Re An Application Under the Criminal Injuries Compensation Act 1983 and Gavin Richard Whittle [1994] ACTSC 59 (22 June 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND GAVIN RICHARD WHITTLE
No. CIC45 of 1991
Number of pages - 4

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MASTER A HOGAN

HEARING

CANBERRA, 9 June 1994
22:6:1994

Counsel for the Applicant: Mr Z Gabriel

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
An interim award of compensation be awarded to the applicant in the sum of $10,000.00.

DECISION

MASTER A HOGAN This is an application for compensation under the Criminal Injuries Compensation Act 1983.

2. On 12 October 1990 Mark Edward Saunders was indicted in this Court on two counts of armed robbery, two counts of kidnapping, and, in the alternative, two counts of false imprisonment. The victims of the offences were the applicant, then aged 16, and Paul Anthony Goodwin, aged 15.

3. Saunders pleaded guilty to four of those counts, and on 28 November 1990 was sentenced on each count to twelve months imprisonment, suspended upon his entering into a recognizance to be of good behaviour for two years.

4. The circumstances of the offences were set out in a statement to the Court on the sentencing hearing as follows:
"Monday 24 April 1989 Paul Anthony Goodwin who was then 15 years of

age caught a bus after school to his friend's place. This friend
was Gavin Whittle. Gavin at the time was 16 years of age. They
both then went over to Gavin's girlfriend's place in Holt. They
were riding bicycles and got there at approximately 5.30 pm and
remained there until about 12.30 am.
They left the girlfriend's house and went over to another friend's
place in Holt and remained there for a short period and then rode
back towards Gavin's house in Flynn. They rode to the end of a
bridge on Kingsford Smith Drive, just north of Ginninderra Drive,
that is just past the intersection of Ginninderra Drive and got off
their bicycles and walked with them as the road was uphill at that
stage.
Gavin was in front of Paul and he turned as they entered into
Companion Crescent and saw the accused walking behind Paul. Paul
turned and saw the accused about two metres behind him and he
turned back and went to get on his bicycle just as the accused
grabbed him around the chest from behind and his right hand came
around in front of his neck and Paul saw he was holding a bayonet.
The accused said "tell your mate to come back here without turning
around", or words similar to that. Paul called out to Gavin and
the accused repeated "don't turn around". Gavin walked back to
where Paul was and the accused held the knife to Paul's throat and
told Gavin to put his bicycle down and stand alongside Paul.
The accused then placed the blade of the bayonet against the throat
of both Paul and Gavin and said "give us your money". Gavin
replied that he had none, and Paul replied likewise. The accused
said "bullshit".
The accused then patted down Paul's shirt and jeans pocket with his
left hand whilst still holding the knife to their throats. He then
changed hands with the bayonet and patted Gavin's pockets with his
right hand. The accused emptied Paul's pockets and took a pocket
knife about 4 centimetres long with the blade folded in. He also
took a yellow plastic disposable cigarette lighter and a piece of
paper. When he went through Gavin's pockets he took a maroon
cigarette lighter and a pocket knife and bus tickets from him.
The accused then told both Paul and Gavin to kneel down and they
both got down on one knee whilst he still held the bayonet to their
throats. The accused said "you both carry knives, I suppose you
both think you're tough". Gavin replied that he had received his
knife as a present from his girlfriend and Paul said that he
carried the knife merely because it was the thing to do. As they
were kneeling Gavin said that a taxi drove past and the accused
said "I bet you were hoping that was the cops, weren't you?". The
accused then told them to stand up and turn around and as they did
this he walked behind them with the bayonet still across their
throats and talked as to how easy it had been for him to sneak up
on them and made reference to how poor their knives were compared
to his. He asked what time it was and was told that it was two
minutes past two and then made them walk into the garden area of
the first house in Companion Way. They were then taken into the
garden behind a bush and were told to kneel down and the bayonet
stuck into the ground between them. The accused went and brought
their bicycles in behind the bushes. At the time each of the boys
said that they were scared and did not attempt to run as the
accused was standing directly behind them and was able to take up
the knife.
The boys were then ordered to stand up and the three climbed over a
brick wall into a paddock and the accused walked behind them
holding the knife to their throats. When they were approximately
20 metres from the house they were told to sit down and take all
their clothes off. They did this and were then told to throw them
in front of them and each was stood up by the accused holding the
knife underneath his throat. The accused then said three to four
times "that's your last prayer?". The accused told them that the
bayonet was from a .308 rifle and that he had another which was
shinier and sharper.
Following this there was a sound from the house behind them like a
door opening and the accused told them to put their clothes on and
they were taken back to where their bicycles were. Previously he
had, when they were seated behind the bush in the garden of the
residence in Companion Way, made them take off their shoes and
socks. These were also back with the bicycles.
The accused then told them to cross Kingsford Smith Drive into the
area known as Baringa Gardens or Melba Flats. He kept hitting
Gavin's bicycle and punctured the back tyre. The accused took them
to a particular flat which had the panel alongside the door knocked
out. The flat was empty and appeared to be derelict. Inside the
flat he made them strip off their clothing and stand up against the
wall. He then made them do what Gavin described as "quite stupid
things" such as lying on top of each other without any clothes on
and he then stabbed the bayonet into their shadows in the wall. He
made them lie down on their backs and put their jeans over their
eyes and asked how they felt. They replied "pretty scared". He
then said to Gavin words to the effect "how would you like to see
your mate's head cut off?" and Gavin replied that he wouldn't.
The accused knelt over the top of Paul and put one of his hands on
his chest and placed the knife between his fingers onto his skin
pressing into the skin, and said something unintelligible except
for the word "kill". Paul said "please don't".
The accused then said to Paul "I'm going to cut off your balls and
have them in your mouth". He then put the knife under Paul's
testicles and took the knife away. He continued to stab holes in
the wall at the time. He then told them to roll on their sides
facing each other and get as close as they could and they both did
this and he said to them "what are you, poofters or something?"
They advised him they were just doing what he had told them to do.
Some stage the accused had been hitting each of the youths with the
bayonet and he hit Paul at the back of the knees saying "I bet I
can make your knees bend" and cut the right knee of Paul.
He had earlier invited Paul to run the bayonet through his, the
accused, head. He repeated this three or four times and Paul
declined on each occasion.
When they were dressed they were told to sit down and face the wall
and the accused then talked to them about Ginninderra High School
which he said he had attended. He said that he was depressed and
that his father who was a sapphire miner had been murdered with a
pick and that he, the accused, was overseas when his father was
killed. The accused had told them that he wasn't a homosexual but
he was only doing what he did to each of the youths to make them
feel uncomfortable. He said that he had hated his mother and the
youths kept talking to him in an endeavour to calm him down. They
indicated that they wouldn't tell the police. During the course of
his time in the flats the accused continued to punch holes in the
wall and stab it with the bayonet.
The accused told them to fully dress and get out of the place.
They did so and rode off on their bicycles. Gavin indicated that
the accused smelt strongly of alcohol and body odour.
The youths were too frightened to tell anybody of the matter and on
Wednesday Gavin went to the Ginninderra High School where he spoke
to an old teacher of his who the accused had mentioned in the Melba
Flats on the Monday night and the teacher told him the name of the
accused."

5. As a result of the assault the applicant received a number of minor physical injuries, such as bruising to the back of the leg, which healed quickly and normally without medical attention.

6. He suffered anxiety, nightmares, compulsive recall of the attack, poor concentration, and feelings of humiliation and degradation.

7. He left school at the end of 1989, and started to drink and smoke heavily. He began an apprenticeship, but lost it and his job. He returned to school but was unable to concentrate. He became phobic about his naked body, and could not shower or go to the toilet where other boys were. He became depressed and irritable.

8. He did not receive any therapy. His solicitor referred him to Dr Veness, psychiatrist, for a report. Dr Veness diagnosed a continuing post traumatic stress disorder, and strongly advised him to seek treatment, which he expected would require intensive psychotherapy over a period of up to three years. Success could not be assured because of the lapse of time before beginning treatment.

9. At the hearing of the application I was informed that Counsel for the applicant and Counsel for the Territory had agreed that an appropriate sum to be awarded in respect of pain and suffering was $14,000.00.

10. However, for the reasons set out in my decision in the application of Lindy Marie Thompson (CIC 31/89), handed down on this same day, I think it is necessary for the Court to make its own assessment of the proper amount to be awarded.

11. There is no evidence whether the applicant has taken or intends to take Dr Veness' advice about treatment. On the basis of his report dated 6 April 1994 the future health of this applicant is too uncertain to enable a proper final assessment to be made.

12. I therefore make an interim assessment of $10,000.00. A final determination may be made when the the prognosis is more certain. The expenses of bringing the application may also then be finally determined.