Maher v Pegler

[2000] QDC 429

[2000] QDC 429

IN THE DISTRICT COURT

HELD AT CAIRNS	Application No.5 of 2000
BEFORE HER HONOUR JUDGE BRADLEY
16 JUNE, 2000
Applicant:	GAIL LEIGH-ANN MAHER
Respondent:	AARON JAY PEGLER

REASONS FOR JUDGMENT

1. On 26 October, 1999 the respondent pleaded guilty before me to one offence of robbery

with violence.

1. This application is made pursuant to s.24 of the Criminal Offence Victims Act for an

order that the respondent pay compensation for an injury suffered by the applicant because of

the offence committed by the respondent. The applicant is now 42 years of age (41 at the time

of the offence) and is single with no children.

1. The respondent has been served with the application and the supporting material and has

advised the Public Trustee of Queensland that he does not desire to take any part in these

proceedings. The respondent did not appear and was not represented at the hearing of the

application.

1. The offence occurred at about 2.30 am on Wednesday, 29 September, 1999. The

applicant was employed as a console operator at the Shell Service Station, Edmonton, and was

sitting down watching television behind the counter when she heard the doorbell to the store

ring. She glimpsed someone standing outside the door and unlocked it. The respondent

opened the door and walked in and as he did so put on a balaclava. He had a knife in his right hand and was holding the knife out in front of him. The blade of the knife was about 20 cm

long and it appeared to be like a fishing knife. The respondent did not say anything to the

applicant but the applicant automatically attempted to open the till. She was shaking so much

that it took about six attempts to open it but she was finally able to do so and stepped back a

couple of feet from the till. The respondent walked directly around to her side of the counter

and immediately started removing notes from the till. The respondent demanded a bag which

the applicant gave to him and the respondent threw the money from the till and packets of

cigarettes into the bag. The respondent then walked back around the front of the counter and

left the building. The applicant then raised the alarm.

1. On these facts there is no behaviour whatsoever on the part of the applicant that directly

indirectly contributed to the injury she suffered.

1. Most unfortunately for the applicant she was the victim of a similar offence at the same

place of employment in May 1998.

1. Although not suffering any physical injury as a result of the offence the applicant has

suffered mental or nervous shock and in that regard she was assessed by Sheldon Goldenberg,

Clinical Psychologist, on 22 November, 1999 and again on 29 February, 2000. Mr.

Goldenberg’s reports of 7 December, 1999 and 24 May, 2000 are before me. Unfortunately,

Mr. Goldenberg was unaware of the prior incident affecting the applicant at the time of his first

report.

1. After the first incident the applicant participated in a single counselling session and felt

residual effects from the incident such as disruptive sleeping patterns, high levels of anxiety at

work, bitterness towards people, especially men, flashbacks, loss of appetite etc., for

approximately 12 months. She was not psychologically assessed after the first incident.

However, as a result of Mr. Goldenberg’s assessment in November, 1999 he was of the opinion that –

“Ms Maher said she sustained anxiety, sleep disruption, fear, insecurity, intrusive thoughts (flashbacks) and heart palpitations; as a result of a robbery at the Shell Roadhouse on 29/9/99.

Ms. Maher received a session of counselling a couple of days after the robbery. Residual effects of the incident include – continued sleeping problems, anxiety, fear of being alone, deep insecurity, a reluctance to talk about what happened. Continuous flashbacks, fear of going out in public, feelings that she is being watched, loss of appetite and dysphoria.

Ms. Maher’s assessment results are not inconsistent with a diagnosis of Post Traumatic Stress Disorder (i.e. Nervous Shock). The symptoms associated with this disorder tend not to subside without appropriate treatment and Ms. Maher will continue to experience symptoms, until the trauma is addressed.

Ms. Maher also requires treatment to alleviate symptoms associated with a Dysthymic Disorder which creates an emotional state of depression and restlessness. Both disorders can be treated successfully with psycho-therapy. It is strongly recommended that Ms. Maher engage in therapy on a weekly basis for a six month period of time at a recommended fee of $155.00 per hour.

In conclusion, Ms. Maher is a 41 year old woman, who has experienced severe trauma as a result of a threatening robbery at her place of employment. She is a serious and practically minded woman who has continued functioning in her world to the best of her ability, but is living a very restricted and restrained life as a result of her symptoms.”

1. In his second report Mr. Goldenberg states that –

   “Since Ms. Maher was not assessed after the first incident, or prior to the second robbery, it is impossible to know with certainty, the magnitude of residual effects and lifestyle changes, that might be associated solely with the May 1998 robbery. There is self reported evidence to suggest she experienced symptoms consistent with Post Traumatic Stress Disorder. She recalled in clear detail that she suffered from anxiety, fear of various elements associated with the robbery, flashbacks of the knife and intrusive thoughts. She stated that these symptoms severely limited her lifestyle and she became reclusive and disinterested in her life. She reported that the symptoms remained for approximately 12 months and caused her “a great deal of anguish”.

   Despite the gradual improvement reported by Ms. Maher, her recovery was thwarted 18 months after the first incident, by the sudden impact of the second robbery on 29/9/99. Psychological symptoms associated with Post Traumatic Stress Disorder were confirmed during the assessment process on 22/11/99.

   Although it is not possible to rely on psychometric testing to apportion liability to the two separate robberies, it is most likely that the first incident created symptoms consistent with Post Traumatic Stress Disorder, which made her vulnerable to a worsening of her psychological state following the second incident.

   I am satisfied that the psychological injuries currently experienced by Ms. Maher are attributed in part to the second robbery, which exacerbated those unresolved issues associated with the first assault in May 1998. In addition to continuing symptoms, she recalled continual feelings of anxiety and fear leading up to the time of the second incident.

   Post Traumatic Stress Disorder victims are always at risk of being re-injured, when faced with a traumatic incident. Although many of Ms. Maher’s symptoms subsided in the 12 month period following the first incident, she was re-injured, and hence her second injury is not totally attributable to the first incident.”

2. A brief report dated 16 March, 2000 has been tendered into evidence from the

applicant’s general practitioner which indicates that she sought treatment from him after each

robbery and that she was given some anti-anxiety tablets after the first incident.

1. The applicant in her affidavit deposes to the fact that she still has problems sleeping and

takes medication intermittently in that regard. Also she continues to experience flashbacks and

nightmares about the robbery. Although she continues to be employed at the same place she

has difficulty working as she is constantly reminded of what happened. Once she has paid off

her debts she intends to leave Cairns.

1. Whilst it would appear not to be possible to separate the effects of the first robbery from

that of the offence committed by the respondent, I am satisfied on the basis of Mr.

Goldenberg’s reports that the offence of which the respondent was convicted made a

significant and material contribution to the injury presently suffered by the applicant and that

accordingly, the applicant is entitled to have her compensation assessed in respect of the whole

of her injury [1].

[1] R v Thomas Richard Tiltman; and an Application for Compensation by Michael John Dawe (aka Michael John Sullivan) by his next friend

1. I assess compensation in accordance with the compensation table as follows:-

Item 32 Mental or Nervous Shock (moderate) 20% $15,000.00

1. I order that the respondent do pay to the applicant the sum of $15,000.00 by way of

criminal compensation.