- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Application for criminal compensation
8 April 2010
9 April 2010
A Lyons J
Order that the respondent pay the applicant by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld), the sum of $42,750
CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND - where the respondent was convicted of one count of a malicious act with some intent to do grievous bodily harm to the applicant - where the applicant suffered physical and psychological injuries - whether compensation should be awarded.
Criminal Offence Victims Act 1995 *Qld)
Dooley v Ward  2 Qd R 436
Say v AZ; Ex Parte AG QCA 462
Wren v Gaulai  QCA 148
Cappellano, A for the applicant
No appearance for the respondent
Campbell & White Lawyers for the applicant
A LYONS J:
 This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) (the Act).
 The respondent did not appear at the hearing.
 The respondent pleaded guilty on 6 June 2008 to one count of a malicious act with intent to do some grievous bodily harm to the applicant on 30 June 2006. On 14 August 2008 the respondent was sentenced to six years imprisonment with a parole eligibility date fixed at 1 December 2008. It was also ordered that the 775 days spent in pre-sentence custody between 1 July 2006 and 14 August 2008 be deemed time already served under the sentence.
 The applicant and the respondent are brothers and at the time of the offence their relationship had been strained. Following the separation of the respondent and his partner, the respondent lived at the applicant’s home which he shared with his partner and their two children. On 30 June 2006 the respondent began abusing the applicant in the downstairs area of the home. The applicant walked away and went upstairs with his partner and two children. The respondent followed him with a shifting spanner in one hand and two kitchen knives in the other. The respondent began attacking the applicant with the knives and during a struggle he was hit with a knife several times before both men fell down an internal staircase. The applicant suffered fractures to his eye socket and jaw as a result of this fall. The applicant sustained injuries to his head, chest and thumb as a result of the stabbing.
Injuries – physical
 The injuries to the applicant included:
(a) A fracture to the orbit of his left eye;
(b) a fracture to the wall of his maxilla (jaw bone);
(c) a five centimetre laceration to his temple;
(d) a five centimetre laceration to the back of his head which required staples;
(e) a ten centimetre laceration to his forehead which required some 30 sutures
(f) a two centimetre stab wound to his left chest; and
(g) a 2 centimetre laceration to his left thumb.
 The applicant was admitted to hospital for a short period, his injuries were not considered life threatening and he has made a satisfactory physical recovery. He has been left with persistent numbness in his left cheek and gum and bears several noticeable scars to his head in particular one near his left temple and one on the back of his head. He also has small scarring on his chest and thumb.
Injuries – psychological
 The applicant suffers from chronic post traumatic stress disorder. General practitioner, Dr Ken Cameron, has been treating the applicant since five days after the assault and has prepared a statement dated 15 March 2010. Dr Cameron outlines the applicant’s mental injuries in the last four years as including poor sleep, hypervigilance, flashbacks, persistent disabling anxiety with prominent agoraphobia, aggravation of a pre-existing depressive illness with prominent feelings of worthlessness and hopelessness and panic attacks. He states that diagnostically the applicant has suffered a significant post traumatic stress disorder (PTSD) with severe aggravation of a pre-existing depressive illness with prominent anxiety and panic attacks as a result of the assault.
 Under Dr Cameron’s care the applicant has been treated with a combination of psychotropic medications, supportive psychotherapy, as well as psychological counselling with psychologist Dr John Brownhill. This treatment is still required today and Dr Cameron states that the applicant’s PTSD symptoms are now well controlled. He also states that the applicant suffers disabling panic attacks and these have improved in frequency from several times daily to once or twice weekly. The applicant is reported to be unable to spend more than half an hour alone with his children as he becomes anxious and dysphoric.
 Forensic psychologist Elena Gianvanni has prepared a report and assessment in relation to the applicant after interviewing him on 1 September and 15 September 2009. She noted that the applicant has worked in various areas including, hospitality and security but has been unemployed for the last 6 -7 years. He drinks about 12 beers or half a bottle of bourbon or half a cask of wine everyday and also uses marijuana daily. She notes that he is currently taking pschotropic medications prescribed by his GP to address his depression and anxiety symptoms.
 Ms Gianvanni assessed the applicant using the Personality Assessment Inventory (PAI), the Trauma Symptoms Inventory (TSI) and the Depression Anxiety and Stress Scale (DASS) and reported that he is experiencing considerable psychological symptoms on a daily basis including posttraumatic stress, psychotic symptoms and anxiety and depressive symptoms.
 Ms Gianvanni reported that the applicant presented as highly distressed and disclosed experiencing flashbacks and intrusive thoughts of the traumatic experience on a regular basis. She also reported the applicant’s attempts to avoid remembering the assault by engaging in maladaptive coping strategies like isolation, alcohol and drug use, lamination (persistent and recurrent worrying and over-thinking pattern) and avoidance. She noted the applicant’s alcohol and drug use pre-existed the traumatic event but has increased since it.
 Ms Gianvanni made a diagnosis of PTSD but found it unclear whether the onset was premorbid or postmorbid the assault. She reported nonetheless that the PTSD symptoms were aggravated by the assault.
 Several further diagnostic considerations were discussed which required further psychiatric assessment. They are unlikely to be related to the traumatic event. .
 Ms Gianvanni concluded that the applicant, in her opinion is suffering some emotional distress from the offence but due to the presentation of a constellation of psychopathologies it was difficult to determine which occurred directly as a result of the offence. Based on the applicant’s self disclosure Ms Gainvanni hypothesised that most symptoms were experienced prior to the assault and some have perhaps increased in frequency, intensity and duration following the assault.
 She was ultimately unable to identify whether the applicant’s emotional injuries comprise ‘mental or nervous shock’ under the Act and reiterated that the PTSD was premorbid to, but exacerbated by, the assault of the respondent. She reported that the PTSD symptoms nonetheless impact upon the applicant’s everyday life and wellbeing moderately and therefore affect his quality of life.
The assessment of compensation
 There is no doubt that the applicant is entitled to compensation under the now repealed Criminal Offence Victims Act 1995 (Qld), s 24. The scheme maximum is $75,000. The application was filed on 24 December 2009 and has been brought within the timeframes outlined in s 40(1)(a) of the Act which is within three years of the respondent’s trial. The applicant’s claim continues pursuant to the transitional provisions.
 Compensation is assessed by reference to a maximum amount and s 25 of the Act outlines the method of assessing compensation as follows:
“What amount may be required to be paid under a compensation order
(1)In making a compensation order, a court is limited to ordering the payment of an amount decided under this section.
(2)A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the scheme maximum).
(3)If more than 1 amount is payable under subsections (4) to (6), the amounts must be added together, and, if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid.
(4)In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for—
(a)if there is only 1 percentage listed opposite the injury—an amount up to the amount that is the listed percentage of the scheme maximum; or
(b)if there is a range of percentages listed opposite the injury—an amount that is within the listed range of percentages of the scheme maximum.
(5)In deciding the amount that should be ordered to be paid for an injury specified under a regulation, the court is limited to making an order for the prescribed amount.
(6)In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by—
(a)comparing the injury with injuries to which subsections (4) and (5) apply; and
(b)having regard to the amounts that may be ordered to be paid for those injuries.
(7)In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.
(8)A decision on the amount that should be ordered to be paid under a compensation order—
(a)does not involve applying principles used to decide common law damages for personal injuries; and
(b)is to be decided by applying the principles mentioned in section 22(3) and (4).”
 The decision of Dooley v Ward set out the method for assessing criminal compensation as follows:
“In our opinion the proper method is to fix the compensation for say severe mental or nervous shock at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the most serious case, which must be compensated by an award of a maximum 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account get no more than $25,000.”
 It is clear that for each injury claimed the court characterises the injury according to the categories listed in the compensation table and then the court has regard to the relative seriousness of the injury, to arrive at a percentage which is within the specified range. The amount of compensation is then calculated by applying the appropriate percentage to the scheme maximum, which is $75,000.
 The applicant submits the following schedule items are relevant:
(a) Item 1 – Bruising/laceration etc. (minor/moderate) 1% - 3%
(b) Item 7 – Facial fracture (moderate) 14%-20%
(c) Item 26 – Gun shot/stab wound (severe) 15% - 40%
(d) Item 27 – Facial disfigurement (minor/moderate) 2%-10%
(e) Item 33 – Mental/nervous shock (severe) 20% - 34%.
 I consider that although the bruising around the left eye of the applicant is related to the fracture a separate assessment should be made and agree with the approach of Fraser JA in Wren v Goulai as follows;
“Nevertheless, where separate assessments are practical the approach advocated by the appellant carries it with it the potential for avoidable error. The Act requires a comparison of the bruising and lacerations suffered by appellant with the worst case of bruising and laceration and that the amount of compensation for that injury be determined accordingly by scaling between the one per cent and five per cent of the scheme maximum provided in items 1 and 2. The same exercise is to be separately conducted in relation to the facial fractures described in items 6 to 8, where the scaling exercise must occur within the very different eight per cent to 30 per cent range of the scheme maximum. Combining the injuries and the percentages has the potential to distort the result by wrongly equating the significance of bruising and laceration with that of facial fractures.”
 I consider therefore that a separate assessment should be made in respect to the bruising under Item 1 at 2% which is $1,500.
Facial Fracture-Item 7:
 At the sentencing hearing the Crown submitted that the fractures to the orbit of the applicant’s left eye and his jaw bone occurred as a result of falling down the stairs rather than a direct blow by the respondent. It is clear however that the applicant’s fractures as a result of the fall would not have occurred but for the respondent’s attack. The Court of Appeal in Say v AZ; Ex Parte AG indicated that only injuries to which the relevant offence has materially contributed will be compensable under the Act. I am satisfied that the respondent’s offending behaviour includes the struggle which culminated in both men falling down the staircase and accordingly the respondent’s offending behaviour materially contributed to the applicant’s facial fractures.
 It is clear that the applicant’s eye socket and jaw bone were fractured and that he suffers persistent numbness. Whilst Counsel for the applicant submits that the appropriate award under Item 7 of the compensation table is 20% of the scheme maximum I consider that 15 % is a more appropriate figure given that there have been no severe consequences other than continuing numbness and no plates or screws were required. An assessment of 15% acknowledges that these injuries were in the moderate range but were not at the upper end of that scale. This equates to a figure of $11,250.
Stab Wounds-Item 26:
 In relation to the number of stab wounds outlined previously I accept Counsel for the applicant’s submission that given he had five stab wounds which required 30 sutures his injuries are in the severe range although they were not life threatening.
 I consider that the appropriate award under Item 8 is 20% of the scheme maximum which is $15, 000.
 I also consider that the appropriate award in relation to the applicant’s scarring is 5% of the scheme maximum, that is $3, 750.
Mental or nervous shock injuries-Item 33:
 The applicant again relies on Say v AZ; Ex Parte AG.to submit that the offence materially contributed to his mental or nervous shock injury, in that as both Dr Cameron and Ms Gianvanni report the assault exacerbated his psychological symptoms and mental health state. The applicant concedes that the decision in Say v AZ; Ex Parte AG could mean a reduction in the percentage awarded to allow for the role of the applicant’s pre existing mental health concerns.
 It is clear that s 25 (7) of the Act requires that the court in deciding what amount should be ordered must have regard to everything which is relevant including “any behaviour of the applicant that directly or indirectly contributed to the injury.”
 In Say v AZ; Ex Parte AG Holmes JA discussed the approach to compensation where other factors have contributed to the injury as follows;
“ The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.
Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.”
 It is clear that the applicant was suffering from significant psychological symptoms prior to the injury. It is also clear that the applicant is currently suffering from post traumatic stress disorder which was a direct result of the injury as well as a severe aggravation of his pre–existing depressive illness. As the Court of Appeal has indicated in circumstances such as the present a broad brush approach is required but there should be a discounting of the percentage on the compensation scale due to these factors. There is no doubt that the psychological injury the applicant experienced post the attack was severe. I consider that given the pre-existing condition the characterisation of the seriousness should be reduced to moderate. The applicant submits 15% of the scheme maximum is appropriate, or $11, 250 and I agree with this submission.
 Therefore the total amount to be awarded is $42,750.
(a) Item 1 – Bruising/laceration etc. (minor/moderate) 2% - $1,500
(b) Item 7 – Facial fracture (moderate) 15% - $11,250
(c) Item 26 – Gun shot/stab wound (severe) 20% - $15,000
(d) Item 27 – Facial disfigurement (minor/moderate) 5% - $3,750
(e) Item 33 – Mental/nervous shock (severe) 15% - $11,250
I therefore order that the respondent pay the applicant by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld), the sum of $42,750.
- Published Case Name:
Taylor v Taylor
- Shortened Case Name:
Taylor v Taylor
 QSC 109
A Lyons J
09 Apr 2010
No Litigation History