Moorhouse v Parker[2008] QDC 306

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Faye Elizabeth Moorhouse, seeks compensation in respect of injuries suffered by her in an incident which occurred on 30 April 2005 at Buccan, Queensland.  This incident resulted in the respondent, Barry Christopher Parker, pleading guilty to one count of assault occasioning bodily harm before me at the Beenleigh District Court on 1 February 2007.  The respondent was sentenced to six months imprisonment with a parole release date set for 1 February 2007.

Facts

2. [2]
   The agreed Statement of Facts tendered on the sentencing proceedings as Exhibit 2^[1] sets out the relevant facts in relation to this incident which are as follows:

“At the time of the offence [the applicant] was 39 years old and worked for her husband’s business, “Rob’s Water”.

At about 5 pm on 30 April 2005 [the applicant] went to [the respondent]’s house in Buccan to collect payment for a delivery of water.  A cheque provided by the [respondent] had bounced and he had not shown up at Logan Village with payment as arranged.

When [the applicant] arrived at the house she could hear children inside and the partner of [the respondent], Kirsty, telling them to be quiet.  [The applicant] knocked at the door and yelled out but got no answer.  [The applicant] rang the home phone but again got no answer.  [The applicant] saw movement in the bedroom and the bedroom light being turned out.

[The applicant] then yelled out “I’ll give you 10 minutes to come out or I’ll turn your taps on so all the water would run out of your tank.

After another 10 minutes of talking to them and getting no response, [the applicant] turned on … all the exterior taps.  [The applicant] then yelled out ‘I’ll turn your power off’ and after a few minutes opened the switch box and turned off the power.  [The applicant] tapped on the window and then heard [the respondent] come running towards her from the front door.  [The respondent]’s fists were clenched and he was very aggressive, screaming at [the applicant] ‘You’ve been in my shed.’  [The respondent] told [the applicant] that Kirsty had told him to lie on the bed and not say anything.  [The respondent] yelled ‘You’d have got your money in a couple of weeks’ to which [the applicant] replied ‘All you had to do was tell me that.’  [The respondent] then yelled ‘You’re a lying bitch’ and punched her a number of times in the face and head causing instant pain and nose bleeding.  [The applicant] begged [the respondent] to stop.  [The applicant] started walking to the gate, however, [the respondent] told her ‘You’re not going anywhere – we’ll wait for the police.’  [The respondent] karate kicked [the applicant] in the side, knocking her to the ground.  [The respondent] then kicked [the applicant] on the ground and punched her in the head screaming ‘bitch’, ‘liar’, and ‘slut’ at her.

[The applicant] tried to get to her car but again [the respondent] told her to remain until the police arrived.  [The applicant] gave [the respondent] her phone so he could make the call, but he threw it back at her.  [The applicant] then managed to get up and run to her car.  [The applicant] drove to the neighbour’s house and they called an ambulance for her.”

Injuries

3. [3]
   The agreed statement of facts under the heading “Injuries and treatment” indicates:^[2]

“[The applicant] was taken to the Logan Hospital where she was examined and the treating doctor diagnosed the following injuries:

• extensive bruising to the left side of her face and forehead;
• bruising to the right side of her chest and pain in her abdomen;
• abrasions to her scalp;
• soft tissue injuries to both hands;
• a broken nose;
• a left cheek bone fracture; and
• fractures to two of her ribs.

[The applicant] was prescribed analgesia.  [The applicant] suffered severe discomfort and constant headaches after the attack.”

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.^[3]  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”.^[4]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[5]

Compensation

5. [5]
   Mr Macoun on behalf of the applicant seeks compensation as follows:

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

Mr Macoun notes that the applicant suffered bruising to her forehead and left cheek, abrasions to her scalp and minor lacerations and bruising to both hands, as well as bruising to her chest.  Mr Macoun submits that the bruising to the applicant’s left cheek and chest ought to be compensated under Items 6 and 21 respectively, but the balance of bruising and lacerations, he submits, should receive an award at the middle of the Item 1 range, namely 2% of the scheme maximum ($1,500).  In my view, the bruising and/or abrasions to the forehead, scalp, and hands, which are starkly illustrated in the photographs contained in Exhibit 4 of the original sentence^[6] would appropriately bring an award of 2% of the scheme maximum.  Accordingly, I order $1,500 under this item.

3. (2)
   Item 4 – fractured nose (displacement/surgery) – 8%-20%

Macoun notes that the injury to the applicant’s notes was a mildly depressed fracture of the wall of the left maxillary sinus which did not require surgical intervention^[7] and the applicant sustained no permanent impairment in respect of the nasal injury.^[8]  In these circumstances, and relying on the decision in Robey v Grath & Anor,^[9] Mr Macoun submits that an appropriate award, recognising that surgery was not required, is an award of 10% of the scheme maximum ($7,500).  I consider that is an appropriate award pursuant to this Item and accordingly I award $7,500 pursuant to Item 4.

3. (3)
   Item 6 – facial fracture (minor) – 8% - 14%

Mr Macoun notes that the material reveals that the applicant suffered a fracture to her left zygoma (cheek bone) which was found to be intact on diagnostic imaging^[10] but notes that the applicant still has ongoing tenderness over the temporo‑mandibular joint.^[11]

Mr Macoun submits that the fracture of the left zygoma was minor, was not displaced, did not require surgery but appears to have resulted in ongoing symptoms, which in his submission warrant an assessment above the bottom of the range for facial fractures (minor) namely 10% of the scheme maximum ($7,500).  In my view that is an appropriate submission and accordingly I award 10% of the scheme maximum ($7,500) under Item 6.

3. (4)
   Item 22 – neck/back/chest (moderate) – 5%-10%

Mr Macoun notes that the applicant suffered fractures to her eighth and ninth ribs on the right side,^[12] and that these injuries caused ongoing pain and discomfort to the applicant, although expected to resolve over time.^[13] Mr Macoun submits that although there was no pneumothorax as there was in Robinson v Cahill,^[14] where a fractured left sixth rib resulting in a pneumothorax received an award of 10% of the scheme maximum under Item 22, the applicant’s injuries were still comparable, and should receive an award of 8% under this item.  However, in my view, the injuries suffered by the applicant in this matter are clearly less serious than those suffered by the applicant in Robinson v Cahill, and in the circumstances I consider it appropriate to award 5% of the scheme maximum ($3,750) under Item 22.

3. (5)
   Item 32 – mental or nervous shock (severe) – 20%-34%

Mr Macoun submits that the applicant has been diagnosed as suffering from both post traumatic stress disorder (PTSD) and adjustment disorder with depressed mood, concurrently,^[15] and that the applicant’s psychological distress is presently in the mild to moderate range with severe functional impairment.^[16]  Mr Macoun notes further that the applicant has attended only one session of counselling from which she felt she derived little benefit, was apprehensive about leaving her home to continue treatment, has been prescribed anti‑depressant and sleeping medications, and has demonstrated a range of trauma and depressive responses^[17] which have impacted severely on her social functioning, have caused marital distress and continue to affect the applicant who suffers from flashback, nightmares, and hypervigilance.^[18]  Mr Macoun submits that the mental or nervous shock suffered by the applicant is directly comparable with the injuries suffered by the applicant in Anderson v Hooper.^[19] Mr Marcoun submits that the applicant in these proceedings has symptoms which are at least as severe and as chronic as those suffered by the applicant in Anderson v Hooper.  In my view, the comparison is apt, and accordingly I award 25% of the scheme maximum ($18,750) pursuant to Item 32.

Contribution

6. [6]
   The Criminal Offence Victims Act s 25(7) provides that “In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

7. [7]
   The applicant, as I noted when sentencing the respondent, appeared, at least potentially, to have committed a number of criminal offences “as part of her … reasonably stringent attempts to try and extract the $120 that [the respondent] owed.”^[20]

8. [8]
   I went on in my sentencing remarks to state to the respondent:

“Now, of course, as [your counsel] said, you have been a small business owner.  You understand how important it is for people to pay and, of course, by the behaviour of you and your family at that stage trying to pretend you were not at home, it seems that you quite unnecessarily distressed [the applicant].

So, it started by you owing [the applicant] money; you then played ducks and drakes with her; her getting upset; her doing things that were certainly very stupid things to do, if not actually criminal things to do; and then of course you responding, completely disproportionately, in an inappropriate way by your assaults of her.  So it is not a case where she is without fault.

Having said that, nobody deserves a flogging like this, and you [the respondent] are a fit, capable, and strong bloke.  She [the applicant] is an older woman, and as you well know, regardless of what your anger might be, firstly you do not flog anyone, but, in particular, you do not flog an older woman who, however inappropriately, was trying to do what she felt she should do which was recover money which was earned.”^[21]

9. [9]
   In further written submissions which I requested from Mr Macoun on behalf of the applicant, he acknowledges that the applicant may have committed an offence in turning on the respondent’s taps and turning off his power, but argues that the applicant was just attempting to engage the respondent in a discussion concerning the outstanding monies.  Mr Macoun stresses the applicant’s assertion that if she had been asked by the respondent to leave the property she would have done so.^[22]

10. [10]
    Further, Mr Macoun stresses that the applicant was not involved in any violence to any person, including the respondent, was not armed, and was attacked severely despite a difference in size, strength, power (and for that matter gender) in a way that was certainly disproportionate to any provocation that was offered.

11. [11]
    In conclusion, Mr Macoun submits that the acts engaged in by the applicant should be disregarded in the context of the overall circumstances, but if the court were to apply a reduction pursuant to s 25(7) of COVA, it should be limited to a nominal level of 5% of any award.

12. [12]
    Atkinson J in Hohn v King^[23] states:

12. “[105]
    In deciding whether or not a victim of crime should have his or her compensation reduced or refused pursuant to s 25(7) of COVA, the judge assessing the compensation should pay close regard to the circumstances of the particular offence and exercise his or her discretion judicially. Factors relevant to the discretion under s 25(7) are likely to include, but are not limited to:

3. (1)
   whether or not the victim was committing an offence at the time of his or her injury;
4. (2)
   whether any such offence committed by the victim involved personal violence to the offender or another;
5. (3)
   whether the victim offered violence to the offender or another before, during or after the offence;
6. (4)
   whether the victim was armed or used a weapon;
7. (5)
   whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;
8. (6)
   whether the offender responded with more force than was justified for self-defence;
9. (7)
   whether the victim offered provocation to the offender;
10. (8)
    any differences in size, strength and power between the victim and the offender;
11. (9)
    whether the violence used by the offender was disproportionate to any violence offered by the victim.

13. [13]
    In my view the behaviour by the applicant, although it related essentially only to property rather than personal violence, was foolish and precipitated the unreasonable and vicious response by the respondent. An appropriate reduction in those circumstances is in my view a reduction of 10% of the scheme maximum ($7,500).

Conclusion

14. [14]
    Accordingly I order that the respondent Barry Christopher Parker pay the applicant Faye Elizabeth Moorhouse the sum of $31,500.