R. v. Wilkie, ex parte Schofield

[2000] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

R. v. Wilkie, ex parte Schofield [1999] QSC 043

PARTIES:

R
v
KENT ROBERT WILKIE
(respondent)
EX PARTE GLEN RAYMOND SCHOFIELD
(applicant)

FILE NO:

No. 8629 of 1999

DIVISION:

Trial Division

DELIVERED ON:

9 March 2000

DELIVERED AT:

Brisbane

HEARING DATE:

13 December 1999

JUDGE:

Helman J.

ORDERS:

Order that the respondent pay to the applicant $14,600.00 by way of compensation for the injury suffered by the applicant as a result of the commission of the offence alleged in count 7 of the indictment. 

Order that the respondent pay to the applicant his costs of and incidental to the application, to be assessed.

CATCHWORDS:

CRIMINAL – application for criminal compensation – applicant person aggrieved though not named in indictment

Criminal Code
Criminal Offence Victims Act 1995

R v. Callagan and Fleming, ex parte Power [1986] 1 Qd. R. 457, cited
R v. Jones, ex parte McClintock [1996] 1 Qd. R. 524, cited
R v. Moors, ex parte Alex [1994] 2 Qd. R. 315, cited

COUNSEL:

Mr D Hawes for the applicant
No appearance for or on behalf of the respondent

SOLICITORS:

Budd & Piper for the applicant

1. HELMAN J: Mr Glen Schofield applies for an order for compensation for injury suffered because of an act done by the respondent on 7 January 1993. His application is made under the omitted chapter 65A of the Criminal Code: see s. 46(2) of the Criminal Offence Victims Act 1995.

1. On 29 April 1997 the respondent came before me for trial on a number of charges.  In count 7 of the indictment it was alleged that, on 7 January 1993 at Gold Coast, Queensland, he stole from Michael Andrew Porrett with actual violence a sum of money namely $9,780.00 the property of Sizzler Australia Pty Ltd.  Circumstances of aggravation were alleged: that the respondent was armed with a dangerous weapon, a gun; that the respondent was in company with another person; and that the respondent used personal violence to Mr Porrett.  Mr Porrett was an employee of Sizzler Australia, the duty manager at the Pines, Elanora restaurant.  The respondent pleaded not guilty to all counts on the indictment.  On 4 June 1997 he was found guilty of everything alleged in count 7, and was found guilty on other counts.  On 6 June 1997 I sentenced him to imprisonment for eleven years on count 7.

1. At the trial, the respondent, who conducted his defence himself, did not challenge that there had been an armed robbery by two men, as alleged by the Crown.  The case he presented to the jury was that the Crown had failed to prove that he was one of the men. 

1. On 16 May 1997 the applicant gave evidence at the trial.  He said that on the night of 7 January 1993 he was employed at the Sizzler restaurant as a kitchen hand, and that he was in the staff room talking to Mr Porrett at about 11:20 p.m. when he was pushed to the floor by a man wearing a green balaclava and armed with a sawn-off shotgun.  The staff room had a safe in it. The intruder told Mr Porrett to open the safe and Mr Porrett complied.  While the applicant was on the floor in the staff room he said to the intruder, ‘Let me go.  I won’t squeal’, and the intruder replied, ‘You’re all right, mate,’ and added - apparently by way of a threat to Mr Porrett, ‘I’ll shoot him in the leg first and then work my way up.  My mate is waiting in the car for me’.  The applicant and Mr Porrett were then told to move from the staff room.  ‘I got shoved in the back again to follow Michael out’, the applicant said.  The applicant and Mr Porrett were directed to a lavatory near to which was another intruder.  The applicant and Mr Porrett were pushed in, and found eight other employees already in the lavatory.  The applicant and the other employees remained in the lavatory for about twenty minutes during which the intruders departed.

1. In an affidavit put before me on the hearing of this application the applicant swore that ‘the rifle used in the hold-up was held between [his] eyes very close to [his] face at one stage during the robbery’ and that that caused him ‘severe stress and anxiety’.

1. The applicant’s account of the incident is consistent with the evidence given at the trial by other employees of Sizzler Australia: Mr Porrett, Mr Ralph Maass, Mr Mark Schelnert, Ms Helen Koskelas, Ms Donna Carbery, Ms Tracey Bostock, Ms Debbie Wilson, and Ms Anne Burford. 

1. The intruders were the respondent and a man named David Jolley.  Jolley gave evidence at the trial, admitting that he was one of the intruders and saying that the respondent was the other. 

1. The applicant, who carries on business as a lawn-mowing contractor, was born on 5 June 1968.  The robbery caused him serious mental and nervous shock.  He was a casual employee at the restaurant at the time of the robbery.  He resigned that position about six weeks later.  For several months after his resignation he had trouble finding work until he began working for his father in a lawn-mowing business of which he is now the proprietor.  He became, and remains, fearful of being out alone at night.  For a year after the robbery his sleep was disturbed, but improved until the trial when his sleep again became disturbed.  Since the trial his sleeping pattern has again improved.  For more than five years he suffered severe anxiety as a result of the robbery.  His anxiety substantially curtailed his social life, particularly for night-time outings.  His anxiety gradually subsided after the trial. 

1. In a report dated 15 November 1997 Mr Aart Simons, consulting clinical psychologist, expressed the opinion, based on an interview and assessment on 28 August 1997, that the applicant was suffering from a post-traumatic stress disorder with marked anxiety and depression.  Mr Simons added that he felt the applicant was in need of therapy ‘to help him deal with his ongoing reaction to the holdup as it presently is still markedly affecting him psychologically, socially and employment wise’. Approximately fifteen to twenty sessions costing between $100.00 and $145.00 each were needed Mr Simons said.  If the applicant were to seek the treatment from Mr Simons the cost would be $130.00 a session.  In a later report dated 30 July 1999, which followed an interview and assessment on 7 July 1999, Mr Simons expressed the opinion that the applicant was no longer suffering from a post-traumatic stress disorder, although he was still suffering from anxiety and depression.  His anxiety is now manageable most of the time, although there is still an underlying level causing him to feel more anxious than he would have felt had the robbery not taken place.  His dream content is anxious.  His depression is now markedly reduced and mild.

1. The applicant swore in his affidavit that he was shoved in his upper back twice when the robbery was in progress and that on the first occasion he fell to the floor.  After the robbery he noticed he had suffered a small laceration on his left shin and in the next few days his left leg swelled up below the knee.  He has suffered pain in his left leg and upper back ‘periodically’ since the robbery and has ‘occasionally’ taken pain killers such as Panadeine when the pain has become very severe.

1. In a report dated 16 March 1995 Dr Roger Parkington, orthopaedic surgeon, referred to a complaint of sore knees after lawn mowing and playing indoor cricket which had troubled the applicant ‘for the last six months’, but there was ‘no specific history of trauma’ and there were ‘no real mechanical symptoms’. The applicant complained to Dr Parkington of upper thoracic back pain which dated from when the applicant was struck during the robbery.  X-ray examination of the applicant’s spine showed only a mild upper thoracic scoliosis of no consequence, and a completely normal lateral x-ray.  On 23 March 1995 Dr Parkington reported that all of the applicant’s ‘investigations’ were normal, he could find nothing to account for the applicant’s knee pain, and the applicant appeared to be ‘remarkably hypersensitive around the knees, especially the left and is very tender over the synovium, although it is not thickened’.  The complaint concerning the applicant’s knees to Dr Parkington appears to have no connexion with the robbery because it relates to a condition which had manifested itself late in 1994 whereas the robbery was very early in the previous year and any injury caused at the robbery was caused by trauma.

1. Under chapter 65A compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases, and economic loss is recoverable. The amount awarded against a convicted person is, however, subject to the applicable upper limit: R. v. Jones, ex parte McClintock [1996] 1 Qd.R. 524.

1. The applicant was not a person named in the indictment, as Mr Porrett was, but he is a person aggrieved within the meaning of that term in s. 663B(1): R. v. Callagan and Fleming, ex parte Power [1986] 1 Qd.R. 457, which was approved by the Court of Appeal in R. v. Moors, ex parte Alex [1994] 2 Qd.R. 315, pp. 319 and 320.

1. The evidence before me establishes that the applicant suffered from a post-traumatic stress disorder from the time of the robbery until somewhere between August 1997 and July 1999.  He still suffers from some anxiety and depression, but he has recovered well from the condition observed by Mr Simons on 28 August 1997 which had serious effects on the applicant while it lasted.  There is no evidence that he sought or received the therapy recommended by Mr Simons in his report of 15 November 1997.  The applicant’s condition appears to have improved without treatment. 

1. There is no expert evidence which supports the applicant’s claim to have suffered any long-lasting injury to his legs or back, but I accept that he suffered some pain and discomfort to his left leg and back as a result of the assaults on him at the time of the robbery.

1. I assess the compensation to which the applicant is entitled for pain and suffering and loss of amenities at $13,500.00:  $12,500.00 for his mental and nervous shock ($10,000.00 for the past, and $2,500.00 for the future), and $1,000.00 for the injuries to his legs and back.  The evidence of impairment of earning capacity is sketchy to say the least.  There is no evidence of earnings before or after the robbery.  It does appear however that there was some loss of earnings for a short time after he left his employment with Sizzler Australia six weeks after the robbery.  He gave up that job I conclude because of the anxiety caused by the robbery.  I shall allow $1,000.00 for past impairment of earning capacity.  I am, however, not satisfied that there will be any future impairment of earning capacity.

1. For compensation for out-of-pocket expenses which would fall into the category of special damages in a civil action I shall allow $100.00.  The applicant has set out details of those expenses in paragraph 15 of this affidavit, but only two of the items could be regarded as special damages:  payments to an osteopath and chiropractor ($345.00) and pharmaceutical expenses, mainly Panadeine, for pain relief ($200.00).  The treatment from the osteopath and chiropractor was between March 1994 and November 1995 so it is not clear that it related to any physical injury suffered in January 1993, particularly if one takes into account Dr Parkington’s opinion.  Furthermore, it does not seem likely that all of the pharmaceutical expenses can be attributed to the physical injuries suffered while the robbery was in progress.

1. There is nothing before me that could lead to the conclusion that the applicant’s behaviour contributed, either directly or indirectly, to the injury he suffered: see s. 663B(2).

1. I shall therefore order that the respondent pay to the applicant $14,600.00 by way of compensation for the injury suffered by the applicant as a result of the commission of the offence alleged in count 7 of the indictment.

1. I shall also order that the respondent pay to the applicant his costs of and incidental to the application, to be assessed.