R v Scarborough [2000] VSC 255

11. On Wednesday 17 February 1999, when Tom Scarborough was driving the Toyota Soarer in Brighton, he resented the way in which a van driver was driving, and, when both vehicles were stopped at red lights, he took out an extendable baton and smashed the rear window of the van. Two days later, when he was disturbed in South Yarra while removing the number plates from a car, he was asked by another man what he was doing. He abused the man, threatened to fight the man, held a screwdriver pointed at the man and walked off with the numberplates. Two days later, he drove to Yarraville, looking for Phong Nguyen. He located Phong Nguyen sitting in a car with 2 friends, and from close range, he fired several shots at Phong Nguyen with a handgun, causing injuries to the latter's chest, abdomen, arm and leg. Two of the shots hit Ha Vu, who was sitting in the front passenger's seat, causing Ha Vu injuries to the leg and foot. The next day, when he was driving his car in Coburg, he again resented the way another driver was driving. When both cars were stopped at red traffic lights, he pointed a handgun towards the other driver, abused him and fired a shot, which hit the other car a metre of so behind the driver.

14. None of the victims of those crimes has brought an application for compensation. Tom Scarborough knew Phong Nguyen, but the other victims referred to above and below were not known to him. The applicants before me were all victims of crimes committed by Tom Scarborough on 23 February 1999 in incidents that took place at Hawthorn and Heidelberg, to which I now turn.

17. Late in the morning of that day, he was driving the Toyota Soarer east in Riversdale Road, Hawthorn. He resented the way another driver, a Christopher Dunn, was driving. Both cars stopped at red traffic lights at Glenferrie Road. He pointed a handgun towards Christopher Dunn, and fired six shots with that gun, with all shots hitting the car that Christopher Dunn was driving. One shot also hit Christopher Dunn in the stomach. Incorrectly thinking that Tom Scarborough had expended all readily available ammunition, Christopher Dunn called out words to the effect: "What's the problem? Run out of bullets?" Tom Scarborough then picked up another handgun inside the car and from the second gun, fired further shots, three of which hit Christopher Dunn's car.

20. Later that day, Tom Scarborough was driving his car north in Rosanna Road, Heidelberg. The police sighted the car in Rosanna Road, Heidelberg. Two police cars were driven so as to make him pull his car in to stop by the kerb. One police car remained in front of, and the other behind, his car. He got out of his car holding a handgun, turned and faced the policeman, Jason Striegher who had got out of the car behind. Tom Scarborough fired at Jason Striegher, and a bullet hit the latter in the chest. Tom Scarborough then moved as if stalking prey firing further shots at Jason Striegher. A Sergeant Simon Delaney, who had got out of the marked police car in front also fired at Tom Scarborough and Tom Scarborough fired at him. As this was happening, two more police cars had come towards the scene from the south. They were stopped close by. Several more police, including four detectives, Gerard Gaul, Michael Hall, Margaret McCormack, and Danny Rukavina and a policeman in uniform, David Richards, got out of their cars and came towards Tom Scarborough. More shots were fired by and at Tom Scarborough. No policeman other that Jason Striegher was hit by a shot from Tom Scarborough. Shots fired by the police hit Tom Scarborough in the arm and loin area, and that led to his dropping the gun he had been holding. He was later found to have had a second handgun in the pocket of his jeans. Later a third handgun and considerable ammunition was located in his car.

23. Christopher Dunn is an applicant before me because of what he suffered through his involvement in the incident at Hawthorn. Seven members of the police force, namely Jason Striegher, Simon Delaney, Gerard Gaul, Michael Hall, Margaret McCormack, and Danny Rukavina and David Richards are applicants before me because of what they suffered through their involvement in the incident at Heidelberg. The ninth applicant is Karen Striegher, the wife of Jason Striegher

26. Against that background, I turn to Section 86 of the Act. What is there provided includes:

(1) If a court ... convicts a person of ... an offence it may, on the application of a person suffering ... pain or suffering as a result of the offence, order the offender to pay any compensation for the ... pain and suffering that the court thinks fit. (2) If a court decides to make an order ... it may in determining the amount ... of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose. (9D) ... each party to a proceeding under this section must bear their own costs of the proceeding unless the court otherwise determines.

30. The fact that I have not set out other provisions in s. 86 (and s.87) only means that I consider that those I have set out are relatively more important in relation to the matters of concern to me.

33. I have benefited from reading two recent decisions of judges of this court who have recently had to deal with applications under s.86. I refer to the decisions of Harper J on 23 December 1999 in Baltas and Roberts; In re Berichon [1999] VSC 551 and of Cummins J on 7 April 2000 in Gregory and Stawenga: In re Gregory [2000] VSC 190. Cummins J reviewed aspects of the history of victim compensation in this state. He also remarked on the incongruity of the current provisions, which contemplate a balance between the rights of the victim and the prospect of financially crushing the offender. I would note that that particular problem is not of anything like the same concern in the case before me as it was to him. Before me, the position is not too far from the end of the scale where one has an offender with all or most assets acquired illegally, with no dependents, facing a long prison term, who might understandably show no interest in what order is made as to those assets. That is to be contrasted with the position at the other end of the scale, where one can have an offender, with assets accrued legitimately, and with dependents, facing a low level sentencing option.

36. I turn to those matters as to the financial circumstances of Tom Scarborough that I do take into account in determining the amounts of compensation to be assessed for the applicants before me. I would first note that the position as to Tom Scarborough is made more complicated because of certain provisions in the Confiscation Act 1997. Those provisions are as to the forfeiture of the proceeds of certain offences and other "tainted property", the making of restraining orders, the management of seized and retrained assets, and the destruction or disposal of certain illegal goods.

39. Under Section 31(1) of the Confiscation Act:

"If ... property is forfeited ... under this Act ... and an order ... for compensation is made under Sentencing Act 1991 in relation to that offence ... the State must satisfy subject to sub-section (2) to the value of the property forfeited ... the order for ... compensation."

43. Subs.(2) provides a formula for adjusting in proportion what the State has to pay where the value of the property forfeited is less that the sum of orders for compensation.

46. On 31 March 1999, Judge F. B. Lewis in the County Court made an order, under section 18 of the Confiscation Act, restraining any person from dealing with property of Tom Scarborough: the Toyota Soarer PKV 882; 720 shares in AMP Ltd; 10,000 shares in Crown Ltd., and 1,000 shares in Woodside Petroleum Ltd. It was apparent from other papers before me that there were items of furniture and the like (tables, chairs, bed, bikes etc.) belonging to Tom Scarborough that had been seized and listed as "tainted property" by a magistrate. I shall refer to the three categories of items after this as "the Toyota" "the shares" and "the furniture". An invoice relating to the Toyota dated 6 January 1999 nominated a sale price to Tom Scarborough of $51,444. On 19 May 2000, counsel informed me that the shares would have been expected to realise about $33,655 gross if they had been sold on 17 May 2000. Counsel also informed me that a sale of the furniture would not be expected to realise much.

49. I turn back to Section 31(1) of the Confiscation Act. I have above italicised the words "in relation to that offence". Under S. 86 of the Sentencing Act, I am constrained to make any compensation order only for pain and suffering which is "as a result of the offence". I take those words to be linked to what is encompassed in Section 31(1) of the Confiscation Act by "in relation to that offence". There must be an appropriate nexus between the offence and the tainted property. Tom Scarborough has been convicted before this court of 13 offences. It was not suggested before me otherwise than that the Toyota was an item of tainted property which had the requisite link with all 13 counts. The necessary nexus with the applicant Christopher Dunn is in Count 9, with the applicants Jason and Karen Striegher in Count 11, and with the other applicants in Counts 11 and 12. Tom Scarborough was in or had just alighted from the Toyota at the time of each offence. The shares and furniture as items of tainted property appear to me not to have the requisite link with any offence other than the trafficking in illegal drugs. He admitted that that trafficking was his source of income. I draw the inference that he acquired the shares and furniture from the proceeds of that trafficking.

52. It seems to me that what that means is that, unless a decision of the Minister is made to take a liberal view of the requirement of an appropriate nexus relative to the shares and furniture, only a net figure of less than $50,000 from the proceeds of the sale of the Toyota is likely to be available to satisfy the entitlement to compensation of the nine applicants. During the course of submissions, Mr Freckelton, who appeared for Christopher Dunn, urged me to refrain from making an order for forfeiture as to the shares, but he could offer no ground of substance for my taking that course. I would note here, as I have noted in my sentencing remarks, that Tom Scarborough, through his counsel, has made it clear that he has opted not to take any part in the resolution of these applications, although he clearly had a right under the statute to do so.

55. I would make one further point relative to the assistance gained from perusing the decisions of Harper J and Cummins J that I have earlier referred to. It was appropriate to consider their approach to the assessment of damages in order to maximise consistency in the application of the relevant principles. It was not appropriate for me to make an assessment of compensation adjusted in any close way to those made on those applications.

58. I would also make a different point that is linked to my attempt to be relatively consistent as between the nine applicants before me. The process of dealing with applications under Section 86 is, it seems to me, intended to be simple. I was conscious of certain dangers that might lurk in this particular simplified process. My concerns included that I had no opportunity to assess individual applicants by hearing from them orally. Some may be more articulate in writing than others. Some may have a lower anxiety or insomnia threshold. Some may be seen to be more stoic. Some may more readily take time off. Some may welcome or eschew counselling or treatment, and benefit or not benefit from it. And so on. My concerns led me to sound out counsel as to my preliminary views as to relativities in compensation. My ultimate assessments are made after a review of all material before me. In most cases, I have slightly reviewed upwards my preliminary assessment. In other cases I have made no change.

61. The figures for compensation I have assessed are as follows: Jason Striegher - $45,000, Christopher Dunn - $25,000, Simon Delaney, Margaret McCormack, and Karen Striegher, each $10,000, Gerard Gaul, Michael Hall, Danny Rukavina, and David Richards, each $6,000. The resultant total of $124,000 seems neither obviously too high nor too low, having regard to what evidence is before me as to the pain and suffering of the applicants and the financial circumstances of the prisoner.

64. I am about to briefly summarise some of the matters affecting my assessment of the pain and suffering of each of the applicants. I would first note that I appear not to have been given the ages of all nine applicants. It seems that most are close to 30 years of age.

67. Jason Striegher was wounded to both sides of chest by the entry and exit of a bullet. He felt what seemed like a sudden punch to his ribs, which winded him. He then thought that Scarborough was intent on killing him. He felt a sudden gush of blood out of the wounds. He then experienced the feeling that he was being overwhelmed by intense, severe pain. He was shocked to see the reaction of other people when they saw his wounds, as there appeared to be terror in their eyes after they looked at him. He found that having others move him was extremely painful. He was distressed when he found himself in the hospital to be treated in the same room as Tom Scarborough. He found the imaging processes excruciatingly painful. He was caused stress when doctors wanted to open his rib cage. He had difficulties communicating with his brother. He had terrible dreams and nightmares in hospital. He had problems accepting needles. He became overwhelmed with depression and anger, and frustrated and anxious about the slowness of his recovery. After returning to work, he experienced a heightened alertness and mistrust of events going bad during normal policing duties. He now prefers always to wear a bullet proof vest at work. He lost his gall bladder and part of his liver. He has had to change his eating habits. He has put on weight. At time he finds it hard to take a full breath. He now has a lower level of physical fitness than before the incident. There has developed severe keloid scarring from the surgery. He is self conscious about disfigurement left by the scarring on his abdomen. He no longer enjoys swimming and surfing. He is left with a raised red scar in an L shape on front of his stomach. The scarring gets itchy, red and sore. Wearing a bullet proof vests irritates the scarring by the end of a shift. He is concerned that he may have to undergo further surgery to improve the appearance of the scarring. He may have to lose 6 to 8 weeks off work after such an operation. He has been upset by the anxiety caused to his wife Karen by his being injured. He has been told, and accepts, that he will need ongoing psychological consultations. He still has vivid memories of being chased around his car by Tom Scarborough. He feels an ongoing responsibility to his family and his colleagues in regard to protecting them from further trauma. He has experienced a considerable level of anxiety when faced with incidents that remind him of the shooting.

70. Christopher Dunn's reaction, when he was shot at, was initially one of astonishment and disbelief. Hence his sneering remarks directed at Tom Scarborough. He then became fearful that he would be shot. He suffered a soft tissue injury to his abdominal wall and right forearm. In February 1999, he was about to resume studying at the University of Melbourne. He did some study and some work later that year, but it was not until December 1999, that he was able to resume work full-time. His sleeping pattern has been significantly disrupted. He has suffered nightmares, although their frequency has diminished with time. He found that he was putting under pressure his relationship with a woman that he had been in since late 1998. He started consuming more alcohol. He had resorted to smoking cannabis on a daily basis. He finds that he is reluctant to speak about the incident. He feels agitated and clammy when recalling it. He has a residual fear of a recurrence. He finds that he thinks about the possibility of a shooting when in his car and in traffic. He experiences a desire to seek revenge. He has tended to cocoon himself. At times he is irritable. At other times he has concentration difficulties. He has experienced times of depression and of extreme agitation. A psychologist, Mr Cummins, has concluded that Christopher Dunn is suffering from a post-traumatic stress disorder and a reactive agitated depression. Christopher Dunn has been told that there is potential for a delayed reaction, and that ongoing monitoring is required. He believes that he will need either or both of psychiatric or psychological treatment on an ongoing basis. That would be costly as consultation fees per session can be of the order of $120 to $180. He may not be able to continue his studies, and that could prejudice his future employment prospects.

73. Margaret McCormack was one of the four detectives who came towards Tom Scarborough as he was shooting. She saw Jason Striegher bleeding and moving to get away from Tom Scarborough. Later she had tried to comfort Jason Striegher. She experienced shaking, anxiety and distress at the scene. Later, she experienced interruptions to her sleep. She feared for her own life while doing her work as a detective. She became nervous about living on her own. The ensuing stress led to her increasing her alcohol consumption. She became socially isolated. When on a training course, the memories of the traumatic events flooded back on her. She decided to retire, and has now retired, from the police force.

76. Simon Delaney was the driver of the marked police car that had hemmed in Tom Scarborough's car from the front. He got out and took up a position in front of his car before firing five shots at Tom Scarborough. He was aware of Tom Scarborough having aimed at him. Other police spoke of Tom Scarborough having shot at him. Simon Delaney thought that he would be shot. He was closest to Jason Striegher and saw the latter staggering. Later he had cradled and reassured Jason Striegher. After the events, he became emotional. He remained emotionally exhausted for some time and continued to suffer from disturbed sleep.

79. Karen Striegher is the wife of Jason Striegher. They were married in October 1999. They had been living together since about March 1998. She was not at the scene at Heidelberg. She had just started a full-time nursing course. She was taken to the hospital on the day of the shooting. She was upset there by various incidents relating to the treatment of Jason Striegher. After his discharge, she nursed him at home. She suffered stress, irritability, mood swings and intrusive thoughts about his life and health from nursing him, from losing sleep in doing so, and from nightmares linked to the incident. She became withdrawn, unsociable and extremely anxious. She developed a high level of need to keep in contact with Jason Striegher. She had to withdraw from her nursing course and only in 2000 was she able to resume her nursing studies.

82. Gerard Gaul was one of those who got out of the CIB car as Tom Scarborough was shooting. He saw Tom Scarborough firing his handgun. He saw Striegher staggering as if shot. He feared that Striegher was going to be killed, and that he would be shot himself. His wife is a policewoman too. They had one child and his wife was then 12 weeks pregnant with their second child. He felt gravely upset at seeing his wife traumatised by what happened to him. He was irritable at home. He suffered insomnia and had to use sleeping tablets. At work, he experienced a feeling of increased vulnerability. He became concerned about being shot himself. He also became concerned about wife being shot whilst performing her duties as a policewoman.

85. Michael Hall was another of those who got out of the CIB car as Tom Scarborough was shooting. After Tom Scarborough had fallen to the ground, Michael Hall had gone to Tom Scarborough and had kicked the gun out of Tom Scarborough's reach. As he had moved in, he could hear shots being fired, and could feel bullets zinging past him. He feared then for his own life. He later suffered exhaustion, shock and emotional anxiety. He had trouble sleeping. He took leave from work. He still suffers from a heightened sense of vulnerability and a fear of being shot. He carries a pistol all times. He has started smoking again.

88. Danny Rukavina was another of those who got out of the CIB car as Tom Scarborough was shooting. He then felt terrified, and feared for his own life. He was traumatised by seeing Striegher bleeding. He broke down when he was being interviewed by the police psychologist. He then took 4 weeks leave. He felt that he could have done more, and was critical of himself for not discharging a bullet. He became irritable and suffered sleeping problems.

91. David Richards was also moving towards Tom Scarborough as the latter was firing at the police. He then feared for his own life. Immediately after the shooting, he felt sick and exhausted. He went to see his doctor and he took leave from work. After resuming work, he felt fearful performing normal duties. Later he suffered from sleeplessness and intrusive thoughts. He found that he could be easily upset, and that he had developed an edginess and anxiety dealing with public. He took to wearing a ballistic vest more often, and he became more vigilant and irritable.

94. I have chosen to make "otherwise" orders as to costs. I might not have been disposed to do so if eight of the nine applicants had not chosen to use the same solicitors, a course that had two advantages. It kept costs down. It also maximised the prospect of relative consistency as between most of the applicants.

97. I order that Tom Scarborough pay compensation for pain and suffering as assessed above. I further determine that the costs of the applicants of this proceeding be taxed and borne by Tom Scarborough.