some residual avoidance of potentially violent situations and a degree of loss of self-esteem and self-confidence, Professor Whiteford was of the opinion that they did not constitute clinically significant psychiatric symptoms. Professor Whiteford also made reference to the applicant’s long standing alcohol and drug abuse, but not as a consequence of the offence.

17. Professor Whiteford re-examined the applicant on 8 February 2002, as the applicant believed that he had not disclosed all relevant information at the previous interview. Further re-examination and consideration of the additional information provided by the applicant did not result in any alteration to the conclusions which Professor Whiteford had arrived at in his report of 27 November 2001.

Assessment of compensation

18. The purpose of compensation provided for under the Act is set out in s 22 of the Act. The process to be undertaken in assessing the compensation is set out in s 25 of the Act. Compensation is assessed by comparing each injury suffered by an applicant with the description of injuries in the compensation table which is Schedule 1 to the Act and choosing the percentage of the scheme maximum appropriate to the injury suffered.

19. Section 25(7) of the Act provides:

“(7) 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.”

20. The process to be undertaken when allowance must be made for contribution of an applicant to the injury was determined in Zaicov & McKenna v Jones [2001] QCA 442 in which Holmes J (with whom the other members of the court agreed) stated at para [33]:

“Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second to add those amounts together and third, to arrive at the amount of the compensation order.  Obviously, where only one injury is involved, the second of those steps is omitted.  It follows from this analysis that subsection (7) comes into operation at the time when the amounts to be paid for the respective injuries are being assessed, and not at a later stage when the total amount payable under the compensation order is being determined.  That is to say, it is in determining the percentage allowed for each injury that the court must have regard to relevant matters, including contribution.”

21. It is therefore necessary to consider whether there was any behaviour of the applicant that directly or indirectly contributed to each of the injuries for which he seeks compensation. I will follow the approach taken by Cullinane J in Grahame v Dean [2001] QSC 420 at para [34]:

“… the use of the words ‘direct or indirect’ suggests that a broad and common sense approach rather than a technical and narrow approach is required.”

22. The fact that the applicant was a known drug dealer and had been dealing in drugs from his residence in Vulture Street for some time (which was known to Davison and therefore caused the applicant to be chosen as the target for the armed robbery) must be viewed as behaviour of the applicant which contributed to the injuries inflicted.

23. Although it is suggested in Zaicov & McKenna v Jones [2001] QCA 442 at para [41] that in performing the exercise required by s 25(7) of the Act, a court might decide that an individual had contributed to different injuries to differing extents, there is no basis on the material in this matter for differentiating the contribution of the applicant to each of the injuries from which he has suffered. 

24. It is therefore necessary to assess the degree of contribution which must be applied against the applicant. I accept the submission made on behalf of the applicant that the actions of the respondents in carrying out or causing to be carried out the armed robbery were premeditated, the violence used by Fitzgerald and Shield was extreme and these actions were much more significant in causing the applicant’s injuries, than his own conduct. A contribution against the applicant of 25% fairly reflects his conduct which caused him to be chosen as the target for the armed robbery.

25. The relevant items in the compensation table for the applicant’s injuries are:

where the percentage is a reference to the relevant percentage for that injury of the scheme maximum which is presently $75,000. 

26. The appropriate assessment of compensation for each of the injuries sustained by the applicant is:

27. Allowing for the contribution of 25% results in an assessment of compensation of $12,375.                                                        

Orders

28. Section 26 of the Act provides for the form in which the compensation orders may be made.

29. Although Fitzgerald was the person who inflicted the physical injuries to the applicant and carried the shotgun, Shield was present supporting Fitzgerald during the incident and thereby participated in and facilitated the armed robbery of the applicant. There is no reason to distinguish between the direct and material contribution which each made to the injuries of the applicant. The liability of Fitzgerald and Shield for the amount of compensation assessed in favour of the applicant should therefore be the same. It is appropriate that the liability should be a joint and separate liability in respect of the whole amount of the assessed compensation.

30. Mr Hamlyn-Harris of counsel for the applicant submitted that as Davison’s conviction for the offence of armed robbery was on the basis of counselling and procuring the offence committed by Fitzgerald and Shield, her role in contributing in a direct and material way to the applicant’s injuries was considerably lesser than that of Fitzgerald and Shield. Mr Hamlyn-Harris submitted, and I accept, that Davison’s contribution might reasonably be regarded as a 20% contribution which would be consistent with her criminal culpability, as reflected in the sentence she received. Her liability for that 20% amount should be a joint and separate liability with Fitzgerald and Shield, but limited to 20% of the assessed compensation.

31. The orders which I make are:

1. Darren Michael Fitzgerald and Shane Arthur Shield pay compensation in the sum of $12,375 to the applicant for which they are jointly and separately liable to the applicant.       

2. Rhonda Michelle Davison pay compensation in the sum of $2,475 to the applicant (which is 20% of the above figure of $12,375) for which she is jointly and separately liable to the applicant with the said Fitzgerald and the said Shield in respect of that amount of $2,475.