Unsworth v Roy[2006] QDC 199

[2006] QDC 199

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 204 of 2006

TOWNSVILLE

DATE 05/07/2006

JUDGMENT

HIS HONOUR:  This is an unusual application for compensation under the Criminal Offence Victims Act 1995. I feel under some difficulties which may not have embarrassed the sentencing Judge to the same extent. The respondent, who was served in a custodial institution and has not appeared today when called, was sentenced here in Townsville on the 6th of December 2004 for a single offence of unlawful wounding which was committed on the 2nd of September 2003. He may have been fortunate to face only one count because he inflicted multiple wounds to the lower part of the body of the applicant, Mr Unsworth.

That which appears to have caused him greatest concern from a functional point of view was high on the inside thigh in the groin area. Although there is not much medical support, wasting being denied for example, I accept that Mr Unsworth has a genuine complaint of weakness in that leg which has interfered with his ability to work in his occupation of more recent times of cook or that which he pursued in younger days of brick layer. It would not interfere with his ability to do security work, which also features in his curriculum vitae.

He is a man who has been interested in keeping fit, which doubtless he has done since times when he was associated with the military. He has continued by pursuing an interest in boxing, along with other sports, for fitness reasons.

There was another stabbing injury to his abdomen, which seems to have been relatively minor, not compromising any vital organs. Unusually, there was stabbing in the genital area to both the top of the applicant's penis and to his scrotum. He suffered minor lacerations to an arm, probably sustained in some kind of brushing by the knife in the course of what must have been a frenzied attack by the respondent.

It is unsurprising there have been psychological consequences, the applicant's affidavit referring to panic attacks he said he has had, nightmares, fear of certain places where he thinks he might be hurt and the like. That aspect has not been overstated. Professor James opines that the relevant incident represented an intensification or aggravation of an existing generalised anxiety disorder, for practical purposes, reaching the diagnostic criteria for post-traumatic stress disorder. Professor James' view was that the PTSD was relatively mild and decreasing so that within a few months from now Mr Unsworth should have returned to his pre-injury level of functioning and that, of course, takes account of various problems appearing in Professor James' report which I do not think I need to notice.

Mr Unsworth has scarring as a reminder of his injuries, but it is not located so as to be visible to others, with the exception of sexual partners, of course. In this respect I would note that after initial disruption for six months or so he was able to return to what he thinks was a somewhat reduced level of activity which he attributes to reduced interest, perhaps, rather than reduced physical capacity.

In applications of this kind I think the Court ought to be astute, in deference to the theoretical interests of the respondent and to the actual interests of the taxpayer, to avoid double compensation, for example, by making full allowances for scarring and stab wounds. One of the unusual features here is that while ordinarily I would not contemplate making separate awards for multiple stab wounds to a discrete part of the body, for example, the abdomen, as things happened here, I think there are separate injuries with separate consequences, notwithstanding the relatively confined area of Mr Unsworth's body that was involved.

I think it is reasonable to regard both the thigh injury and the injury to genitalia as serious. In allotting amounts under the items in the COVA schedule, I think it is incumbent on the Court, while doing so separately, to keep in mind the aggregate effect.

So far as section 25(7) of the Act is concerned, it is noteworthy that the attack by the respondent would not have occurred but for Mr Unsworth's having slapped the respondent in the face in the course of some discussion about unpaid rent, not due to Mr Unsworth but due to some associate of his.

The place where the incident happened was a hostel in Townsville where Mr Unsworth was apparently working as a cook. The respondent is known as "Little Paulie", which may mean he is physically small - or if a case of Little John is a guide, be because he is physically big. I know much less about him than the sentencing Judge would have known and have to proceed on a rather speculative basis, I suppose. I find it difficult to overlook the preliminary to the stabbing, which is just part of a very unusual picture in which it seems that Mr Unsworth initially gave a very different account of how he came to be injured, attributing what happened to a group of unidentified people. Of course, the respondent's guilty plea confirms that the story implicating him was the correct one.

I congratulate Mr Betts for locating a decision of Judge Bradley's, Mazlin v. Brett Grant [2000] QDC 444. That case bears some similarities to the present. There seems to have been a consensual fight in a hotel in which the applicant came off second best. The respondent emerged from the hotel toilet where he had been and, as her Honour says, "Approached the applicant and his uncle and was punched by them."  Grant's response was to draw a knife stabbing the uncle in the chest and lacerating the applicant's arm. It appears he also stabbed him in the abdomen.

Her Honour's view was:

"Whilst it would appear that the applicant should take some responsibility for what occurred prior to the stabbing and in fact, the sentencing Judge did in his sentencing remarks, accept that the applicant and his uncle were behaving in an "obnoxious way", and the respondent should not be punished for the fist fight that followed, his Honour did find that what happened subsequently when the respondent used a knife was inexcusable and unprovoked. Accordingly I am satisfied that no behaviour on the part of the application directly or indirectly contributed to his injury."

Mr Betts' submission is that the same conclusion should be drawn by this Court today that the respondent with no justification whatever took matters to a new and more serious level which could not reasonably have been anticipated. He submits that no reduction ought to be made under section 25(7). Section 25(7) and its equivalents should not, in my opinion, be treated as a dead letter; there must be somewhere for them to operate. I do not suggest that they operate whenever "but for" what an applicant has done he or she would not have been injured. But I cannot bring myself to consider that the introduction of physical violence by Mr Unsworth should be without consequences in the present matter. So, I propose to make a modest reduction in the award as a mark of that.

The way in which the schedule of items will be applied is as follows:

For the genital injuries

- as I will call them -

under item 26 - 15 per cent   $11,250

For the serious cut to the

thigh or upper leg - 20 per cent  $15,000

...

For the abdomen injury

under item 25 - 8 per cent   $ 6,000

For the lacerations to the arm  $   750

For the psychiatric aspect

under item 31 - 6 per cent   $ 4,500

      $37,500

I think the reduction that is appropriate is 10 per cent.

The respondent will be ordered to pay the applicant compensation under the Act of $33,750.