Banfield v Magagna [2007] QDC 28

DISTRICT COURT OF QUEENSLAND CITATION: Banfield v Magagna [2007] QDC 028 PARTIES: KAREN ANN BANFIELD Applicant and ANTHONY JOHN MAGAGNA Respondent FILE NO/S: No BD 458 of 2007 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Brisbane DELIVERED ON: 9 March 2007 DELIVERED AT: Brisbane HEARING DATE: 6 March 2007 JUDGE: Samios DCJ ORDER: The respondent to pay the applicant the sum of $18,750 CATCHWORDS: Criminal law – compensation – personal offence – extortion – other factors contributing to injury – assessment of compensation Criminal Offence Victims Act 1995 s 19(1)(a), s 20, s 21, s 22(3), s 22(4), s 24(2), s 25(7) Brennan v Smith; Grech v Smith (2005) QSC 276 CON Carol French v Richard Yale Green (Court of Appeal – appeal no. 4481 of 1997, 19 December 1997) APP CRP v Hettrick (2005) QDC 125 CON Pettingill v Minister for Justice and A-G (2003) QSC 385 CON R v Callaghan and Fleming, ex parte Power (1986) 1 QdR 457 CON R v Moors ex parte Alex (1994) 2 QdR 315 CON R v Wilkie, ex parte Schofield (1999) QSC 43 CON R v Wilkie, ex parte Sietsema (1999) QSC 348 CON -- 1 of 10 -- 2 SAY v AZ; ex parte A.-G. (Qld) (2006) QCA 462 APP SBR v P (2006) QDC 396 CON SM obo M-H v NK (2005) QDC 408 CON COUNSEL: Mr Maher of Counsel for the applicant SOLICITORS: Trilby Misso Lawyers for the applicant There was no appearance for the respondent [1] The applicant is a married woman born on 1 September 1958. [2] In 2002 during a stay in hospital she met the respondent. After her stay in hospital the respondent came to see the applicant. He looked at a motor vehicle the applicant wanted to sell. The respondent did not purchase the motor vehicle. [3] However, in the course of conversations between the applicant and her husband and the respondent, the respondent dishonestly represented to the applicant and her husband they could make a substantial return on their money by advancing money to the respondent who would use it to buy electrical cable and resell it at a profit. $15,000 was paid to the respondent by the applicant and her husband for this purpose. [4] Further, when the applicant’s husband was not home the respondent came to see the applicant. During these visits the respondent made threats to the applicant that he would kill the applicant’s husband or her children if she did not pay money to the respondent. The respondent said “he had a bullet with Billy’s name on it” and he knew where her family lived and he would get them too unless she gave him some more money. The applicant was very frightened. As a consequence of these threats the applicant paid the respondent $19,100. [5] On 15 July 2004 a jury found the respondent guilty of two indictable offences. One offence was that the respondent dishonestly obtained the $15,000 from the applicant -- 2 of 10 -- 3 and her husband. The other offence was that the respondent by extortion obtained the $19,100 from the applicant. The applicant and her husband have not recovered any of the money from the respondent. For these offences he was sentenced to five years imprisonment and seven years imprisonment respectively. [6] When these offences were committed by the respondent the applicant was suffering from severe mutilating rheumatoid arthritis and was unable to work. She was in poor health. Due to her condition she could not physically defend herself or retaliate against someone. [7] The applicant says that as a result of the “assault incident” (which I take to be the extortion offence) she has suffered in a number of ways. She has had difficulty sleeping and often wakes from bad dreams and flashbacks of the “assault”. She feels extremely depressed and blames herself for the whole situation. For approximately two years following the “assault” she was not able to leave her bedroom. She is still afraid to go out on outings and does not leave the house without her husband. She has become very security conscious and feels as though she is helpless. She has low self esteem and is not able to trust people. She is terrified that once the respondent gets out of prison he will locate her family and assault and hurt them. She also believes that the “assault” has also significantly contributed to the decline in her physical wellbeing. She has received telephone calls with silence at the other end of the line which has caused her to become extremely anxious and nervous. She often suffers from panic attacks. [8] In these proceedings the applicant claims from the respondent criminal compensation for injury because of the offence of extortion. [9] The extortion charge was in these terms:- -- 3 of 10 -- 4 “that on divers dates between the 8th day of October 2002 and the 11th day of December 2002 at ‘Eagleby and elsewhere in the State of Queensland, you with intent to gain a sum of money from Karen Ann Banfield, orally demanded without reasonable or probable cause, a sum of money from Karen Ann Banfield, and with threats of injury to be caused to William Banfield and others by you if the demand was not complied with.” [10] Part 3 of the Criminal offence Victims Act 1995 (the Act) establishes a scheme for the payment of compensation to a person for injury suffered by the applicant caused by a personal offence committed against the applicant (s 19(1)(a)). [11] Injury is defined as bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation (s 20). [12] A personal offence is defined as an indictable offence committed against the person of someone (s 21). [13] Section 22(3) of the Act provides that compensation provided to an applicant is intended to help the applicant but is not intended to reflect the compensation which the applicant may be entitled under common law or otherwise. [14] Further, s 22(4) of the Act provides the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness. [15] Finally, s 24(2) of the Act provides that a person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injuries suffered by the applicant because of the offence. -- 4 of 10 -- 5 [16] The applicant accepts in these proceedings that the dishonesty offence is not a personal offence for the purposes of the scheme. However, the applicant claims the extortion offence is a personal offence. [17] In R v Moors ex parte Alex (1994) 2 QdR 315 the Court of Appeal examined s 663B of the Criminal Code. That section relevantly provided: “(1) Where a person is convicted on indictment of any indictable offence relating to the person of any person … the Court, on the application by or on behalf of the person aggrieved by the offence … may, in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence … of which the offender is convicted …” [18] McKenzie J with whom Thomas J (as his Honour then was) concurred said at p 320: “The concept of an offence relating to the person of any person is in my view used in contra-distinction to an offence relating to property. The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed. The relevant offence is the offence referred to in the indictment.” [19] In R v Moors ex parte Alex the respondent fired a volley of shots at the car occupied by three persons killing one of them. He was subsequently convicted of the offence of manslaughter. The passenger in the car alleged as a result of the shooting incident he suffered nervous shock and neurosis. It was held by the majority that he was not a “personal aggrieved” who was entitled to claim compensation under s 663B. Further, that the “person aggrieved” was the person to whose person was related the offence of which the offender was convicted. As it was not the applicant but the deceased who was the one to whose person the offence of manslaughter related, the applicant had no entitlement to compensation under s 663B. [20] In Carol French v Richard Yale Green (Court of Appeal – appeal no. 4481 of 1997, 19 December 1997) the respondent pleaded guilty to 12 counts of misappropriation with circumstances of aggravation and two counts of wilful false promise. -- 5 of 10 -- 6 [21] In that case it was noted by the trial judge the applicants’ personal loss far exceeded the monetary loss. They felt cheated. They trusted the person who, when he was seeking out their money for alleged investments, would contact them so often and so frequently that they seemed to be involved in every facet of his life and, therefore, came to trust him implicitly. They lost all self-confidence and pride in themselves. In hindsight they realised what fools they were taken for. They had, as the events unfolded received death threats. They suffered anger and torment. They both suffered from nightmares. They found it impossible to lead a normal life. They were afraid to trust their own judgment. They lost incentive, self respect and ability to make decisions. They were both under psychiatric care. [22] The trial judge held that the applicants in Carol French v Richard Yale Green could not recover damages under s 663B of the Criminal Code as the offences did not “relate to the person of any person”. The Court of Appeal was of the same opinion. The Court of Appeal said at p 4: “…it is quite clear that the reference to the “person of any person” is a reference to the physical person and not to a person’s property. Further, it is the offence which must relate to the person, not any injury caused thereby. In order that compensation be payable, the offence as charged must have a relationship to the person of the applicant. There is no sense in which the offence as charged in the present case can be so described.” [23] In the Act “victim” is defined as: “A person who has suffered harm from a violation of the State’s criminal laws – (a) because a crime is committed that involves violence committed against the person in a direct way.” [24] There is no authority that I know of directly on point that the offence of extortion is a personal offence for the purposes of the Act. -- 6 of 10 -- 7 [25] In CRP v Hettrick (2005) QDC 125 his Honour Judge McGill was of the opinion the Act was confined to those offences which can be said to have been committed against the person, (i.e.) the body of the applicant. Hence, his Honour held the offence of attempting to procure a minor for a child abuse photograph was not within the Act. [26] His Honour Judge Brabazon QC was of the same view when he held attempting to unlawfully procure the applicant to commit an indecent act was not a personal offence. (SBR v P (2006) QDC 396). [27] The contrary view has been held by his Honour Judge Dearden in SM obo M-H v NK (2005) QDC 408. [28] Regarding robbery offences it has been held that persons present at a robbery can apply under the Act for compensation even though someone else is named in the indictment as the person from whom the money was stolen with threats of actual violence. In Brennan v Smith, Grech v Smith (2005) QSC 276 two persons were present at the robbery. One of those persons had a gun waved at him and he obeyed the command to get on the ground. The other person obeyed the command to get on the ground. These applicants were held by White J to be not mere bystanders. Also see R v Wilkie, ex parte Schofield (1999) QSC 43 and R v Wilkie, ex parte Sietsema (1999) QSC 348. See under the previous legislation R v Callaghan and Fleming, ex parte Power (1986) 1 QdR 457. [29] The Act in my opinion should be given a benign construction. This was held to be the position under the Criminal Code. See R v Callaghan and Fleming Ex parte Power per Connolly J at p 458. This approach was considered and approved by the Court of Appeal in R v Moors; Ex parte Alex at p 320 per McKenzie J with whom -- 7 of 10 -- 8 Thomas J agreed. Mullins J applied a benign construction to the Act in Pettingill v Minister for Justice and A-G (2003) QSC 385 at para 23. [30] In my opinion in the present circumstances the offence of extortion as charged against the respondent and for which he was convicted has a relationship to the person of the applicant. That is because the offence involved oral demands by the respondent to the applicant and threats of injury to the applicant’s husband and children made by the respondent to the applicant if the demands were not complied with. In my opinion, these actions of the respondent involved violence committed against the applicant in a direct way. [31] I am satisfied the extortion offence has materially contributed to the applicant’s condition. However, I am satisfied the dishonesty offence has had an impact upon the applicant’s condition. Therefore, some discounting is to be made from the applicant’s compensation for that impact. As to that I must do the best I can to make an allowance for that factor in this case (SAY v AZ; ex parte A.-G. (Qld) (2006) QCA 462 para. 23). [32] I observed the applicant as she gave her evidence at the trial. I accept her evidence in these proceedings is truthful and accurate. I accept her evidence. [33] The applicant has been examined by Dr McGuire a psychiatrist. The applicant told Dr McGuire how the “fraud and assault” has affected her. Dr McGuire noted the applicant throughout the interview was very distressed, to the extent she actually vomited. She was tremulous and agitated but nonetheless managed to tell her history clearly, though slowly. Dr McGuire also noted the applicant suffers from very serious rheumatoid arthritis and other medical conditions and had a dysarthria. -- 8 of 10 -- 9 Dr McGuire states in her report that the applicant is considerably disabled as a result of her medical condition. [34] Some of these observations of Dr McGuire are consistent with my own observations of the applicant when she gave evidence at the trial. [35] It is Dr McGuire’s opinion the applicant has suffered post-traumatic stress disorder. In her opinion she suffers it to a very severe degree and the likelihood is that she will continue to suffer from it for the rest of her life. The applicant has been treated with anti-depressants but has not availed herself of counselling because of embarrassment and her very low self-esteem as a result of her victimisation. In Dr McGuire’s opinion the psychological disability the applicant suffers will be permanent. However, she notes the applicant is considerably disabled as a result of her medical condition and her medical disability is compounded very significantly by the psychological problems she experienced as a result of the actions of the respondent. In Dr McGuire’s opinion the applicant’s medical condition is responsible for considerable pain. She considers the applicant is very seriously disabled by her psychological condition. She is not capable of being employed at the moment as a result of her medical condition. [36] I am satisfied that because of the offence of extortion (a personal offence) committed against the applicant, the applicant suffered injury which is mental or nervous shock. I am satisfied the applicant did not do anything that directly or indirectly contributed to her injury (s 25(7)). Doing the best I can if it were not for the contribution to her injury by the dishonesty offence I would assess the applicant’s compensation under Item 33 of Schedule 1 to the Act as mental or nervous shock (severe) 30 per cent. However, discounting her compensation for the dishonesty offence I assess the applicant’s compensation under Item 33 of Schedule -- 9 of 10 -- 10 1 of the Act as mental or nervous shock (severe) 25 per cent, which is the sum of $18,750. [37] I order the respondent to pay the applicant the sum of $18,750. [38] The Act does not permit an order to be made for the payment of the costs of the application. -- 10 of 10 --