Georgetown v Sandow[2007] QDC 125

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Elaine Joyce Georgetown seeks compensation in respect of injuries suffered by her arising out of an incident which occurred on 23 February 2003 at Cherbourg, resulting in the respondent Stafford Michael Sandow pleading guilty before Judge Dodds in the Kingaroy District Court on 4 July 2003 to one count of assault occasioning bodily harm (and a related count of wilful damage of a motor vehicle window). The respondent was sentenced to 12 months probation with a conviction recorded.

Facts

2. [2]
   The circumstances of the offending behaviour as set out in the sentencing submissions are sketchy. The applicant, then 37 years of age, was a support worker for the Jundah Women’s Group at Cherbourg. The respondent is the applicant’s cousin. Rhonda Sandow was the coordinator of the Cherbourg and Murgon Youth and Community Association, and was assigned a Toyota Tarago vehicle to transport children in the community. Rhonda Sandow had taken the vehicle home to her residence. At about 9.15 pm on Sunday 23 February 2002, Rhonda Sandow and the respondent, as well as a number of other family members, were present at Rhonda Sandow’s residence. The respondent arrived at the address, and appeared heavily intoxicated, being very drunk and also affected by “yandi” (marijuana).

3. [3]
   The respondent struck a male person who was present, then picked up a metal ashtray and threw it at the Tarago motor vehicle, breaking the back window on the driver’s side. The respondent then charged at Elaine Georgetown, forcing her to the ground and while she was on the ground the respondent was above her delivering blows. A number of people dragged the respondent off the applicant, and the applicant’s injuries were described (by the prosecutor in submissions) as “some swelling and bruising to her face”^[1].

Injuries

4. [4]
   The injuries suffered by the applicant in this altercation are difficult to ascertain with accuracy. As noted above, the prosecutor’s submissions on sentence referred to the applicant having “sustained some swelling and bruising to her face”^[2].  The sentencing judge made no reference in his sentencing remarks to the actual injuries suffered by the applicant.  The applicant’s affidavit exhibits what is asserted to be medical notes from the Cherbourg Hospital in relation to her injuries^[3], but a careful reading of these notes does not reveal any specific reference to injuries suffered on the relevant date (23 February 2003).

5. [5]
   The applicant’s police statement dated 24 February 2003^[4] relevantly states:

“[The respondent] started punching into me and hitting me in the face with his fists.  He punched me lots of times.  He knocked me to the ground and I fell onto the driveway.  [The respondent] kept on punching into me when I went down onto the ground.  I had to curl up into a ball to try and stop him hitting me.  He started kicking into me.  He was kicking me all over.  He was kicking and punching into me, I don’t know how many times but he just kept on going.  When he finished kicking into me, he sat on me and then started to punch into my head again.  I grabbed him by the balls and there were others there that were trying to get him off me.  [The respondent] got off me and then he kept arguing and fighting with everyone who was there.”

6. [6]
   In the applicant’s affidavit, the applicant describes the respondent trying to fight the respondent’s nephew, Colin Sandow, at which time the applicant intervened and told the respondent to go. The applicant then states that:

“[The respondent”] then started pushing me and then he punched me in the face with his open hand.  [The respondent] punched me about three or four times and told me the next time he would ‘lay me out’.  … I then saw [the respondent] go out onto the road and I thought he was going to smash my car so I went there to see what he was doing.  [The respondent] saw me coming and he rushed me and started assaulting me by punching me repeatedly in the face with his fists.  He knocked me to the ground and onto the driveway.  He kept on punching into me when I went to the ground and I had to curl up into a ball to stop him hitting me.  [The respondent] also kicked into me and was kicking me all over …In all I can recall [the respondent] kicked and punched me many, many times, but I do not know how many times this was.  After [the respondent] had finished kicking and punching me he sat on me and started punching me again. … As a result of the assault by [the respondent], I received a sore jaw, a sore back and headaches.  I also suffered a chipped front tooth and two bottom back teeth were also chipped.  I also sustained bruising around the nose, a black eye and general bruising.  I feel I still am experiencing the results of the assault as I have persistent headaches and recently I have been experiencing back pain in cold weather.”^[5]

7. [7]
   The applicant was examined by Dr Barrie Morley, neurologist on 2 February 2007. Dr Morley provided an opinion based on a history provided to him by the applicant, and the neurological examination that he conducted on the applicant in the course of the consultation, together with a summary provided by the applicant’s solicitors in a referral letter in respect of the applicant’s stated injuries. However, Dr Morley had no other information sources^[6].  Dr Morley goes on to state in his report:

“[The applicant] gave me her history of her headaches, back pain and dizzy spells for nearly four years, and more recent unreliable memory and mood swings.

[The applicant] dated the onset of her headaches, back pain and dizzy spells, from when she was assaulted i.e. on 23 February 2003; her assailant, a cousin, was subsequently convicted.

[The applicant] said that the assault occurred in the company of several relatives and friends in Cherbourg.  [The applicant] stated that it arose from a family dispute; and that her assailant was markedly affected by drugs and alcohol.  [The applicant] described sustaining several blows, particularly about her head and face, as well as to her back; she was felled, but retained consciousness.  Although shaken, and bleeding from her injuries, she did not seek immediate attention.  However, because of subsequent bruising of her face and body, injuries to several of her teeth, facial pain and headache, she arranged an appointment at the Cherbourg Hospital; and she was seen by the doctor on duty about two weeks following the assault.  At the time, she was working as a support worker with the local women’s shelter; because of her complaints, her colleagues consented to reducing her workload.  Meanwhile, the Cherbourg Hospital doctor apparently found that she had escaped significant injury other than to her teeth, and did not request x-rays or other investigations.”^[7].

8. [8]
   Dr Morley’s report goes on to state:

“[The applicant] describes her current complaints as follows:

• Her headaches are her predominant complaint.  They recur on most days of the week; she said that, on average, she consumes a packet of 20 Panadol tablets in a week.  Once or twice a month the headaches accentuate, to become severe, and distressing, with which she commonly takes to bed, which partly eases the pain.  Although it commences behind her right ear, it soon extends bifrontally.  She often is nauseated, but rarely vomits.  She has no other accompanying symptoms.

• Her back pain locates in the mid-lumbar region, and does not radiate.  It is momentarily aggravated by coughing or straining, and more persistently by physical exertion; and it also worsens in cooler weather.  It often troubles her in bed, and she may have difficulty in finding a comfortable position.

• Her dizzy spells characteristically occur when she rises more quickly from the seated or lying positions.  However she also feels unsteady when she stands for longer periods.  This symptom subsides with rest.

• In the past six months she has developed an unreliable memory.  She may forget her recent casual conversations or incidents, or what she intended to do, and is easily distracted; her concentration capabilities are reduced.

• As well, in these recent months, her mood swings have been worse, with irritability, and depression.”^[8].

9. [9]
   Dr Morley went on to express the opinion that:

“From the information available to me, at the time of [the applicant’s] assault, [the applicant] suffered a moderately severe cerebral concussion, with moderately severe shock, in conjunction with her numerous injuries to her face, teeth and head; and she probably also sustained musculoligamentous injury to her lumbar spinal region.  [The applicant] shows no clinical features to indicate that she has sustained permanent damage to any part of her nervous system.”^[9].

10. [10]
    Dr Morley states that the applicant’s “main current complaint of headaches is a recognised common signal of a cerebral concussion injury (i.e. post concussional headache)” but notes that given the period of time over which such headaches have persisted, additional factors including the applicant’s “raised blood pressure”, “additional stresses” and overuse of analgesic medication play a role in the perpetuation of the headaches. The applicant’s dizzy spells were “originally also a probable sequel of her concussion” but the medication prescribed for the applicant’s raised blood pressure was “probably now … a significant contributing factor”. Dr Morley did not think that the applicant’s memory and concentration problems, nor her back pain, had a neurological cause or basis^[10].

The law

11. [11]
    This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of 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 in Schedule 1.  Riddle v Coffey [2002] 133 A Crim R 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.

Compensation

12. [12]
    The applicant’s counsel submits that the injuries inflicted upon the applicant should be classified (and assessed) as follows:

Item 1: bruising/laceration (minor/moderate) (1-3%) –  at 3%

Item 4: loss or damage to teeth (1-12%) -    at 3%

Item 9: fractured skull/head injury (no brain damage) (5-15%) - at 5%

Item 21: back injury (minor) (2-7%) -     at 2%

13. [13]
    The difficulty in assessing compensation in this case is the paucity of material upon which to form conclusions about precisely what injuries were suffered by the applicant as a result of the assault, the extent to which the respondent was sentenced in respect of those injuries, and the relevant sequelae in respect of those injuries (as far as it is relevant to the assessment of compensation pursuant to COVA).

14. [14]
    As noted above, the only injuries about which the sentencing judge was advised was that the applicant had “sustained some swelling and bruising to her face”^[11].  There was no reference to any loss or damage to teeth, nor was there any medical or dental report placed before the sentencing court, or before this court on the application for compensation, which objectively identifies any such dental injuries and causally links any such injuries to the assault on 23 February 2003.  There is clearly a similar issue in respect of the claim under Item 21 (back injury (minor)) for which there is simply no medical evidence whatsoever, either before the sentencing court or this court, on which an assessment can be made for the criminal compensation application. As Jerrard JA stated in Lewis v Williams^[12], “[w]hat is required is proof to the satisfaction of the judge making the order, pursuant to the standard of proof prescribed by [COVA] s 30 …, that the injury for which compensation is sought was suffered because of the commission of the personal offence of which the respondent had been convicted on indictment”.

15. [15]
    I am unable to be satisfied on the balance of probabilities (COVA s. 30(2)), given the complete lack of supporting medical or other evidence, that the applicant suffered either dental injuries or back injuries as a result of the “personal offence” (assault occasioning bodily harm) committed by the respondent. What the court is left with in terms of assessable injuries is the swelling and bruising referred to by the prosecutor on the sentence^[13].  The opinion from Dr Morley suffers from the difficulty that it is based solely on the applicant’s own history and Dr Morley’s neurological examination without the benefit of any other information from a medical professional.  However, it does appear reasonable to accept that the applicant did suffer “a moderately severe cerebral concussion” without sustaining permanent damage as a result^[14].  In the circumstances, I consider it appropriate to assess the applicant’s injuries at 3% under Item 1 (bruising/laceration (minor/moderate)) and 5% under Item 9 (fractured skull/head injury (no brain damage)), a total of 8% of the scheme maximum ($6,000).

Contribution

16. [16]
    It is clear that the applicant did not contribute in any way to her own injuries^[15].

Conclusion

17. [17]
    Accordingly I order that the respondent Stafford Michael Sandow pay the applicant Elaine Joyce Georgetown the sum of $6,000.