Re An Application Under the Criminal Injuries Compensation ACT and John Charles Mcniel Kerruish [1995] ACTSC 119 (10 November 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
AND JOHN CHARLES McNIEL KERRUISH
No. CIC 232 of 1993
Number of pages - 4
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Armed robbery - Post Traumatic Stress Disorder.

HEARING

CANBERRA, 26 October 1995
10:11:1995

Counsel for the Applicant: Mr A. Bradbury

Instructing Solicitors : Sly and Weigall

Counsel for the Territory: Mr K. Holmes

Instructing Solicitors : ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. Compensation be awarded to the applicant of $12,822.00

DECISION

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

2. The applicant was working as a service station console operator at the BP Braddon Service Station when it was robbed by two men on 21 February 1993. Brian John Wurth and Paul Nicholas Applin were subsequently apprehended and charged with offences relating to the robbery. On 6th September 1993 Wurth was convicted in this Court on one count of armed robbery and on two counts of theft and sentenced to a term of three years imprisonment, to be released after six months and upon entering into a recognizance of $2,000 to be of good behaviour for two and a half years. On 7th February 1994 Applin was convicted in this Court on one count of armed robbery and on one count of intentionally and without lawful excuse damaging property and sentenced to a term of four and a half years, to be released after eighteen months upon entering a recognizance of $3,000 to be of good behaviour for three years.

3. At the time of the robbery the applicant was studying at university, and had worked at the service station for approximately two and a half years. The robbery took place at approximately 6.45 a.m., not long after the applicant had commenced the morning shift. The offenders entered the service station and asked the applicant if there was any food. He directed them to the pie warmer which was just behind him. They approached and felt the pies, which were wrapped in plastic. After passing some criticism on the state of the food on offer, Wurth turned towards the applicant and produced a 10cm knife which he brandished in front of him, and demanded the till be opened.

4. The offenders took the money from the till and stuffed it into their pockets. At this time the applicant noticed a bread knife in the pocket of one of the men. Wurth then turned back to the applicant, who had by this stage backed himself into a corner of the console, and demanded to know where the rest of the money was kept, all the while waving his knife before him. The applicant indicated the change drawer under the front counter, which was also emptied by the offenders.

5. At this point Applin left the shop. Wurth remained behind and demanded to know where the safe was. He was at this point holding the knife 10cms from the applicant's chest. The applicant directed him to the floor safe, but was unable to open it because he didn't know the combination. Wurth was by this stage becoming increasingly agitated and aggressive. He took a hammer from a nearby shelf and commenced to strike the door of the safe. He again approached the applicant, holding the hammer in one hand, the knife in the other, and demanded that the safe be opened. At this point he noticed the security camera, which he smashed with the hammer. He threatened to "come back and blow (the applicant's) brains out" if there were any repercussions.

6. At this point another customer entered the shop, and Wurth left the service station. The applicant was able to push the hold-up button, and the police arrived soon after.

7. Throughout the attack the applicant was terrified and feared for his life and safety. He spent the day of the robbery helping the police with their investigations, and stayed with his parents that night. Although his sleep was satisfactory that first night, it became increasingly disturbed over time, with recurring nightmares in the following 3-4 months, and insomnia during which time the applicant replayed the robbery in his mind. While he still experiences nightmares, they have become less frequent and do not always focus on the actual robbery but may merely feature, for example, one of the offenders in some way.

8. He was unable to work for two weeks, and returned with great reluctance from sheer financial necessity. He ceased working nightshifts, and resigned altogether in September 1994. He reports experiencing frequent anxiety and panic attacks in the months following the robbery, not only at work but in other emotional situations. They have also occurred without any apparent stimulus. While still occurring they have become less frequent, especially so after resigning from the service station.

9. He began to experience periods of depression and stopped socialising, which is something he had done frequently prior to the robbery. When he did go out he drank excessively, which he had not done previously, and his use of cigarettes doubled.

10. His relationships with his parents and friends became strained. He felt that although people were generally sympathetic they didn't really understand what he had gone through, and so it seemed easier to be on his own.

11. His studies were affected. Prior to the robbery he had not failed any units, but failed a unit in the first semester of 1993. He reports receiving unsatisfactory results in several pieces of work, and having difficulty concentrating.

12. In September 1993 he consulted Dr Hugh Veness, consultant psychiatrist. In his report of 12 March 1994, Dr Veness concluded the applicant to have suffered a post traumatic stress disorder. His summary of the applicant's condition reads as follows:

Mr Kerruish displays typical post traumatic stress syndrome
symptoms consequent upon an armed hold-up. Like many victims,
he has been plagued by repetitive replays in his mind about the
incident although the frequency of this has diminished with time
as have his recurring nightmares. Other aspects of his anxiety
have not. At the time I saw him in September 1993 he had a well
established phobic reaction to the workplace where his traumatic
stress occurred. This kind of anxiety state I find does not
usually diminish with time but may increase to the point where
the phobia extends to other situations. Indeed we find this is
the case with Mr Kerruish for he was becoming socially phobic,
reluctant to go out and to mix with other people. This is why I
suggested at the time that he seek immediate treatment.
Although it is certainly not beyond the realms of possibility
that his anxiety problems could fade away spontaneously, in my
experience this is an unlikely outcome. Early intervention
might help him overcome the worst of his anxieties within six
months but it is not infrequent for victims of armed hold-ups to
have increasing levels of anxiety and extensions of their
phobias, despite treatment. Some victims just get more and more
afraid of the workplace until they can no longer go, even when
they have the strong motivation of having to earn money to
survive. If he still has the same level of anxiety problems (or
more) within six months of the time that I saw him in September
1993 then he is likely to be stuck with them for years and will
need supportive psychotherapy as well as desensitisation
procedures, requiring to see a therapist (preferably a clinical
psychologist) for up to forty hourly sessions spread over two
years.

13. Dr Veness referred the applicant to John Mitchell, clinical psychologist, for Post Traumatic Stress Counselling. He first saw Mr Mitchell on 26 November 1993, and attended for three weekly sessions until 17 December 1993, when he cancelled his next appointment. He gave as his reason for cancelling treatment the fact that it was distressing to be constantly re-living the trauma of the robbery, when all he wanted to do was be able to forget it. He describes that period of counselling as being "like a nightmare". In his report of 13 April 1994, Mr Mitchell expressed the opinion that the applicant required further treatment to address the trauma associated with the robbery.

14. The applicant has since completed his degree and has been able to take on several computing contracting jobs. He reports in his affidavit being happier now he has started work and need no longer go back to the service station where the robbery occurred. His relationship with his parents has improved, as it has with some of his friends.

15. The anxiety attacks are less frequent and the depression has lifted to a large extent, although he claims to be a less happy person than he was before the robbery.

16. In his affidavit the applicant asserts a desire to have the incident finalised once and for all. In the absence of evidence to the contrary, it may be inferred from this statement that he will not pursue further treatment, preferring instead to get on with his life as best he can.

17. I agree with the assessment of his solicitor and counsel for the Territory that $12,000 is an appropriate sum to compensate him for his pain and suffering.

18. The costs of bringing the application were $822.

19. I award compensation to the applicant of $12,822.