Scalpelli v Maguire[2003] QDC 329

    DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995.  Part 3 of the Act establishes, at s 19, a scheme for compensation for injury, death and expenses from indictable offences.  S 19(1)(a) applies to the applicant in this case.

2. [2]
   Injury is defined under s 20 to include bodily injury, mental or nervous shock, pregnancy or any injury specified in the Compensation Table in Schedule 1 to the Act, or prescribed under a regulation. A personal offence is an indictable offence committed against the person of another: s 21. Under s 24 this court is empowered to make a compensation order which may be paid by the State on an ex gratia basis (s 23).  S 25 of the Act provides, inter alia, that a court is limited to ordering the payment of compensation up to the “Scheme Maximum” which is, presently, $75,000 (Regulation no. 2).  In determining the amount to be paid for an injury specified in the Compensation Table, the court is limited to making an order as provided by ss 25(4)(a) and (b) that is to say, of one percentage listed opposite the injury – an amount up to the amount that is the listed percentage or if a range of percentage is listed, an amount that is within the listed range of percentages.

3. [3]
   The complainant was born on 31 October 1980, and is now aged 22. Prior to 7 November 2001 he began residing in a residence at Carrara with the respondent, and the respondent’s mother. On the morning of 7 November 2001 he was seated at the kitchen table in the residence when the respondent stabbed him. On 7 March 2003 the respondent pleaded guilty, before me, to one count of doing grievous bodily harm to the complainant. He was sentenced to 18 months’ imprisonment, suspended after three months with an operational period of three years.

4. [4]
   In the course of my sentencing remarks I said:

… I accept that what happened was that in the course of some altercation between you and (the) complainant, the complainant was stabbed.  That altercation occurred in your mother’s home in the morning.  Submissions have been made, both from the Crown and from your Counsel as to what version I should accept about the events surrounding the incident, one version being that of the complainant and the other being that of your mother.  It is unclear to me how I can resolve those sorts of issues when I have not heard any evidence from any party nor seen any transcripts of any evidence.  I accept that some altercation occurred in the kitchen; that the altercation involved the complainant but that in the course of it the complainant was stabbed by you. … It is relevant, and I do accept on both versions, that the complainant was not himself armed at any time.  Both Counsel have addressed me about the history of the relationship between you and the complainant.  Again, it is unclear to me how I could make specific findings about those sorts of things but I think it can – it is reasonable to extract from what I have been told that there is at least some background of incidents of flare-ups between you and the complainant, and that this was one of them.

5. [5]
   The respondent to this application, to whom those sentencing remarks were of course addressed, did not appear at this hearing. I accept the submission of the applicant’s Counsel, Mr Kimmins, that in the circumstances of this application the onus of proof is cast upon the applicant on the balance of probabilities. Having regard to the version of events given by the applicant and the fact that it has not been challenged in these proceedings, it is open for me to find that the applicant has established, on the balance of probabilities, that the incident occurred in the manner that he alleged. In those circumstances I do not think there is any question of contribution by the complainant, which might have the effect of reducing any compensation to which he is entitled: s 25(7).

6. [6]
   Immediately after he was stabbed there was a brief scuffle between the applicant and the respondent, and the applicant then felt weak, had difficulty breathing, and fell to the floor. An ambulance was called and he was conveyed to the Gold Coast Hospital where he was noted to have a single stab wound in his right posterior chest at the level of the spine of his right scapula, 2 cm from the spinous process. It was a 23 mm laceration, linear, with a small amount of bleeding. A chest X-ray revealed a pneumothorax on the right side and a catheter was inserted and the wound closed. The complainant remained at the hospital as an in-patient for four days. A report from the hospital confirms the injury would have been life-threatening, but for prompt treatment.

7. [7]
   The applicant says that for about six months after the incident he had difficulty breathing, particularly during exercise. He has two scars on the right side of his upper back, and right side of his chest, each about 3 cm long which cause him some embarrassment and act as a reminder of the event. He was unable to return to his work as an apprentice refrigeration mechanic, and was off work for eight months.

8. [8]
   A psychiatrist, Dr Braganza, has provided a report in which the applicant is recorded as complaining of insomnia, nightmares, and intrusive thoughts for some months after the incident. He also complains of depression, frustration, a loss of appetite, a diminution of interest in socialising, and a reduction in his trust for others. Six months after the incident he consulted a general practitioner who prescribed an antidepressant medication, which he took for the next six months. He also underwent six counselling sessions from a counsellor at Lifeline in September 2002. He believes his condition has improved but still has flashbacks, and other residual symptoms. Dr Braganza diagnoses a post-traumatic stress disorder which is a direct result of the stabbing and, although the condition has improved symptoms continue at a “disturbing” level.  The applicant ought to undergo at least 12 consultations with a clinical psychologist, at a cost of about $2,000 and if he does so, Dr Braganza says, his prognosis is good.

9. [9]
   The only ongoing physical consequence appears to be the scarring, which acts as a reminder of the incident and is an element of the PTSD. Otherwise, nothing in the medical reports suggests any long-term adverse physical consequences. Mr Scalpelli has been diagnosed as suffering from another condition requiring chemotherapy and treatment with steroids and antibiotics but I did not understand Dr Braganza’s report attributed or connected that condition to the assault, or its consequences, in any way.

10. [10]
    The respondent has not been personally served with the originating application and supporting material. Efforts have, however, been made to bring the matter to the respondent’s attention in a number of ways. First, enquiries were made with the solicitors who represented him at the time of his conviction, but they had no instructions. Next, private enquiry agents were engaged in an attempt to locate and serve the defendant. They provided the applicant’s solicitor with a telephone number for the respondent’s mother. Ms Quilligan, the applicant’s solicitor, says she telephoned that number on 6 August 2003 and spoke to a person who identified herself as the respondent’s mother, who said she would see her son that afternoon. Ms Quilligan gave the mother her own telephone number and asked that he or his solicitors call but she received no response. The mother told Ms Quilligan that her son “would not turn up anyway”.

11. [11]
    Earlier, on 4 August 2003 a process server attended at the premises of the respondent’s grandmother at Tugun, and she told him the respondent lived in Pittsworth. She agreed to take the documents and post them to her grandson, and signed a document containing an undertaking to that effect. Later, when Ms Quilligan spoke to the respondent’s mother the latter said she was aware of the application following contact from her own mother (the respondent’s grandmother).

12. [12]
    On Monday 11 August 2003 Ms Quilligan published a notice in the Courier Mail addressed to the respondent, advising him of this application. He did not appear when the matter was called on for hearing on 14 August.

13. [13]
    The application is brought under s 24(2) which permits the victim to “... apply to the court before which the person is convicted …”.  Because the legislation is otherwise silent about the form or mode of application it has been accepted that rule 10 of the Uniform Civil Procedure Rules applies.  It requires that a proceeding must be started by application if the Act does not state the type of originating process to be used.  UCPR r 105(1) requires an originating process, including an originating application, to be served personally on the person “intended to be served”.  Under r 106(1), personal service is affected by giving the person “intended to be served” the document itself or a copy of it.

14. [14]
    I was referred to the decision of his Honour Judge Britton SC in Murphy v Green^[1] in which the respondent had not been personally served but some indirect contact had been made with him and steps taken which, it seemed likely, would bring the matter to his attention; and, a notice had been placed in a local newspaper.  The Judge has referred to UCPR r 116, which empowers the court to make orders for substituting some other form of service for personal service, and rr 366(2) and 367(1) which empower the court to give directions about the conduct of a proceeding which are appropriate in the circumstances.  He said:

It seems to me that the steps taken to endeavour to notify the respondent of the application are those which might well have been ordered to be taken if an application had been made for substituted service.  It therefore does not seem to be necessary to make an order for substituted service the practical result of which would be that the same steps that have already been taken would be taken again with significant cost to the applicant which of course cannot be recovered in relation to an application for criminal compensation.

…

In those circumstances it seems to me to be appropriate that I direct that it is unnecessary for a formal application for substituted service to be made and that the steps taken by the applicant … be deemed to be substituted service of the application and supporting documents and that the respondent be taken to have been served upon the date of publication of the advertisement. … In the circumstances then I am satisfied that the substantive application should proceed.

15. [15]
    Britton SC, DCJ was not, it seems, referred to s 28(1) of the Act which provides:

28(1)   Before an application to a court for a compensation or repayment order against a convicted person is decided, the convicted person must be notified of the application.

The use of the word “notified” suggests the legislature accepted that, in the nature of these applications, difficulty might sometimes be encountered by applicants in locating convicted persons, and serving them personally.  On its face the process of notification seems to envisage something less than strict personal service, and serve as an encouragement to courts to readily adopt the course taken by his Honour and the exercise of the discretion arising under rr 366(2), and 367(1) and (2).  I am encouraged to take the same course.

16. [16]
    I am otherwise satisfied the application is properly brought and find, in particular that:

1. (a)
   the applicant is a “victim” as defined in s 5 of the Act;

2. (b)
   the respondent has been convicted on indictment of a personal offence as that term is defined in s 21;

3. (c)
   the applicant qualifies as a person against whom the personal offence was committed by the respondent, under s 24;

4. (d)
   the convicted person has been notified of the application as required by s 28; and

5. (e)
   the application has been brought within the time prescribed by s 40.

17. [17]
    I am also satisfied the applicant has suffered injuries within the definition of that term in s 20 and the injuries are: a stab wound (Schedule 1, items 24-26) and mental or nervous shock (items 31-33).

18. [18]
    In the Schedule the three items for stab wounds are categorised as minor, moderate or severe, attracting awards within the range 6%-40% of the scheme maximum. It was contended for this applicant that he ought to receive the maximum by reason of his scarring and residual problems. In Buckland v Estate of Kennedy (deceased) (2000) QSC 337 Ambrose J was required to assess a stab wound which required the applicant to undergo complicated surgery and nine days treatment in hospital as an in-patient, and some continuing disablement for four months and, in assessing the injury as falling in the middle of the moderate category (item 25) he said:

The problem I have with categorising the stab wound as a severe one is that there is no persuasive evidence that it has left the applicant with any residual disability or incapacity.  From the evidence placed before me I infer that indeed he was lucky to make a remarkable recovery from his wound.  While in one sense perhaps it might be described as a severe wound because of the potential it had to cause a lasting serious injury, it is the object of the legislation in my view to have the court assess the severity of a stab wound at the time the order is made and not at the time the wound was inflicted.  While undoubtedly it would be correct to describe the wound as a serious one at the time it was inflicted because of its potential to cause death or perhaps serious permanent disability, in my view, it would not be correct to categorise it as a severe stab wound at the present time if the evidence does not disclose that it has caused a significant permanent disability.

19. [19]
    Those comments are in my view apposite here. While the initial injury had the potential for very serious consequences the plaintiff does not seem to have suffered any continuing physical disability, save his scarring. I think some care has to be taken to ensure that his compensation, overall, is appropriate to his injury and the consequences but the psychiatric sequelae can be dealt with when separate compensation for mental or nervous shock is assessed. It seems to me this is a case which falls at about the same level as that of the complainant being dealt with by Ambrose J and compensation for the stab wound should be awarded at about the middle of the moderate range, ie. 12% ($9,000).

20. [20]
    So far as the mental or nervous shock is concerned it is contended the applicant’s condition falls within the severe range (item 33: 20-34%) and at about 25%. He has apparently been able to return to employment, albeit that he required some medication, and counselling. The ongoing symptoms are no doubt troublesome and could become worse if untreated but, it seems to me, fall below the severe range and are more fairly categorised as being toward the upper end of the moderate range. I will assess the claim under item 32 at 18% ($13,500).

21. [21]
    In all of the circumstances therefore I order that the respondent pay the applicant by way of compensation $22,500.