Clarke, Re [1995] QSC 14

IN THE SUPREME COURT OF QUEENSLAND Mot. 682 of 1994 Brisbane Before the Hon. Justice G N Williams [Re: Graham James Clarke] IN THE MATTER of the Section 663B of The Criminal Code - and - IN THE MATTER of an Application for Compensation for Injuries by GRAHAM JAMES CLARKE JUDGMENT - G N WILLIAMS J Judgment delivered 24/02/1995 CATCHWORDS: Criminal law - compensation s.663B of Code - applicant subject of armed robbery in company and deprivation of liberty - post-traumatic stress syndrome - symptoms for two years - $12,500 awarded including costs Counsel: Solicitors: Lippett for applicant A.W. Bale & Son town agents for Duncan and Swanston Hearing Date: 21 February 1995 -- 1 of 10 -- IN THE SUPREME COURT OF QUEENSLAND Mot. 682 of 1994 [Re: Graham James Clarke] IN THE MATTER of the Section 663B of The Criminal Code - and - IN THE MATTER of an Application for Compensation for Injuries by GRAHAM JAMES CLARKE JUDGMENT - G N WILLIAMS J Judgment delivered 24/02/1995 The applicant, Graham James Clarke, seeks compensation pursuant to the provisions of s.663B of the Criminal Code from Martin Joseph Gore who was convicted and sentenced on 24 July 1992 for offences involving the applicant. On 24 July 1992 Gore pleaded guilty to 12 drug related counts on one indictment and to 31 various offences alleged in an ex officio indictment. Counts 28 and 29 on the ex officio indictment were as follows:- "28. That on 21st day of April 1992 at Mooloolaba in the State of Queensland, Martin Joseph Gore stole from one Graham James Clarke, an employee of Powers Hotel, Mooloolaba Pty Ltd with actual violence a sum of money namely $1,600 the property of the said Powers Hotel Mooloolaba Pty Ltd. And that the time aforesaid the said Martin Joseph Gore was armed with a dangerous weapon namely a shotgun. And that at the time aforesaid the said Martin Joseph Gore was in company with another person. 29. That on 21st day of April, 1992 at Mooloolaba in the State of Queensland, Martin Joseph Gore unlawfully detained one Graham James Clarke in a -- 2 of 10 -- 2 room namely the office of the Mooloolaba Hotel against his will." In accordance with my sentencing remarks I structured a total sentence of 15 years imprisonment; on Count 28 Gore was sentenced to five years imprisonment and on Count 29 to two years imprisonment. At the time of sentence no application for criminal compensation was made on the applicant's behalf, but I am satisfied that the applicant was not aware that the matter was dealt with by the Court at that time. The affidavit of the applicant's solicitor convinces me that during 1992 the applicant was obtaining medical reports with a view to making an application for compensation when the offenders were sentenced, but (probably because of the fact that Gore was dealt with on an ex officio indictment) no one notified the applicant or his solicitor of the proceedings. I am satisfied that it was not until about the middle of 1994 that, after making diligent enquiries, the applicant became aware of the fact that Gore had been dealt with. Any delay in bringing this application is satisfactorily explained by the material. The applicant was born on 16 September 1938, and was thus aged 53 at the time of the offence and is now aged 56. At the material time he was employed as a cleaner at the Mooloolaba Hotel. He went to work at about 3.15 a.m. on the day in question and on entering the hotel premises was confronted by a man wielding a sawn-off shotgun. The offender's face was covered. The applicant was told to put his "hands up", and told that his "life is at risk" if he did not co-operate. He -- 3 of 10 -- 3 was told to "lie down" on the floor and he did so. During much of the incident he could feel the gun touching the back of his head. When he lay face down some material was placed over his head, his hands were tied behind his back, and his feet were tied together. During that time he was aware of the presence of a second offender in the room. (A second offender was arrested, but later absconded and in consequence has not been dealt with.) After a period of about 20 minutes the applicant was able to ascertain that there was no one in the immediate vicinity and he was then able to break out of his shackles. He went immediately to the Maroochydore police station. He says in his affidavit, and I accept him, that at the time he was very concerned for his safety. He felt nervous and inadequate, particularly before the offenders were apprehended some short time later. In the weeks immediately following the incident his sleep was effected and going to work was a "nightmare". I am satisfied that in the weeks immediately following the incident the applicant experienced a severe physical and mental reaction to the incident. The applicant found it difficult to cope with work and with day-to-day living. His life was so effected that he thought it best to seek employment away from Mooloolaba. He went to Papua New Guinea for a period of about two months and appeared to settle down there. He then returned to work at the Mooloolaba Hotel in October 1992 but his problems returned. He was easily upset and very disorganised. He became obsessive -- 4 of 10 -- 4 about his health and well-being. His blood pressure was unduly high. Again, partly acting on advice, he decided to work offshore. In 1993 he spent three months in Kiribati and three months on Tonga. He returned to Mooloolaba in about November 1993. Again he was confronted with symptoms of major stress. He continually felt sick and his work was unreliable. He contemplated suicide on a number of occasions. Because of his inability to cope with work he lost his job at the Mooloolaba Hotel in about January 1994. That made him more depressed. From January to August 1994 he was seeking employment through the Commonwealth Employment Service but was unsuccessful. He made the decision in about August 1994 to "buy a job". He borrowed money so that he and his wife (in the name of a corporate entity) could purchase a bakery business. Apparently he had earlier in his life conducted such a business. He is now earning income in that capacity. On a number of occasions between 1992 and 1994 he was examined by Dr Ian Gibb, a psychiatrist, and received treatment for his disorder. Reports from Dr Gibb dated 26 October 1992, 10 November 1992 and 25 May 1994 are exhibited to the applicant's affidavit. When Dr Gibb saw the applicant about a month after the incident he reported, so far as is relevant:- "His presentation was that of an acute post-traumatic stress disorder characterised by bad dreams and intrusive recollections about the armed hold-up, hypersomnia, exaggerated startle response and some -- 5 of 10 -- 5 other somatized anxiety symptoms such as "churned up" stomach and a tendency to be quite emotional at times on a very minimal stimulus. I have prescribed for him Mogadon 5mgs. a quarter to half a tablet to help settle down his churned up stomach but do not believe that he will be in need of any other medication at least immediately. Other than this I went through an hour's counselling session with him telling him the importance of talking out, of ventilating and otherwise exposing his memory of this event so that he could go through the appropriate sort of emotional response and therefore rid himself of the destructive part of the memory." At that time the doctor was hopeful that his condition would abate and not lead to a chronic stress syndrome. He next saw the applicant on 10 July 1992, about ten weeks after the incident. On that occasion the doctor noted that he had "a much more obvious depressive reaction combined with a fearful pattern of ideation which is related to the fact that the two men who were responsible for the armed robbery have been arrested..." The doctor was informed the applicant's intention of going away for a two month period and he suggested that "in view of the development of the more obvious depressive symptomatology he should take an anti-depressant until the time of the court case and thereafter during his two months holiday". Again at that time the doctor was hopeful that the course of anti-depressants would be sufficient but he recognised the possibility of a longer lasting depressive reaction or post-traumatic stress disorder developing. After the period in New Guinea the applicant saw Dr Gibb again on 4 November 1992. On examination at that time the -- 6 of 10 -- 6 doctor reported that "it is quite clear that he now has the chronic variety of post-traumatic stress disorder and I have offered him continuing treatment for this which will be started as soon as my appointment book permits". Apparently Dr Gibb did not see the applicant from November 1992 until May 1994 when he was referred again by his general practitioner. Dr Gibb reported to the general practitioner at that time by saying: "He has, as you may be aware, been a very erratic attender for treatment and I did not think that I had ever managed to convince him of the reality of his post-traumatic stress disorder following the hold up in 1992. On this occasion he was obviously a great deal worse and this seems to have resulted from the fact that he has been sacked from his contracted employment at the Mooloolaba pub and one of his own employees has now been given the contract for this work." In his general report of 25 May 1994 the doctor refers to the applicant's mental condition at that time as being "somewhat worse". He noted a deterioration in his ability to concentrate, that his short term memory was more impaired, that he felt anxious and tense, and was at times quite severely depressed. Again medication was prescribed and the doctor wanted to review him after some time on those drugs. Finally in that report the doctor expressed a number of views which should be recorded:- "Mr Clarke, in my opinion, suffers from post- traumatic stress disorder. ... The prognosis in his case, at this stage, must be guarded because he has been such an erratic attender. In my opinion, Mr Clarke's mental state is directly attributable to the event when he was held up at gunpoint at the Mooloolaba Hotel. -- 7 of 10 -- 7 As you note from my most recent report on him to his general practitioner his condition is not at present stabilised but if he continues to attend for treatment and to take the medication prescribed then there would certainly be the prospect for improvement. The disability that Mr Clarke suffers from at present is sufficient for him to be, in my opinion, unemployable at present because of the symptomatology of the chronic post-traumatic stress disorder, particularly the symptomatology of being short-fused and irritable, having poor concentration and severely disturbed short term memory. Further medical treatment is certainly indicated since without this his condition is likely to deteriorate further, the most severe outcome of this deterioration being an increasing risk of suicidal ideation and possible suicide attempt. The outcome of the treatment however, given sufficient time, should be such as to improve his outlook in life to the point where he might be able to return to work without the risk of further exacerbation of his condition. Should Mr Clarke undertake the fairly intensive treatment required over the right length of time the progress of the disorder should be halted and ameliorated. The prospect of total cure is somewhat more remote." As already noted the applicant last saw Dr Gibb (according to the reports) on 19 May 1994, and there is no more recent medical assessment of him in the material. It is also significant that Dr Gibb recorded that the applicant was an erratic attender for treatment. There is nothing in the applicant's material to indicate that he is still on medication and the extent to which, if at all, his present lifestyle is effected by the condition from which he clearly suffered for some two years after the incident. In the light of the evidence I am not satisfied that the applicant will suffer from on-going problems as a result of his -- 8 of 10 -- 8 experience in April 1992. His condition between April 1992 and May 1994 was such that for periods he was unable to work or obtain employment and in consequence his condition, which was a direct result of the criminal offences, was productive of economic loss. The material does not enable that to be accurately quantified, but it is a factor which must be taken into account in determining the amount of compensation. I am satisfied that he now has an earning capacity as a baker and that he is capable of earning at the pre-incident level. It follows that he is entitled to compensation because as a result of the criminal incident which occurred in April 1992 he suffered a severe post-traumatic stress disorder which lasted for a period of about two years and significantly effected his life during that period. There has been some difference of opinion as to whether it is preferable to include in the award of compensation an amount to cover the costs of the application, or whether costs should be separately ordered. I prefer to adopt the former course, and I will include in the assessment an amount to cover the costs of and incidental to the application. Counsel conceded that s.663AA of the Code applied and the maximum amount which could be ordered, this being the case of mental shock or nervous shock, is $20,000. In all the circumstances I assess the compensation to which the applicant is entitled in the sum of $12,500. There will therefore be an order that Martin Joseph Gore pay to Graham James Clarke the sum of $12,500 by way of -- 9 of 10 -- 9 compensation for injury suffered by Graham James Clarke by reason of the offences of armed robbery in company and deprivation of liberty (offences involving Graham James Clarke) of which Martin Joseph Gore was convicted on 24 July 1992. -- 10 of 10 --