Doig v Stephens & Hallin [2005] QSC 117

SUPREME COURT OF QUEENSLAND CITATION: Doig v Stephens & Hallin [2005] QSC 117 PARTIES: BRETT JOHN DOIG (applicant) v PETER NOEL STEPHENS (first respondent) and DANIEL MICHAEL HALLIN (second respondent) FILE NO/S: BS 11150/04 DIVISION: Trial PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 6 May 2005 DELIVERED AT: Brisbane HEARING DATE: 15 February 2005 JUDGE: Philippides J ORDERS: 1. The first respondent is separately liable to pay the applicant $69,750 by way of compensation for the injuries suffered by him as a result of the commission of the offence for which he was convicted. 2. The second respondent pay compensation in the sum of $55,800 (80% of the above figure of $69,750) for which he is jointly and separately liable to the applicant together with the first respondent. CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION – where the first respondent shot the applicant at close range and was convicted, on his plea, of doing grievous bodily harm with intent to disable the applicant – where the second respondent was convicted of attempted murder of the applicant on the basis of being a party – where applicant suffered gunshot and other injuries – where more than one convicted person directly and materially contributed to the applicant’s injuries – where liability of each convicted person scaled according to their contribution to the injuries Criminal Offence Victims Act 1995 (Qld), s 21, s 22, s 24, s 25, s 26, s 33 Criminal Offence Victims Regulations 1995 (Qld), Reg 2 Dooley v Ward [2001] 2 Qd R 436 -- 1 of 11 -- 2 Riddle v Coffey [2002] QCA 337 COUNSEL: K M McGinness for the applicant No appearance for the respondents SOLICITORS: McInnes Wilson for the applicant No appearance for the respondents The Application [1] The applicant, Brett John Doig, sustained serious injuries as a result of being shot by the first respondent, Peter Noel Stephens. The first respondent was convicted on 17 March 2003, on his plea, of grievous bodily harm committed upon the applicant with intent to disable him and sentenced to 20 years’ imprisonment to be served concurrently with other sentences. The second respondent, Daniel Michael Hallin, was convicted on 26 March 2003, after trial, of the attempted murder of the applicant, on the basis that he was a party to a common unlawful purpose in the prosecution of which the offence of attempted murder was committed by the first respondent. The second respondent was sentenced to 15 years’ imprisonment to be served concurrently with other sentences. [2] The applicant, who was born on 5 July 1970 and was aged 31 years at the time of the offences, seeks criminal compensation pursuant to s 24 of the Criminal Offences Victims Act 1995 (Qld) (“the Act”) for injuries sustained as a result of the offences committed against him for which the respondents were convicted. Section 24 of the Act provides: “(1) This section applies if someone (the “convicted person”) – (a) is convicted on indictment of a personal offence; or (b) is convicted on indictment and a personal offence is taken into account on sentence. (2) The 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 injury suffered by the applicant because of the offence. (3) The court may make an order (a “compensation order”) for an amount to be paid by the convicted person to the applicant because of the injury.” [3] Section 21 of the Act describes a “personal offence” as “an indictable offence committed against the person of someone”. The offences committed by the respondents against the applicant were each a “personal offence” within the meaning of s 21, entitling the applicant to apply for compensation suffered by reason of that offence under s 24 of the Act. Background Facts [4] On the evening of 24 December 2001, the applicant and his mother, Helen Doig, were travelling to their home along a road at Murphy’s Creek, east of Toowoomba. -- 2 of 11 -- 3 They stopped when they saw a vehicle belonging to the applicant’s brother, Kenneth Doig, parked at the side of the road. (Unbeknown to the applicant, Kenneth Doig, had earlier that evening been brutally murdered by the first respondent in the course of a robbery and his body had been hidden in the boot of his car. The first respondent was convicted of that murder, with the second respondent being convicted as a secondary offender. [5] The applicant went to investigate the presence of his brother’s car at the roadside and question the respondents. Without warning he was shot in the left arm and side by the first respondent. The applicant’s mother, who had also walked towards the parked car, ran back and got into her car. Whilst sitting there she was also shot at point blank range by the first respondent. The impact of the shot knocked her out of the car and onto the ground. [6] After the applicant was shot, he managed to escape down the road, fell over a fence and hid in a paddock. He heard a second shot and after waiting for a short time made his way back to his vehicle (the respondents having left the scene). Notwithstanding his serious injuries, the applicant was able to help his mother into his car and drive to a farmhouse, where he sought assistance. Medical Evidence [7] The applicant sustained serious shotgun wounds to his left forearm, with numerous gunshot pellets penetrating the forearm. He also suffered less serious shotgun pellet injuries to his left loin. The applicant was initially treated at the Toowoomba Base Hospital and then transferred to the Princess Alexandra Hospital for plastic and orthopaedic surgery. He was subjected to numerous operative procedures over a protracted period and required prolonged hospitalisation and extensive rehabilitation and physiotherapy. [8] The applicant suffered muscle loss and bone fractures. His injuries were documented as being a fractured left radius, laceration of the extensor tendons of the left forearm, widespread bullet pellet wounds of soft tissue and extensive laceration of the left forearm. He suffered a large dorso-radial laceration measuring 15cm x 8cm across the left forearm. X-rays showed distal radioulnar joint disrupture, a partial loss of the radial styloid and a dislocated wrist. The wrist was stabilised using a combination of internal and external fixation. The operative findings noted by the surgeon at the Toowoomba Base Hospital included a 50% loss of the tendons of the extensor pollicus longus and extensor indices, 50% loss in the radial nerve and a complete loss of the extensor digitorum canenus. [9] The applicant underwent a forearm osteotomy in an effort to realign the wrist joint and a vascularised left sided fibula transfer to reconstitute the missing segment of the radius. The applicant underwent numerous operative procedures aimed at debriding, grafting and securing appropriate soft tissue to cover the left forearm. Soft tissue cover was achieved with the use of a flap from the left groin and split skin was taken from the lower limb. The applicant also has a large scar and pellets under the skin in the area of his left loin. He suffers lack of feeling and swelling in this area. He also has a large scar to his shin where bone was harvested for a graft in his forearm and experiences pain to the left leg. -- 3 of 11 -- 4 [10] The medical evidence is that, notwithstanding the extensive efforts at salvaging the left wrist joint, it is unlikely that the applicant will regain a useful wrist joint. He has undergone physiotherapy to his fingers and his hands to help restore movement. At the time of his affidavit not all of the gun pellets had been removed from his arm and movement was still restricted. [11] The applicant remains completely incapable of any type of work other than purely sedentary work. Because of his injuries and the ongoing treatment needed, he will require a tolerant employer and it is fortunate that his employer for the last 17 years, Woolworth’s, has demonstrated a benevolent approach towards him and to the interruption to his employment caused by his injuries and medical treatment. Report of Dr Morgan [12] Dr Morgan, an orthopaedic surgeon, examined the applicant and produced two reports, dated 26 October 2003 and 27 February 2004. The applicant described the following ongoing symptoms to Dr Morgan: (a) A significant cosmetic deformity referable to his left forearm; (b) Pain in the region of the left forearm and especially in the region of the left wrist joint, made worse by variable weather conditions; (c) A stiffness in his wrist with the wrist held in a flexed ulnar deviated position; (d) Limited thumb and finger movement; (e) A weak incomplete grip and inability to form a fist; (f) Poor light touch sensory capacity over the dorsum of the left hand; (g) Inability to engage in activities of daily living such as performing a normal bimanual job, lifting or carrying objects, dressing or washing. [13] Clinical examination by Dr Morgan revealed the following: (a) No forearm rotation with the forearm fixed in a mid- supination/pronation position, with no pronation or supination possible; (b) Gross scarring and deformity of the left forearm, including a 30cm x 10cm region of scarring with a large bulky soft tissue flap over the dorsoradial aspect measuring 12cm x 6cm as well as multiple additional smaller scars; (c) The left wrist joint was fixed in 25º of palmer flection and 10º of ulnar deviation; (d) No extension of the thumb and marked stiffness in the carpometacarpal joint; (e) Fingers demonstrated marked stiffness in the joints, with the applicant being unable to make a fist and grip strength at 4kg compared to 35kg on the right hand; (f) A 31cm scar on the left groin referable to the harvesting of skin to cover the left forearm; (g) A 10cm x 5cm scar to the left loin, including multiple subcutaneous pellets; -- 4 of 11 -- 5 (h) A 35cm scar on the posterolateral aspect of the left leg referable to the harvesting of his fibula, with residual swelling of the lower left limb. [14] Dr Morgan described the injuries suffered by the applicant as a result of the shooting as: (a) Left forearm – a severe loss of musculoskeletal tissue from the dorsoradial aspect of the left forearm, with loss of a segment of some 6cm of the distal radius, loss of a major component of the dorsal extensor muscle, tendon structures and half the radial nerve. (b) Left loin – a cosmetic deformity the injury to the left loin, which was not associated with any specific functional loss. (c) Left groin – a large scar to the left groin which was referable to the harvesting of a skin flap and may be linked to some lower limb oedema. (d) Left leg - a large scar to the left leg which was referable to the harvesting of the applicant’s fibula and which was expected to give rise to some interference with lymphatic return and may further contribute to his left leg swelling. [15] Dr Morgan observed that despite numerous operative procedures the applicant’s condition had not stabilised at the time of the October 2003 report and that he remained severely cosmetically and physically disfigured. Dr Morgan’s prognosis for the applicant was that, even with a satisfactory outcome after further surgical treatment, the applicant would be left with a very major functional impairment referable to his left upper limb and that it was likely that the applicant may require an operative fusion of the wrist joint. Dr Morgan’s assessed the functional impairment of the applicant in the range of between 30% and 60% of the normal capacity of the upper limb. Report of Dr Harris [16] Dr Harris, a plastic and reconstructive surgeon, examined the applicant on 6 October 2003 and provided a report concerning the scarring injuries caused to the applicant. As of 9 October 2003, the applicant’s treatment was ongoing, the applicant having already undergone 11 or 12 operations. Dr Harris observed that the scarring to the applicant was extensive in the area of his forearm, groin and left leg and that the applicant would require further operative procedures. He detailed the scarring as follows: Left forearm – There was extensive scarring from just below the elbow to the left wrist joint, 21cm in length, the upper portion of which had been grafted and was depressed below the skin surface. On the lateral aspect of the forearm there was a large flap of tissue which was taken from the left groin measuring 12cm x 11cm. Further operative procedures may be necessary to decrease the amount of tissue underneath the flap and to remove some of the -- 5 of 11 -- 6 scarring. There was a further scar on the extensor aspect of the forearm 7cm in length. The chest wall – There were several longitudinal scars on the lateral chest wall, 4cm and 2cm in length, where shotgun pellets were still present deep in the skin. Left groin – There was extensive scar to the left groin measuring 32cm in length and up to 4cm in width with obvious suture marks. As a result of this wound, the anterior aspect of the thigh was lacking sensation. The scar also had heaped up tissue referred to as a “dog ear” which is prominent. Left thigh – There was scarring from skin being harvested measuring 6cm x 5cm and 26cm x 5cm resulting in changing pigmentation texture of the skin over this area. Left leg – There was an extensive scar from knee to ankle on the lateral aspect of the leg, 36cms in length. This was quite a fine scar and requires no treatment. Report of Mr Johnston [17] The applicant was examined by Bradley Johnston, a psychologist, on 29 April 2003 and 15 July 2003. Not unreasonably, the applicant believed at the time of the incident and still believes, that his assailant was attempting to kill him. He also knew his mother had been shot and believed that she was dead. The applicant reported the following continuing symptoms: (a) Anger – he is easily angered about the injuries to himself, his mother and murder of his brother. Also angered when he bumps his arm causing pain to increase; (b) Depression – crying at times and feeling distressed when thinking about the events; (c) Sleep disturbance; (d) Nightmares – upsetting nightmares about the shooting which continue to occur regularly; (e) Flashbacks – experiences distressing flashbacks and memories of the shooting; (f) Heightened startle response; (g) Avoidance; (h) Sexual difficulties – decrease in libido; (i) Anxiety – feels uncomfortable around strangers and in crowds whereas he used to be open and friendly; (j) Self consciousness; (k) Diminished self confidence; and (l) Difficulty with concentration and short term memory. [18] Psychological testing revealed the applicant now suffers from a high level of anxiety and a moderate level of depression. Mr Johnston stated that the applicant also suffers post traumatic stress disorder of moderate severity and a major depressive order of a mild to moderate severity as a direct consequence of the 2001 -- 6 of 11 -- 7 shooting and its sequelae. Mr Johnston estimates current functional loss to be in the vicinity of 36%. [19] Mr Johnston noted that the applicant’s background contained elements that had the potential to cause him psychological difficulties and a slightly increased vulnerability to developing emotional problems. However, he considered there was no clear evidence to suggest that the applicant had suffered any previous diagnosable psychiatric disorder. In Mr Johnston’s opinion, this did not represent a significant factor in the development of his current problems. Assessment of Compensation [20] Under the Act, the compensation ordered is not meant to reflect the amount of compensation that the applicant would have been entitled to under common law, but rather is intended “to help the applicant” (sections 22(3) and 25(8)). Pursuant to s 25 of the Act, compensation is assessed by reference to a maximum amount, which is $75,000 (see Reg 2 of the Criminal Offence Victims Regulations 1995). A compensation order cannot be made for an amount more than that prescribed scheme maximum. [21] The method for the assessment of criminal compensation was outlined in Dooley v Ward [2001] 2 Qd R 436. An award for compensation must be made by reference to the compensation table in schedule 1 of the Act, which lists different types of injury giving each a range of percentages of the scheme maximum: s 25(3)-(5). For each injury claimed, the court first characterises the injury according to the categories listed in the compensation table in the schedule of the Act. Regard is then had to the relative seriousness of the injury to arrive at a percentage which is within the specified range. The amount of compensation is thus calculated by reference to the appropriate percentage of the scheme maximum. However, s 22(4) of the Act provides that the maximum amount of compensation is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness. [22] On behalf of the applicant, it was submitted the appropriate award ought to be calculated in accordance with the assessments set out in the table below. Item of the compensation table Percentage of the scheme maximum under the Act Percentage claimed Compensation claimed Item 16 Fracture/loss of use of arm/wrist (displaced and immobilised) 8% to 30% 30% $22,500 Item 26 Gunshot Wound (severe) 15% to 40% 40% $30,000 Item 28 Bodily scarring (severe) 10% to 30% 25% $18,750 Item 32/33 Mental or nervous shock (moderate to severe) 10% to 34% 20% $15,000 TOTAL $86,250 -- 7 of 11 -- 8 [23] Given that the total claim so calculated is $86,250, the applicant claims the maximum permitted under the Act of $75,000. [24] At the outset it should be noted that there can be no question that the applicant contributed in any way to the injuries he received and thus no issue of contribution arises. [25] The psychiatric condition suffered by the applicant clearly constitutes “mental or nervous shock” for the purposes of the Act. Given the evidence that the applicant suffers a high level of anxiety, post traumatic stress disorder and a major depressive order, an award under item 33 of the compensation table for “mental or nervous shock (severe)” is warranted. However, an award at the lower end of the range, that is, at 20%, is adequate given that the severity of those psychiatric conditions is moderate. This results in an assessment of $15,000 for this item of compensation. [26] It is appropriate that an assessment is made under item 28 “Bodily scarring (severe)” in respect of the extensive bodily scarring suffered by the applicant, which has resulted in severe scarring and disfigurement of the forearm, and extensive scarring to the left groin as well as consequential scarring to the left thigh and leg and the chest wall. An assessment of 25% of the scheme maximum is in my view appropriate, which results in an award of $18,750. [27] It is also appropriate to make an award under item 16, “Fracture/loss of use of arm/wrist (displaced and immobilised)” in respect of the injury to the wrist which has resulted in a substantial loss of use. As was recognised in Riddle v Coffey [2002] QCA 337, the evidence of the percentage of loss of function or impairment in a medical sense is not directly transferable to the percentage of the scheme maximum. But that evidence is clearly important in determining the appropriate amount of compensation in accordance with the table. The evidence as to the loss of use of the wrist is pessimistic. Adopting the approach in Ward, I consider that the appropriate assessment for that injury is 28%, making $21,000 under that item. [28] Counsel for the applicant submitted that an award ought also to be made under item 26 “Gunshot Wound (severe)”, in addition to assessments under the other items mentioned above. I note that s 26(1) of the Act provides that harm that substantially should be treated as a single state of injury is treated as a single injury, though it may consist of more than one injury. [29] That provision was considered by the Court of Appeal in Riddle in the following passages: “The appellant accepts that if multiple injuries are suffered, separate heads of damage may be calculated by reference to the compensation table and added together, so long as the overall award does not exceed the scheme maximum: s 25(3) of the Act. But the appellant contends that dicta of Thomas JA sitting as a single judge in R v Kazkoff; ex parte Ferguson as to the effect of s 26 of the Act requires that the multiple injuries here should be treated as a single injury for the purposes of compensation under the scheme. Section 26 of the Act, which it is unnecessary to set out in full here, requires that harm which should be substantially treated as a single -- 8 of 11 -- 9 state of injury is to be so treated, even though it may consist of more than one injury or be caused by more than one incident. At first, this seems to be in conflict with s 25(3) of the Act. But a careful reading of s 26 in its entirety shows the section aims to encourage only one criminal compensation order for one episode of injury; it does not discourage a judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by s 25(3) and Ward. This interpretation of s 26 is supported by the Explanatory Notes to the Act which emphasise that the section encourages only one order for a single episode of injury, not that one order be confined to one item of damage under the compensation table. See also the observations of Helman J in R v Pangilinan; ex parte Owens. The Act intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury. The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of the Act …” (footnotes omitted) [30] In Riddle, the Court of Appeal held that, on the facts of that case, to assess awards for the stab wounds inflicted on the applicant there, in addition to awards for the fractured skull, loss of use of limbs and bodily scarring suffered, was to doubly compensate that applicant for the same injury. Whether assessment of compensation under multiple heads of the compensation table will result in a duplication of compensation will turn on the facts of each individual case. [31] In the present case, I do not consider that compensation under item 26 would result in a duplication of compensation. The applicant, in addition to the injury to his wrist resulting in the loss of use of the wrist, sustained more widespread gunshot injuries for which he ought to be compensated. However, given that the main injury was to the wrist area and in order to avoid overlap and a duplication of compensation, the appropriate assessment under item 26 ought to be at the lower end of the range. An award of 20% of the scheme maximum, resulting in $15,000 is, in my view, appropriate under this item. [32] In the circumstances, I assess the applicant’s entitlement to compensation as $69,750. Item of the compensation table Percentage of the scheme maximum under the Act Percentage awarded Compensation awarded Item 16 Fracture/loss of use of arm/wrist (displaced and immobilised) 8% to 30% 28% $21,000 Item 26 Gunshot Wound (severe) 15% to 40% 20% $15,000 Item 28 Bodily scarring (severe) 10% to 30% 25% $18,750 Item 33 Mental or nervous 20% to 34% 20% $15,000 -- 9 of 11 -- 10 shock (severe) TOTAL $69,750 The Liability of Each of the Respondents [33] Pursuant to s 26(5) of the Act, a single compensation order may be made against more than one convicted person. Section 26 of the Act further specifies: “(6) If a single compensation order is made against more than 1 convicted person, the order may provide for - (a) separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or (b) joint liability of more than 1 convicted person for an amount payable under the order; or (c) both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount. (7) Without limiting subsection (5), if each of more than 1 convicted person directly and materially contributed to injury mentioned in subsection (3)(a) and (b), a court may make a compensation order against each of more than 1 of the convicted persons. (8) If compensation orders are made against more than 1 convicted person under subsection (7) - (a) the total amount payable under all the orders must not be more than the scheme maximum; and (b) the orders - (i) must provide for separate liability for each of the convicted persons for an amount scaled according to the convicted person's contribution to the injury; and (ii) may also provide for joint liability of more than 1 convicted person for an amount for which a convicted person is separately liable. (9) To remove doubt, section 25 is declared to apply to compensation orders mentioned in subsections (5) and (7), subject to subsection (8)(a).” [34] The applicant’s injuries resulted from the personal offences committed by the respondents, but arose out of a substantially single incident. Each of the respondents directly and materially contributed to the injuries sustained by the applicant. It is therefore appropriate to make compensation orders against each respondent under s 26(7) of the Act. However, consideration must be given to the issue of the separate liability of each respondent scaled according to their contribution to the applicant’s injuries. [35] The first respondent was convicted of the offence of grievous bodily harm with intent to disable and sentenced to 20 years’ imprisonment. The first respondent’s criminal liability rested on his having shot the applicant at short range. Although the first respondent was convicted, on his plea, of the offence of grievous bodily -- 10 of 11 -- 11 harm with intent to disable, the second respondent was convicted of attempted murder, on the basis that he was a party to a common unlawful purpose (to use the deceased’s vehicle to dispose of his body) in the prosecution of which the offence of attempted murder was committed by the first respondent. The second respondent’s lesser criminal culpability as a secondary offender, in the circumstances of this case was reflected in his receiving a lesser sentence of 15 years. [36] In my view, bearing in mind the respondents’ varying contribution to the injuries suffered by the applicant as detailed in the sentencing remarks, their respective liability ought to be scaled so that the first respondent is separately liable to pay the full sum of $69,750, while the second respondent’s liability is set at 80% of that amount to reflect the actual circumstances of his offending and his lesser contribution as a secondary rather than primary offender, consistent with the lesser sentence he received. The second respondent’s liability for that 80% amount ($55,800) ought to be a joint and separate liability with the first respondent. Orders [37] I order that: 1. The first respondent is separately liable to pay the applicant $69,750 by way of compensation for the injuries suffered by him as a result of the commission of the offence for which he was convicted. 2. The second respondent pay compensation in the sum of $55,800 (80% of the above figure of $69,750) for which he is jointly and separately liable to the applicant together with the first respondent. -- 11 of 11 --