Horne and Horne v Dewey
[2009] QDC 352
•24 November 2009
DISTRICT COURT OF QUEENSLAND
CITATION:
Horne & Horne v Dewey [2009] QDC 352
PARTIES:
FAY HORNE
(Applicant)
vSTEVEN WILLIAM DEWEY
(Respondent)
And
ALLAN HORNE
(Applicant)
vSTEVEN WILLIAM DEWEY
(Respondent)
FILE NO/S:
BD 2172/09
BD 2173/09
DIVISION:
Civil
PROCEEDING:
Applications for criminal compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
24 November 2009
DELIVERED AT:
Brisbane
HEARING DATE:
24 November 2009
JUDGE:
Rafter SC DCJ
ORDER:
In each application, the respondent pay to the applicant the amount of $15,000 by way of compensation pursuant to s24 of the Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of armed robbery in company which led to the conviction of the respondent in the District Court at Brisbane on 6 August 2008
CATCHWORDS:
APPLICATION – CRIMINAL COMPENSATION ––– Armed robbery in company – mental or nervous shock –Criminal Offence Victims Act 1995
COUNSEL:
C Reid for both applicants
No appearance by or for the respondent
SOLICITORS:
Wallace Davies Solicitors for both applicants
No appearance by or for the respondent
Introduction
The applicants seek compensation pursuant to s.24 Criminal Offence Victims Act 1995 for emotional injuries caused by the offence of armed robbery in company committed by the respondent on 18 July 2007.
On 6 August 2008 the respondent pleaded guilty to one count of armed robbery in company. He was sentenced to 9 years imprisonment with a parole eligibility date fixed after serving 4 years, namely on 20 July 2011.
It was declared that the respondent had served 382 days in pre-sentence custody.
The Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978. The Public Trustee has filed an affidavit of Timothy Feely, Deputy Director, Community Services and Development, of the Public Trustee stating that the respondent has provided written confirmation that he has been served with the application and supporting affidavits and does not wish to take part in the proceedings. Mr Feely states that the Public Trustee is not actively managing the affairs of the respondent. He states that the Public Trustee does not hold any assets on behalf of the respondent and the respondent has advised that he has no assets with which to satisfy an order made against him. There has been no appearance by or for the respondent.
Circumstances of the offence
The applicants, Fay Horne and Allan Horne are a married couple, who were aged 68 and 70 years at the time of the offence on 18 July 2007.
On the night of the offence they were working as temporary relief managers at the Kippa-Ring Village Motel. The applicants were at the counter at the reception area. They had just checked in a customer. The respondent and his co-offender, Craig Semyraha entered wearing gloves and balaclavas.
Mr Semyraha was armed with a firearm. The respondent was also armed with a gun, however he had concealed it down the front of his pants.
Mr Semyraha demanded money and made threats to kill the applicants. Mr Horne got on the floor while Mrs Horne took Mr Semyraha to the lounge room of the motel. She gave him a pencil case which contained $950, the motel’s takings for the day. Mr Semyraha went to the till and took more money. Mr Semyraha took money from Mrs Horne’s purse and stole another purse.
The respondent remained in the reception area with Mr Horne who was still on the floor.
Mr Semyraha played a more active role in the robbery than the respondent. When police attended his residence later that night he shot and killed a police officer. He then killed himself.
Injuries and medical reports
Each of the applicants has sworn an affidavit outlining the trauma caused by the robbery. They endeavoured to return to work on 3 occasions but have not been able to cope.
The applicants were examined by Dr Barbara McGuire on 9 February 2009.
In her report in relation to Mrs Horne dated 12 February 2009, she states:
“ She has trouble getting off to sleep and wakes at about 3.00 a.m. She experiences nightmares, usually involving men with balaclavas. She has flashbacks to the incident frequently. She won’t go out at night and she said that the amount of work that they can do is now very restricted and has caused a significant loss of income.
She has security fears; she hears noises at night. She said the blinds are always shut the minute evening comes on. However, she can go to the shops by herself in the daytime. When she is out she is hypervigilant and wary.
She experiences panic attacks if she sees a gang of young people. These occur about once very couple of months. She feels depressed but not all the time and can get some pleasure out of life.
…
It is my view that she suffers from posttraumatic stress disorder to a moderate degree. I base that diagnosis on her exhibition of nightmares, flashbacks, avoidant behaviour, hypervigilance and exaggerated startle reflex. ”
In her report in relation to Mr Horne, also dated 12 February 2009, Dr McGuire states:
“ He ruminates constantly on the incident speculating on what would have happened had they been killed and he been unable to see his daughter any more. He hasn’t had any counselling but would like to have some.
He experiences flashbacks, triggered by seeing young people with hoods and balaclavas. He says he has to walk away from violence on television.
Initially he told me he had no problem with his sleep. He gets off fairly readily and finally wakes about 4.30 to 5.00 a.m. However, later he told me that he had had very poor sleep until about 6 months after the attack and at this stage also wakes frequently at night thinking of it.
He has an exaggerated startle reflex. He said that his social life is much more limited. He has given up his practice of going for a walk in the mornings.
…
He suffers from posttraumatic stress disorder as characterised by his experiencing the symptoms of nightmares, flashbacks, avoidant behaviour, security fears, irritability, hypervigilance and exaggerated startle reflex. He experiences this to a moderate degree.”
The relevant principles
The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s22(3)).
The maximum amount of compensation provided under the Criminal Offence Victims Act1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. The amount of compensation cannot exceed the scheme maximum (s25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s25(8)).
Assessment of compensation
Mr Reid for the applicants submits that compensation for both applicants be assessed in accordance with item 32 in the compensation table, mental/nervous shock of a moderate nature - 10-20%.
Mr Reid submits that each applicant be awarded $15,000.00.
In my view the appropriate assessment for each applicant is 20% of the scheme maximum. ($15,000)
Orders
In each application, the respondent pay to the applicant the amount of $15,000 by way of compensation pursuant to Section 24 of the Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of armed robbery in company which led to the conviction of the respondent in the District Court at Brisbane on 6 August 2008
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