Milton v Sharpley; Nobes v Sharpley
[2006] QDC 270
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Milton v Sharpley; Nobes v Sharpley[2006] QDC 270
- Add to List
Milton v Sharpley; Nobes v Sharpley[2006] QDC 270
Milton v Sharpley; Nobes v Sharpley[2006] QDC 270
DISTRICT COURT OF QUEENSLAND
CITATION: | Milton ; Nobes v Sharpley & Anor [2006] QDC 270 |
PARTIES: | GRAHAM JOHN MILTON Applicant v ROBERT JOHN SHARPLEY First Respondent and TREVOR AARON SHARPLEY Second Respondent And MICHAEL JOSEPH NOBES Applicant v ROBERT JOHN SHARPLEY First Respondent and TREVOR AARON SHARPLEY Second Respondent |
FILE NO/S: | Nos D95/05 and D96/05 |
DIVISION: | Civil |
PROCEEDING: | Criminal Compensation Applications |
ORIGINATING COURT: | Toowoomba |
DELIVERED ON: | 4 August 2006 |
DELIVERED AT: | Brisbane |
HEARING DATES: | 25 May 2006 |
JUDGE: | McLauchlan QC DCJ |
ORDER: | That the Second Respondent pay to Michael Joseph Nobes the sum of $32,250 by way of compensation. That the First Respondent pay to Graham John Milton the sum of $33,750 by way of compensation. |
CATCHWORDS: |
|
COUNSEL: | Mr Scott Lynch for the applicants |
SOLICITORS: | Bernays Lawyers for the applicants |
- [1]I have before me 2 applications, the first being application number D95/05 in the Toowoomba Registry, being an application for criminal compensation pursuant to s 24 of the Criminal Offence (Victims) Act 1995 by Michael Joseph Nobes, the respondents being Robert John Sharpley and Trevor Aaron Sharpley. The other application is brought by Graham John Milton against the same respondents; the application being number D96/05 in the Toowoomba Registry.
- [2]The two applications arise essentially out of the same incident. At the time of that incident Graham Milton was Michael Nobes’s girlfriend’s father. He is now his father-in-law. Nobes and his then girlfriend, together with his parents and Mr and Mrs Milton, celebrated their engagement at the Westbrook Tavern in Westbrook on 1 December 2001. They have since married. The two respondents, Robert and Trevor Sharpley, are brothers and were known to Mr Nobes. Mr Nobes was 20 at the date of the offence, having been born on 22 March 1981.
- [3]At approximately 9 p.m. on 1 December 2001, the applicant Nobes, his fiancée and Graham Milton were driven by the applicant’s mother to a work function held at the Shamrock Hotel. At around midnight as they were leaving the hotel, the first respondent walked towards the applicant, accusing him of arranging an earlier altercation between the first respondent and another person. The applicant was pushed and a number of punches were swung at him but none connected. The security staff at the hotel stopped the altercation. As the applicant’s group approached the corner of Ruthven and Herries Street, the first respondent again approached the applicant’s group and assaulted the applicant. Graham Milton tackled the first respondent into a nearby bush and the altercation then ceased.
- [4]After attending a further hotel for a short time, the applicant’s group caught a taxi to the home of Graham and Shirley Milton in Toowoomba. Once there, the applicant telephoned his mother, requesting her to come and pick them up. Whilst on the phone he heard a bang, then heard his fiancée and Shirley Milton screaming. The applicant went towards the kitchen and, before he had time to defend himself, was attacked by the second respondent, Trevor Sharpley. He was hit across the nose and fell against the stove, injuring his shoulder, and ended up face down on the floor. The second respondent then hit the applicant across the back with a dining chair. He was unable to stand up and possibly lost consciousness. He subsequently became aware of his surroundings. At that time he was lying in a pool of blood and the second respondent had left the scene.
- [5]He was taken to hospital and stayed overnight. His physical injuries as reported by hospital staff were:-
- Swollen nose with a possible fracture;
- Bruising to anterior thorax and posterior;
- Small laceration to nose;
- Painful movement of right shoulder.
The second applicant, Graham John Milton, was aged 48 at the time of the offences, having been born on 30 September 1953. The respondents were unknown to him. During the altercation between Michael Nobes and the first respondent after leaving the Shamrock Hotel, the applicant had hit the first respondent twice to the face. Shortly after arriving home, he heard a loud crashing noise coming from the rear of the residence. He moved towards his back door, which was then open, and encountered the first respondent. The first respondent attacked him and knocked him to the floor, repeatedly kicking him to his head and rib area. He was also hit with a chair. At the time he felt pain in his chest, neck and back and found it very hard to breathe. He was then taken to the Toowoomba Base Hospital and was admitted in the early hours of 2 December and not discharged until 11 December 2001. On admission to hospital he was complaining of pain in the right mid and lower chest and the right side of the neck. There were also a few abrasions on his right forehead, right neck, the right arm and forearm. An intercostal catheter was inserted. He made a slow recovery until 8 December 2001 when an X-ray noted that he had full expansion of his right lung. The intercostal catheter was removed on 10 December and he was discharged on 11 December. In association with the right haemopneumothorax there was a seventh rib fracture. The medical opinion is that the chest injuries would have threatened his life if left untreated.
- [6]On 10 October Trevor Sharpley was convicted of entering the dwelling of Graham Milton with intent to commit an indictable offence in the dwelling, with circumstances of aggravation. Robert John Sharpley was convicted of being in the dwelling and committing an indictable offence in the dwelling. Robert Sharpley was also convicted of unlawful grievous bodily harm to Graham John Milton and Trevor Sharpley was convicted of assault occasioning bodily harm to Michael Nobes whilst armed with an offensive instrument, namely a chair. Both respondents were sentenced to 18 months imprisonment, suspended after four months.
- [7]These applications are each brought against both respondents. However, it appears to me on the facts as they have been related, and on the basis of the convictions entered against the respondents, that this is a case where the substance of the matter is that an offence of physical violence was carried out by the second respondent Trevor Sharpley against Michael Nobes and another offence of the same nature was carried out by the first respondent Robert John Sharpley against Graham Milton, and that the orders for compensation should reflect that situation. I was referred to a decision of White J in Summer v Doherty [2000] QSC 365, but I do not consider that that decision bears upon the situation.
Michael Joseph Nobes
- [8]In his affidavit, the applicant, Michael Nobes, states that immediately after the assault upon him he was taken to the Toowoomba Base Hospital as he had lost consciousness and also suffered physical injury. He was kept in hospital overnight for observation and was then discharged. As a result of the assault he received the following injuries:-
- broken/fractured nose
- bruising, cuts and abrasions
- head injury (loss of consciousness)
- injury to right shoulder
- mental and nervous shock.
- [9]He says that he received two sutures to his nose and that the bruising did not pertain only to his nose and face, but also to his back and shoulder. His right arm was placed in a sling which he was required to wear for four weeks after the accident. He suffered pain and discomfort for some time in relation to his physical injuries. The most significant of these was the injury to his right shoulder. He joined the Australian Army after the assault but was medically discharged because of the right shoulder injury. He was diagnosed with chronic anterior compartment syndrome.
- [10]A letter to the applicant’s solicitors from Dr Stuart Allaburton of 8 May 2005 states:-
“It is difficult to comment on long term prognosis as he has not yet fully pursued all treatment options. At present, he has continuing pain with some work and personal activities, but no loss of movement. He may well continue to have episodes of similar shoulder pain for the rest of his life, or it may completely resolve with appropriate rehabilitation and medical treatment.
I will follow his progress over the next few months to decide with him whether referral to an orthopaedic is appropriate.”
- [11]A report was obtained from a psychologist – Ann Carmody, who states:-
“During the assault Michael experienced intense fear, helplessness and horror. He was injured and at the time he believed he was confronted with the possibility of death or serious injury. He also witnesses serious injury inflicted upon his future father-in-law.
Since the time of the assault and home invasion Michael has experienced recurrent and intrusive recollections of the event; recurring dreams of the event and nightmares; at times he has felt as if the traumatic event were recurring, including a sense of reliving the experience; he experiences intense psychological distress at exposure to internal or external cues that symbolise or resemble an aspect of the break in and assault. He experiences psychological distress and avoidance in situations where he is exposed or potentially exposed to recounting or thinking about details of the incident. He experiences physiological reactivity to such situations – shakiness, heart pounding, ‘knot’ in the stomach; he makes effort to avoid thoughts, feelings or conversations associated with the event. He has made extreme efforts to avoid the location of the assault even joining the Australian regular Army and, ultimately, relocating to Cairns in far north Queensland. Since the assault he has experienced feelings of detachment or estrangement from others; he is unable to recall some significant aspects of the experience; he experiences a markedly diminished interest or participation in significant activities. He has experienced difficulty falling asleep and difficulty staying asleep; he has been troubled by irritability or outbursts of anger; he finds it very difficult to concentrate; he is hyper vigilant and experiences an exaggerated startle response.
Michael also experiences intense guilt; feelings of ineffectiveness; shame and despair; he feels constantly threatened especially within his own home and he has experienced almost total social withdrawal.
Some of the above symptoms (such as impaired concentration) have developed or worsened recently.
There is no background psychiatric or family history to suggest that any of the above symptoms were present prior to the assault committed by Trevor Sharpley on 1 December 2004.”
- [12]The psychologist goes on to say that it is possible that if the applicant’s symptoms continue to worsen, the effects of this incident will impact very negatively on his future prospects, both social and occupational.
- [13]I think that the applicant should be awarded 5 per cent of the scheme maximum under Item 2 of the compensation table with respect to bruising/laceration etc, including suturing to his nose. Apart from his face, there was bruising and abrasion to large parts of his body. With respect to his nose, compensation is sought under Item 3, which relates to “fractured nose (no displacement)” and the range is 5 per cent to 8 per cent. The compensation sought is 7 per cent and I accept that that is a reasonable figure. With respect to the reduced use of his shoulder, compensation is sought under Item 13 of the schedule, where the range specified is 8 per cent to 23 per cent. I agree that in all the circumstances the appropriate percentage to apply is 15 per cent.
- [14]A claim was also made for mental or nervous shock and I consider that the appropriate item is Item 32 where the range is 10 per cent to 20 per cent. In the circumstances, I think that compensation should be awarded at the top of that range; that is to say at 20 per cent of the scheme maximum.
- [15]The applicant Michael Nobes is accordingly awarded compensation to the extent of 47 per cent of the scheme maximum, which is $35,250. The second respondent is ordered to pay that amount to the applicant.
Graham John Milton
- [16]The applicant Graham John Milton states in his affidavit that he suffered a number of injuries including the following:-
- fractured ribs
- punctured lung and lunge damage
- bruising, cuts and abrasions
- injury to right eye
- mental and nervous shock.
He was initially treated by the Queensland Ambulance Service and transported to the Toowoomba Base Hospital where he was hospitalised for 11 days. After discharge he attended the Base Hospital for follow-up CT scans and other assessments. He says that in relation to his chest injury he suffered extreme pain and discomfort for a period of six months. He also suffered some infection and was prescribed antibiotics. He has, however, no residual problems in relation to his ribs and lungs. He suffered an ongoing problem with his right eye, possibly related to nerve damage when he was kicked to the head during the assault. He was suffering a twitch in his right eye, however, this subsided and he no longer has any residual problems in relation to his right eye. The problems concerning his right eye only lasted for approximately six months. He also says that apart from the physical injuries which he sustained, he has suffered considerable mental and nervous shock which continues to affect him.
- [17]Compensation is sought for bruising and laceration under Items 1 and 2 of the schedule. I consider that the appropriate percentage is 2 per cent, being the midpoint of Item 1. I consider this to be adequate compensation for the abrasions suffered by the applicant to his right forehead, neck and right arm.
- [18]In relation to the chest injury, application is made pursuant to Items 21, 22 and 23 of the schedule, covering a range from 2 per cent to 40 per cent. The injury to the applicant’s chest was, in a sense, severe, but has not left him with permanent disability. I consider that the percentage sought, which is 20 per cent, is reasonable in all the circumstances.
- [19]In relation to the applicant’s right eye, compensation is sought under Item 9, which includes a head injury with no brain damage, the range being 5 per cent to 15 per cent. I accept that 5 per cent is a reasonable percentage to apply.
- [20]Compensation is also sought in respect of nervous or mental shock suffered by the applicant under Items 31 to 33 of the schedule, covering a range of 2 per cent to 34 per cent. A report was obtained from a psychologist, Manuela Habicht, of Toowoomba. His report is dated 26 March 2003. He consulted with the applicant on 8 January 2003, 22 January 2003 and 19 March 2003. In his summary he states that the applicant presents with a history of assault that has been identified as the antecedent for the development of post-traumatic stress disorder and panic disorder with agoraphobia. The diagnosis is of a post-traumatic stress disorder, chronic (mild), a panic disorder with agoraphobia and a major depressive disorder, mild. The psychologist commented that the client’s depressive symptoms have only recently developed and are probably, to some extent, attributable to the problems surrounding his daughter. The psychologist regards these problems as treatable and recommends 12 to 15 sessions in weekly intervals. I consider the appropriate percentage to apply in respect of mental or nervous shock is 18 per cent, which is near the top but not at the top of the moderate range.
- [21]In the result compensation is awarded at 45 per cent of the scheme maximum, a figure of $33,750. The first respondent is ordered to pay this amount to the applicant.