Crick, T W v Steltman & Ors [1999] QDC 243

IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND [Before JUDGE FORDE DJC] [Crick and Steltman and Others] Application No D3232 of 1999 IN THE MATTER OF ‘THE CRIMINAL CODE” AND IN THE MATTER OF THE QUEEN v. ANNEBEIN STELTMAN (First Respondent) AND IN THE MATTER OF THE QUEEN v. SLADE CHRISTOPHER MORGAN (Second Respondent) AND IN THE MATTER OF THE QUEEN v. FRANK JAMES BUTLER (Third Respondent) AND IN THE MATTER OF THE QUEEN v. KERRY ANNE STELTMAN (Fourth Respondent) AND IN THE MATTER OF THE QUEEN v. IRENE THERESE HARGREAVES (Fifth Respondent) AND IN THE MATTER OF THE QUEEN v. GRAHAM RONALD HARGREAVES (Sixth Respondent) AND IN THE MATTER OF AN APPLICATION FOR -- 1 of 9 -- COMPENSATION BY PAULA-MARIE DAWN CRICK REASONS FOR JUDGMENT - FORDE D.C.J. Judgment delivered: 17th day of September, 1999 Catchwords: Criminal Compensation - A663B Criminal Code (Qld) - Discounting factors - apportionment of liability among offenders - Chong v Chong (Court of Appeal 1168/98 unreported judgment - 13 August 1999) - R v Bridges and Madams ex parte Larkam (1989) 1 QdR 554; R v Sainty (1979) QdR 19; R v Wraight and Dakim ex parte Fullerton (1980) QdR s.12 discussed. Counsel: S. Lewis for Applicant T. Hardin for Respondent G R Hargreaves Solicitors: Nicol Robinson Halletts for the Applicant MacFie Curlewis Spiro for the Respondent G R Hargreaves Hearing Date(s): 15 September 1999 -- 2 of 9 -- IN THE DISTRICT COURT HELD AT BRISBANE QUEENSLAND Plaint No D3232 of 1999 IN THE MATTER OF ‘THE CRIMINAL CODE” AND IN THE MATTER OF THE QUEEN v. ANNEBEIN STELTMAN AND IN THE MATTER OF THE QUEEN v. SLADE CHRISTOPHER MORGAN AND IN THE MATER OF THE QUEEN v. FRANK JAMES BUTLER AND IN THE MATTER OF THE QUEEN v. IRENE THERESE HARGREAVES AND IN THE MATTER OF THE QUEEN v. KERRY ANNE STELTMAN AND IN THE MATTER OF THE QUEEN v. GRAHAM RONALD HARGREAVES AND IN THE MATTER OF AN APPLICATION FOR COMPENSATION BY PAULA-MARIE DAWN CRICK REASONS FOR JUDGMENT - FORDE D.C.J. -- 3 of 9 -- 2 Delivered the 17th Day of September 1999 1. This is an application by Paula-Marie Dawn Crick for compensation pursuant to s.663B(1) of the Criminal Code (Qld). The respondents to this application are Graham Ronald Hargreaves,who is represented by counsel, Slade Christopher Morgan, and Kerry Anne Steltman. In relation to the latter respondents, proof of service has been established. The respondents were convicted in April 1995 for kidnapping for ransom. Each received different periods of imprisonment. There is some authority to say that the damages should be assessed as at the date of the offence: R v Anell ex parte Anderson (1998) 2 QdR 174 at 184. Chong v Chong (Court of Appeal 1168/98 Judgment 13 August 1999) over-ruled that case. For present purposes, it is common ground that the applicant is entitled to a maximum of $20,000 for mental or nervous shock pursuant to s.663A(1). The applicant suffered no physical injury. 2 The applicant is entitled to be compensated for mental or nervous shock which has resulted in economic loss.: R v Bridge and Madams ex parte Larkam (1989) 1 QdR 554 at 555. FACTUAL BACKGROUND 3. The applicant was working at her father’s bait shop at Morningside on 13 August 1994. Her father, Thomas William Crick, was indebted to the respondent Irene Hargreaves. Relying upon material referred to on sentence, it would be open to infer that it was a drug related debt. The applicant was a victim of her father’s illicit activities. She was forcibly removed from the shop by two of the offenders and remained in their custody for some six days. Throughout that period she spoke to her father on a couple of occasions. She was also given marijuana to smoke each day. She was a user prior to this. On the fifth day of her ordeal, she was allowed to have a shower. -- 4 of 9 -- 3 4. Prior to her abduction, the applicant had been working in her father’s shop for about 12 months and earning some $300.00 per week. After the subject events, the applicant did not obtain employment readily. In mid 1997 she attained a trainee position with the Liverpool City Council as an office administrator. Her mother has provided evidence to say that the applicant is a daily user of marijuana. MEDICAL EVIDENCE 5. The plaintiff has said in her affidavit that she becomes upset when discussing her experience. She does swear to any other psychological problems from which she suffered. However, there is some reference to this in a report from Dr Grady. The report is dated 29 August 1996. He says that the applicant does not suffer from any psychotic disorder but does require treatment. He commented that smoking the marijuana throughout her ordeal helped her feel “out of it”. After the experience, she lived with her father in Rockhampton and then Cairns. Thereafter she has lived with her mother. She told him that she is fearful of going out on her own and amongst strangers. Her mother confirms this. Contrary to what her mother says, the applicant says she only smokes marijuana about once a week. Mrs Crick confirms that Mr Crick is still involved in drug dealing. 6. Dr Grady says the applicant suffers some symptoms of post traumatic stress. Some of the symptoms and signs are masked by either disassociation or by marijuana use. A degree of agoraphobia and social phobia would be associated with this marijuana abuse. I generally accept the views of Dr Grady. He said there would be no point to her going into a program for treatment for post traumatic stress disorder whilst she is abusing marijuana. The applicant failed to seek early treatment and has continued the drug abuse. -- 5 of 9 -- 4 FINDINGS 7. The applicant underwent a traumatic event which was alleviated by her abuse of marijuana throughout the ordeal. However, I find that any problems obtaining employment were due more to her marijuana use than this incident. There would have been a short time thereafter, say one month, whereby she would have not been able to cope with employment. It is difficult to know what the cost of or likely success of treatment would be and therefore no amount is allowed in that respect. Her other contributing factors such as marijuana use have obscured the applicant’s real problems. I assess the compensation at $10,000 to include a component of economic loss. APPORTIONMENT OF LIABILITY BETWEEN THE RESPONDENTS 8. It has been submitted that it would be fair and equitable if the award were apportioned between the respondents. It was submitted that the respondent, Mr Hargreaves, is attempting to get his life in order after serving some time in prison. Whilst one could sympathise with that view, this occasion does not invoke the equitable jurisdiction of the court. It is submitted that the compensation is not by way of further punishment. 9. Although no cases were cited to support the proposition, there are cases which assist in determining what approach should be adopted. In R v Sainty (1979) QdR 19 Justice Demack proceeded on the following basis: “(1) That if and when the other person is convicted, an application may be made in respect of his contribution. (2) That for the present I have power to make an order in an amount of up to $5,000. (3) That I should not look only at the injuries which may have resulted from the blows the prisoner admits he struck, but at the whole of the injuries sustained. (4) That the prisoner should be treated as acting in pursuance of a common plan with another person, even though that person has not been convicted. -- 6 of 9 -- 5 (5) That no attempt be made to apportion blame upon any fine consideration of the evidence. (6) That I should make an assessment that is in accordance with the ordinary principles of assessment of damages. (7) That if a proper award is in excess of $5,000, I should order the prisoner to pay $5,000, treating the matter as raising both a joint and several obligation in both persons. (8) That any amount which may be ordered against the other person will be determined in the light of all the circumstances existing at the time an application is made.” 10. In the discussion at page 21, His Honour asks “Should some apportionment be made between the criminals on the basis of the contribution they made to the injuries?” His Honour dealt with this on the basis that no attempt should be made to apportion blame upon any fine consideration of the evidence. I adopt his approach. In two other cases, the approach was: (a) assess the total damages which would be appropriate to award; and (b) to order the maximum against each offender where appropriate. 11. In both of those cases, the amount assessed was equal to or greater than the prescribed maximum. R v Wraight and Dakim ex parte Fullerton (1980) QdR 582; R v Bridge and Madams op cit at 555. In R v Wraight op cit at 585 WB Campbell J said: “By my making two orders against each offender the applicant may enforce both or either of those orders as if each order were a judgment or the court in accordance with the provisions of s.663B (4).” 12. It could be mentioned that if the orders were made against other respondents by way of apportionment, then in the absence of payment by those respondents, the Government in Council may make an ex gratia payment to the victim. It does not -- 7 of 9 -- 6 seem appropriate that the apportionment be made where one offender may have the resources and yet the public purse should pay for the contribution by the other respondents. The legislation has as its purpose the compensation of victims of crime. The legislation is not drafted with a view to minimizing liability of a particular offender by apportioning the compensation payable: compare the provisions of s.26(8) of the Criminal Offence Victims Act 1995. As stated by McPherson J in R v Bridge op cit at 557, each of the accused can be ordered to pay the sum not exceeding the prescribed amount. “Where, as in a case like this, each has under s.7 of the Code incurred criminal responsibility and suffered conviction for an offence in which both have participated, each of them can be ordered to pay a sum not exceeding the prescribed amount of $20,000 by way of compensation for the ensuing injury of mental or nervous shock.” The apportionment occurred in each of R v Wraight and R v Bridge as the assessment exceeded that prescribed maximum. 13. There have been two unreported cases where the court has apportioned liability: In the matter of an Application by Agnes Grace Jones 5208/99 and unreported decision of Derrington J delivered on 1/09/99 and in the matter of an Application by Desmond James Welk 4024 and 4061 of 1996 an unreported decision of McLauchlan QC DCJ delivered on 7 February 1997. In both of these cases the amount assessed exceeded the prescribed maximum. The court was able to properly compensate by making separate orders in respect of each offender in each of the cases where an apportionment occurred. In the present case that is not the situation. -- 8 of 9 -- 7 14. ORDERS (1) That the respondents (Frank James Butler, Irene Therese Hargreaves and Graham Ronald Hargreaves) do pay to the applicant the sum of $10,000 by way of criminal compensation pursuant to s.663B of the Criminal Code in respect of their conviction for the offence of kidnapping for ransom. (2) It is further ordered that the respondents do pay the applicant’s costs of and incidental to this application to be assessed. -- 9 of 9 --