Anderson v Hooper [2006] QDC 307

DISTRICT COURT OF QUEENSLAND CITATION: Anderson v Hooper [2006] QDC 307 PARTIES: SUE-ANN ANDERSON Applicant v GREGORY SCOTT HOOPER Respondent FILE NO/S: 340/06 DIVISION: Civil Jurisdiction PROCEEDING: Application for criminal compensation ORIGINATING COURT: Southport DELIVERED ON: 25 August 2006 DELIVERED AT: Southport HEARING DATE: 7 August 2006 JUDGE: Dearden DCJ ORDER: The respondent, Gregory Scott Hooper, pay the applicant Sue-Ann Anderson the sum of $18,750.00. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – ROBBERY – Mental or Nervous Shock – Shop Assistant COUNSEL: Mr A James for the applicant No appearance for the respondent SOLICITORS: Messrs Ffrench Commercial Lawyers for the applicant [1] The applicant, Sue-Ann Anderson seeks compensation in respect of injuries suffered by her arising out of the armed robbery of a shop at which she was working as a shop assistant on 10 May 2005. The respondent pleaded guilty to a five-count indictment before me in the District Court at Southport on 7 December 2005. In respect of this applicant, the respondent pleaded guilty to one count of robbery -- 1 of 4 -- 2 while armed with a dangerous instrument (namely a knife) and received a sentence of three years’ imprisonment suspended after serving a period of six months with an operational period of three years. A period of 167 days spent in pre-sentence custody was deemed time already served under the sentence. FACTS [2] The plea of guilty by the respondent proceeded by way of an ex officio indictment, and the Crown relied on a schedule of facts1 . The particulars in respect of the count relevant to the applicant are as follows: “On Tuesday 10 May 2005 [the respondent] entered the Pappas Way general store, Carrara. He was carrying a black bag and a 30cm knife. He approached the complainant and said ‘I am here to rob you. Sorry times are tough, put the money in the bag?’ The complainant gave the [respondent] $1,100. On 23 June 2005, enquiries led police to the [respondent] and he participated in an electronic record of interview. He admitted to the offence and produced the bag and knife used during the offence. He stated that he had used all of the money for debts owed and for a gambling habit.” [3] I note at this stage that the applicant’s submissions relied on a version of the facts as outlined in the applicant’s police statement2 . However, it is clear that any application for criminal compensation must proceed on the basis of the facts as outlined to and accepted by the sentencing Judge3 and for that reason the summary of facts set out above has been drawn from the schedule of facts tendered during the original sentencing proceedings4 . [4] The applicant did not receive any physical injuries during the robbery, but has suffered significant psychiatric injury. 1 Exhibit 2 in the sentence proceedings 2 Exhibit SA1, affidavit of Sue-Ann Anderson sworn 14 July 2006 3 R v Bennett, ex parte Facer [2002] 2 Qd R 295, 300 (per Phillipides, J) 4 In the ordinary course of events such documentary material should have been exhibited to an affidavit by the applicant’s solicitors, but pursuant to Criminal Offence Victims Act 1995 s 30(3) I consider it appropriate for this Court to have accessed the relevant exhibit from the original sentencing file -- 2 of 4 -- 3 THE LAW [5] 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 complainant in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence. R v Ward ex part Dooley [2001] 2 Qd R 436 indicates the assessment of complainant should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the complainant table (Schedule 1) for the relevant injuries. In particular, the fixing of complainant 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. COMPENSATION [6] Mr James, counsel for the applicant, seeks compensation pursuant to item 33 – mental or nervous shock (severe). The report of Paul Elliott, psychologist5 diagnoses the applicant as suffering from “adjustment disorder with mixed anxiety and depressed mood – moderate severity – chronic (DSM IV)6 ” and assesses her Global Assessment of Functioning (“GAF”) scale at “60: moderate symptoms”, which “indicates that Ms Anderson is currently functioning at 60 per cent of her pre-morbid level overall, with peaks and troughs”7 . Mr Elliott also expresses the opinion that “the probability of permanent psychological impairment [of the applicant] is 60 per cent, as the condition has become chronic”8 . In particular, Mr Elliott believes that the applicant has an urgent need for psychological counselling (at least six one-hour sessions of cognitive behaviour therapy) to assist her to moderate her acute anxiety, in particular, at an Australian Psychological Society recommended fee of $186 per hour9 . [7] Both the applicant and her family have suffered significantly, financially and personally, and the applicant remains “markedly affected clinically”10 . In particular, Mr Elliott stated that the applicant “described characteristic post-traumatic 5 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 6 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 p 5 7 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 p 5 8 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 p 5 9 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 p 5 10 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 p 3 -- 3 of 4 -- 4 symptoms, such as daily flash-back memories, disordered and non-restorative sleep, with nightmares of the incident, mood swings, and a reactive mood state …[and at the date of the interview with the applicant (13 June 2006) she was] still experiencing severe anxiety … [and] periods of depression without suicidal ideation”11 [8] Mr James submits that in the circumstances, the applicant had a more serious level of injury than the applicant in Barnes v Tumbers12. In that case the applicant for criminal compensation was diagnosed with “adjustment disorder with mixed anxiety and depressed mood – chronic – of moderate severity”13 but had a GAF of 70 and a probability of suffering some permanent psychological impairment assessed at 24 per cent” which resulted in an assessment of 20 per cent of the scheme maximum under item 32 of Schedule 1 (mental or nervous shock [moderate]) 14 . [9] In the circumstances, Mr James submits that an appropriate assessment would be a figure of 27 per cent (falling in the middle of the range for item 33 which ranges from 20 per cent to 34 per cent of the scheme maximum). [10] Although I accept Mr James’ submission that the applicant in these proceedings has (objectively) a more serious injury than the applicant in Barnes, it is my view that a more appropriate assessment is 25 per cent of the scheme maximum, i.e. $18,750. CONTRIBUTION [11] It is clear that the applicant did not contribute in any way to her own injuries15 . CONCLUSION [12] Accordingly I order that the respondent Gregory Scott Hooper pay the applicant, Sue-Ann Anderson the sum of $18,750. - - - - - 11 Exhibit PE1, affidavit of Paul Elliott sworn 10 July 2006 pp 3-4 12 [2005] QDC 284 13 Barnes v Tumbers [2005] QDC 284, para 7 14 Barnes v Tumbers ]2005] QDC 284, para 10 15 See COVA s 25(7) -- 4 of 4 --