Ashworth v Blair [2008] QDC 255

DISTRICT COURT OF QUEENSLAND CITATION: Ashworth v Blair [2008] QDC 255 PARTIES: JENNIFER ANNE ASHWORTH (Applicant) v WILLIAM BENJAMIN BLAIR (Respondent) FILE NO/S: 26/2008 DIVISION: District Court PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 3 October 2008 DELIVERED AT: Beenleigh HEARING DATE: 16 September 2008 JUDGE: Dearden DCJ ORDER: That the respondent William Benjamin Blair pay the applicant Jennifer Anne Ashworth the sum of $7,500 CATCHWORDS: CRIMINAL COMPENSATION – no physical injuries - mental or nervous shock - robbery LEGISLATION: Criminal Offence Victims Act 1995 ss s 24, 25, 26 CASES: Wren v Gaulai [2008] QCA 148 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 R v Ward; ex parte Dooley [2001] 2 Qd R 436 COUNSEL: Ms J Fadden (solicitor for the applicant) No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The applicant Jennifer Anne Ashworth seeks compensation in respect of injuries (mental or nervous shock) suffered by her on 21 April 2005 when she was the victim of a robbery by the respondent, William Benjamin Blair. The respondent (relevantly) pleaded guilty to a count of armed robbery before Judge Dick in the Ipswich District Court on 19 May 2005, and was sentenced to six years imprisonment, with an eligibility of parole after two years. The respondent received a sentence in the same terms in respect of an unrelated count of robbery, committed on another date, but dealt with at the same time. Facts [2] The applicant was at the relevant time (21 May 2005) a 44 year old woman working as a console operator at the Ampol service station at Churchill. The applicant arrived for work just before midnight, commenced work just after midnight, and shortly afterwards, the defendant walked into the service station. The applicant saw the respondent pull up a blue coloured tea towel from his neck and place it over his mouth and nose. The respondent yelled, “Give me your money” as he walked towards the counter and also had “a yellow thing for his head as a type of disguise”. On approaching the counter, the respondent pulled out a knife from around his waist region, held it in front of him and pointed it directly at the applicant. The knife was a large kitchen knife with a black handle and silver blade, about a foot long. [3] The applicant said, “I haven’t got any money” and the respondent replied, “Give me the money lady or I will stab you.” As the applicant was trying to feel for the alarm button, the respondent said, “Hurry up”. The applicant activated the alarm. The applicant then stalled the respondent briefly by saying, “I am – I just need to find the button to hit – to open the till” and she then pressed the alarm button before taking the money out of the till tray. The respondent pulled the money out of the tray, placed the knife on the counter (keeping one hand close to it) and used the other hand to take out the money. The respondent demanded and was given a packet of cigarettes before putting the money in his shorts pockets, grabbing the knife from the counter and walking towards the door. The respondent said, “If you call the police, I will come back and kill you.” The respondent then tried to get out of the front doors but they were locked. The applicant quickly opened the doors and as the respondent ran, the applicant rang the police. [4] The respondent was apprehended by police a short distance from the service station and was caught red handed with approximately $250 cash in his possession 1 . Injuries [5] The applicant suffered no physical injuries, but has suffered mental or nervous shock. The Law [6] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for 1 Exhibit B (submissions on sentence) p. 5 Affidavit of Carmel Yvarlucea sworn 3 March 2008. -- 2 of 4 -- 3 compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.2 Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.3 Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.4 Compensation [7] Ms Fadden on behalf of the applicant seeks compensation as follows: 1. Item 31 – Mental or Nervous Shock (Minor) – 2%-10% [8] Dr Barbara McGuire, psychiatrist, examined the applicant on 16 April 2007 and provided a report dated 24 April 2007.5 Dr McGuire concluded that the applicant had suffered from Post Traumatic Stress Disorder (PTSD) to a mild degree from 2005 until some six months prior to the preparation of her report, noting that the applicant “still has some symptoms of [PTSD]”6 . Dr McGuire reported that the applicant now only works day shift, is still frightened if she is on her own during a shift and has security fears and disturbed sleep at home. The applicant is more security conscious, does not like going out on her own, and had occasional nightmares after the attack which had settled in the six to eight months prior to the preparation of Dr McGuire’s report. The applicant had got rid of all the knives in her kitchen except for a serrated edge knife used for cutting meat, was hyper- vigilant, had an exaggerated startled reflex, no longer went for walks in the morning and experiences panic attacks but had not received any counselling and had preferred not to receive any counselling. The applicant had received assistance from anti-depressants since 20067 . Dr McGuire concluded by observing that the applicant “[did] not want counselling and probably doesn’t need it at this stage since her condition is settling spontaneously. However, should [the applicant] experience 2 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25]. 3 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29]. 4 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22]. 5 Exhibit A Affidavit of Dr Barbara McGuire sworn 28 June 2007. 6 Exhibit A p. 3 Affidavit of Dr Barbara McGuire sworn 28 June 2007. 7 Exhibit A p. 2 Affidavit of Dr Barbara McGuire sworn 28 June 2007. -- 3 of 4 -- 4 any adverse incident in the future it is possible that the Post Traumatic Stress Disorder may return.”8 [9] Ms Fadden submits that in light of the report from Dr McGuire, an appropriate award of compensation would be 10% of the scheme maximum ($7,500). That in my view is an entirely appropriate award, taking into account the mental or nervous shock suffered to date and the possibility of recurrence in the future. Contribution [10] It is clear that the applicant has not contributed to her own injuries in any way.9 Conclusion [11] Accordingly, I order that the respondent William Benjamin Blair pay the applicant Jennifer Anne Ashworth the sum of $7,500. 8 Exhibit A, p4, Affidavit of Dr Barbara McGuire, sworn 28 June 2007. 9 COVA s 25(7). -- 4 of 4 --