Chapman v Pakura [2010] QDC 61

DISTRICT COURT OF QUEENSLAND CITATION: Chapman v Pakura [2010] QDC 61 PARTIES: ALAN PETER CHAPMAN (Applicant) v SELINA JOYCE PAKURA (Respondent) FILE NO/S: 3339/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 9 March 2010 DELIVERED AT: Brisbane HEARING DATE: 9 March 2010 JUDGE: Rafter SC DCJ 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. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – armed robbery in company – mental or nervous shock – post traumatic stress disorder caused by three separate robberies – respondent involved as driver in respect of one robbery – principal offender absconded – impact on assessment Criminal Offence Victims Act 1995 (Qld), s 20, s 22(3), s 22(4), s 24, s 25(2), s 25(4), s 25(7), s 25(8), s 33, s 40 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 R v Ward, ex parte Dooley [2001] 2 QdR 436; [2000] QCA 493 RMC v NAC [2009] QSC 149 SAY v AZ [2007] 2 QdR 363; [2006] QCA 462 Wren v Gulai [2008] 2 Qd R 383; [2008] QCA 148 -- 1 of 7 -- 2 COUNSEL: D A Love for the applicant No appearance by or for the respondent SOLICITORS: Dale & Fallu for the applicant No appearance by or for the respondent Introduction [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 [2] The Criminal Offence Victims Act 1995 was repealed by s.149 Victims of Crime Assistance Act 2009 which came into force on 1 December 2009.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] 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] 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] 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] 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 1 Dr McGuire incorrectly states the first robbery was on 28 August 2004; see affidavit of the applicant filed 23 February 2010 at paras 2 and 15. 2 Affidavit of the applicant filed 23 February 2010 at para 5. 3 Dr McGuire incorrectly states that this robbery was on 27 October 2005; see affidavit of the applicant filed on 23 February 2010 at paras 2 and 15. -- 2 of 7 -- 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] 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] Dr McGuire describes the applicant as hypervigilant, irritable and depressed. She states that he has experienced nightmares and flashbacks. [9] The applicant’s employment at the service station was terminated following the third robbery. [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] 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] 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] 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 4 Affidavit of the applicant filed 23 February 2010 at para 16. 5 Report of Dr Barbara McGuire dated 26 March 2009 at p 3. 6 Affidavit of the applicant filed 23 February 2010 at para 4. 7 Affidavit of the applicant filed 23 February 2010 at para 14. 8 Affidavit of the applicant filed 23 February 2010 at para 12. 9 Affidavit of the applicant filed 23 February 2010 at para 13. -- 3 of 7 -- 4 [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] 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] 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] 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] Holmes JA said: “[20] Section 25(7) as it seems to me, deals with both causation and quantification. In the first instance the court has to decide “whether an amount … should be ordered to be paid for an injury”. The issue there is whether, taking all relevant factors into account, the offence has materially contributed to the injury. Assuming that it has, there remains the quantification question: “what amount … 10 [2001] 2 QdR 436. 11 R v Ward ex- parte Dooley [2001] 2 QdR 436 at 438 at para [5]. 12 [2007] 2 Qd R 363 -- 4 of 7 -- 5 should be ordered to be paid” for that injury. Again the court must have regard to everything relevant. Section 25(8) makes it plain that in determining what amount should be ordered to be paid, common law principles are not applicable. Other contributing factors cannot, therefore, be treated as irrelevant. … [23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.” 13 The applicant’s submissions [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] 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] 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. 13 SAY v AZ [2007] 2 QdR 363 at 370 to 371 paras [20] and [23]. 14 Affidavit of the applicant filed 23 February 2010 at para 16. -- 5 of 7 -- 6 Assessment [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] 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] 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] The assessment must be undertaken on the basis that the applicant’s mental state has been caused by the three robberies. [26] This assessment is concerned only with the impact of the third robbery on 27 February 2006. [27] Section 26 of the Criminal Offence Victims Act 1995 provides: “When single or multiple compensation orders may be made 26(1) The purpose of this section is to ensure that, for applications, harm that substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more than 1 injury or be caused by more than 1 incident. (2) The objective is to ensure that the way in which incidents of personal offences happen or personal offences are prosecuted does not cause— (a) inequity of treatment between applicants; or (b) an unjustifiable multiplicity of applications to the State under division 3 about substantially the same harm. (3) Subject to subsections (7) and (8), only 1 compensation order may be made in favour of an applicant because of— (a) injury suffered from a substantially single incident, whether consisting of 1 or more than 1 personal offence; or (b) a substantially single state of injury suffered from a series of incidents of personal offences. (4) In deciding whether an applicant has suffered a substantially single state of injury, the court may have regard to the following— (a) the applicant’s injuries; (b) the time over which the injuries were caused; 15 [2009] QSC 149. 16 Report of Dr Barbara McGuire dated 26 March 2009 at p 3. -- 6 of 7 -- 7 (c) the similarity of, or connection between, the injuries; (d) the similarity of, or connection between, the events that caused the injury; (e) anything else that is relevant.” [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] 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] 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] 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. 17 [2008] 2 Qd R 363 at [24] 18 Report of Dr Barbara McGuire dated 26 March 2009 at p 4. 19 [2007] 2 QdR 363. -- 7 of 7 --