Busch v Billy [2001] QDC 228

DISTRICT COURT OF QUEENSLAND CITATION: Busch v Billy [2001] QDC 228 PARTIES: MARC GRAHAM BUSCH (Applicant) PATRICK WILSON BILLY (Respondent) FILE NO/S: 24 of 2001 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Cairns DELIVERED ON: DELIVERED AT: Cairns HEARING DATE: 25/05/2001 JUDGE: White DCJ ORDER: That the respondent Patrick Wilson Billy pay the applicant Marc Graham Busch the sum of $26,000. CATCHWORDS: COUNSEL: SOLICITORS: Ms. T. Price Legal Aid Queensland [1] The Respondent, Patrick Wilson Billy, was convicted in the District Court at Cairns on 30 October 2000, (inter alia) to the following offences:- 1. That on the 23 rd day of October 1999, at Coconut Island in the State of Queensland he tortured Marc Graham Busch. AND 2. That on the 23 rd day of October 1999 at Coconut Island in the State of Queensland he unlawfully assaulted Marc Graham Busch and caused him bodily harm. And that he was armed with an offensive instrument, namely a knife. This is an application by the said Marc Graham Busch for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995. [2] The Applicant was born on 17 February 1955. He was therefore 44 years of age the time of the commission of the offences. He is now 46 years of age. At the time of these offences and for some years preceding it, the Applicant, his wife Theresa McEwen and the couple’s two young children Jack and Darcy (then aged 8 and 3 years respectively), had been living aboard the family’s 36 foot sloop “Paquita”. In 1990, the family embarked upon a circumnavigation of the globe by sea which was due to be completed upon their arrival at Thursday Island in the Torres Strait. On 22 October 1999, the family sailed into Australian waters after a three-week voyage direct from Vanuatu. -- 1 of 11 -- 2 [3] At around midday on 23 October 1999, the “Paquita” anchored about 200 metres off Coconut Island with the Applicant and his family on board. Having spoken with Australian Customs Officials the day before, the Applicant was aware of quarantine restrictions which required that the family remain on the vessel and not allow others to board for a period. This was not any real issue because the family had always been cautious on the voyage and never allowed strangers onto the vessel regardless. Nonetheless, they displayed a yellow quarantine flag and remained on board the yacht preparing for the final leg of the journey from Coconut Island to Thursday Island. [4] At approximately 1pm, the Respondent came along side the yacht in an aluminium dinghy. The Applicant and Ms McEwen carried on a friendly conversation with the Respondent whereby pleasantries were exchanged. During this exchange, a second dinghy pulled along side the Respondent’s boat. The Respondent introduced the occupant as his brother the Policeman from another island. There were also two young children in that second dinghy which left after about 5 minutes. The atmosphere of the conversation was such that the Applicant felt he could ask the Respondent if he would fill some containers with drinking water from the island. The Respondent assured the Applicant that the water on the island was quite safe and that he was happy to oblige. [5] At approximately 4.30pm the Respondent returned with the water and some gifts of soft drinks, sweets and other treats for the children. The gifts were accepted in good faith. The Respondent claimed that he had to wait for the tide to be favourable before he could return home and so he sat in his dinghy and another lengthy and friendly conversation of about 1-2 hours occurred between the Applicant and the Respondent. The Respondent left for the second time shortly before sunset. [6] Undoubtedly, the Applicant and Ms McEwen, who were usually quite cautious people, had begun to feel quite safe and comfortable. They had been travelling for some considerable length of time and had just returned to the relative safety of Australian waters, where they were apparently befriended by an altruistic local who was the brother of a Police Officer. I do not believe that the Respondent intentionally manufactured this situation in order to gain their trust, but I have no doubt that he later realised that this was a situation he could exploit and he concocted a story in order to do so. [7] At approximately 7.45pm, the Respondent approached the Applicant’s yacht in his dinghy. He told the Applicant that he had heard a rumour that his brother the Policeman was going to raid the Paquita and search for drugs. The Applicant replied, “Let them come, we have nothing to hide”. The conversation continued along this line for 1-2 minutes, at which point the Respondent stood up and stepped onto the yacht without warning. The Applicant told the Respondent that he couldn’t come onto the yacht because of quarantine regulations and that he would have to leave. The Respondent refused. It was not until the Respondent produced a large knife and a roll of thick plastic adhesive tape that it became apparent that there was any danger. -- 2 of 11 -- 3 [8] The Respondent’s attitude changed completely. He became aggressive and while waving the knife at him demanded that the Applicant to put his hands together so the Respondent could tie him up. All the while, both the Applicant and Ms McEwen were trying to reason with the Respondent. The Applicant backed away and the Respondent turned his attention towards Ms McEwen. The Applicant called to his wife, “Don’t let him tie you up”. At this the Respondent turned back towards the Applicant. Ms McEwen grabbed at the knife and the Applicant came to her aid. A struggle ensued between the three during which Ms McEwen sustained a cut to her hand that began bleeding profusely. The children were inside the cabin watching and the Applicant called out to them to call for help on the ship’s radio. At this point the Respondent broke free of the couple and ran into the cabin. The Respondent snatched the microphone from the child, cut the cable and threw the microphone overboard. [9] Ms McEwen ran inside to protect the children who were crying by this stage. The Respondent then began to struggle with the Applicant, now inside the cabin, with the Ms McEwen trying to comfort the children and pleading for him to stop. The Respondent repeatedly punched the Applicant with his fist clenched around the handle of the knife. All the while the Respondent was screaming at the Applicant that if he resisted the Respondent would kill him. He managed to wrap some tape around the Applicant’s forearms and still holding the knife he then chased the Applicant up to the front of the yacht. Ms McEwen remained in the cabin with the children who were continuously screaming and crying. [10] The Applicant was attempting to get his hands free when the Respondent ran up behind him and struck him on the back of the head. The Applicant fell dazed to the deck, whereupon the Respondent proceeded to kick and punch him repeatedly. In his statement dated 24 October 1999, the Applicant describes how his body was forced into the bow section of the vessel by the blows such that he “crushed into the bow” and restricted by the safety fence. The respondent kicked the Applicant in the face and body numerous times and punched him in the face demanding that the Applicant hold still so he could be tied up. The Respondent held the knife in the Applicant’s face and again threatened to kill him. He then proceeded to bind the Applicant with the tape. The Applicant had the presence of mind to keep a gap between his arms as the Respondent attempted tape the Applicant’s arms together and tape his body to the stay wire. All the while the Respondent was abusing the Applicant and threatening to kill him. [11] At this point Ms McEwen attempted to grab the Respondent and pull him back. The Respondent turned and struck the Ms McEwen across the side of the face with considerable force. She was unable to continue. The interruption however gave the Applicant enough time to free his hands from the tape, though it appears that his legs were still bound. The Applicant lay still as the Respondent approached and it appears as though the Respondent thought that the Applicant was no longer a threat to him. The Respondent began pulling more tape off the real and at some stage his hand, which was holding the knife, was resting against the bow rail of the vessel. The Applicant grabbed the knife from the Respondent and threw it over board. -- 3 of 11 -- 4 [12] The Respondent again became very angry and again punched and kicked the Applicant while he was coiled up into a ball. At some point, the Respondent stopped and started to walk back towards the rear of the vessel. The Applicant managed to get to his feet, but the Respondent turned and lunged at the Applicant knocking him off balance and into the water. [13] In his victim impact statement dated 30 September 2000, the Applicant describes how being lost overboard is “every cruising yachtsman’s worst nightmare” and it seems as though this particular danger was something of a preoccupation for the couple during their nine odd years at sea. The Applicant describes how he believed he would die but that he was also aware that his family were still on board. [14] The Applicant called to his wife as he was carried away from the yacht by the current. The Applicant struggled against the current and eventually managed to reach the stern of the vessel. The Applicant realised that the Respondent's dinghy was still tethered there. The Applicant attempted to reach for the dinghy but at the same time he saw the Respondent, now at the stern, pulling the dinghy away out of his reach. The Applicant called for help as he struggled against the tide, but eventually the current carried him away. The Applicant recounts that all the while he was afraid for his family but at the same time certain that he was going to die himself. [15] At this point, the Applicant was still partially bound by the tape around his legs and body. He was struggling against the tide and was exhausted from the struggle with the Respondent and the beatings he had sustained. He was ingesting seawater, then vomiting it up again and this further exhausted him. [16] The Applicant was sure that he was going to die. However, during the course of his interviews with Christine Bovey, Psychologist, the Applicant recounted how he realised that if he were to help his family he would have to reach the island. He swam across the current for some time but eventually found himself in a reverse current which carried him towards the island. [17] The Applicant located some local people but had some considerable difficulty finding anyone in a position to assist him. Eventually he found some men at the local jetty and convinced them to take him back to the yacht. As the Applicant and his party approached the yacht the Applicant called out to his wife who responded that she was alright, they saw the Respondent fleeing from the opposite side of the vessel, but after a brief chase realised that their dinghy was too slow. The Applicant then returned to the yacht to assist his wife. [18] The Applicant discovered that Ms McEwen was extremely distressed and that she had been repeatedly raped. The children were also distressed but not physically injured. The Applicant had to convince his wife that she was now safe and that the men in the dinghies were not going to hurt her. Eventually she agreed to go with them to the island where both Ms McEwen and the Applicant received medical attention. [19] Those are the facts which constitute the offence. -- 4 of 11 -- 5 [20] The Applicant was taken to the Clinic on Coconut Island where was examined by Nellie Miller, Registered Nurse. In a statement dated 24 October 1999, Sr Miller noted the following:- "10…[He was] extremely distressed. I noted he was suffering from a laceration/abrasion to the bridge of his nose…I noted contusion and bruising to the left and right cheeks and the left eye was beginning to blacken. He had bruising to the upper right hand side of his lip, a small graze to his left lower shin, and complained of a painful left forearm. I did not have to administer any medical treatment to Marc.” [21] The Applicant and his family were transferred to Thursday Island the following day. The Thursday Island Police contacted Ms Annie Roberts of the Cairns Rape Crisis and Incest Service to provide counselling for the Applicant on 24 October 1999. In her report dated 12 January 2001, Ms Roberts noted the following:- "…Mr. Busch [describes himself as] ‘a gentle man opposed to any form of violence or aggression’. He takes his role of partner, father and navigator very seriously. He tells me that ‘Terry and I planned this trip for so long and our arrival back in Australia was to be a celebration of our achievement’. … IMMEDIATE EFFECTS: On first meeting Mr. Busch was agitated and distraught… He was overwhelmed by guilt at what he perceived had been his inability to protect his family. He said ‘how can I face Terry’s family and my family, when I’ve failed to protect them’. He said ‘what will Jack think of me when he is older’. Mr. Busch said ‘if I was a bigger man it would never have happened. Patrick Billy is bigger and stronger and he was able to overpower me’. He described being overwhelmed by intrusive memories of the night, despite trying to forget. He says that everyday things trigger the memories and the feelings. … He says ‘That night shattered our lives, shattered my belief in myself and my children’s trust in me’. … Mr. Busch describes his terror, both at the time of the initial assault on board the boat, when he was trying to wrestle the knife from Mr. Billy’s grasp, and the helplessness at being bound with tape- his feet hands and mouth. He told me he lay on the deck, beaten and sore, his eyes ‘puffed closed from being punched’. When he told me his feelings when he fell overboard, he described ‘I could feel myself being carried further and further away from the boat. I thought I was going to die and that I would never see my family again’. He states ‘I remember feeling so weak and so exhausted, I really think I was drowning’. He -- 5 of 11 -- 6 then said ‘I somehow found a last bit of strength to start swimming towards the shore’. … One of Mr. Busch’s greatest and overwhelming concerns is as to the long-term effect on his children, particularly Jack, who is now nine years of age. I have regular phone calls to Jack and he is able to talk to me of his fears, his anxiety and his nightmares. Jack will not sleep over at his friends’ houses and is nervous and distressed if his mother and father are not with him all the time. Jack has told me that he is still frightened that when his ‘Dad goes on night shift and he might not come back’. Mr. Busch’s anxiety is heightened by the on-going issues that his son faces. I have observed his extremely close and loving relationship with his children. At the sentence of Mr. Billy, Mr. Busch heard for the first time, the details of his partner’s attack and the acts of sexual violence that Mr. Billy had perpetrated on her. He wept as he heard of her feelings of degradation and violation, which I believe heightened his sense of guilt and helplessness… I believe it will take time and on-going support and counselling to resolve these issues for him. … Mr. Busch says ‘Terry and I don’t talk about our travels or that night at all. Our achievements, our excitement, our sense of pride, was destroyed by his acts’. Mr. Busch says ’We are just a private, little family’. He was anxious that the media attention that surrounded the attack would not reach his family in Victoria and to this date, they have no knowledge of it. … Mr. Busch’s fear and terror are normal reactions to an abnormal situation. Issues such as depression, isolation, sleep disturbances, and an on-going heightened sense of arousal are described by Mr. Busch and are all common symptoms after a traumatic incident. … Mr. Busch’s self-esteem and self-respect was shattered by that night but it is my professional opinion that he and his family will, with on-going and intense counselling and support, rebuild their lives. [However,]… it will take on-going counselling before Mr. Busch is able to manage these issues and as he lives in an isolated and remote community, he has been unable to seek support or professional help.” [22] In his Victim Impact Statement dated 30 September 2000, the Applicants states the following:- -- 6 of 11 -- 7 "I’m still trying to come to terms with having failed my wife and family and being unable to protect them…[He] destroyed a dream homecoming and took away forever our ability to laugh and enjoy and revel in our achievement… … [He] shattered our lives, shattered my belief in myself and the trust of my children, and the damage he did to my wife I’ll probably never know… … The ‘what ifs’… plagued me for may months and still do, if only I had done this, if only I had done that, it’s never ending… My children still to this day have fear of strangers especially native people, they will not go out into the cockpit alone in the evening, something they always did before the attack, and like me, young Jack is often reminded of the horror through media images. I’ve cried for him on many nights and only wish I could erase the horror of it all for him… We have told none of our family or friends of our ordeal… I just can’t face my parents… and I would find it impossible to face my father-in-law and explain it all to him…” [23] On 26 & 27 October 2000, the Applicant consulted Ms Christine Bovey, Psychologist. Ms Bovey issued a report dated 20 November 2000. It is convenient to paraphrase and summarise that report in the following terms:- 1. Background Information and Present lifestyle: After a period of travelling as a young man and being involved in a variety of forms of environmental activism, the Applicant bought the shell of a boat and rebuilt it with a plan of travelling around the world. He reports that he had a passion, he wanted to do this in his own boat and it was a challenge he had set up for himself. Whilst rebuilding the boat, the Applicant met Ms McEwen. The dream then became hers also. They spent the next ten years circumnavigating the world. During which time, the couple had their two sons, Jack and Darcy. They were looking forward to celebrating their return to Australian waters and planned to write magazine articles about their experiences. However, the Applicant reports that the incident “changed all that”. “[He] can’t bring myself to do anything about it now”. Mr Busch reports that Mr. Billy’s actions “destroyed the whole trip”. About three weeks after the incident the family moved to Gove. Mr. Busch found work on the first day and has been doing contract work ever since. He says that he currently spends a lot of time at work and works long hours because “working long hours makes it easier to forget”. It is difficult for Mr. Busch to maintain equilibrium when dealing with psychological issues that have resulted from the incident. -- 7 of 11 -- 8 … 4. Psychological Assessment: Personality Assessment Inventory [PAI]: Mr. Busch also completed a valid personality Assessment Inventory, which is designed to provide information relevant to clinical diagnosis, treatment planning and screening for psychopathology. … Clinical Features: Mr. Busch’s PAI profile is entirely within normal limits. There are no indications of significant psychopathology in the ares that are tapped by the individual clinical scales. Self Concept: Mr. Busch’s self concept appears to involve a rather negative self- evaluation. He is likely to be self-critical, not handling setbacks very well and blaming himself for past failures and lost opportunities. He may inwardly be more troubled by self-doubt and misgivings about his adequacy than is apparent on the surface. He may tend to play down his accomplishments as heavily depending on the efforts and good will of others. Trauma Symptom Inventory [TSI]: This inventory assesses acute and chronic traumatic symptomatology, which resulted from an earlier traumatic event. The TSI evaluates Post Traumatic Stress Disorder [PTSD] and other psychological sequelae of traumatic events. … Mr Busch reported clinically significant responses on the scales of Intrusive Experience (IE) and Defensive Avoidance (DA). Mr Busch experiences posttraumatic reactions and symptoms such as nightmares, flashbacks, upsetting memories that are easily triggered by current events and repetitive thoughts of an unpleasant previous experience that intrude into awareness. Such symptoms are generally perceived as being unexpected and unwanted intrusions from ‘out of nowhere’, primarily involving reminiscence or re-experience of an especially upsetting event. He may be experiencing a sense of being out of control. The presence of elevated IE scores is often, but not implicitly, linked to a previous experience of psychological trauma. High IE scores typically reflect an intrusion of such traumatic material into the current awareness, of producing an associated state of distress. -- 8 of 11 -- 9 He also reports a history of aversive internal experiences that he repeatedly seeks to avoid. He likely experiences frequent attempts to eliminate painful thoughts or memories from conscious awareness. It is likely that he frequently attempts to avoid events or stimuli in his environment that might restimulate upsetting thoughts or memories. He is also likely to experience the desire to neutralise negative feelings about his previous traumatic experience. High scores on the DA scale do not represent dissociation, repression or other similar psychological defences as much as they reflect conscious, intentional process of cognitive and behavioural avoidance as a way of managing post traumatic distress. Mr Busch’s TSI profile constitutes a classic posttraumatic presentation, in that he is reporting both intrusive (IE) and avoidant (DA) components of PTSD. Evaluations on these scales typically represent a chronic PTSD response to an event or events in the past. Such evaluations indicate relatively chronic symptoms that may have become more or less integrated into his personality. The experience of chronic PTSD is an aversive one that can result in serious psychological disability. 5. Psychological Opinion: The above tests and interview material provides evidence that Mr. Busch’s psychological condition meets the DSM-IV-TR criteria for posttraumatic stress disorder. His state appears to be in the moderate to severe range as follows:- A) Exposure to a traumatic event in which both of the following were present: 1) He experienced, witnessed and was confronted with an event that involved threatened death and serious injury to the physical integrity of self and others; 2) His response involved intense fear, helplessness and horror. B) The traumatic event is persistently re-experienced in the following ways: 1) Recurrent and intrusive distressing recollections of the event, including, images thoughts and perceptions; 2) Recurrent distressing dreams of the event; 3) Acting or feeling as if the traumatic event was recurring; 4) Intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the traumatic event. C) Persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness (not present before the trauma), as indicated by; -- 9 of 11 -- 10 1) Efforts to avoid thoughts, feelings, or conversations associated with the trauma; 2) Efforts to avoid activities, places, or people that arouse recollections of the trauma; 3) Markedly diminished interest in participating in significant activities. D) Persistent symptoms of increased arousal (not present before the trauma), as indicated by; 1) Difficulty falling or staying asleep; 2) Irritability or outbursts of anger; E) Duration of disturbance of more than 1 month… F) The disturbance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The duration of these symptoms is greater than 3 months, therefore the diagnosis is specified as being chronic. DSM-IV-TS, Axis IV psychosocial and environmental problems: Problems with access to health care services: Mr. Busch should attend counselling to help resolve his psychological response to his experience. Unfortunately however, as a result of the isolated nature of his community, Mr. Busch is unable to access appropriate counselling to assist his recovery from the assault in October, 1999. … 6. Concluding Remarks: … Mr. Busch feels that his life has been split in two, those experiences that occurred prior to the incident and those that occurred after. He is having difficulty maintaining equilibrium in his life and often experiences flashbacks and memories of the incident. He reports that the slightest trigger will result in incapacitating memories and, on occasion, nightmares… … It is unlikely he will fully recover. His sense of self has been fractured and he is having difficulty returning to his pre-incident level of functioning… Unless Mr. Busch is able to access adequate counselling for the psychological trauma…, it is likely that the bitterness and negative aspects of his psychological response to the incident will become integrated into his -- 10 of 11 -- 11 personality. This can be a debilitating experience. Unfortunately, as a result of his location, access to psychological counselling is limited… I am satisfied that there was no conduct on the part of the applicant which contributed to his injuries. [24] I am satisfied that the evidence supports a claim for compensation under the following items contained in the Schedule to the Act – 1. Bruising/laceration etc. (minor/moderate) 2. Mental or nervous shock (severe) [25] I consider $26,000 to be an appropriate amount to compensate the applicant. -- 11 of 11 --