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  • Unreported Judgment

O'Neill v Holmes

 

[2007] QSC 77

 

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Trial Division

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

DELIVERED ON:

5 April 2007

DELIVERED AT:

Brisbane

HEARING DATE:

Heard on the papers

JUDGE:

Wilson J

ORDER:

1. That the first, second, third and fourth respondents pay the applicant $20,625 because of the injuries she sustained when they assaulted her on 10 January 2003;
2. Declare the respondents jointly and severally liable for the payment of that compensation;
3. No order as to costs (including no order as to the costs reserved on 2 March 2007).

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – the applicant suffered physical and psychological injuries following an assault by the four respondents – assessment of compensation

Criminal Offence Victims Act 1995 (Qld) s 19, a 21, s 22, s 24, s 25, s 26

Criminal Offence Victims Regulation 1995 (Qld) s 2

Hicks v The Minister for Justice and Attorney-General [2005] QSC 44, cited

Hohn v King [2004] QCA 254, cited

MR v Webb [2001] QCA 113, cited

R v Morrison, ex parte West [1998] 2 Qd R 79, cited

RLH v Curtis [2001] QSC 137, cited

Zaicov & McKenna v Jones [2001] QCA 442, cited

COUNSEL:

Anton Maher for the applicant

John McDonald (solicitor) for the first, second and fourth respondents

No appearance for the third respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

John McDonald for the first, second and fourth respondent

No appearance for the third respondent

[1] Wilson J: This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (Qld).

[2] The four respondents were served with the application and supporting material, as was the Public Trustee. The first, second and fourth respondents made submissions by counsel, but the third respondent took no part in the proceeding.

[3] In early January 2003 the first respondent Holmes gave the third respondent Farthing $3,500 in cash to buy cannabis for him. Farthing gave the money to Kerry Palmer, who absconded with it. The four respondents then embarked on a course of conduct designed to locate Palmer and teach him a lesson by assaulting him. That conduct ultimately extended over a three week period and ended in Palmer’s being killed. The four respondents were convicted of Palmer’s manslaughter and of a number of other related offences.

[4] The day after Palmer absconded with the money, the applicant was assaulted. She was lured to Farthing’s home in the early hours of the morning to be questioned about Palmer’s whereabouts, and subjected to abuse, intimidation and threats; a cord was tied around her neck and tightened; one of the respondents put his hand over her mouth; she was punched in the left eye with a fist; she was held by the cord around her throat.

[5] Three of the respondents (Holmes, Bargenquast and Davis) were found guilty of assault occasioning bodily harm with circumstances of aggravation, namely being in company and being armed, and sentenced to two years imprisonment. Farthing was found guilty of common assault only, and sentenced to six months imprisonment. Those sentences were all ordered to be served concurrently with sentences imposed for manslaughter and other offences. 

[6] The applicant was aged 26 at the time, and was 20 weeks pregnant. She went home very distressed and frightened, and with a black eye and bruising to the area around her throat. Shortly afterwards she began to notice some vaginal bleeding, but she was too frightened to go to her general practitioner for several days. She was interviewed by police, but initially reluctant to speak. Eventually she gave a full statement in early February 2003 and a supplementary statement a couple of days later. About six weeks after the assault, when the pregnancy was at 26 weeks gestation, she went into premature labour. She bled profusely. The baby was delivered at 29 weeks gestation with an emergency caesarean section. The baby spent the first four months of his life in hospital, and had recurring trouble with lung problems and irregular heartbeat until he was about two years old.

[7] Before the assault the applicant was a healthy and happy young woman with some dependent personality traits.  She had left school at 17 and worked in food outlets and retailing positions. While she had used amphetamines in the past, she was never addicted to them. She was in a relationship with her baby’s father – a relationship which continues. (I note that her partner’s parents have been very supportive, both in providing accommodation and in providing pastoral care.)

[8] Dr Andrew Byth, a consultant psychiatrist, examined the applicant in June 2006. She has sworn to the accuracy of the following history recorded by Dr Byth –

 

3. Psychological Symptoms

 

3.1.At the time of the assault in 2003, she complained of being very anxious and frightened, and thought she was about to be raped or killed.

 

3.2.When she was released by the 4 men, she was afraid of retaliation, particularly after she heard that her friend, Kerry, had been murdered by them. She was reluctant to answer the telephone, and was afraid of the men coming after her.

 

3.3.She had trouble sleeping, and complained of ‘nightmares every night, of them choking me, and saying they were going to kill me and get me no matter what’.

 

3.4.After these unpleasant dreams, she would ‘wake up, feeling afraid that they would hurt me, and would get me when they got out of jail’.

 

3.5.During the day, she had flashbacks of being attacked, in which she would ‘think about what they did to me, and burst into tears’.

 

3.6.Her flashbacks were triggered by reading the paper, seeing police shows on television, and talking about the assault, and would ‘make it go over and over in my head’, she said.

 

3.7.When she was in hospital in Brisbane after the assault, she remained anxious and scared, and she ‘felt unsafe in the Brisbane Hospital, and I was not the person I was since it happened’.

 

3.8.After she was discharged, she ‘locked myself in the house, and wouldn’t go outside, even with my family, and particularly at night’. She was reluctant to leave home without her partner to accompany her.

 

3.9.When her son came home from hospital, she was overprotective, and was reluctant to take him out or let him play with other children until recently.

 

3.10.After the assault, her moods tended to fluctuate, and she would ‘get very depressed, with low self-esteem – I was different from her [sic] usual personality, which was cheerful, happy and bubbly’.

 

3.11.She currently continues to have flashbacks and nightmares, accompanied by periods of depression and anxiety; but does not feel suicidal.

 

3.12.She continues to lack energy and interest for activities, and some days will not want to get out of bed.

 

3.13.Her thoughts involve ‘taking things very seriously now, and I can’t see the funny side of things - it is hard to get a laugh out of me now’, she said.”

 

[9] Dr Byth described the applicant as moderately anxious and moderately depressed. He said her behaviour was moderately socially withdrawn and mildly agitated. She was preoccupied with the assault, which she relived in nightmares and flashback memories, and she had an ongoing fear of being attacked again by the respondents.  She was depressed, with ideas of reduced self-worth and hopelessness.

[10] I accept the evidence of Dr Byth that the applicant suffers from post traumatic stress disorder of moderate severity as a result of the assault. She has benefited from counselling through Mission Australia and antidepressant medication, but she will need to continue this type of  treatment indefinitely. She might also benefit from rapid eye movement desensitisation. Her ongoing psychiatric treatment will cost approximately $1,000 per annum.[1]

[11] The Criminal Offence Victims Act provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant.[2] Assault is such an offence. “Injury” is defined in s 20 as bodily injury, mental or nervous shock, pregnancy or any injuries specified in the compensation table, which is a schedule to the Act, or prescribed under a regulation. “Nervous shock” includes a recognised psychiatric disorder such as post traumatic stress disorder.[3]

[12] Compensation is intended to assist the applicant, but not to reflect compensation to which he or she may be entitled under the common law or otherwise.[4] The Court may order the payment of compensation,[5] in total not exceeding the “scheme maximum”, which is $75,000.[6] Various categories of injuries and degrees of severity are set out in the compensation table,[7] and with respect to each, there is a range, expressed as percentages of the scheme maximum, within which compensation may be awarded. The maximum amount is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.[8]

[13] The applicant suffered physical and psychological injuries as a result of a personal offence committed by the respondents, and she is entitled to compensation under the Act. There is nothing to suggest that that compensation should be refused or reduced because any conduct on her part directly or indirectly contributed to her injuries.[9]

[14] The potentially relevant heads in the compensation table are as follows:

 

1.   Bruising/laceration, etc (minor/moderate) 1 – 3 %$      750 - $  2,250

32. Mental or nervous shock (moderate)10 – 20 %$   7,500 - $15,000

33. Mental or nervous shock (severe)20 – 34 %$ 15,000 - $25,500.

[15] The applicant claimed under item 1 twice, 3% ($2,250) for bruising to her left eye and 2% ($1,500) for bruising to her neck, and under item 33 30% ($22,500) for her post traumatic stress disorder.

[16] While I appreciate that the Court must approach the assessment of compensation by reference to individual injuries,[10] I am not convinced that in the case of multiple bruises this requires an assessment of compensation for each area of bruising. In the present case I think there should be only one assessment under item 1, and that it should be 2.5% ($1,875).

[17] For mental or nervous shock, I assess compensation under item 33 at 25% ($18,750).

[18] The applicant sought a single order by which the four respondents would be jointly and severally liable for the compensation. Section 26(6) provides –

 

“If a single compensation order is made against more than 1 convicted person, the order may provide for –

(a)separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or

(b)joint liability of more than 1 convicted person for an amount payable under the order; or

(c)both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount.”

[19] The third respondent Farthing was convicted only of common assault, while the others were convicted of assault occasioning bodily harm with circumstances of aggravation. Nevertheless, Farthing chose not to respond to the compensation application, and there was no evidence led or submission made from which I might have concluded that his “direct and material contribution” to the applicant’s injuries was different in kind or degree from that of the other three. In the circumstances I intend acceding to the application for a single order by which the four respondents are made jointly and severally liable for the compensation.

[20] There can be no order for the payment of costs of the application.[11] When the hearing was adjourned on 2 March 2007, counsel for the applicant sought costs of the adjournment, which were reserved. In my view the Court is precluded by s 31 from making an order for the payment of the costs of the adjournment.

[21] I order that the first, second, third and fourth respondents pay the applicant $20,625 because of the injuries she sustained when they assaulted her on 10 January 2003. I declare the respondents jointly and severally liable for the payment of that compensation.

[22] There will be no order as to costs (including no order as to the costs reserved on 2 March 2007).

 

Footnotes

[1] Report of Dr Byth, [10.5].

[2] ss 19, 21.

[3] R v Morrison, ex parte West [1998] 2 Qd R 79, 82; Hicks v The Minister for Justice and Attorney-General [2005] QSC 44, [17].

[4] s 22(3).

[5] s 24(3).

[6] s 25, Criminal Offence Victims Regulation 1995 (Qld) s 2.

[7] Schedule 1.

[8] s 22(4): see MR v Webb [2001] QCA 113; RLH v Curtis [2001] QSC 137.

[9] s 25(7); Hohn v King [2004] QCA 254, [100]-[103].

[10] Zaicov & McKenna v Jones [2001] QCA 442, [31]-[32].

[11] s 31.

Close

Editorial Notes

  • Published Case Name:

    O'Neill v Holmes & Ors

  • Shortened Case Name:

    O'Neill v Holmes

  • MNC:

    [2007] QSC 77

  • Court:

    QSC

  • Judge(s):

    Wilson J

  • Date:

    05 Apr 2007

Litigation History

No Litigation History

Appeal Status

No Status