DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant John Charles Logan seeks compensation in respect of injuries suffered by him in an incident which occurred on or about 26 January 2006 at Mareeba, Queensland. This incident resulted in the respondent Vena Dawn Bee pleading guilty to one count of grievous bodily harm at the Mt Isa District Court before me on 27 July 2007. The respondent was sentenced to three years imprisonment with a parole release date of 26 January 2008 (six months after sentence).

Facts

2. [2]
   The respondent and the applicant were at the time of the offence (26 January 2006) residing together in Mareeba in a de facto relationship. The respondent had been drinking upstairs. There was an argument resulting from an unwanted request for sex by the applicant. The request for sex was refused because the respondent was tired and wanted to go to sleep. There was a repeat of that request on at least one other occasion. The applicant then began swearing at the respondent and then suggested that he would have intercourse with someone else. The respondent had a sad and tragic history of having been the victim of sexual abuse. The discussion then escalated into the argument which resulted in the respondent going and obtaining the knife used in the stabbing. The respondent pulled out a knife after the applicant had words with her. The respondent swung the knife and cut the applicant under the ear which caused a small wound. After that first cut, the applicant said words to the effect, “If you are going to stab make it a good job”. The applicant lay down and the respondent then stabbed the applicant in the chest and the left upper leg.

3. [3]
   The knife used was some 33 cms long and had no handle. The knife penetrated into the applicant’s chest and passed in and out of his heart. When police were first called, the applicant told them an untruthful story that some unknown male had stabbed him. It was only after police returned without success the applicant indicated the true story (ie that the respondent had stabbed him).^[1]

Injury

4. [4]
   The applicant was originally taken to the Mareeba Hospital by the Queensland Ambulance Service at 4.30 am on 26 January 2006. At that time he was assessed by a registered nurse. He told the nurse that he had been stabbed by some “young cheeky fellows”. The registered nurse who examined the applicant noted the stab wound in the area of the applicant’s left breast (1.5 cm wound), as well as a superficial wound on the applicant’s shoulder and another on the outer thigh of the applicant’s left leg. There was also a superficial laceration on top of the applicant’s head from a fight earlier in the night at Granite Creek, and a very small superficial cut below the applicant’s left ear. The applicant reported that he had drunk four cartons of wine at Granite Creek and a six pack of stubbies after getting home. The applicant’s blood pressure, heart rate, respiration rate and oximetry were within normal limits. The applicant was encouraged to return the next morning for x-rays and left at approximately 6 am.^[2]

5. [5]
   The applicant re-presented [at Mareeba Hospital] at 4.30 pm on 27 January 2006. He was very short of breath and tender in his left chest. The applicant stated that it was more painful taking deep breaths. The applicant had breath sounds present on both sides of his chest and was unable to lay flat. The ECG taken of the applicant showed atrial fibrillation and ST elevation on a number of leads. After discussions between the doctor on call (Dr Keating) and a consultant at the Accident & Emergency Department of the Cairns Base Hospital, it was considered that the applicant needed to have a pneumo- or haemopericardium excluded. The applicant was therefore transferred to Townsville General Hospital by the Royal Flying Doctor Service at approximately 11.30 pm.^[3]

6. [6]
   The applicant was examined at 4.30 am on 28 January 2006 by Dr Lakshman at the Townsville Hospital. Dr Lakshman made the following observations:-

• stab injury on the anterior chest (on the third intercostal space, 2.5 cms lateral to the left sternal edge);
• [the applicant] was haemo-dynamically stable (blood pressure);
• no other injuries were found.

7. [7]
   Dr Lakshman notes that as a result of his examination he was able to state the following in respect of the injuries:-

 The Law

8. [8]
   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.^[5] 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”.^[6] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[7]

Compensation

9. [9]
   Mr Kimmins on behalf of the applicant seeks compensation as follows:-

(1)  Item 26 – gunshot/stab wound (severe) – 15% - 40%

10. [10]
    Mr Kimmins submits that the nature of the stab wound, which penetrated and exited the heart should receive an award in the upper middle range of Item 26 in the order of 30 % of the scheme maximum. There is no doubt in my view that this was a severe stabbing and as I noted in my sentencing remarks, the respondent “literally came within an ace of killing [the applicant].^[8] In the circumstances, I consider that it is appropriate to award 30 percent of the Scheme maximum at $22,500.00 pursuant to this Item.

(2) Item 28 – Facial Disfigurement or Bodily Scarring (severe) 10% - 30%

11. [11]
    The applicant in his Affidavit states, “I have a significant scar as a result of the stabbing”^[9] indicates an extensive operation scar extending from his upper chest down to his naval. The operation scar is, of course, substantially in excess of the scar from the original stab wound, which was noted as causing a wound of approximately 1.5 cm in the area of the applicant’s left breast.^[10] Given the assessment for the applicant’s stab wound under Item 26, it seems to me more appropriate to award 10% of the Scheme maximum ($7,500) pursuant to Item 28, recognising the separate contribution of the bodily scarring to the overall assessment. Accordingly, I award $7,500 pursuant to Item 28.

(3) Item 32 – Mental or Nervous Shock (moderate) 10% – 20%

12. [12]
    The Applicant was examined by Dr Christine Richardson, Psychologist who concluded that the Applicant was suffering from Post Traumatic Stress Disorder (PTSD) in the moderate range as well as satisfying the DSM – IV – TR criteria for major depressive disorder (moderate and without psychotic features).^[11] Dr Richardson does note that the events of 26 January 2006 (the stabbing which is the subject of this Application) had in conjunction with two previous occasions when the Applicant was stabbed by the Respondent in 2004 and 2005, had a profound effect on the Applicant. Dr Richardson considered that the Applicant required 32 sessions with an appropriately qualified therapist.^[12] The understandable linkage of the current (very serious) stabbing together with two previous woundings of the Applicant by the Respondent does somewhat complicate the issue of assessment of the component of mental or nervous shock attributable to the current offence. Although such assessments are difficult, it seems to me appropriate in the circumstances to discount the assessment somewhat and accordingly, I award 15 % of the scheme maximum ($11,250) pursuant to Item 32.

Contribution

13. [13]
    COVA s 25 (7) provides that “in deciding whether an amount, or what an 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.”

14. [14]
    In this case the applicant and the respondent were both significantly intoxicated at the time of the argument and consequent stabbing. The applicant effectively dared the respondent to continue to with her use of the knife against him.^[13] In the circumstances, though, I form the view that the award I have made should not be reduced because of the applicant’s role in the proceedings leading up to his stabbing.

Conclusion

15. [15]
    Accordingly, I order that the Respondent Vena Dawn Bee pay the Applicant John Charles Logan the sum of $41,250.00.