DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Debbie Fay Harper seeks compensation in respect of injuries suffered by her arising out of an incident which occurred on 13 November 2004. The respondents, AH and AF were both juveniles at the time the offence was committed. AH entered a plea of guilty in the Beenleigh Childrens’ Court on 5 August 2005 to a single count of robbery accompanied with personal violence, and was sentenced by Judge Tutt in that court on 3 October 2005 to 6 months detention, suspended immediately and subject to a three month conditional release order. The respondent AF pleaded guilty on 30 September 2005 to one count of robbery accompanied with personal violence, and was sentenced by Judge Tutt on 24 January 2006 in the Beenleigh Childrens’ Court to 18 months’ imprisonment, wholly suspended with an operational period of three years.

Facts

2. [2]
   The applicant and her boyfriend Richard Newham were walking along Karri Avenue at Woodridge in the early hours of Saturday 13 November 2004.  They had been out for the evening and were in front of their house, by their front fence, when they were approached by the two respondents.  Both respondents had attended a party in the street that night and had consumed a considerable amount of alcohol prior to the incident.  Both respondents greeted the applicant and Mr Newham, and then attacked both the applicant and Mr Newham without warning.  The respondent AF punched Mr Newham, causing him to fall to the ground then both respondents punched and kicked Mr Newham while he was on the ground.  The applicant went to Mr Newham’s assistance and after words were exchanged, she too was knocked to the ground and kicked by both respondents while she was on the ground.  The respondents then decamped with the applicant’s handbag and returned to the party that they had previously been attending.

Injuries

3. [3]
   The applicant suffered abrasions to her arms and legs and had a laceration to her eye which required 29 stitches. The applicant also received a fractured nose.^[1]   The report of Dr David Lewis-Driver, Director of Emergency Medicine at Logan Hospital dated 25 February 2005^[2] indicates that the applicant was brought to the emergency department of the Logan Hospital at 2.20 am on 13 November 2004 (the date of the incident) and was discharged at 8.15 am the same day “with instructions that her fractured nose would require review in about one week to assess whether treatment would be required to prevent permanent deformity”.  The material filed with this application before me does not reveal what (if any) further consequences there were in respect of the fractured nose other than the applicant, in her affidavit indicating that it was “sore for a number of weeks afterwards and during this period [she] could only breathe through [her] mouth.”^[3]

The Law

4. [4]
   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 injury 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.  However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[4]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[5]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[6]

Compensation

5. [5]
   Mr Saggers, who appears for the applicant, submits as follows:-

3. (1)
   Item 1 – bruising/laceration etc. (minor/moderate) 1% - 3%.  Mr Saggers submits that the bruising to the applicant’s arms and legs are distinct injuries from the fractured nose and laceration to her eye and should be compensated accordingly.  That submission is in accordance with the views of Fraser JA in Wren v Gaulai^[7] where he indicated that separate assessments should be made under each applicable item in the compensation table so long as duplication is avoided and unless it is impractical.  Accordingly, I award 1% of the scheme maximum ($750.00) under this item.

3. (2)
   Item 3 – fractured nose (no displacement) 5% - 8%.  Mr Saggers submits that I should award 5% of the scheme maximum ($3,750.00) pursuant to this item.  As set out above, there is little information in the material in respect of the fractured nose, other than that it occurred, and apparently healed without surgery or long term consequences.  In the circumstances it is appropriate to make an award at the bottom of the scale for item 3. namely 5% ($3,750.00).

3. (3)
   Item 27 Facial disfigurement or bodily scaring (minor/moderate) 2% - 10%.  Mr Saggers submits that the applicant was knocked to the ground and repeatedly kicked while down, and suffered a laceration to her right eyebrow which required 29 stitches.  The applicant in her affidavit indicates that “the stiches were in my eyebrow for 10 days.  They were removed by the doctor and I returned to that doctor daily thereafter for a period of about 10 days to have the wound dressed.  I can feel the scar tissue on my eyebrow and the scarring is visible between my nose and eyebrow.”^[8]  In the circumstances it is appropriate in my view to award the applicant 10% of the scheme maximum ($7,500.00) as submitted by Mr Saggers on behalf of the applicant.

6. [6]
   The applicant indicates in her affidavit that she “did [not want to see a psychologist or psychiatrist concerning the incident]” and accordingly no claim is made pursuant to items relevant to mental or nervous shock.

Contribution

7. [7]
   I do not consider that the applicant contributed in any way to her own injuries.^[9]

Conclusion

8. [8]
   I order that the respondent AH and AF pay the applicant Debbie Fay Harper the sum of $12,000.