DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Michael Peter Physick seeks compensation in respect of injuries suffered by him in an incident which occurred on 3 December 2005 at Kuraby, Queensland. This incident resulted in the first respondent, Israel Herman Naulu, the second respondent, Stephen Paul Wharewera, and the third respondent, Shaun Robert Dolheguy, each pleading guilty to counts of robbery in company with personal violence and assault occasioning bodily harm in company in respect of the applicant. Each of the respondents pleaded guilty to similar counts relating to another victim. The first respondent, Israel Herman Naulu was sentenced to four-and-a-half years imprisonment suspended after sixteen months with an operational period of five years in respect of the robbery in company with personal violence count, and three years imprisonment suspended after serving sixteen months, for an operational period of five years in respect of the assault occasioning bodily harm in company count. The second respondent Stephen Paul Wharewera was sentenced to three years imprisonment with an immediate parole release date in relation to the robbery in company with personal violence count, and a twelve month intensive correction order in respect of the assault occasioning bodily harm in company count. The third respondent, Shaun Robert Dolheguy, was sentenced to four years imprisonment wholly suspended with an operational period of five years in relation to the robbery in company with personal violence count, and a three year probation order in relation to the assault occasioning bodily harm in company count.

Facts

2. [2]
   The applicant, who was then twenty nine, was drinking at home with a friend on 3 December 2005. At about 9:45pm the applicant decided to head down to the local skate bowl to finish his drink there and hopefully run into someone he knew. The applicant consumed about half a 700ml bottle of rum at that stage and was a bit tipsy. The applicant left home at about 10pm and walked to the skate bowl next to the Scout Den at Wally Tate Park, near the Kuraby train station. He sat down with a number of people, although he did not know any of them. The skate bowl was not well lit, although there was ambient light from flood lights at the Kuraby train station. The applicant was drinking with two men and two women. The applicant shared his drink (a mixture of rum and coke) with the group. One member of the group was in the applicant’s personal space, and the applicant became uncomfortable, so went and sat on the edge of the skate bowl. The applicant took his phone out of his backpack and started playing the radio through it. Shortly after this, the applicant recalls being hit several times in quick succession around the head from his right side. These blows caused him to pass out. The applicant also recalls hands grabbing at him all over.

3. [3]
   A female witness saw the first and third respondents, as well as two others, stand behind the applicant, then heard a male voice say, “Let’s roll him” and “Let’s get his phone”. This witness then saw the third respondent kick the applicant on the right side of his face with the third respondent’s right foot. The applicant fell backwards. The same witness saw the first respondent walk up to the applicant, stand on the left hand side of the applicant, raise both his left and right arms into fists and punch the applicant, as well as kicking with a right foot. This witness also saw the first respondent punch the applicant about three or four times in the face and kick the applicant twice in the stomach. The group of young males (including the first and third respondents) started walking towards the train station. The first respondent had the applicant’s mobile phone. The first, second and third respondents went through the applicant’s bag which was then dumped in a rubbish bin at the train station by the second respondent.

4. [4]
   When the group had almost reached the train station, the same witness saw the first respondent turn around and go back to the applicant followed by most of the rest of the group. While the applicant was still lying motionless on top of the skate ramp, the first, second and third respondents then began kicking the applicant again and he rolled down the ramp. Each of the respondents continued to kick the applicant and swear at him before returning to the train station. Other witnesses saw the first respondent run towards the applicant at the start of the confrontation and punched him in the face with both hands, and saw the third respondent stomping on the head of the applicant. Yet another witness saw the first respondent “king hit” the applicant on the jaw, and then punch and kick the applicant. The same witness saw the second and third respondents kick the applicant while he was on the ground, continuing after the applicant had yelled out to the attackers to stop the attack.^[1]

Injuries

5. [5]
   The Schedule of Facts^[2] indicates that the applicant suffered the following injuries:

• Fractured jaw;
• Fractured eise [sic] (presumably a reference to a “fractured nose”);
• Fractured right eye socket;
• Chipped tooth on lower jaw;
• Sprained right ankle;
• Laceration to the centre of [the applicant’s] forehead requiring stitches; and
• Numerous bumps and bruises.

6. [6]
   The applicant was the subject of a CT scan at the Queen Elizabeth II Jubilee Hospital, which concluded that:

“There are fractures of the facial skeleton on the right side with fractures of the right superior orbital margin extending into the right frontal simus and a further fracture of the lateral wall of the right maxillary anterum.  The left nasal bone is also fractured with minimal displacement.  Overlying soft tissue swelling and free intraorbital gas are noted as well as considerable free gas around the lips.  No intracerebral injury is detected.”^[3]

7. [7]
   The Queen Elizabeth II Jubilee Hospital Emergency Department clinical record admission notes indicate that when the applicant was assessed at the emergency department, he complained of a sore neck, jaw and head. The applicant was observed to have multiple lacerations and swelling over the face, to be tender on palpitation of the upper cervical spine in the upper thoracic spine, and had sustained a right elbow graze and minor grazes to the knees and hands.^[4]

8. [8]
   None of the fractures were surgically repaired but were allowed to heal naturally. The applicant suffered pain which “was incredible” and had to take “Panadeine Forte for about two weeks”. The applicant suffered neck pain, experienced blurry vision for a couple of months after the attack, had to eat Sustagen (instead of solid food) for about four weeks and felt quite unwell for a few months afterwards.^[5]  The applicant suffered a 5-6cm vertical laceration on his forehead which was sutured, resulting in an appearance that he considered “was visually very disturbing to the public.”^[6]  The applicant also suffered (relevantly) an “enamel-dentine fracture of the lower left central incisor” which requires a resin filling at the cost of $140.^[7]

The Law

9. [9]
   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.^[8]  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”.^[9]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[10]

Compensation

10. [10]
    Mr Stephenson on behalf of the applicants seeks compensation as follows:

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

11. [11]
    Mr Stephenson submits that the “numerous bumps and bruises” suffered by the applicant, who on examination at the Queen Elizabeth II Jubilee Hospital was “tender on palpitation of the upper cervical spine and the upper thoracic spine, with a right elbow graze and minor grazes to the knees and hands,”^[11] should be compensated at the upper end of the minor/moderate range i.e. 3% of the scheme maximum ($2,250).  In my view that is an appropriate award for the totality of the bruising/lacerations suffered by the applicant. 

2.   Item 8 – facial fracture (severe) – 20%-30%

12. [12]
    Mr Read submits that the totality of the facial injuries suffered by the applicant include fractures of the jaw, nose and right eye socket, the chipping of a tooth, and a laceration to the centre of the applicant’s forehead requiring stitches and leaving a scar. In essence, Mr Stephenson submits that, without “doubt counting”, an assessment of compensation at the middle of the severe range for facial fracture (i.e. 25%) adequately compensates the applicant for the serious and debilitating injuries suffered by him (even though no surgical intervention was required) in this attack. I accept that as an appropriate submission, and accordingly I assess compensation at 25% of the scheme maximum ($18,750) under Item 8.

3.   Item 19 – fracture/loss of use of leg/ankle (minor/moderate) – 4%-10%

13. [13]
    The applicant suffered a sprained right ankle in the attack and in the circumstances, that clearly amounts to a “loss of use of…ankle” which (as Mr Stephenson submits) should be assessed at the bottom of the applicable range (Item 19) i.e. 4% of the scheme maximum ($3,000). I assess compensation at 4% accordingly.

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

14. [14]
    The applicant was diagnosed by Dr Barbara McGuire, psychiatrist, as exhibiting “post traumatic stress disorder to a moderate degree” with the likelihood that the applicant “will continue to experience symptoms for an indefinite period although there may be some amelioration over time.”^[12]

15. [15]
    The complication in respect of the mental or nervous shock suffered by the applicant from the assault on him on 3 December 2005, is that the applicant had a pre-existing “significant mental health history [with] the likely diagnosis being a substance induced psychosis”.^[13]  The applicant gave a history to Dr McGuire which (if taken at face value) would indicate that the applicant had twice previously been the victim of offences of rape by male persons.  Dr McGuire was asked to advise whether or not those sexual assaults were “more likely than not to be delusional beliefs”, to which she responded that although she could not “make this comment with certainty but feel that it is a probability [that the assaults were delusional beliefs] as it appears to have occurred at a time when [the applicant] was regarded as having a substance induced psychosis.”^[14]  Dr McGuire went on to state that, “had the incidents [i.e. the purported sexual assaults against the applicant] occurred as [the applicant described] I believe that the assault of the 3.12.05 still materially and significantly contributed to [the applicant’s] post traumatic stress disorder.  If the earlier described rape and assault did actually occur, the likelihood would be that the assault of the 3.12.05 was not the sole and effective cause of his post traumatic stress disorder.”^[15]

16. [16]
    That factual matrix in respect of the issue of “mental or nervous shock” does create complications. Ultimately, however, Mr Stephenson submits that, following the approach to causation outlined by Holmes JA in SAY v AZ; ex parte Attorney-General of Queensland [2006] QCA 462, “where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision.”^[16]  Holmes JA went on to note that “in that exercise [of discounting or fixing on lower percentage of the compensation scale] it is legitimate to consider the nature of the other contributing factors.”^[17]

17. [17]
    Mr Stephenson submits that on balance, the report of Dr McGuire would indicate that there were no previous sexual assaults, but rather they were the product of a substance induced psychosis, and in any event, the assault of 3 December 2005 “still materially and significantly contributed to [the applicant’s] post traumatic stress disorder”.^[18]  In those circumstances, Mr Stephenson submits that an appropriate award, taking into account the applicant’s previous mental health status, is an award of 25% (i.e. towards the lower end of the severe range of mental or nervous shock in Item 33).  I consider that is an appropriate submission and accordingly I assess compensation for mental or nervous shock at 25% of the scheme maximum ($18,750). 

Contribution

18. [18]
    I do not consider that the applicant has contributed either directly or indirectly to the injuries which he suffered.^[19]

Multiple respondents

19. [19]
    The first and third respondents appeared to have both kicked and punched the applicant in the head, and the third respondent has stomped on the applicant’s head. The second respondent kicked the applicant but did not punch him. In the circumstances, there is in my view no practical basis on which the physical injuries caused by each of the respondents could be identified, and in those circumstances it is appropriate to order joint liability of each of the respondents.^[20]

Conclusion

20. [20]
    Accordingly, I order that the first, second and third respondents jointly and severally pay the applicant the sum of $42,750.