SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Doig v Stephens & Hallin [2005] QSC 116 PARTIES: FILE NO/S: BS 11149/04 DIVISION: PROCEEDING: HELEN MAY DOIG (applicant) v PETER NOEL STEPHENS (first respondent) and DANIEL MICHAEL HALLIN (second respondent) Trial Application for Criminal Compensation ORIGINATING Supreme Court at Brisbane COURT: 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 $57,750 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 $46,200 (80% of the above figure of $57,750) 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 and was convicted of attempted murder where the second respondent was convicted of that offence on the basis of his being a party to the offence of attempted murder committed by the first respondent where the applicant suffered physical 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 Criminal Offence Victims Regulations 1995 (Qld), Reg 2

2 2 COUNSEL: SOLICITORS: Dooley v Ward [2001] 2 Qd R 436 Riddle v Coffey [2002] QCA 337 K M McGinness for the applicant No appearance for the respondents McInnes Wilson for the applicant No appearance for the respondents The Application [1] The applicant, Helen May Doig, sustained serious injuries as a result of being shot by the first respondent, Peter Noel Stephens. On 17 March 2003, the first respondent pleaded guilty to one count of attempting to murder the applicant in respect of which he was sentenced to life imprisonment, to be served concurrently with other sentences. On 26 March 2003, the second respondent, Daniel Michael Hallin, was found guilty, after trial, of being party to the offence of attempted murder of the applicant. He was sentenced to 15 years imprisonment for that offence to be served concurrently with other sentences. [2] The applicant, who was born on 24 May 1943 and was 58 years of age at the time the offences were committed, seeks criminal compensation pursuant to s 24 of the Criminal Offences Victims Act 1995 ( the Act ) for injuries sustained as a result of the offences 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 against the applicant by the respondents were each a personal offence within the meaning of s 21 of the Act, 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 her son, Brett Doig, were travelling to their home along a road at Murphy s Creek, east of Toowoomba. They stopped when they saw a vehicle belonging to the applicant s other son, 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

3 3 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 s son, Brett, went to investigate the presence of Kenneth Doig 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, 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. The applicant recalls lying on the ground pretending to be dead as she heard the respondents walking near by her. After the respondents left the scene, the applicant was found by her son, Brett, who helped her into the car which, notwithstanding his serious injuries, he managed to drive to a farmhouse where the police and ambulance were called. Medical Evidence [6] The main impact area of the gunshot injuries received by the applicant was to her right neck and shoulder. There were further pellet wounds to the right cheek and left thumb/hand. The applicant also recalls blood coming from her ear and severe pain to her ear and shoulder and feelings of nausea. [7] She was admitted to the Toowoomba Base Hospital and was found to have sustained the following injuries as a result of the assault: (a) (b) (c) (d) Shotgun injuries to the right shoulder and neck region, including a large posterior laceration to the right shoulder and neck and loss of deltoid and trapezius muscle in the region; Shotgun injuries to the left thumb and hand; Injuries to her cheek; Multiple shrapnel wounds. [8] On 25 December 2001, the applicant underwent debridement and washout of the neck and shoulder wound, during which pieces of shrapnel were removed. She underwent further surgery on 27 December She was transferred to the Princess Alexandra Hospital for plastic review and grafting of the right shoulder wound. Her injuries included loss of 2cm from her shoulder blade which required a skin graft from her right thigh. She was discharged from hospital 28 days later but continued attendance on multiple occasions at the Plastics Outpatients. Whilst in hospital she experienced pain in her shoulder and right thigh donor site and also suffered infections. [9] The injuries to the right shoulder improved over a 6 month period and then plateaued. She continues to suffer pain, weakness and restriction of movement to her right shoulder and arm and is self-conscious about the scar to her shoulder. She has experienced repeated infections and is restricted in the clothing she can wear. She has the sensation of multiple pieces of shrapnel in the area and experiences aggravated pain during wet and cold weather. She also has decreased strength in her right upper limb interfering with her ability to carry heavy objects.

4 4 [10] The applicant continues to suffer headaches associated with neck pain as well as stinging and itching to areas of the neck where the shrapnel remains. She also has some scarring on the left side of her neck which makes her feel self-conscious. [11] The skin graft site on the right thigh healed slowly over a 12 month period and although no pain is experienced in that area, the skin remains susceptible to tearing easily. [12] She also required surgery to remove pellets from her thumb. The applicant continues to experience symptoms of numbness in her left thumb, difficulty picking up objects and decreased grip strength. [13] She now suffers from decreased hearing of the right ear, which causes difficulty hearing when background noise is present and right ear pain. She has shrapnel under the skin and within the right cheek which is itchy and causes a slight cosmetic defect. Report of Dr Campbell [14] Dr Campbell, a neurosurgeon, examined the applicant on 12 September 2003 for the purposes of providing a report. His examination revealed: (a) (b) (c) a 7cm curved surgical scar over the left thumb, with a piece of shrapnel apparent under the scar line and slight decreased range of movement of thumb; a large graft and depressed scar over the right shoulder and trapezius region, multiple shrapnel pieces adjacent to the scar with a second stellate scar over the right shoulder showing multiple shrapnel pieces. There was decreased flexion of right shoulder region by 20% and decreased abduction by 30%; the right cheek was slightly dimpled with an underlying piece of shrapnel, causing a slight cosmetic defect. [15] Dr Campbell considered that, because the symptoms were still present at the time of his examination, the applicant was likely to suffer permanent impairment as a consequence of the injuries. He concluded that the applicant was likely to suffer a 20% permanent impairment of the whole person as a result of her injuries, included injuries to the ear and the psychological injuries detailed below. Hearing problems [16] The applicant experienced hearing loss and tinnitus subsequent to being exposed to the noise blast from the gunshot and the wounds to her neck. She is still troubled by sensation blockage in the right ear, difficulty hearing in group situations and constant ringing in her right ear. Dr Broadhurst in his report of 17 July 2002 stated that audiogram testing revealed a right moderate sensorineural hearing loss with poor discrete speech discrimination on that side. [17] On 11 September 2003, Dr Black, an ear nose and throat surgeon, examined the applicant. He noted that the applicant had sustained lacerations to the external canal of the right ear and bleeding. Dr Black was of the opinion that the nature of the hearing loss was consistent with the trauma of being shot. He detailed a right sided

5 5 sensorineural hearing loss which is a permanent partial deficit. He considered that the tinnitus represented an additional 3% impairment and estimates total auditory impairment to be 47% monaural or 4.7% whole person. Mental and nervous shock [18] At the time of the incident the applicant suffered extreme emotional distress. She was clearly traumatised by the incident. She was constantly fearful until the respondents were apprehended and placed in custody. She initially saw a clinical psychiatrist at the Princess Alexandra Hospital and was placed on anti-depressant medication which she has taken since the incident. [19] Mr Johnston, a psychologist, examined the applicant on 10 September He noted the applicant was currently on anti-depressant medication, namely Zoloft. The applicant reported the following psychological symptoms: (a) Anxiety scared and distressed if sees red cars, fears at night or if travelling alone, scared to be alone at home; (b) Sleep disturbance chaotic sleep patterns and difficulty getting to sleep, wakes frequently; (c) Flashbacks experiences distressing flashbacks 5-6 times a week which causes her to sweat and her heart to pound; (d) Exaggerated startle response; (e) (f) (g) (h) (i) Irritability; Depression estimates feels sad and depressed about twice each month for up to a day including crying at times and feeling overwhelmed; Sexual difficulties substantial decrease in libido; Diminished self confidence; Poor concentration and difficulty focussing on tasks. [20] In Mr Johnston s opinion, while the applicant may be marginally more vulnerable than the average person, her psychological problems have arisen directly as a result of the 2001 shooting and its sequelae. Psychological testing conducted by Mr Johnston revealed that the applicant suffers from an extreme level of anxiety, mild range of depression and post traumatic stress disorder of moderate severity. Mr Johnston also notes the applicant could also be suffering from somatoform pain disorder. The applicant has experienced a substantial loss of quality in her life and is likely to feel anxious, worried and depressed much of the time. She becomes fearful if left alone or distressed if reminded of the trauma and is likely to experience difficulties in her relationships with others, including trust of people. He diagnoses her functional loss as 32%. Assessment of Compensation [21] Under the Act, the compensation ordered is not intended to reflect the amount of compensation which the applicant would be 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 A compensation order cannot be made for an amount more than that prescribed scheme maximum.

6 6 [22] The method for the assessment of criminal compensation has been outlined by the Court of Appeal 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. 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. [23] There is no question in his case that the applicant contributed in any way to the injuries she received. [24] 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 Item 21 Neck/shoulder injury (minor/ moderate) Item 26 Gunshot Wounds (severe) Percentage of the scheme maximum under the Act Percentage claimed Compensation claimed 8% - 16% 10% $7,500 15% - 40% 25% $18,750 Item 27 Bodily Scarring 2% - 10% 10% $7,800 (minor/ moderate) Item 32/33 mental or 10% - 34% 30% $22,500 nervous shock (moderate/severe) Item 35 Loss of hearing 2% - 20% 12% $9,000 (one ear) TOTAL $65,550 [25] There are several errors in the table. A claim for item 27 is made at 10% of the allowed percentage. That yields $7,500 rather than the $7,800 claimed in the table. This reduces the total claimed compensation to $65,250. In addition, I note that in respect of the claim of $7,500 under item 21 neck/shoulder injury (minor/moderate) the percentage of the scheme maximum is erroneously stated to be 8% to 16%. Item 21, which concerns neck/back/chest injury (minor), in fact provides for a range of percentage of 2% to 7%, while item 22, which concerns neck/back/chest injury (moderate), provides for a percentage range of 5% to 10%. [26] It is clear that the psychiatric conditions suffered by the applicant constitute mental or nervous shock for the purposes of the Act. Given the evidence, including that the applicant suffers an extreme level of anxiety, mild depression and moderate post traumatic stress disorder, an award under item 33 of the compensation table for mental or nervous shock (severe), which provides for a range of 20% to 34% is warranted. I consider that an award at the lower end of the range, that is 20%, is

7 7 appropriate for this injury taking into account the severity of the conditions suffered. This results in an assessment of $15,000. [27] It is also appropriate that an assessment is made under item 27 of the compensation table for facial disfigurement or bodily scarring (minor/ moderate) in respect of the scarring suffered by the applicant to the shoulder/neck region and to the cheek. An assessment of 10% of the scheme maximum is in my view appropriate, which results in an award of $7,500. [28] In addition, an assessment ought to be made under item 35 Loss of hearing (one ear). An assessment of 12% of the scheme maximum is sufficient to properly compensate for that head, making $9,000. [29] In addition to assessments under the above items of compensation, counsel for the applicant submitted that, in order to adequately compensate the applicant, an award ought also to be made under item 26 Gunshot Wound (severe) and under item 21 for neck/shoulder injury (minor/moderate). [30] 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. That provision was considered by the Court of Appeal in Riddle as follows: 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 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

8 8 fair and reasonable on the particular facts of each case, within the limits of the Act (footnotes omitted) [31] 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 was to doubly compensate the applicant there for the same injury. Whether an assessment of compensation under multiple heads of the compensation table will in any particular case result in a duplication of compensation will turn on the facts of each individual case. [32] In the present case, I assess compensation under item 26 at 35% of the scheme maximum, resulting in $26,250. I consider that that award under item 26 adequately compensates the applicant for the gunshot wounds she sustained to the shoulder, neck, face and hand. To additionally compensate the applicant under item 21 or 22 for her neck injuries would result in duplication of compensation for the same injury. [33] In the circumstances, I assess the applicant s entitlement to compensation as $57,750 as follows: Item of the compensation table Item 26 Gunshot Wounds (severe) Percentage of the scheme maximum under Act Percentage awarded Compensation awarded 15% - 40% 35% $26,250 Item 27 Facial 2% - 10% 10% $7,500 disfigurement or bodily scarring (minor/ moderate) Item 35 Loss of hearing 2% - 20% 12% $9,000 (one ear) Item 33 mental or nervous 20% - 34% 20% $15,000 shock (severe) TOTAL $57,750 The Liability of Each of the Respondents [35] 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.

9 9 (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). [36] The applicant s injuries resulted from the personal offences committed by the respondents, but arising 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. [37] For the offence of attempted murder of the applicant, the first respondent was sentenced to life imprisonment, his criminal liability arising from his having shot the applicant at close range. The second respondent however 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. As a secondary offender, the second respondent s lesser criminal culpability in the circumstances of this case was reflected in his receiving a lesser sentence of 15 years imprisonment. [38] 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, while the first respondent is separately liable to pay the full sum of $57,750, 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 ($46,200) ought to be a joint and separate liability with the first respondent.

10 10 Orders [39] I order that: 1. The first respondent is separately liable to pay the applicant $57,750 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 $46,200 (80% of the above figure of $57,750) for which he is jointly and separately liable to the applicant together with the first respondent.