Brown v Couchy[2008] QDC 69

HIS HONOUR: The applicant, Allan Peter Brown, seeks compensation in respect of injuries he suffered arising out of an incident which occurred on 21 January 2005 at Parry Street Charleville. The respondent, Nathan Cyril Couchy, pleaded guilty in the Charleville District Court to a single count of assault occasioning bodily harm in company before Judge Forde on 23 November 2005.

The respondent was sentenced to 12 months' imprisonment suspended after four months with an operational period of three years, cumulative on 187 days he was ordered to serve arising out of a breach of an intensive correction order. A subsequent appeal by the respondent was dismissed (R v Couchy [2006] QCA 5).

Facts

On 21 January 2005 the respondent, claiming to have received a bad lot of amphetamines from the applicant, took along two people, one being the co-accused Shannon Lawton, to confront the applicant at the applicant's residence in Parry Street, Charleville.

The applicant and the respondents exchanged words, the applicant threw a punch and then the respondent and the others gave the applicant, what Judge Forde described in his sentencing remarks as "a good hiding" (Sentencing remarks, p.2).

Injuries

The applicant's injuries "are depicted in the photographs [Sentence Exhibit 6] and include facial bruising, black right eye, swelling around the right cheek and eye area, abrasions and bruising on the right cheek as well as abrasions on the back of the right shoulder, broken front tooth, a wound to the right ear and to the right side of his neck."

Judge Forde also noted that the applicant suffered from "fractures in various ribs [which] were found…a week or so later." (Sentencing remarks page 2).

The Law

This is an application under s 24 of the Criminal Offence Victims Act 1995 ("COVA"). COVA commenced 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

Mr Jongkind, solicitor who appears for the applicant, submits that compensation should be awarded under two items as follows (although I note he refers in his submissions to three items, one item he concedes does not satisfy the requirements for compensation):

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

Mr Jongkind refers to the Charleville Hospital admission notes for 21 January 2005 which relevantly read, "Bruising, appearing on right side of neck and shoulder and swelling to right eyebrow area. Cap from front tooth also knocked out in attack. Dried blood in outer ear. Eye/see small laceration." (Exhibit A, affidavit of Gillaume Francois Jongkind sworn 29 November 2007).

The photographs (Exhibit 6 on sentence) are consistent with those injuries as described in the medical records. Mr Jongkind submits that an appropriate assessment under item 1 for the totality of the bruising and the lacerations would be two percent of the scheme maximum ($1500).

In my view, given the medical evidence, the photographs (Exhibit 6 on sentence) and Judge Forde's description of the applicant having received "a good hiding", such an assessment appears appropriate. Accordingly I award the applicant $1500 pursuant to item 1.

(2) Item 5 - loss or damage of teeth (1% - 12%).

Mr Jongkind makes no submission for compensation for loss or damage of teeth, in the light of the report of Dr Marshall (Exhibit C, affidavit of Gillaume Francois Jongkind sworn 29 November 2007) which indicates that the temporary crown lost in the incident was well past its useful life.

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

Mr Jongkind submits that an assessment should be made at the high end of item 22 i.e. at 10 percent of the scheme maximum. In this respect, he relies on evidence which shows that the applicant was diagnosed by X-ray on 1 February 2005 as having suffered "several fractures of his ribs" (Sentencing submissions p.5).

This diagnosis was made after the applicant returned to hospital complaining of shortness of breath and difficulty of breathing some days after the original incident. Unfortunately the radiologist's report (Exhibit B, affidavit of Gillaume Francois Jongkind sworn 29 November 2007) is no more specific than stating, "There are several fractured ribs."

A subsequent medical report dated 22 December 2006 from Dr Nigel Brown, Charleville Hospital, is also no more specific (Exhibit E, affidavit of Gillaume Francois Jongkind sworn 29 November 2007).

Mr Jongkind stresses that the injury was not capable of treatment, but caused fairly constant pain over the period of healing (paragraph 9, affidavit of Gillaume Francois Jongkind sworn 29 November 2007). I note in passing that the factual basis for the submission arises from hearsay evidence contained in Mr Jongkind's affidavit, which more properly should have been contained in a sworn affidavit from the applicant.

There is, however, some support for Mr Jongkind's submission in the contents of the victim impact statement (Sentence Exhibit 8) which refers to the applicant's ribs being "always sore", refers to the pain as being "permanent", and claims that the pain was preventing the applicant from holding down ongoing employment.

In all the circumstances then, despite some less than satisfactory aspects of the medical evidence in respect of the ribs, it does appear clear that the applicant has suffered a fracture of some ribs, that that has been effectively untreatable and has left some sequelae for some significant period of time. Accordingly, in my view, an appropriate award would be eight percent of the scheme maximum (i.e. $6,000).

Contribution

Mr Jongkind submits that the assault was by three persons against one, was in the applicant's own house yard, and was unprovoked. The submissions on sentence by the prosecutor,

Mr Swanwick, indicate that "there was some dispute between the parties, words were exchanged and then [the applicant] went to throw a punch at one of them and then there was a general all in fight" (sentencing submissions p.5).

Further on at page 6 of the sentencing submissions, the prosecutor concedes that "it appears that [the applicant] may have thrown the first punch", but then makes the point that the respondent and the others were in fact intruders on the applicant's property and were apparently acting in a threatening manner to the applicant, so (in Mr Swanwick's submission to the sentencing Judge) the applicant had every right to do what he did.

Mr Hardcastle of counsel who appeared for the respondent on sentence, submitted that the reason for the confrontation was that the respondent had purchased a bad lot of amphetamines from the applicant earlier on the day of the incident (21 January 2005). That, Mr Hardcastle frankly admitted, was denied by the applicant through the prosecutor (who passed that denial onto Mr Hardcastle - see sentencing submissions p.7), but the sentencing remarks of Judge Forde appear to indicate that he accepted the background of the applicant having sold the respondent a bad lot of amphetamines as being part of the factual matrix which led to the incident (Sentencing remarks p.2).

The question therefore is whether the behaviour of the applicant directly or indirectly contributed to his own injuries (COVA S.25(7)). The answer to that question is two-fold. Although the applicant may have been involved in the sale of illegal drugs of dubious quality, that did not justify him receiving a hiding at the hands of the respondent and/or the co-accused.

In addition, I accept, as Mr Swanwick submitted on sentence on behalf of the prosecution, that the applicant was entitled to use force against three threatening intruders who were on his property. In all of the circumstances then, I do not consider it appropriate to reduce the award under COVA S.25(7).

Conclusion

Mr Jongkind's affidavit sworn 29 November 2007 at paragraph 3, attests to the respondent's co-accused, Shannon Lawton, having died since being sentenced (on 23 November 2005) and further that a third person said to have been involved had never been apprehended (and consequently charged).

In all of the circumstances then, it appears appropriate that any order made by this Court for criminal compensation should be solely against the respondent to these proceedings, Nathan Cyril Couchy. Accordingly, I order that the respondent, Nathan Cyril Couchy, pay the applicant, Allan Peter Brown, the sum of $7500.

Nothing arising, Mr Jongkind?

MR JONGKIND: No thank you, your Honour.

HIS HONOUR: Thank you for that, thank you for your appearance.