Armstrong v Stephen [1999] QSC 379

SUPREME COURT OF QUEENSLAND CITATION: PARTIES: FILENO: DIVISION: Armstrong v Stephen [1999] QSC MICHELLE LEE ARMSTRONG (Applicant) v WILLIAM JAMES STEPHEN (Respondent) S 6744 of 1999 Trial Division DELIVERED ON: 21 December 1999 DELIVERED AT: Brisbane HEARING DATES: 10 September 1999, 19 November 1999 JUDGE: White J CATCHWORDS: COMPENSATION FOR CRIME - de/acto spouse - serious assaults - baby killed in applicant's arms - psychological damage - subsequent contact with respondent - amount. Criminal Offence Victims Act 1995, s 24 SOLICITORS: Legal Aid (Queensland) No appearance for the respondent [1] The applicant has applied for orders that the respondent, William James Stephen, pay her compensation for injuries suffered by her as a consequence of his convictions on indictment in respect of a number of personal offences pursuant to s 24 of the Criminal Offence Victims Act 1995. "J [2] On 24 February 1997 an indictment was presented to the Supreme Court at Cairns charging the respondent with one count of murder on 1 September 1996, the victim being his nine month old daughter, Belapina Lee Stephen. He was also charged with seven counts of assault occasioning bodily harm whilst armed with an offensive weapon in respect of the applicant, four counts of indecent assault with circumstances of aggravation and one count of rape. The unlawful killing and the assaults occasioning bodily harm occurred on 31 August or 1 September 1996 at Campbell Island in the Torres Strait and the alleged indecent assaults and rape occurred at Stephen Island on 1 September 1996. [3] The matter came on before me in the circuit court at Cairns on 24 February 1997 and again on 26 and 27 February. I ordered that the indecent assault and rape charges be heard separately from the other offences. The respondent pleaded guilty to six of the seven assault charges, not guilty to the charge of murder and not guilty to one assault. After certain rulings were made the indictment was amended and the respondent pleading guilty to the manslaughter of Belapina Stephen. The -- 1 of 10 -- 2 prosecution entered a nolle prosequi with respect to the remaining assault and the indecent assault and rape charges. [4] The respondent was sentenced on 27 February 1997 to 10 years' imprisonment in respect of the manslaughter offence, 6 years' imprisonment for five of the assaults and 4 years for one of the assaults with all of the sentences to be served concurrently. The respondent was recommended for parole eligibility after serving 4Y2 years for the manslaughter offence. A declaration of 178 days was made. [5] The applicant was born on 3 March 1971 and is now 28 years of age. The respondent at the time of the offences was 45 years. They met in Derby in about 1993. They commenced a defacto relationship and she became pregnant with their first child, Thomas, who was born on Thursday Island in December 1994. They had returned to the respondent's home on Stephen Island prior to the birth of Thomas. A year later on 29 December 1995 Belapina was born on Thursday Island. Their relationship, according to the applicant's statement, was a violent one with the respondent regularly beating her. The violence would appear to have been brought about in part, at least, by the excessive consumption of alcohol by the respondent and did not abate even during the applicant's two pregnancies. The respondent has a previous criminal history involving numerous serious assaults particularly on women with whom he has entered into relationships and for which he has served terms of imprisonment. [6] The applicant and the respondent remained living on Stephen Island in the Eastern Torres Strait where the respondent had grown up after Belapina was born. On Saturday 31 August 1996 they went with a group of friends and relations by several boats from Stephen Island to Campbell Island, a small uninhabited sand cay about an hour away, for a day's picnic. It was an enjoyable occasion and the party decided to stay overnight. There was a residence on the island which had been built for just such a purpose. Some of the party, including the respondent, went fishing and beer was drunk during the day by both the applicant and the respondent. A bonfire was lit and people sat around chatting and drinking. People came and went between the house and the bonfire and some returned to Stephen Island for fresh supplies of water and beer. [7] Some unpleasantness started between the parties when the applicant exhibited some intimations of jealousy about another woman who was speaking to the respondent. That incident was resolved amicably but further unpleasantness flared up between the applicant and the respondent when she criticised the Island songs he was singing and playing on his guitar and asked for country music. This dispute escalated. The applicant was nursing the baby sitting by the fire. The respondent grabbed her hair and dragged her towards the fire. She struggled in the edge of the fire and sat up whereupon he struck her on the head with the guitar with sufficient force to break the guitar. The applicant got up, still holding the baby, and the respondent grabbed a long log from the fire and hit her with the burning end on her back. As she started to run towards the house she felt pain on the back of her right leg above her knee. She was chased by the respondent but he was restrained by some of their companions and he returned to the bonfire. c c c c -- 2 of 10 -- 3 [8] The applicant and the two children remained inside the house for the night while the respondent stayed in and around the bonfire drinking through much of the night. He was still drinking by the fire in the morning. [9] The applicant took the baby down to a pool and started washing her own head where she was hit the night before and the bum on her leg. Thomas went down to his father by the bonfire and the applicant prepared breakfast for the children. She was standing near the kitchen holding the baby outside the house when the respondent walked up to her and hit her in an overarm movement with a magnalite torch on the left ankle. This caused her leg to give way as she felt extreme pain in her ankle. The respondent then hit her on the forehead with a closed fist. The applicant was crying and in considerable pain. Other people told the respondent to leave the applicant alone. [10] In due course the respondent prepared to go fishing but returned to the house and called to the applicant to come outside. The rest of the party had gone-to other parts of the island. The applicant came out holding the baby. When she got to the bottom of the stairs of the house the respondent started to hit her with his fishing spear, a cane the length of a man and which had four metal prongs on the end. He hit her on the arms, legs and back. "Whilst he was doing so she was attempting to protect the baby and the blows struck her on the hands. In her statement to the police she said that she was screaming out in pain and in agony. The applicant ran into the water crying out for the other people on the island to come and assist her. She sat down in the shallow water with the baby as the respondent hit her many times on her back. Eventually the spear broke. When that occurred the respondent continued to hit her but she got up and ran to the house with the baby. The respondent picked up a log near the kitchen fire and followed the applicant into the house. Again he hit her many times with the log on her back and on her head. He also hit her on her hands and arms as she was trying" to cover the baby's head. She fell to the ground and saw the log hit the baby on the head. [II] The respondent made terrible threats to the applicant saying that he was going to bury her alive and kill her. She screamed out at him that he was going to kill the baby. He ran out of the house and returned with a different log which was shorter and thinner than the first log and again started to hit her. He stopped hitting the applicant when it became apparent to him that some injury had been sustained by his daughter. He took the child outside and kept washing her down with water in order to revive her. The applicant noted that the baby had two big lumps on her head, that her eyes were closed but she was still breathing. [12] The applicant was in agony and insistent that the party should return to Stephen Island to get help for the baby. They arrived on Stephen Island about 11.30 in the mommg. [13] The applicant continuously asked for help for the baby. The respondent believed that he had immediately asked the school teacher on Stephen Island to call for help by telephone but none was sought until after the rest of the party had· come back from Campbell Island at about 12.30. It was after the arrival on the island and prior to help arriving that the alleged indecent assaults and rape occurred against the applicant. As has been mentioned those charges were the subject of a nolle -- 3 of 10 -- 4 prosequi and any conduct which occurred between the respondent and the applicant is not the subject of an application for compensation. [\4] A helicopter with an evacuation medical team arrived from Thursday Island about 4 0' clock in the afternoon. [\5] Dr Holt who was with the team pronounced the baby dead and that she had been dead from between two and three hours at the time when he saw her. Dr Holt examined the applicant at the Thursday Island Hospital at about 6.3Opm that evening. In his statement he said that he observed "1. lump and bruise over right eyebrow 2. five extensive areas of bruising over the back of her chest 3. a large area of bruise over her left buttock 4. three bruises to her left upper arm 5. two extensive bruises to her left forearm 6. two bruises to her left hand 7. multiple linear bruises to the front of her right shin 0 8. multiple bruises to the front of her left shin with extensive swelling 9. marked bruising and swelling of her left ankle" Dr Holt said that the applicant was barely able to walk on admission to hospital C because of the worsening pain and swelling from her lower leg injuries. She was given narcotic analgesia by injection to provide pain relief. He noted that the shape and the majority of her bruises were consistent with having received very heavy blows from a long blunt object such as a piece of timber. Dr Holt requested that . photographs of her injuries to be taken. Those were available to me on sentence and also on this application. They show a truly appalling level of violence having been used to inflict serious injuries on this woman. It is astonishing that she suffered no fracture from those severe beatings. Detective Senior Constable David Miles, the officer in charge of the Thursday Island Criminal Investigation Branch, said in his statement for the trial that he would C " ... describe these injuries as being the worst that I have observed on an assault victim in 10 years as a police officer." [\6] Dr Charles Naylor carried out the post-mortem on the baby and his findings give C some indication of the degree of force with which the applicant was struck by the respondent since these were blows which were intended for her. Dr Naylor said "The head showed severe right-sided injuries concentrated in two main areas: one towards the front of the top of the head about 3 cm across, and the other towards the back up to 5 cm across, each manifest principally of skill fractures and underlying bruises and lacerations of the skin .,. The injuries to the top of the baby's head were unusually severe and indicated a blunt impact, or more probably, a number of impacts, at least, some of which must have involved considerable force. The precise number of impacts. cannot be deduced from the injuries ... " [17] The applicant returned to Derby to live with her son Thomas and where she had some family support. In her affidavit sworn on 18 May 1999 the applicant said that at the time of the incident she was. terrified both for her children and for herself because of the oral threats to kill her made by the respondent. After she was taken -- 4 of 10 -- 5 to hospital the applicant could not move for two weeks and the staff at the hospital had to do everything for her including personal hygiene. For the next five months she ·was in pain and could only perform very basic tasks. The applicant says that even now she cannot perform any heavy-home duties such as mopping nor!=an she stand for long periods. She now suffers from migraine headaches and has permanent scarring as a result of the burns. She says that she suffers constantly from flashbacks which she finds very upsetting. The applicant says that apart from these nightmares she has found that she has become very intolerant with her son Thomas and is very frustrated at not being able to handle her emotions. She feels isolated from other peoplc because they do not know what she has gone through and experiences problems with sexual relationships. She notes that she has suffered from a stutter since the time of the attack. [18] I have the benefit of a report from Dr Carmel Nelson, a medical practitioner employed by the Derby Aboriginal Health Service, who has treated the applicant as a patient on four occasions since she began working there in March 1999. On the fourth consultation on 2 September 1999 she examined the applicant with respect to the assaults the subject of this application. The applicant told her that she suffered from recurrent severe headaches once or twice a month often lasting for days at a time. Dr Nelson says that these would be consistent with her having received repeated blows to the head and that migraine headaches are also known to be triggered by severe stress and to occur as part of post-traumatic stress syndromes. Dr Nelson examined the applicant's lower limbs and noted that she had a 5 cm by 3 cm swelling over the left anterolateral shin and a 2.5 cm by 2 cm similar swelling over the right shin. In her opinion those swellings are likely to be subperiosteal collections and are consistent with the history of severe trauma inflicted to both shins with the log. The applicant told Dr Nelson of night cramps and chronic pain in her legs exacerbated even by gentle exercise such as -walking which was consistent with the clinical findings. [19] The applicant told Dr Nelson that during the assault she was dragged through burning ashes some of which entered her left ear. In her statement she did say that she felt no burning from the fire. She told Dr Nelson that previously she had no trouble with her left ear but that since the assault she has had ongoing problems with left ear problems, which Dr Nelson describes as a painful condition of the ear canal which occurs more frequently in a canal which is abnormal such as one in which the lining of the canal has been traumatised. These infections cause significant pain and inconvenience and recur a number of times each year since the assault. It seems that more likely than not the symptoms from which the applicant now suffers in her left ear arose from the events surrounding the assaults. [20] I also have the benefit of a report prepared by Ms Mandy Juniper, a clinical psychologist with the Department of Family and Children Services in Western Australia. She has an impressive academic record involving post-graduate qualifications from a number of universities and has practised as a clinical psychologist since 1985. Since 1991 she has worked with families of sexually abused children and with women sexually abused as children. She interviewed the applicant at the request of Legal Aid Queensland. Initially the applicant was reluctant to see her and it was the applicant's mother who communicated with Ms Juniper expressing concern about her daughter's state of mind and behaviour. Ms Juniper saw the applicant on four occasions between January and May 1997 and -- 5 of 10 -- 6 four times between January and April 1998 in order to prepare and complete her report. [21] The report is a careful analysis of the effects of the assault upon the applicant. Shortly after the applicant commenced living with her mother and her mother's de facto partner she was experiencing considerable emotional difficulty living with them and dealing with her son. Ms Juniper notes that alcohol had exacerbated the applicant's reactions to her experience and the loss of her baby but she gave up drinking in December 1996 which may have enabled her to face up to her problems. The applicant described high levels of anxiety and feelings of panic associated with thoughts of what had occurred and the prospects for the future. The severity of those symptoms has apparently eased. [22] ,Ms Juniper's conclusion in her original report was that the applicant's reactions following the assaults were consistent with someone exposed to extreme trauma and the symptoms which she described to Ms Juniper some 18 months later would C warrant a description of post-traumatic stress disorder: "In my view the emotional damage she [the applicant] sustained was moderate, despite the severity of her losses, and she is to be commended on the fact she is not displaying more severe symptoms such as dissociation, substance abuse and self-destructive ideation or C attempts. It is impossible to gauge the longer-term impact of the crimes on the mother and child as much depends on the level of support they receive from the community and whether they are exposed to further violent interaction." [23] The applicant reported that she was troubled by occasional letters from the respondent to both her and to Thomas. She told Ms Juniper that she was anxious that the respondent might return to punish her when he W?S released from prison despite the reconciliatory tone of his letters. She told Ms Juniper that she wanted no contact with the respondent and was anxious that he might try to take Thomas snould he come to Derby. [24] The applicant was not frank with Ms Juniper about her lack of contact with the respondent after he had been imprisoned. After the papers for the application for compensation were served upon the respondent and a few days before the date listed for hearing the respondent sent to the court a bundle of letters to him from the applicant. They are written in affectionate terms and speak of missing him greatly particularly as part of the little family group with their son Thomas and she discusses their reunion when he is released from prison. I considered that the court needed the assistance of an expert in dealing with these letters, which, on their face painted quite a different picture from that which was advanced by the applicant concerning her attitude to the respondent and her anxiety and fear that he would return to her when he was released from prison. [25] The applicant herself swore a further affidavit dealing with this issue. She said that when the respondent wrote to her after he was imprisoned (he was held in custody pending trial) she did not respond for some time but only did so because he told her that he did not get letters from anyone else. She said when she wrote to him she was "very mixed up" and did not know what she was doing. She now finds it hard to explain why she wrote those letters. She deposes that she felt that she had to c c -- 6 of 10 -- 7 make the respondent happy because he was in prison and she did not want him killing himself particularly because of their son Thomas. She said notwithstanding the letters she really does not want any contact with the respondent. She deposes that she told Ms Juniper that she had not written back to the respondent because she doubted that Ms Juniper would understand why she would write to him. The applicant has exhibited a number of letters from the respondent to her. These are quite long letters attesting to his love for her and Thomas filled with ramliling religious sentiment. The letter to the court enclosing the applicant's letters was sternly religious in tone but without much point. I agree with Ms Juniper that they raise concerns. [26] Ms Juniper in her second report considered the letters from the applicant to the- respondent against the background of the applicant's denial of communication with [27] him. She observed that the letters from both create a sense of isolated individuals unconnected to others in intimate relations and reaching out to their known partner in a fantasy life. She observed that the respondent's letters "are concerning for their level of agitated moralising and lack of connection to everyday reality. I have grave concerns for Michelle's safety were he to be released and rejoin her." The applicant's letters in Ms Juniper's opinion show a woman who has experienced great loss. In this case not only of the child but more importantly of the family unit. She notes that to an undamaged person the letters do not seem consistent with one of the applicant's claims that she was writing solely out of fear and concern for the respondent's wellbeing and to keep him alive for her son. However; Ms Juniper's opinion is that they are consistent with the action of a woman who is very mixed up and one of the major sequelae of being partnered by a violent man and a logical consequence of being badly damaged ''by the man you love". Ms Juniper has suggested that if the letters are taken at face value they are an expression of hope for a happier future with the father of her living child while recognising the impact of his crime. They suggest that she was looking back to the good parts of a known relationship to fulfil her need for a family but they are unrealistic given the violence in which she lived and the efforts that she had made to leave the relationship. Ms Juniper concluded that "time, distance and social isolation camouflaged the true situation of her vulnerability near William Stephen and this denial of apparently obvious facts is part and parcel of the cycle of violence and domestic abuse syndrome. Thus taken at face value, her love letters allowed her to engage in an apparently intimate family situation from the safety of her life in Derby." She added "My feeling is that the letters and Michelle's changing position indicate that she is still under the influence of Willy - whether attraction/fear, or both - and that she has not recovered from the psychological injuries suffered as a result of the assaults during her relationship with Willy. That Michelle lied to me about her responses to Willy Stephen's letters to her showed her to be grounded in reality, because she was aware of the inappropriateness of the letters despite her actions. However those lies make it difficult to establish what is the exact truth in all her statements including her latest affidavit ... one is thus -- 7 of 10 -- 8 left to make a decision based on interpretation of what we do know, whether this is from literature or other sources of information." [28] Ms Juniper made reference to the importance placed on families and family systems by Aboriginal and Torres Strait Islander people and that accordingly the applicant's claim in her most recent affidavit of fear of reprisal on the respondent's release and at the same time wanting her child to have some relationship with his father could be legitimate responses. That the applicant could not see her current situation as an opportunity to start a new life without the respondent might be regarded as testimony to her vulnerability and injury. On the other hand Ms Juniper conceded that it could be a statement of her attachment to him, particularly the security and status of being in a family in a cultural world that respects and values family at almost any cost, and "her behaviour is consistent with the fact that many victims of domestic violence (whether aboriginal or not), do return to the relationship and the violence continues." [29] There is no doubt that the applicant suffered greatly at the hands of the respondent and she is entitled to compensation for her physical injuries to the extent allowed by the Act. There is also in my view, little doubt that she has sustained psychological damage as a consequence of these appalling assaults. The grief at the death of her daughter is inevitably bound up in this damage. The compensation is not for the death of the child, which is not provided for in the legislation, but as an aspect of the severe personal injury inflicted upon the applicant herself. [30] In my view the letters to the respondent do not suggest that the applicant has suffered little or no psychological damage or that it is not continuing. More likely than not they reflect the propensity of women to return to violent partners and, in this case, an indulgence in the fantasy of a happy family whilst the perpetrator is . safely locked away, (Ex 2, Predictors of Women IS Return to Violent Partners by Worth and Tiggemann in Australian Journal of Social Issues Vol 31 No 4 November 1996 at pp 376-77 and the literature quoted in Ms Juniper's second report). . [31] This psychological condition more likely than not is as a result of the serious assaults the subject of this application rather than any violent conduct in the past although inflicted on one who was, no doubt because of the past, more vulnerable. [32] Section 24 entitles a person to apply for an order for compensation for injuries suffered by the person because of the offence committed. An injury is "bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation", s 20. [33] The maximum compensation that may be awarded is $75,000 and is assessed by comparing the injuries suffered to the injuries listed in the compensation table s 25(4), (6). 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, s 22(4). [34] The relevant items in the compensation table are o c c c -- 8 of 10 -- ) ) ) 9 Injury percentage of scheme maximum 1. Bruisingllaceration etc (minor/moderate) ................................ 1%- 3% 2. Bruisingllaceration etc (severe) ............................................... 3% - 5% 9. Fractured skulIlhead injury (no brain damage) ........................ 5% - 15% 19. Fracture/loss of use ofleglankle (minor/moderate) ................. 4% - 10% 20. Fracturelloss of use ofleglankle (severe) ................................ 8% - 25% 27. Facial disfigurement or bodily scarring (minor/moderate) ...... 2% - 10% 32. Mental or nervous shock (moderate) ....................................... 10% - 20% 35. Loss of hearing (1 ear) ............................................................. 2% - 20% [35] It is submitted on behalf of the applicant that due to the severity of the bruising over her back, left buttock, left hand, forearm and upper arm it would be appropriate to award three amounts of 5% for each of these main areas of bruising. The injuries were sustained in separate assaults separated in time, to some extent separate in place and by different weapons to different parts of her body. In my view it is appropriate to deal with these as three separate areas of bruising and I would award 5% in relation to each of these areas. [36] The injury above the right eyebrow does not fall easily within item 9 and is more akin to item 1. It is relatively minor. I would award 2% of the maximmn for this injury. [37] The ear injury is persistent and causes ongoing pain and discomfort. There is no equivalent injury in the schedule but on considering items 1, 9 and 35 I would award 3% of the maximmn for this injury. [38] The applicant sustained extensive injury to her left ankle when she was hit with the torch which caused it to swell and consequently was unable to walk for some time. She has continuing symptoms. This should attract an amount of 8% of the maxunmn. [39] The multiple bruises to her right shin and the injury to her left shin with extensive swelling also contributed to her inability to walk for some time. Those injuries together should attract compensation of 15% of the maximmn. [40] The scars from the bmns should attract 3% of the maximmn. [41] The nervous shock which has been sustained by the applicant is serious. As I have said, I am not persuaded that the letters which the applicant has written to the respondent in prison suggest that she suffers no continuing symptoms of a psychological kind. I would award the applicant 20% being the maximmn of the moderate range of nervous shock. [42] The total of those percentages is 66% of the maximmn and amounts to $49,500 which the applicant oUght to receive as compensation. [43] It is, of course, inappropriate that any of that smn should fall into the hands of the respondent it being clear that he has no assets and that an application will be made for an ex gratia payment by the State. I mention this because there is some possibility that when the respondent is released he will seek out the applicant and -- 9 of 10 -- 10 she may be persuaded, on his assurances, that their life together can start again particularly as they share a child in Thomas. Any payment which might be made by the State can be placed with the Public Trustee to be managed for the benefit of the applicant. [44] The order is that William James Stephen pay to Michelle Lee Armstrong the sum of $49,500 by way of compensation for injuries suffered by her by reason of the indictable offences for which William James Stephen was convicted on 26 and 27 February 1997. c c c c -- 10 of 10 --