DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by offences committed by the respondent on 14 January 2007.

2. [2]
   On 24 June 2008 the respondent was convicted by a jury of 1 count of torture and 4 counts of assault occasioning bodily harm. He was found not guilty in relation to 1 count of assault occasioning bodily harm. He was sentenced to 4 years imprisonment, suspended after serving 17 months imprisonment. The respondent had spent 37 days in pre-sentence custody for these and other offences which could not be declared as imprisonment already served, but was taken into account. The respondent was served with the originating application and supporting affidavits on 13 September 2009.

3. [3]
   The applicant’s solicitor served the Public Trustee with the application and supporting affidavits on 9 October 2009. Mr Simon Miller, for the Public Trustee wrote to the applicant’s solicitor on 14 October 2009. He stated that the Public Trustee is of the view that the respondent is not under his control. Accordingly the Public Trustee had no involvement in the matter.

4. [4]
   There has been no appearance by or for the respondent.

Circumstances of the offence

5. [5]
   The applicant is a boy who was almost 15 months old at the time of the offences on 14 January 2007. The applicant’s mother, his litigation guardian lived in a de facto relationship with the respondent.

6. [6]
   The offences occurred on 14 January 2007. The applicant’s mother was visiting a neighbour. She left the applicant at home with the respondent. Upon her return, she discovered the child had a swollen and red left eye. She removed the boy’s shirt and discovered a friction burn on his stomach. There was damage to the wooden cot the applicant was in when his mother left the house.

7. [7]
   The applicant’s mother and neighbour drove the applicant to the Laidley Hospital where he was airlifted to the Mater Children’s Hospital.

8. [8]
   In my sentencing remarks on 24 June 2008,^[1] I said:

“You were unable to offer any plausible explanation for the boy’s injuries. You attempted to rely on a fanciful scenario that the boy injured himself. The 63 photographs of the boy’s injuries are sickening. Excluding the older injuries and the bruising to the forehead that was the subject of count 4, in respect of which you were found not guilty, there were 17 separate injuries. The boy sustained bruising and abrasions to his back and chest. There was a bruise to his scalp. He also suffered a left periorbital haematoma, and several linear, confluent bruises with central linear sparing of bruising to both cheeks. Considerable force would have been required to cause those injuries. In the absence of a bizarre explanation for the boy’s injuries, such as crawling into a washing machine that was then turned on, the doctor said it was virtually impossible for the injuries to have been caused accidentally.”^[2]

Injuries and medical reports

9. [9]
   The applicant was examined at the Mater Children’s hospital by Dr Liam Tjia the day after admission. Dr Tjia, states in his report dated 29 January 2007^[3] that the injuries had not changed from those noted by the emergency department.

10. [10]
    In his statement Dr Tija states that upon examination the applicant had numerous superficial abrasions and bruising to the applicant’s back, chest, legs, forearms and abdomen. He also stated that the applicant had abrasions of fresh appearance to the face, linear confluent bruises with central linear sparing of bruising to both cheeks and swelling of the left eye.

11. [11]
    On 12 February 2007 there was a further consultation at the Mater Hospital. Dr Richard Laherty, Neurosurgical Registrar, examined the applicant and said in a letter dated 12 February 2007^[4]:

“He presented with his parents following a recent admission after alleged assault. (The applicant) appears to have returned to normal activities. He seems to be quite bright and interactive and certainly playing with toys and behaving appropriately for his age. He still has some left peri-orbital swelling and some tenderness over his left lower ribs consistent with resolution of prior injuries. His left ear appears to have improved with Sofradex drops. His right ear now shows some redness in the external ear.”

12. [12]
    The applicant was examined again at the Mater Hospital on 12 March 2007. Dr Hannah Burns, ENT Registrar, states in her report dated 12 March 2007^[5] that the applicant, when admitted to hospital had a swollen left external auditory canal and was excreting ooze, however this had now healed.

13. [13]
    The applicant has seen Mr Michael Shea, Behavioural Therapist, on 3 occasions. In his report,^[6] Mr Shea states that he identified inappropriate behaviour related to social skills and relationship building and that the applicant was extremely violent at times.

14. [14]
    In his report, Mr Shea states:

“Moderate to severe emotional damage has been inflicted upon (the applicant), and that failure to recognise the impact of this and indeed to attempt to address it long term will have negative outcomes for the future of this child.  It is my opinion that 15% percent (sic) level of injury has been inflicted upon (the applicant) at this stage, but feel this impairment will represent itself more like 20% as he reaches 12-17 years of age.”^[7]

15. [15]
    The applicant was examined by Dr Shelley Keane, Clinical Neuropsychologist, on 10 November 2009. In her report dated 12 November 2009^[8], Dr Keane states that she agrees with the observations of Mr Shea and reinforces that a child’s development can be impaired by inappropriate interactions at critical times. She says that the assault is a breach of trust which can have long lasting effects on the child and may lead to serious psychiatric disorders such as depression, conduct disorder, borderline personality disorder and anti-social personality disorder.^[9]

16. [16]
    Dr Keane states:

“In my opinion, (the applicant) has suffered an injury of moderate severity because of the long term implications, particularly with regard the risk of serious psychiatric problems mentioned above.”^[10]

Relevant principles

17. [17]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

18. [18]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.  The amount of compensation cannot exceed the scheme maximum (s 25(2)).  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). 

19. [19]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[11]

20. [20]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[12]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[13]

Assessment of compensation

21. [21]
    Mr Stone for the applicant, in his written outline submitted that compensation in accordance with the items in the compensation table be assessed as follows:

22. [22]
    During Mr Stone’s submissions I drew to his attention that the injuries to the head and body would be more appropriately assessed as one injury under item 2 - Bruising/laceration etc. (severe). Mr Stone accepted that the injuries should be assessed in that manner. He accepted that 5% was appropriate for the injuries.

23. [23]
    In my view the appropriate assessment for bruising is 5% of the scheme maximum. ($3,750)

24. [24]
    I also alerted Mr Stone to what seemed to be ongoing problems to the left eye of the applicant. Dr Keane states:

“Physically, (the applicant’s mother) reported that (the applicant) has ongoing monitoring of his left eye. She said that he has just been prescribed glasses. She said that the left eye is weaker than the right and the glasses are to rectify the problem.”

25. [25]
    Mr Stone was given the opportunity to place additional evidence before the Court in relation to a possible injury to the eye.

26. [26]
    Mr Stone subsequently indicated by email to my Associate that he had spoken to the applicant’s doctor and that there was no loss of vision in the eye.

27. [27]
    In relation to the award for mental or nervous shock, in my view, having regard to all of the material, the applicant’s young age and the likely serious consequences for him, I would allow 25% of the scheme maximum under item 32 (mental or nervous shock (moderate)). ($18,750).

28. [28]
    This leads to a total assessment of 30% of the scheme maximum which is the amount sought by Mr Stone, although I have arrived at the assessment in a manner slightly different to that proposed by him.

29. [29]
    The total assessment is $22,500.

Protection Order

30. [30]
    At the hearing I indicated to Mr Stone that it may be appropriate to make a protection order pursuant to s 67 Public Trustee Act 1978. He seemed to prefer that the funds be administered by the applicant’s mother, his litigation guardian. There are issues raised in her statement to police, which make that inappropriate. As I pointed out to Mr Stone the applicant’s mother’s statement to police reveals that she was a regular user of marijuana at the time of the offence.

31. [31]
    Mr Stone was afforded the opportunity to make further submissions on the issue. He did not do so.

32. [32]
    The Court may make a protection order of its own motion pursuant to s 67 Public Trustee Act 1978. In my view a protection order should be made.

Orders

33. [33]
    I therefore make the following orders:

1. The respondent pay to the applicant the sum of $22,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of torture and assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Ipswich on 24 June 2008.

2. The monies are to be paid to the Public Trustee of Queensland who is hereby authorised to receive and hold such monies on behalf of the applicant.

3. The Public Trustee of Queensland is hereby further authorised to advance such monies or part of such monies from time to time for the maintenance, education or treatment (including counselling) of the applicant as the Public Trustee in his or her discretion considers appropriate.

4. The Public Trustee pay to the solicitors for the Litigation Guardian (whose receipt shall be sufficient discharge), the proper legal costs and outgoings out of any monies received from the respondent or any other person including any ex-gratia payment made by the State of Queensland pursuant to this assessment order.

5. The applicant and the Public Trustee be at liberty to apply to this Court in respect of the administration of the trust fund as may be advised.