Forster v Buckley[2007] QDC 235

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   These proceedings as originally filed constituted an application for criminal compensation by Jennifer Anne Forster (first applicant) and Michael Edward Forster (second applicant) against the respondent Robert Wayne Buckley arising out of an incident which occurred at Woodridge on 1 November 2003.  The proceedings (as far as they involve the first applicant Jennifer Anne Forster) have been adjourned to the Registry and this judgment is restricted to the compensation claimed by the second applicant Michael Edward Forster (relevantly for the purposes of this application “the applicant”).

2. [2]
   The respondent was sentenced by Judge Tutt in the District Court, Beenleigh on 20 May 2005 in respect of one count of burglary and common assault, one count of wilful destruction and seven counts of serious assault. On each of those counts, the respondent was sentenced to two years imprisonment, suspended after serving a period of nine months, with an operational period of three years. The respondent was also dealt with for a number of summary offences on the same date. This application relates only to Count 1 on the indictment, relating to the respondent entering the dwelling of the applicant and unlawfully assaulting him in that dwelling.

Facts

3. [3]
   At about 5.45 pm on 1 November 2003 the respondent was the driver and sole occupant of a white Holden Rodeo Utility being driven erratically (by an apparently drunk driver) along Jacaranda Avenue in Woodridge. The respondent (who was the driver of this vehicle) had just been involved in an accident on Wembley Road before leaving the scene and turning onto Jacaranda Avenue, and was then involved in a further accident (a head-on collision) at the intersection of Jacaranda Avenue and Poincettia Street, Woodridge. The respondent then drove the white utility from the scene of that second accident, and parked his vehicle (now badly damaged) in the driveway of his residence at 17 Poinciana Street, Woodridge.  The applicant, Michael Forster, was a neighbour of the respondent and saw him driving his badly damaged white utility up the street and parking it in the respondent’s driveway.

4. [4]
   The respondent got out of his vehicle and began to kick and punch his garage door, swearing loudly as he did so. A neighbour, “Pat” approached the applicant in his front yard and made a comment regarding the respondent, and pointed at the respondent. The respondent saw this gesture and came into the applicant’s property threatening “Pat” with violence. “Pat” left, and the respondent turned on the applicant and challenged him. The applicant told the respondent to stay off his property. The respondent kept talking, walked towards the applicant and when he was close enough, punched the applicant on the cheek. The applicant fell back against his garage door, bending it out of shape. The applicant then backed away from the respondent through the garage door and the respondent followed into the garage and struck the applicant again. While both the applicant and the respondent were fully inside the garage, the applicant noticed that some of his children had entered the garage through an internal door and the applicant turned and shepherded them back inside the house. He intended to get the children inside and then close the door on the respondent, but the respondent struck the applicant again, this time in the back of the head, and the applicant states that he “saw stars”^[1].

Injuries

5. [5]
   The applicant states that at “the time of the offence [he] experienced intense pain in [his] cheek, jaw and head”, and as a consequence sustained “bruising and soft tissue damage to [his] left cheek, right side jaw and head.”^[2]  Although the applicant states that he attended upon his general practitioner in relation to his physical injuries^[3], the applicant’s medical records^[4] do not show any entry supporting this claim.  The applicant also suffered mental or nervous shock as a result of the attack.

The Law

6. [6]
   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 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 with comparison to 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

7. [7]
   Mr Harper, counsel for the applicant seeks compensation under two items as follows:

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

Mr Harper submits that an award of 3% would be appropriate under this item, although in submissions he acknowledges that there is no medical evidence in support of the applicant’s claim that he suffered bruising during the course of the assault.  Given the circumstances of the assault, I accept that there must have been some injury compensable under Item 1 of the Schedule, but it seems to me appropriate that I should award the bottom of the relevant scale (i.e. 1%) given the lack of medical evidence.  Accordingly I award 1% ($750) pursuant to Item 1.

(2) Item 33 – mental or nervous shock (severe) – 20%-34%

8. [8]
   The applicant was examined by Mr Steve Morgan, psychologist and he provided a report dated 8 October 2006^[5].  Mr Morgan considers that the applicant “experienced a severe psychological reaction both at the time of [the] assault and subsequently through to the time of interview [14 August 2006]”^[6], and that the applicant’s symptoms [periodic lowered mood, increased irritability, intrusive rumination, hyper vigilance, disassociate experiences, sexual dysfunction, loss of self-esteem, loss of self-image and sleep disturbance] were consistent with the criteria for Post-Traumatic Stress Disorder (DSM-IV-TR, 309.81), chronic^[7].  Mr Morgan considered that there had been a “profound general impact on all domains of [the applicant’s] functioning, including in terms of his marriage, familial functioning, social activity and with adverse effect in terms of his work activities as a financial advisor”^[8].

9. [9]
   Mr Morgan also considered that the applicant had experienced “a secondary depressive condition – likely associated with his chronic trauma response, altered self-image, lowered esteem and influenced by his sense of frustration at being powerless at the time of the assault”, that this may have been “periodically experienced [as] a major depressive disorder, but most likely Adjustment Disorder, with Depressed Mood (DSM-IV-TR, 309.20)”.  Mr Morgan considered the applicant at ongoing risk of major depressive disorder, such as in the event of any further adverse experiences^[9].  Mr Morgan concluded by stating that, in his professional view, the applicant’s “prior and current experience of distress would be best understood as being in the severe range in terms of symptom severity”, the applicant’s “prior functional impairment” having “been severe, but … currently … in the moderate range”^[10].  It appears that that the applicant has not benefited from any psychological or pharmacological intervention, and in Mr Morgan’s opinion, would be likely to “require an extended period of psychological intervention” with treatment for 12 months or so at an anticipated cost of $3,000-$5,000 (depending on the frequency of attendance)^[11].

10. [10]
    Mr Harper concedes in his submissions that the injury is “not at the top end of the range for a severe nervous shock”, but submits that an appropriate award would be in the middle of the “severe” range. In the circumstances, I consider it appropriate to award the applicant 25% ($18,750) under Item 33.

Contribution

11. [11]
    I do not consider that the applicant has contributed in any way to his own injuries^[12].

Conclusion

12. [12]
    Accordingly, I order that the respondent Robert Wayne Buckley pay the applicant Michael Edward Forster the sum of $19,500.