Summers v Dougherty & Anor [2000] QSC 365

Supreme Court of Queensland|2000-10-19|Before: White J

[1] WHITE J: There are three applications before the court for criminal compensation pursuant to Part 3 of the Criminal Offence Victims Act 1995 ("the Act") in respect of injuries suffered by each applicant caused by a personal offence committed against each applicant by the respondents.

[2] The applicants are Mrs Lynette Joyce Summers on her own behalf and as litigation guardian for her two sons, Christopher James Summers, born 11 June 1983, now aged 17 years and Joshua Trent Summers, born 13 March 1986, now aged 14 years. Mrs Summers' husband and the boys' father was awarded compensation in respect of the same incident on 8 September 1999 in the sum of $30,000.

[3] The respondents have been served at Woodford Prison and have not appeared. The Public Trustee was notified of the applications but confirmed by letter dated 12 October 2000 that the Public Trustee had discontinued management of the respondents' affairs as of 24 September 1999.

[4] The respondents pleaded guilty on ex officio indictment before me on 15 August 1998 to charges of housebreaking, armed robbery in company with personal violence and assault occasioning bodily harm whilst armed and in company. They pleaded guilty to further offences of unlawful use of a motor vehicle belonging to Mr Summers and possession of a large quantity of the dangerous drug methylamphetamine which are not personal offences for the purposes of the legislation.

[5] The respondents were sentenced to 8 years imprisonment in respect of the offence of robbery and lesser concurrent terms for the other offences. The armed robbery and assault offences were declared serious violent offences pursuant to s 161A of the Penalties and Sentences Act 1992. The sentences imposed were not disturbed on appeal. A third person was involved in these offences but has never been apprehended. Because of concealing clothing the witnesses were unable to say which assailant did what acts. The respondents were sentenced on the basis of the equal culpability of all three assailants.

[6] This was a particularly bad example of a home invasion and has had long-lasting consequences for the family both emotional and financial.

[7] The respondents and their accomplice believed that significant quantities of drugs and cash could be located at the Summers' address, and, being in need of funds, decided to invade the home and take what they could. The prosecution case on sentence, if it were relevant, was that the Summers were innocent of any illegal drug dealing. The prosecutor mentioned that a person, Browning, whom the Summers had recently befriended and allowed to live with his wife in a flat in a shed on their 10 acre property at Boreen Point was to plead guilty to drug offences.

[8] At about 8.15pm on Monday 8 December 1997 Mrs Summers was talking with Mr and Mrs Browning at the shed where they were then living. The Summers' younger son, Joshua, was with his mother. Their daughter, Rebecca, was away at school camp and Christopher, the eldest child, was helping his father who operated a commercial contract cleaning business. Mr Summers and Christopher arrived home in the work van and Christopher went to join his mother at the shed which was adjacent to the carport and near to the house. One of the three assailants, all of whom wore balaclavas and dark clothing, after verbal warnings, attacked Mr Summers from behind by striking him on the side of his head with a rifle. He was thrown to his knees and hit in the face with the butt of the rifle. Mrs Summers, Christopher and Joshua were ordered into the shed at gunpoint aware of what was happening from shouting and sounds of physical abuse levelled at Mr Summers. One of the assailants pointed a gun at the occupants of the shed and threatened to blow their heads off if anyone moved. He pointed his gun at Joshua and ordered him into a corner and motioned for Christopher to join him. When a family dog started to growl the gunman threatened to shoot it if it was not silenced.

[9] In the meantime, Mr Summers was bound with duct tape and marched into the house with a rifle barrel under his chin. Mrs Summers was called by her husband and went outside leaving the Brownings and the children with the gunman in the shed. When his mother left Joshua looked up and the gunman said, "Get your fucking head down before I blow your brains out". The child was seen by his older brother to be terrified and shaking.

[10] Mr Summers was taken to a wall safe in the house, the kitchen having been ransacked, and repeatedly hit about the head. The barrel of a rifle was put into his mouth, the bolt was cocked and he was threatened that his brains would be "splattered" over the wall if he did not open the safe. One assailant threatened to shoot Mrs Summers. A further threat was made to Mr Summers by pushing the barrel of a gun into his eye. Demands for drugs were made and the rifle again rammed into Mr Summers' mouth. Finally, one assailant appeared and had apparently found the drugs. After further threats to Mr Summers the assailants obtained the keys to his work van. The occupants, including the children, were threatened with death, if the police were called after the assailants left. They then left in the van.

[11] In fact, Christopher had been able to make contact with the police by phone during the invasion and they arrived in time to intercept the van. The three assailants ran off into the bush and in due course the Dog Squad police located the two respondents. The third assailant escaped, as I have mentioned, and he has not been apprehended. Weapons were found in the car, loaded and in working order. The rifle used against Mr Summers had a bullet cocked in the chamber ready to fire. Jewellery, $1000 in cash and 81.65 grams of methylamphetamine worth approximately $160,000 were recovered from the car.

[12] The results of the attack have had very serious consequences for the family. Mr Summers' physical symptoms took about three months to heal but the psychological sequelae were continuing at the time I dealt with his application for compensation in June 1999. He had previously been a hardworking man who employed a number of people in his cleaning business. He became deeply fearful, withdrawn and anxious, suffering serious depression. He was unable to continue in his business. Indeed, contracts were lost because of some associated drug stigma. His marriage faltered and his relations with his children were impaired. Family finances were eroded in sending the children to relations in Melbourne, by installing sophisticated security equipment at the property and by his inability to work.

[13] After these events and before the sentence hearing the family received many life-threatening telephone calls including not to give evidence. The police would appear to have had little or no success in tracing those calls. A significant concern for the whole family has been the knowledge that one assailant is still at large. Mr and Mrs Summers have come to the realisation that they will never recover if they remain in their present home and when they are financially in a position to do so they will complete renovations and move to another part of Queensland. So great was the ongoing fear and concern of Mr and Mrs Summers that their Melbourne relations came to live nearby at the north coast to assist them.

[14] Mr G Grantham, a clinical psychologist, described Mr Summers as falling into the upper range of trauma victims with a severe level of disturbance. Treatment over approximately a year would be necessary to attempt to restore him to a normal functioning person.

[15] Although Mr Summers' application has been concluded it is necessary to mention the consequences to him because the three applicants presently before the court must be seen in the family context. I will mention each individually against this background. First something should be said about their entitlement to bring these applications. Section 24(2) of the Act provides that "the person against whom the personal offence is committed may apply to the court . . ." The ex officio indictment mentions Mr Summers as the person against whom actual violence was perpetrated. Violence was specifically offered to the three applicants personally in the course of the respondents carrying out the robbery. In the context of s 24(2) and bearing in mind the remedial nature of the legislation their entitlement to apply for compensation is not excluded by reason only that they are not named in the indictment. Although somewhat differently worded, the previous legislation (s 663B of The Criminal Code) was so interpreted in R v Callaghan and Fleming, ex parte Power [1986] 1 Qd R 457 and approved in R v Moors, ex parte Alex [1994] 2 Qd R 315.

[16] The legislature has provided that the maximum amount of compensation should be reserved for the most serious of cases. In other words, a degree of proportionality must prevail. Schedule 1 to the Act sets out particular injuries and allocates a percentage range for those injuries which represents a percentage of the maximum sum which is $75,000. Items 31, 32 and 33 relate to mental or nervous shock, minor, moderate or severe respectively.

[17] Section 20 defines "injury" as "bodily injury, mental or nervous shock ...". There is no definition of "mental or nervous shock" but s 22(3) provides that compensation "is not intended to reflect the compensation to which the applicant may be entitled under common law ...". As Thomas JA observed in Ferguson v Kazakoff [2000] QSC 156, unreported decision of 6 June 2000 (in the Trial Division) the scheme of the Act is to provide for payment of compensation to a claimant for the injury suffered by the applicant because of the offence and will not correspond to the approach to the assessment of damages for nervous shock in tortious claims. This, as his Honour observed, requires that something more than a normal human reaction or emotion must be demonstrated after a stressful event. His Honour said at para 21

"Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions."

His Honour was there referring to fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions. To that might be added, if those reactions pass after a reasonable length of time.

[18] Mrs Summers was born on 22 August 1963. She provided statements to police and a victim impact statement to the court on sentence. Her statement gives an appreciation of some of the issues felt by her close in time to the events.

"It's really difficult to describe in words the effects we have all been left with, and how we as a family and individuals are trying to put it to rest in our lives. It's not as easy as putting on a bandaid to heal the wound. The permanent scare [sic] will always be with us. Due to this violent crime inflicted on my family we have been left with fears and insecurities with everyday normal life in which we once had. We feel like we are the ones living in our own prison. Left with physical, mental, emotional and material losses. My two children and myself witnessing the brutal attack on their father. The feeling of helplessness being held hostage at gunpoint. We thought our lives were over but the life we have been left with is not what you would want to live in either . . .

Trying to rebuild our security as a family we once had has been the most difficult and stressful event we have all had to deal with. We have put in a security system putting panic buttons next to our beds, carrying remote devices outside, locking up our front gates with chains and padlocks, locking doors and windows. We have had threatening phone calls after this event. Neighbours have reported unknown cars out the front of our property."

[19] Mrs Summers consulted with Mr G Grantham for a medico-legal report on 4 November 1998 and 9 January 1999. He interviewed Mr Summers and Christopher and Joshua. Mrs Summers had the following symptoms decreasing in severity over time:

* From the outset she had a feeling of guilt at having introduced the Brownings into the family home. As a consequence she cried continuously although that has now reduced.

* Mrs Summers and her husband remained living in the house for a time after the incident but they feared of a recurrence of the incident and became supervigilant, Mr Summers walking the house every day with a gun in his hand; they had an expensive alarm system installed with panic buttons; the house was locked at night; they purchased guard dogs; and for a time there was a patrol of their property by a security service. The level of fear has abated somewhat although Mrs Summers is still fearful in her own home.

* She continues to have memories of the attack although they have reduced over time.

* Initially Mrs Summers experienced nightmares about twice a week involving members of her family being shot. She would awake petrified and had difficulty relaxing. That has abated.

* She suffered depression and continues to do so, feeling despondent and unhappy about her life and how it has changed her family.

* She continues to feel very angry towards the people involved and the effect that the invasion has had on them although she concedes that that emotion has now reduced.

* Prior to the invasion she believed that she and her husband had a "healthy normal relationship" but it has now been scarred to the extent that she has felt like leaving the marriage on a number of occasions.

* Prior to the incident she was a social drinker but since the invasion, in the evenings, in order to reduce her anxiety and fear she drinks to alleviate the stress.

* She and her husband were socially outgoing and involved in the sporting and school activities of their children but she has now become a recluse and avoids being involved.

[20] Mrs Summers' healing has progressed more rapidly than that of her husband and she has found this difficult to deal with. On one occasion she found him intoxicated, suicidal and with a gun and this frightened her greatly. Mr Grantham concluded in his report that Mrs Summers' symptoms correspond to those typically reported by trauma survivors and that she suffered and was continuing to suffer, as at 12 January 1999 (the date of his report) from Post Traumatic Stress Disorder. Mr Grantham describes her situation

"Rather than having the role of mother in a normal family Ms Summers is now the traumatised mother in a largely dysfunctional family."

Mr Grantham noted that Mrs Summers has progressed further than her husband and that if she were financially able to do so she would be assisted by treatment. She wishes to do so. Mr Grantham recommended a psychologist on a weekly basis for about three months at a cost of $130 per session. There is, even with treatment, some possibility of long-term psychological problems. Mrs Summers is particularly concerned by the level of disturbance in the younger boy, Joshua, and the slow recovery of her husband.

[21] Mrs Summers' responses to the home invasion are attributable to the threats to her own life. That they are also attributable to the physical acts of violence which she heard and saw inflicted upon her husband and the threats to her two children does not lead to any reduction in the award. She was not in the position of a mere bystander, R v Callaghan and Fleming; ex parte Power; supra.

[22] I am satisfied that Mrs Summers' response to the injury inflicted upon her as a consequence of the unlawful acts of the respondents constitutes mental or nervous shock for the purposes of being awarded compensation under the Act. Her injury places her within the moderate category of mental or nervous shock which provides for a range of 10-20 per cent of the maximum. The appropriate award is 20 per cent of the maximum which is $15,000.

[23] At sentence no distinction was made between the conduct of the respondents and that is the appropriate approach to the question of compensation. Section 26(5) provides that a single compensation order may be made against more than one convicted person and s 26(6) provides that the order may provide for separate and joint liability. In my view both respondents should be made separately and jointly liable for the amount of the order.

[24] Christopher was aged 14 at the time of these events. He was personally threatened by the gunman who pointed the gun at him and told him that he would be killed unless his instructions were carried out. He was next to his brother when he looked up and the gunman had told him to get his head down before he blew his brains out. He was with the family dog when the gunman threatened to shoot him unless it stopped making a noise.

[25] In his affidavit he said that his feelings during the incident were a combination of fear, anger and alarm. He was very worried for his brother Joshua as he was distressed, screaming out and curled up on a chair. The next day he was frightened and did not want to stay in the house and was pleased that he was able to go to Melbourne to stay with relations for several weeks. He continued to be very afraid on his return and slept in his parents' room. Even now he ensures that his bedroom window is locked, the curtains drawn and his door shut each night - things that did not concern him prior to the invasion.

[26] He continues to suffer from nightmares which are a recurrence of the incident and he wakes up anxious and terrified. Originally he believed that they were real and he would be in a sweat. He now accepts that it is only a dream but he has great difficulty in settling. He is of the view that over time his anger and fear have reduced although they are still present. He is more vigilant and fearful particularly at night. There were other consequences for Christopher of the home invasion. He had problems at school following the invasion to the extent of being involved in three fights and almost being suspended. His relationships with his peer group deteriorated significantly but have gradually improved.

[27] When he saw Mr Grantham a year after the invasion he rated his fear factor for going outside alone at night at 90 per cent. His comfort zone at home had deteriorated and although he does not actually wish to move he enjoys being home much less than previously. He did not seek treatment after the invasion and has no desire to do so and remains optimistic about his future. The impression that is gained from reading his affidavit is that he does not wish to admit to enduring adverse consequences of the invasion. However Mr Grantham concluded that in the early months after the attack Christopher may have been diagnosed as suffering from Post Traumatic Stress Disorder had he then been assessed. Because he has gained insight into his earlier behaviour he has been able to deal with it and was less disturbed than earlier. Whilst Mr Grantham concludes that Christopher has a good prognosis if there is no form of retaliation by those who perpetrated the attack or their associates, nonetheless he is a member of family whose functioning has been severely curtailed and in a very different situation to that in which he lived earlier and is one that may change only slowly and partially.

[28] Christopher suffered moderately from the terrifying attack both on himself and to those closely around him. He experienced mental or nervous shock for a period of about six months following the invasion. Thereafter he has been recovering. In my view he falls to be considered under Item 31 of the Schedule, that is for minor mental or nervous shock. I would place him at the upper end of that range which is 10 per cent of the maximum and award him $7,500.

[29] The respondents were equally responsible for the injuries which were inflicted upon him consistently with the approach taken on sentence. Both respondents should be made separately and jointly liable for the amount of the order.

[30] Joshua was 11 at the time of the invasion. He deposes in his affidavit to the facts which have already been canvassed. He says that he was very distressed and upset after the men left and continued to have trouble sleeping and cried a lot. He was anxious and worried about being safe. His mother deposes that after the gunmen left "Joshua was a mess". She said that he had curled himself up and was screaming and inconsolable, not even letting his mother near him. The child believed that he was going to be killed. Joshua remained with his parents when the other two children were sent to relations in Melbourne because of his delicate and emotional state. Because his parents were unable to assist him due to their own trauma he, too, was sent to Melbourne.

[31] He was having a great deal of trouble sleeping and was crying all night so was taken to see Mr Gregory Bell, a psychologist, on 22 December 1997 and again on 2 February 1998. Mr Bell stated

"Joshua was witness to a traumatic incident in which he feared for his life and for the life of those he loved. This is the major criteria for mental disorders such as Acute Stress Disorder and Post Traumatic Stress Disorder as outlined in The Diagnostic and Statistical Manual 4th edn, DSM IV. His belief that he could die or that family or pets could die is most significant. In my opinion the brief therapy Joshua received was most inadequate for the type of trauma he endured."

Mr Bell noted in his report of 6 November 1998 that Joshua experienced recurrent images and distress over reminders of the traumatic incident and reports from school indicated that he was having difficulty in socialising with other children. Mr Bell noted that he required more therapeutic intervention but it was not forthcoming due to financial constraints. He concluded

"Although Joshua's mother reported that he gained benefit from my treatment I was deeply concerned about his prognosis, which I would have described, at best, as guarded at the time."

[32] Joshua was interviewed by Mr Grantham for a medico-legal report in early January 1999. He told Mr Grantham that during the 1998 school year he had gone from being near the top of his class to being about halfway down out of 30 and that his schoolwork had slipped significantly. So great were his problems at school that his mother considered moving him to a different school but this would involve considerable difficulty. Mr Grantham reported that Joshua has an ongoing significant fear of harm, even finding it difficult to separate from family members to go into the kitchen during the daytime. He would like his family to move from their home. A year after the invasion he was recording a high level of fear in almost every situation. The only place where he felt moderately safe was at school. He continued to have sleep disturbances and nightmares and consequently felt very tired in the morning. Mr Grantham notes that children can experience depression and in his opinion Joshua so suffers. He has occasionally spoken of suicide. He told Mr Grantham that he would like to begin therapy with Mr Bell if the family could afford for him to do so. Mr Grantham concluded

"There appears to be every indication that Joshua's symptoms will recede only gradually and it cannot be assumed that a point will be reached at which his emotional wellbeing and progress in life will return to the state that might otherwise have prevailed. Mr Bell is `deeply concerned' about Joshua's prognosis and reports that: `Children exposed to this sort of trauma can sometimes develop debilitating phobias and obsessions later in life'."

[33] In light of the evidence of the two psychologists as well as that of Mrs Summers, I conclude that Joshua suffers from mental or nervous shock of a severe kind and would fall within Item 33 in the Schedule. The percentage of the maximum for that item is 20-34 per cent. I would award Joshua 30 per cent of the maximum which is $22,500. As is the case with the other applicants, the respondents were equally involved in inflicting the personal injury upon Joshua and pursuant to s 26(5) and (6) both should be made separately and jointly liable for the amount of this order.

[34] The orders are that the respondents being persons convicted of indictable personal offences pay compensation jointly and severally to

(i) the applicant Lynette Joyce Summers in the sum of $15,000 for the injuries suffered by her because of the offences;

(ii) to the applicant Christopher James Summers in the sum of $7,500 for the injuries suffered by him because of the offences;

(iii) to the applicant Joshua Trent Summers in the sum of $22,500 for the injuries suffered by him because of the offences.

[35] I will hear submissions as to whether any amount recovered from the respondents in respect of the two children be paid to the Public Trustee.

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