Hillman v Hoyes[2009] QSC 29

SUPREME COURT OF QUEENSLAND 

[1] This is an application by George Michael Hillman for criminal compensation pursuant to the Criminal Offences Victims Act 1995 (Qld) (“the Act”).

[2] The respondent, Todd Jeffery Hoyes, is presently serving a period of imprisonment.  He was served with the application and supporting materials, as was the Public Trustee.  The Public Trustee advised, by the official solicitor, that the respondent was aware of the criminal proceedings, did not have assets, and did not wish to attend the proceedings.  The Public Trustee further advised that it is not acting in the affairs of the respondent, that it holds no assets on behalf of the respondent and that the respondent has no assets with which to satisfy any order made against him.

[3] The applicant was born 14 October 1985.  At the time of the events I am about to describe he was aged 20 years. 

[4] At about 10.00pm on 7 September 2006 the applicant was employed at TJ’S Bakehouse in Farm Street, Rockhampton.  He was an apprentice baker.  Whilst he was having a break out in front of the store he was approached by the respondent who demanded that he give to the respondent the keys to his car. The applicant did not think that the respondent was serious.  The respondent then pulled out a hand gun and pointed the gun at his temple and said words to the affect “I am not fucking around, give me the keys to the car.”[1]  The applicant went into the store, obtained the keys to the work van and gave them to the respondent. 

[5] The respondent was eventually charged and pleaded guilty to armed robbery and was sentenced to imprisonment for six years. 

[6] The effect of this crime on the applicant has been disastrous. His mental state deteriorated markedly.  He experienced “serious symptomatology associated with suicidal ideation”.[2]  He commenced drinking alcohol heavily. He lost his apprenticeship. He could not bear to return to the workplace.  He reports that even the smell of baking bread and coffee would cause him to think about the incident and upset him.  As a result of his drinking he lost driver’s licence. 

[7] The applicant has come under the care of a number of psychiatrists and psychologists. The earliest assessment was carried out by Dr Warlow, a consultant psychologist.  Initially he assessed the applicant as having a score of 20 on a Global Assessment of Functioning scale (GAF). Dr Michael John, a psychologist, advised that such a score meant that the sufferer would have “very serious symptoms, plus a gross inability to function in a normal manner.” Subsequently, some six months after the armed robbery, Dr Warlow considered that the applicant had improved and assessed a GAF score of 55.  This improvement came about following the taking of prescription medication, receipt of psychological assistance including the use of cognitive behavioural therapy, as well as from the support of family and friends.

[8] The applicant saw Dr John for the purposes of assessment on 16 July 2007.  Dr John recorded that the applicant began to feel “substantially improved” some four months prior to his attendance. Some three months prior he had commenced full duties in a restaurant where he worked as a manager.  He had ceased medication upon commencing work and intended finalising contact with his psychologist in the near future.  In his affidavit Mr Hillman stated that he had started a new job at Mr Minute in the City Centre Plaza at Rockhampton.

[9] Dr John diagnosed Mr Hillman to be suffering from an active post traumatic stress disorder.  The symptoms he had identified included:

(a) Consistently experiencing the traumatic event, particularly in watching certain television programs (eg police shows and the News) and consequently experiencing stress;

(b) Trauma related nightmares one or twice a week;

(c) The avoidance of places that cause distress such as shops;

(d) Sensitive to having people around him and causing a threat to him;

(e) Reluctance to go out in the evenings;

(f) Avoidance of the entire Glenmore area where the incident had taken place;

(g) Avoidance of all bakeries;

(h) The loss of friends;

(i) More easily irritated and angered;

(j) Periods of “going blank while at work” and difficulty maintaining his concentration;

(k) Feeling of remaining vigilant and susceptible to unexpected noises or events (for example he slept with a baseball bat beside his bed).

[10] By the time of his assessment Dr John considered that the applicant’s GAF score would fall between 60 and 70. On this basis Dr John found the applicant as having some “lower-moderate difficulty with functioning but generally functioning pretty well.”[3] He considered that the applicant had previously suffered from depression but had, in more recent times, over come that. By the time of the assessment, on his self report, the applicant had ceased abusing alcohol.

[11] The Act authorises the court to make orders for compensation against persons convicted of certain crimes in favour of persons injured in the commission of the crime.[4] The compensation does not reflect the amount that might be awarded at common law.[5] Rather the Act describes a “scheme maximum” which is presently $75,000.[6] The compensation table in Schedule 1 to the Act sets out the percentage of the scheme maximum that can be allowed for any particular injury.  In the present case the following items are potentially open:

[12] In my view the post traumatic stress disorder suffered by the applicant would fall within the meaning of the term “Injury” as defined in s 20 of the Act.[7]

[13] At the time of his assessment in July 2007, Dr John thought that the applicant was suffering an injury of the type described as item 32 in Schedule 1 to the Act as set out above.  In his opinion the applicant’s injury was best located in the lower half of the moderate category.  Nonetheless Dr John thought that there should be a continuation of cognitive behavioural therapy with some eight further seasons required.  Dr John pointed out that, given Dr Warlow’s earlier assessment, he would assess the applicant as having experienced an injury that fell in the more serious category of item 33, as at that earlier time.

[14] The only significant issue in the present case is how one brings into account the fact that the injury suffered by the applicant was initially in the severe category (with the drastic consequences for his life that I have described) but has now improved so as to fall in the lower half of the moderate category.

[15] Mr Arnold of counsel, who appeared on behalf the applicant, submitted that the appropriate assessment was at 25 per cent of the scheme maximum, ie the sum of $18,750.  He contended that when the condition was severe an entitlement of around 30 per cent would have been appropriate.

[16] Whilst it may be accepted that in the early stages the symptomatology was indeed disabling, improvement has been marked and whilst there is continuing need for treatment it is only modest in scale. On the other hand there must be some due allowance made for the devastating effects of the crime on Mr Hillman’s life and his continuing need for treatment.

[17] For the post traumatic stress disorder suffered, which I accept is presently characterised as mental or nervous shock at a moderate level, I assess compensation under item 32 of Schedule 1 but at the maximum for that level to bring into account the consequences I have mentioned.

[18] I order that the respondent pay the applicant $15,000 because of the injury he sustained as a result of the armed robbery perpetrated on him on 7 September 2006.

[19] There can be no order as to costs. [8]