RBR v Dallen[2009] QDC 196

DISTRICT COURT OF QUEENSLAND

HER HONOUR: RBR has applied for an order that Lindsay Gordon Dallen pay her compensation for injuries she sustained as a result of offences committed by Mr Dallen.

On 1 June 2006 he was convicted on his own plea of guilty to three counts: two of assault occasioning bodily harm; the first occurred between July and November of 2001; the second occurred on the 18th of November 2001, and there was a third count of assault occasioning bodily harm, while armed, which occurred between the 18th and the 28th of November 2001.

As a result of those pleas Mr Dallen was convicted and sentenced to concurrent terms of imprisonment of two years. He is now in custody serving a lengthy term for other offences. He is aware of these proceedings.

The first offence involved repeated punches to the face and Head. Ms RBR's head hit a concrete wall. She sustained a blood nose, a sore head and bruising as a result of the assault.

On the 18th of November, the second offence, Ms RBR was punched to the head repeatedly and was also kicked by the respondent. She again sustained bruising as a result of that offence.

The third is the most serious of the offences. She was beaten all over her body with a bed post. As well as that, Ms RBR was cut to the back. It was a superficial laceration and is compensable along with the bruising under the one head.

Ms RBR was restrained during the offence. She was tied down. As well as being tied down and beaten, she was burnt.

Her chin was burnt, it appears, by a cigarette lighter. The respondent also ripped up a phone book and poured the pieces of paper on to Ms RBR’s back while she was restrained and set them alight. She sustained other burns to her skin as a result.

Whilst this was happening Mr Dallen threatened Ms RBR with all sorts of other consequences, including violence at his hand and sexual violation by others.

As a result of those three offences, Ms RBR has sustained injuries which I consider to be compensable under three headings. For each of the offences she is entitled to an award under the bruising/laceration item, number one in the schedule, which is compensable in a range of one to three per cent. I consider an award of three per cent for each offence is appropriate.

For the third offence, I consider a single award under that item would not properly compensate Ms RBR, as she is entitled to be compensated, in relation to the burn to her chin. After hearing submissions from counsel, I'm satisfied that item 9 is the appropriate item under which to calculate compensation.

Item 9 is an item for a fractured skull or head injury (nobrain damage). There is no reason, in my view, to read down the word "injury". I accept that it is appropriate to compensate Ms RBR for the injury to her chin, caused by the burn at Mr Dallen's hand. Assessing the range of five to 15 per cent, I award the bottom end of five per cent to Ms RBR.

Of course, the most significant injury that Ms RBR has sustained at the hands of Mr Dallen is mental or nervous shock (severe). It is clear from Dr Chittenden that Ms RBR has suffered and continues to suffer and has for over a five-year period or more, suffered severely from post-traumatic stress disorder. It is also clear from Dr Chittenden's report that that injury relates to not just these three offences, but arises from Mr Dallen’s course of conduct in his most abusive and violent relationship with Ms RBR.

The Court of Appeal has confirmed in Say v. AZ ex parte Attorney-General (Queensland) [2006] QCA 462 , that in cases such as this, where it is not possible to allocate or apportion a degree of injury to particular incidents, the Courts should adopt a broad-brush approach and discount the award to allow for the role of factors other than the offences charged. In this case, what I must do is allow for the behaviour not charged as offences under this Act. That behaviour was very severe, including not just acts of violence such as those charged, but also sexual violence over a lengthy period, including allegations of rape.

It seems that the most serious behaviour has not been charged, although I accept Mr McNab's submission that the final count was a most serious incident, not so much because of the violence, although that in itself is significant, but because of the other circumstances. Ms RBR was tied down whilst being beaten and threatened with all sorts of behaviour, some of which she had experienced in the past.

Taking those matters into account, I consider an award of 25 per cent under the heading of mental or nervous shock (severe) is appropriate, and, if anything, somewhat conservative. It indicates, in my view, a very careful approach by Mr McNab to the way in which this lady's injuries should be compensated.

So taking all of those awards into account, the total award is 39 per cent of the scheme maximum. That equates to the sum of $29,250. Do you have a draft order, Mr McNab?

MR McNAB: No, I don't, your Honour.

HER HONOUR: Right. I will order that Mr Dallen pay Ms RBR the sum of $29,250 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995. There is no capacity for me to order costs, so none are awarded.