DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Garry Robinson Yam, seeks compensation in respect of injuries suffered by him in an incident which occurred on 31 January 2007 at Normanton. This incident resulted in the respondent, Shirley Maree Toby, pleading guilty to one count of unlawful wounding on 14 November 2007 before me at the Mount Isa District Court. The respondent was sentenced to 2½ years jail, with a declaration for time served of 163 days, and a parole release date of 14 November 2007 (effectively a custodial component of 5½ months).

Facts

2. [2]
   The applicant, who is legally blind, was the de facto partner of the respondent as at 31 January 2007.  On that date, the applicant was lying in the matrimonial bed in the main bedroom of the residence and was repeatedly yelling out for the respondent for her to bring him a cigarette.  The applicant heard the respondent enter the bedroom and after a short argument, the applicant was slashed with a knife in his lower stomach area.^[1]

Injuries

3. [3]
   The applicant was examined at the Normanton Hospital by Dr Chris Gilford having been brought to the hospital at 12.15 am on 1 February 2007 by the Queensland Ambulance Service. Dr Gilford noted “there was a small laceration about 1 cm in length in the lower right hand side of [the applicant’s] abdomen. [Dr Gilford] infiltrated the wound with local anaesthetic, and then enlarged the skin incision so [he] could probe the wound to find out how deep it was. [Dr Gilford] probed the wound to a depth of 6 cm. The wound was at an angle of about 45 degrees and was directed downwards.” Dr Gilford was concerned that the wound may have penetrated into the peritoneal cavity and the applicant was transported to the Mount Isa Base Hospital by the Royal Flying Doctor Service, but was transferred back to Normanton Hospital on 7 February 2007 having had an operation at the Mount Isa Hospital which established that the knife had not penetrated the abdominal cavity.^[2]

 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 Kimmins on behalf of the applicant seeks compensation as follows:-

(1) Item 26 - Gunshot/Stab Wound (Severe) – 15% - 40%

6. [6]
   Mr Kimmins submits that the stabbing and associated scarring can most properly be dealt with by way of a single award (including a component for scarring) pursuant to Item No. 26 (Gunshot/Stab Wound (Severe)). In that respect, it should be noted that the stab wound did not in fact penetrate the abdominal cavity, although an operation was necessary to identify this at the Mount Isa Hospital. The applicant spent seven days in hospital (at Normanton and Mount Isa Hospitals). The wound is illustrated by the photograph which is contained at Exhibit F of the affidavit of Alison Campbell^[6].   The applicant in his affidavit notes that “as a result of the stabbing I have a small scar on my stomach.”^[7]

7. [7]
   In the circumstances, it seems to me to be more appropriate to make an award towards the upper end of Item 25 (Gunshot/Stab Wounds (Moderate). Accordingly, I award 15 % of the scheme maximum ($11,250) under Item 25.

(2) Item 32 - Mental or Nervous Shock (Moderate) – 10% – 20%

[8] Mr Kimmins submits that an award of 20% (i.e. at the upper end of the moderate range) should be made under Item 32.  In this respect, Mr Kimmins relies on the affidavit of Dr Christine Richardson, psychologist, who concludes that the applicant’s psychological condition meets the DSM-IV-TR criteria for Post-Traumatic Stress Disorder (PTSD).  Dr Richardson considers that the applicant’s condition “appears to be in the moderate range” and further that the applicant’s psychological condition “meets the DSM-IV-TR criteria for major depressive disorder … mild to moderate and without psychotic features”^[8].  Dr Richardson notes that the applicant “currently experiences psychological distress associated with PTSD and depression … [that the stabbing] had a profound effect on [the applicant] and he should attend counselling to assist him gain some control over his distress.  Given [the applicant’s] symptoms, it is expected that 30 sessions with an appropriately qualified therapist would assist him gain some control over his distress and help him maintain equilibrium in his daily activities.”^[9]

9. [9]
   In the light of these findings, the submitted assessment at 20 per cent of the scheme maximum ($15,000) is, in my opinion, appropriate. Accordingly I award 20 per cent under Item 32.

Contribution

10. [10]
    I do not consider that the applicant has contributed to his own injury in a way which would justify any reduction of the award.^[10]

Conclusion

11. [11]
    Accordingly I order that the respondent Shirley Maree Toby pay the applicant Garrick Robinson Yam the sum of $26,250.