Sinclair v Moore[2008] QDC 308

DISTRICT COURT OF QUEENSLAND

1. [1]
   Donald James Sinclair (“the applicant”) makes an application for compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”).

2. [2]
   Robert Leslie Moore (“the respondent”) is a convicted person within the meaning of s 24 (1) of the Act in that he was convicted on his own confession of one count of assault occasioning bodily harm whilst armed at the District Court in Kingaroy before His Honour Judge Trafford Walker SDCJ on 4 June 2004.

3. [3]
   On the present application the respondent did not appear. On 06 August 2008 Ryrie DCJ made an order for service of notice of this hearing by advertisements in the Courier Mail and the South Burnet Times.

4. [4]
   I have been informed that further inquiries were made of police as to the residence of the respondent.

5. [5]
   I am satisfied that all reasonable steps have been taken to notify the respondent of the proceedings and under those circumstances I am satisfied that sufficient notice has been given of the hearing of the application.

6. [6]
   The respondent entered pleas of guilty to 10 counts involving different complaints made by different people arising out of incidents on 29 June 2003 at Yarraman. The only count in which the applicant is a complainant is count 4 which alleges:

“That on 29 day of June 2003 at Yarraman in the State of Queensland, Robert Leslie Moore unlawfully assaulted Donald James Sinclair and did him bodily harm and Robert Leslie Moore was armed with an offensive instrument namely a metal rod holder.”

7. [7]
   The applicant seeks compensation for the following injuries:

• Bruising and laceration to the head.
• A fractured wrist.
• Psychological injuries amounting to mental or nervous shock.

8. [8]
   The Crown Prosecutor made submissions before the learned primary Judge in the following terms:

On Sunday, 29 June (2003) the complainant, Jennifer Huxley was holding a 35^th birthday party at her rented premises which are located on a rural acreage on the New England highway at Yarraman. A number of guests were invited, including the prisoner. The prisoner had an argument with the complainant, Dianne Bell. Prior to his arrival at the party and during the evening, the prisoner and Bell continued to argue with the prisoner making comments to her.

The complainant, Donald Sinclair, arrived at the party at around 8.15  pm. He was introduced to the prisoner and he’d been informed, at the time, by the complainant, Huxley, that the prisoner had been harassing and becoming aggressive towards Dianne Bell. Mr Sinclair subsequently stayed with the prisoner and attempted to calm and divert his attention away from Ms Bell. However, as the night progressed the prisoner became aggressive towards Bell and it’s noted that he’d been drinking beer and was drinking rum. At approximately 1.15 am the prisoner was again argumentative with Ms Bell and after attempting to elbow her, he then punched her in the nose with a clenched fist without any provocation or any warning. He struck Bell, again, to the back of the head as she turned away to leave and Mr Sinclair intervened to calm down the prisoner. Your Honour, that relates to count 1 on the indictment.

The Crown Prosecutor then went on to provide details concerning further counts upon the indictment, including, at page 7 of the transcript making the following submissions:

Your Honour, Mr Sinclair and Mr Craig Collins then attempted to keep the prisoner from re-entering the house by leaning against the backdoor. It’s noted that at this time the prisoner was effectively out of control. He threw a large pot plant through the glass panelling in the back door and this caused injuries to Collins and Gibson who both received cuts to their legs as a result of the flying glass fragments. The prisoner then attempted to stab the heads of both Mr Collins and Mr Sinclair who were holding the door closed. In doing so the prisoner caused himself serious injuries to his hands and left wrist as they hit the jagged glass edges that were remaining in the door frame.

The prisoner was unable to gain entry through the backdoor, however, he continued to smash and break things outside and he was observed to then pick up a metal fishing rod holder which was effectively the metal bar with a large spike attached and the prisoner commenced to smash the stereo system in the laundry. He then smashed the glass in the lounge-room window with the metal bar and then attempted to gain entry through that window. The witness, Mr Collins, then took hold of the chair and pushed the prisoner back as he was climbing through the window and the prisoner continued to yell and scream.

Your Honour, the prisoner then returned to the back door and Mr Sinclair tried to hold him out by placing his hands on the door and leaning on it. The prisoner kicked the door which caused Mr Sinclair to be forced backwards and the door to split and open approximately half a metre. Mr Sinclair again forced the door closed, however the prisoner kicked it and then shoulder charged the door and it was flung open. Mr Sinclair states that his left wrist was broken during this time. The prisoner has then come through the door and he started to smash the kitchen, kitchen cupboards with the rod holder and knock the fridge over. Mr Sinclair tried to subdue the prisoner by grabbing him on the front of this shirt.

Your Honour, in relation to count 4, on the indictment, the prisoner then struck Mr Sinclair with the rod holder striking him to the head and stating he was going to kill him. After being struck the complainant let go momentarily however then again took hold of the prisoner pulling him very close to stop him swinging the iron bar at him. Mr Sinclair had a large amount of blood coming from his head injury. The prisoner continued to hit out at things that were beside him using the rod holder and he hit the stove. At that time Mr Sinclair pushed him back and started to run away and Mr Sinclair escaped by jumping out of the rear window.

The applicant seeks criminal compensation for the injury to his wrist.

The facts placed before the learned primary Judge indicate the particulars the prosecution relied upon in relation to the charge of assault occasioning bodily harm whilst armed were the striking of Mr Sinclair over the head with the rod holder.

9. [9]
   A fractured wrist would be sufficient to satisfy a charge of grievous bodily harm. No distinct charge was brought on the indictment relating to the fractured wrist.

10. [10]
    On the facts which were placed before the primary Judge it would seem that the injury was sustained when the respondent broke the door down. A preliminary question to be determined is whether the injury to the wrist is a compensatable injury.

11. [11]
    In Lewis v Williams [2005] QCA 314 Jerrard JA held at paragraph 8 that “Section 19(i)(a) does not specifically restrict the scheme of payment to compensation for injury suffered by an applicant caused by a personal offence committed against the applicant which offence itself is constituted by the doing of that injury. It requires only that there be an injury suffered by the applicant caused by a personal offence committed against the applicant. Mr Williams suffered bodily injury caused by an indictable offence of assault occasioning bodily harm committed against him. Mr Lewis was convicted on indictment of that personal offence; and as it happens the learned sentencing Judge specifically remarked that he was taking into account on sentence the fact that Mr Williams had suffered “a loss of his sense of smell”.

12. [12]
    In the present case the difficulty which the applicant faces is that the particulars of the assault occasioning bodily harm were limited to those set out in the statement of facts by the crown namely the striking on the head with the iron bar. It does not seem that that fractured wrist can be linked to the particulars which were provided to the court in relation to the offence of assault occasioning bodily harm.

13. [13]
    Section 21 of the Act provides that a personal offence is an indictable offence committed against the person of someone.

14. [14]
    The indictment provides some guidance as to the way in which the court approached the respondent’s offending.

15. [15]
    Count 3 on the indictment included the circumstance of aggravation “breaking with violence whilst armed”. The applicant argues that I should regard count 3 on the indictment as a personal offence.

16. [16]
    The fundamental question is whether is capable of being regarded as a personal offence within the meaning of the Criminal Offences Victims Act.

17. [17]
    Her Honour Judge Richards considered a similar proposition in the matter of Ferguson v Watterson on 19 September 2008. Her Honour followed the Court of Appeal’s judgment in R Z (by his litigation guardian) v PAE [2007] QCA 166 at para 45:

“For an offence to be “an offence committed against the person of someone”, it is not necessary that there be actual contact with the body of the person. To return to an earlier example the offence of robbery is frequently committed by pointing a weapon at the victims and threatening them with violence in order to obtain property with no actual physical contact with the person or body of the victims. Such victims are commonly awarded compensation under the Act because the offence to which they were subjected is planning an indictable offence committed against the person of someone within s 21 of the Act. An attempted robbery involving threats alone is no less an indictable offence committed against the person of someone than like an offence involving some actual bodily contact”.

While the offence of burglary is a property offence, the particulars of the offence to which the respondent entered a plea of guilty included that the break was done with violence. Under those circumstances it seems on balance that the fractured wrist should be a compensable injury within the meaning of the Criminal Offences Victims Act.

18. [18]
    There is nothing to suggest that the applicant contributed in any way to the incidents which caused his injuries.

19. [19]
    The applicant suffered bleeding from the head and face.

20. [20]
    The applicant suffered a distal radius fracture Dr Gillett opined that the injury “is currently assessed as an impairment of upper limb function 12% which equate to a 75 loss of whole person function”.

21. [21]
    The applicant is a truck driver by occupation and the constant jarring involved in his occupation causes him to suffer on going pain.

22. [22]
    The applicant was examined by a psychologist Mr Hatzipetrou who expressed the opinion that the applicant had experienced chronic symptoms of post traumatic stress disorder and depression. He opined that the applicant suffered a “degree of psychological decline which was likely to be moderate in severity.”

23. [23]
    Counsel for the Applicant submits for an assessment of 30% bof the scheme maximum.

24. [24]
    In my view the quantum of compensation under item 16 should be higher than that contended for by Counsel for the applicant.

25. [25]
    In my view the award of compensation under item 32 should be at the bottom of the range provided in the schedule.

26. [26]
    Under those circumstances I am of the view that the applicant should be awarded compensation in the following terms:

Item 1 Bruising/laceration (minor/moderate): 2%

Item 16 Fractured wrist (displaced and

 immobilised) (severe) 20%

Item 32 Mental or nervous shock (moderate) 10%

Accordingly I order the respondent pay to the applicant $24000.00