DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation for injuries suffered by him on 24 November 2002 while working as a security officer at the Cocktails & Dreams nightclub, Orchid Avenue, Surfers Paradise when he was assaulted by both Lisa Groth (first respondent) and Zarne Fraider (second respondent). As a result of this incident, the first respondent pleaded guilty on 11 June 2004 to two counts of common assault and one count of assault occasioning bodily harm, and the second respondent pleaded guilty on the same date to one count of assault occasioning bodily harm.

2. [2]
   The first respondent was sentenced by Judge Newton at the District Court, Southport, to 18 months’ probation, with special conditions, and 120 hours’ community service. The second respondent was sentenced by Judge Newton to 150 hours’ community service. No convictions were recorded against either the first or second respondent.

FACTS

3. [3]
   The complainant, Lindon Robey, was aged 22 years at the time the relevant offences occurred on 24 November 2002. He was a security officer employed as a doorman at the Cocktails & Dreams nightclub, Surfers Paradise^[1].  At about 1.10 am, he was on the door of Cocktails & Dreams nightclub checking persons attempting to enter that particular nightclub. 

4. [4]
   The first and second respondents, together with another male person, approached the entrance. The male person was refused entry to the nightclub because of his level of intoxication. The first respondent began abusing the complainant, as did the second respondent, and they were both refused entry by the complainant.

5. [5]
   The second respondent attempted to punch or grab the complainant with a hand that went towards the complainant’s face area. The complainant then grabbed the second respondent, placed him in a headlock and started to walk him away from the door area. The first respondent started to punch the complainant with a closed fist to the right side of his face and shoulder, several times. These actions constituted count 1 (common assault) against the first respondent.

6. [6]
   The complainant took the second respondent about three metres from the front door of the nightclub and then released his hold on the second respondent. The second respondent then punched the complainant once in the face in the nose area, and that constitutes count 2 (assault occasioning bodily harm) against the second respondent. At the time the second respondent punched the complainant in the nose, the first respondent was still striking the complainant. The first respondent pleaded guilty to count 2 (assault occasioning bodily harm) arising out of that portion of the incident.

7. [7]
   The complainant’s nose began to bleed and he retaliated by punching the second respondent once in the left side of his face. This blow knocked the second respondent to the ground, where he was restrained by the complainant who leant down and placed his knee on the second respondent’s chest. At that point, the first respondent jumped onto the complainant’s back and bit him on the back of his neck. That biting constitutes count 3 (common assault) against the first respondent.

INJURIES

8. [8]
   The complainant attended at the Gold Coast Hospital where it was noted that he suffered from a fractured nose (described as a “minimally displaced nasal fracture”)^[2], bruising and scratch marks to the back of his neck (consistent with a bit), abrasions to his left bicep and bruising to the left side of his chest^[3].  The complainant received preventative medication for possible diseases that may have been transmitted by the bite (although it appears that no such diseases were transmitted).  On 2 December 2002 the complainant’s nose was straightened at the Gold Coast Hospital in a brief operation taking some nine minutes^[4].

9. [9]
   The report of Peter Stoker^[5] diagnoses the complainant as suffering “an adjustment disorder with mixed depressed and anxious mood (DSM-IV),” a possible “body dysmorphic disorder (DSM-IV),” and “post-traumatic stress disorder (DSM-IV)” for 12 months post-incident.

THE LAW

10. [10]
    The application proceeds under s 24 of the Criminal Offence Victims Act 1995 (COVA).  The provisions of that legislation commenced on 18 December 1995 and provide for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant for that offence.  R v Ward ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries.  In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item.  Riddle v Coffey (2002) 133 A CrimR 220; [2002] QCA 337, is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury, without duplication.

11. [11]
    Mr Smith, counsel for the applicant, seeks compensation under three items as follows:

3. (1)
   Item 1 – Bruising/Laceration etc (minor/moderate):

Mr Smith submits that the soft tissue injury, including bite and scratch marks to the back of the neck, left bicep and chest should be awarded an assessment of 3 per cent of the scheme maximum, at the top of the item 1 scale.  I accept that this is an appropriate assessment in the circumstances and accordingly I award an amount of 3 per cent ($2,250) under item 1.

3. (2)
   Item 4 – Fractured Nose (displacement/surgery) – 8 per cent/20 per cent:

Mr Smith submits that, taking into account the surgical reduction required to treat the applicant’s fractured nose, that an appropriate award in the circumstances (given the nature of the fractured nose) would be 12 per cent of the scheme maximum ($9,000).  Mr Smith also submits that there should be an assessment under item 27 (facial disfigurement or bodily scarring (minor/moderate)) for the nasal deviation which has occurred as a result of the fractured nose and the consequent surgical reduction.  In my view, this would be a “double dip”.  I consider that an award of 12 per cent under item 4 (fractured nose (displacement/surgery)) is an appropriate assessment taking into account the fact that there is a nasal deviation consequence of the fractured nose.  Accordingly, I award an amount of 12 per cent ($9,000) under item 4 and make no award under item 27.

3. (3)
   Item 31 – Mental or Nervous Shock (minor):

Mr Smith submits, taking into account the diagnosis of Peter Stoker^[6], namely “an adjustment disorder with mixed depressed and anxious mood,” possible “body dysmorphic disorder” (relating to the applicant’s slightly bent nose) and the 12 months of post-traumatic stress disorder, considered by Mr Stoker as being a “mild degree of mental and nervous shock” at the “upper level of the mild range,” an appropriate assessment would be an award of 10 per cent ($7,500) i.e. at the upper end of the minor range for mental or nervous shock.  I accept this submission.  Accordingly I award the applicant 10 per cent ($7,500) under item 31.

CONTRIBUTION

12. [12]
    Pursuant to COVA s 25(7), it does not appear to me that the applicant has in any way contributed to his injuries. He was carrying out, appropriately, his duties as a security officer and was both abused and attacked while carrying out those duties, for no explicable reason other than factors related to the first respondent’s anger management problem^[7] and the second respondent’s level of intoxication, coupled with a misplaced sense of feeling protective towards the first respondent^[8].  I do not consider that the applicant has in any way contributed to his own injuries^[9].

APPORTIONMENT BETWEEN FIRST AND SECOND RESPONDENTS

13. [13]
    Mr Smith, on behalf of the applicant, submitted that both the major physical injury in the case (the fractured nose) and the resulting disfigurement, together with the consequent mental and nervous shock, were attributable to the second respondent and accordingly, he submitted that the majority of the total award of compensation should be made against the second respondent. I accept that submission. Accordingly I intend to apportion compensation such that the first respondent is to be liable in respect of the compensation awarded under item 1, whereas the second respondent is to be liable for the compensation awarded under items 4 and 31.

CONCLUSION

14. [14]
    Accordingly, I order that the first respondent, Lisa Groth, pay the applicant, Lindon Robey, criminal compensation the sum of $2,250. I order that the second respondent, Zarne Fraider, pay the applicant, Lindon Robey, criminal compensation in the sum of $16,500.