McMillan v Armstrong

[2003] QSC 105

SUPREME COURT OF QUEENSLAND

CITATION:

McMillan v Armstrong [2003] QSC 105

PARTIES:

ALICE MAY McMILLAN
(applicant)
v
DONALD JAMES ARMSTRONG
(respondent)

FILE NO:

1814/2003

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

30 April 2003

DELIVERED AT:

Brisbane

HEARING DATE:

29 April 2003

JUDGE:

Wilson J

ORDER:

That $26,250.00 be paid by Donald James Armstrong to the applicant Alice May McMillan because of injury sustained on 20 May 2000.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – doing grievous bodily harm with intent to do grievous bodily harm – determination of entitlement to compensation under Criminal Offence Victims Act 1995 – assessment of compensation according to statutory compensation scheme

Criminal Offence Victims Act 1995 (Qld) s 19, s 20, s 22, s 25, Schedule 1

COUNSEL:

L Menolotto for applicant
No appearance for respondent

SOLICITORS:

Keith Scott & Associates for applicant

1. WILSON J: This is an application by Alice May McMillan for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995.

1. On 23 May 2001 Donald James Armstrong was found guilty by a jury of doing grievous bodily harm to the applicant with intent to do her grievous bodily harm on 20 May 2000. He was sentenced to a term of imprisonment of 7 years.

1. The incident occurred in a house in which the applicant, her two children and a friend were living. An argument developed over a set of paint scales which belonged to the applicant's ex-husband. The argument escalated, with name calling on both sides. In the heat of the moment the respondent took a firearm out of a bag. He threatened to shoot the applicant and she dared him to do it. Her elder child Jeb intervened. The firearm discharged, injuring the applicant in her left shoulder region.

1. The applicant was taken to the Logan Hospital where she was found to have a gunshot wound in her left shoulder; there was a bullet in the region of the left humeral head and a fractured humerus. There was nerve damage to the radial and medial nerves and reduced sensory function. The next day she underwent surgery to debride the wound and to remove the bullet. She remained an inpatient until 29 May 2000.

1. The Criminal Offence Victims Act 1995 provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant: s 19. “Injury” is defined in s 20 as bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table which is a schedule to the Act or prescribed under a regulation. Compensation under the Act is intended to assist the applicant, but not to reflect the compensation to which he or she may be entitled under common law or otherwise: s 22. The court may not award a total of more than the “scheme maximum,” which is $75,000. Various categories of injuries are set out in the compensation table together with the percentage of the scheme maximum which may be awarded for each: s 25, Schedule 1.”

1. The applicant sought the following compensation:

1. Gunshot wound                  severe                  25%            $18,750.00

2. Bodily scarring                   minor/moderate     2%              $1,500.00

3. Mental or nervous shock     severe                  25%            $18,750.00

$39,000.00.

1. The applicant was born on 26 June 1965. She left school before completing year 11. After leaving school she did clerical and cleaning work. She married and had two children, Jeb now aged 16 and James now 11. She and her husband were together for 18 years until they finally separated in December 1999. There had been some problems in the marriage with two earlier separations. In 1992 they had set up a mechanics business together, but they lost the business in a fire. From 1999 until the shooting the applicant drove a taxi, mainly on night shift.

1. After the incident the applicant was out of work for about a year. She stayed in the house for about four weeks and then moved to a unit for four months. After that, she moved back into the home she had previously occupied with her husband. However, the mortgage was in arrears, and despite her selling assets, eventually the mortgagee exercised its power of sale. She lived in a caravan for 10 weeks, and subsequently in rented accommodation. He elder child Jeb who had witnessed the shooting was quite traumatised by it, and had behavioural problems becoming involved in drug use and minor crime. Her younger child was put into foster care by the Department of Family Services. She lost the support of family and friends, although she was won back family support (except that of her brother).

1. I had two reports put before me -

1.     Logan Hospital 10 July 2001; and

2.     Geoffrey Grantham, clinical and forensic psychologist, 28 February  
       2002.      

1. At the time of her consultation with Mr Grantham the applicant considered that she had recovered to the extent of 90% from her physical injuries, although she continued to experience some restricted movement, tenderness and pain. Although she wore clothes to conceal her scar, she was not unduly troubled by it.

1. The psychological effects of her trauma have been more longlasting, and she considered herself only 50% recovered from them.  For several weeks after the shooting Mrs McMillan was fearful of being harmed.  She had no understanding as to why the respondent shot her and this gave rise to the thought that someone (possibly her ex-husband) might want her killed.  She continued to experience heightened fear and anxiety and became hyper-vigilant and extremely security conscious.  She found if difficult to sleep and remains a light sleeper.  She still wakes several times some nights.  She had persistent thoughts of the shooting and agonized over a possible  explanation.  She became especially depressed in late 2000 until the trial in May 2001.  During this period, she described herself as “feeling like my whole life [was] falling apart and I didn’t know why”.  She lost weight and even contemplated suicide.  Feelings of absolute bewilderment and confusion  as to why this incident ever happened gave way to feelings of anger towards the respondent as the consequences of the shooting came to include the loss of her house and the loss of custody of her younger son.  She also experienced a significant loss of self-esteem and blames herself for having “let her family down” for not being able to keep her family together.

1. Mr Grantham expressed the following opinion -

“From Ms McMillan’s account most recovery has taken place since the court case.  She has made significant progress in recovering from post-traumatic stress disorder and although depressed does not have this condition to the same extent prevailing earlier.  Her situation has stabilized and she is now looking for work.  Ms McMillan is receiving counselling concerned with regaining custody of her son but has received no other treatment.  She is aware that help would enable her to overcome or reduce symptoms she still has including fear and anxiety.  A lack of money is one reason why Ms McMillan has not sought professional assistance.  Were she to seek treatment from a clinical psychologist some three months of weekly sessions would be required at a cost  of about $120 per session.  The shooting constituted a significant setback to Ms McMillan’s circumstances and state of mind, and its effects appear to have permeated almost all aspects of her life.  It can be expected that she will continue to make progress where a reduction in symptoms is concerned.  Recovery from a major trauma is never complete and Ms McMillan will learn to compensate for and manage her situation rather than fully returning to her prior level of functioning.”

1. I have assessed compensation as follows -

1. Gunshot wound  moderate      15%       $11,250.00

2. Mental or nervous shock       moderate       20%       $15,000.00

$26,250.00.

I do not intend making a separate award for the scarring.

1. I order that $26,250.00 be paid by Donald James Armstrong to the applicant Alice May McMillan because of injury sustained on 20 May 2000.