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 an attack by the respondent on 18 June 2006. 

2. [2]
   On 3 December 2007 in the District Court at Brisbane the respondent pleaded guilty to causing grievous bodily harm to the applicant and other offences.

3. [3]
   On 11 April 2008 the respondent was sentenced to four years imprisonment with a parole eligibility date after 16 months on 2 April 2009. He had served 130 in pre-sentence custody which was declared to be imprisonment already served under the sentence.

4. [4]
   The application and supporting affidavit material was served on the respondent on 16 November 2009. The matter was listed for hearing on 24 November 2009. The respondent appeared and requested an adjournment to obtain legal representation. The matter was adjourned to today. The respondent appeared for himself.

Circumstances of the offence

5. [5]
   The respondent’s former partner commenced a relationship with the applicant. There were two children of the relationship between the respondent and his former partner.

6. [6]
   On 18 June 2006 the former partner went to meet the respondent to collect the children following an access visit.

7. [7]
   The applicant remained at home watching television. The respondent entered the home armed with an aluminium baseball bat. He struck the applicant to the left side of the head. The applicant was knocked unconscious. When he regained consciousness the applicant struck him at least three more times. He was struck to the left knee and left ankle.

Injuries and medical reports

8. [8]
   The applicant was taken to the Redcliffe Hospital by a neighbour. He was treated for bruising to his forehead, abdomen, left arm and left leg. He was suffering abdominal pain. A CT scan revealed a ruptured spleen. He was taken to the operating theatre for an emergency splenectomy. He was discharged from hospital on 24 June 2006.^[1]

9. [9]
   The applicant was examined by Dr Barbara McGuire, Psychiatrist, on 28 April 2009. In her report dated 8 May 2009 Dr McGuire expresses the view that the applicant has suffered a severe post traumatic stress disorder demonstrated by the following symptoms; nightmares, flashbacks, avoidant behaviour, irritability, exaggerated startle reflex, hyper-vigilance, and security fears.^[2]

10. [10]
    The applicant says in his affidavit filed 11 September 2009 that he has been significantly affected by the attack. He experiences flashbacks and has trouble leaving his house.^[3]  Since the assault he has been unable to sleep for longer than 6 hours at a time.  He frequently has nightmares of the respondent standing over him.^[4]  He has experienced considerable depression and has had suicidal thoughts.^[5]  He constantly fears for his safety.^[6]

The applicable principles

11. [11]
    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)).

12. [12]
    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)).

13. [13]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[7]  The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[8] 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.”^[9]

14. [14]
    The respondent’s affidavit filed 11 December 2009 raises an issue of provocation by the applicant. However the assessment of compensation must be based on the facts accepted at sentence.^[10]

The applicant’s submissions

15. [15]
    Mr Reid for the applicant submits that the following injuries in the compensation table are applicable:

16. [16]
    The total percentage of the scheme maximum sought by Mr Reid is 64% which would lead to an award of $48,000.

Assessment

17. [17]
    The physical injuries inflicted by the respondent with the baseball bat included contusions to the applicant’s head, linear bruising to the left arm, linear bruising to the left chest and bruising to the left foot.^[11]  In R v Ward; ex parte Dooley^[12] the Court of Appeal said in discussing Item 2 in the compensation table that:

“To qualify for the 5% which is the top of the ‘severe’ range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the ‘most serious cases’.”^[13]

18. [18]
    In my view, the bruising to the applicant’s body should be assessed towards the top of Item 1 in the compensation table or the lower end of Item 2. The appropriate assessment for the contusions and bruising is 3% of the scheme maximum which leads to an award of $2,250.

19. [19]
    The applicant’s ruptured spleen was apparently life threatening and required an emergency splenectomy. Dr Kolera in his report dated 4 June 2009 classifies the injury as a severe intra-abdominal injury, similar to a severe gun shot or stab wound. He places the injury in the range 15% to 40%, although there is no indication that he has applied the requirement to scale the injury according to seriousness. A ruptured spleen is not specifically listed as an injury in the compensation table. The injury must therefore be assessed by comparison to the injuries in the table: s. 25(6). Following his discharge from hospital the applicant’s wound became infected and he was required to return for a further week. On the medical and other evidence his recovery seems to have been satisfactory. However, he is required to have annual immunisation as a result of the splenectomy.^[14]  On the available medical and other evidence my assessment is that the applicant has suffered a moderate injury which should result in an award of 12% of the scheme maximum ($9,000).

20. [20]
    According to Dr McGuire’s report, the applicant attends Centrelink and is on a Newstart pension. He is on a personal support program and has had counselling for 18 months. His current counsellor is arranging for referral to a psychologist for trauma counselling.^[15]  Dr McGuire does not make a prognosis in relation to the applicant’s future mental state.  However, it may be expected that his condition will improve following counselling.  Bearing in mind the requirement to scale the injury according to seriousness, I would assess the applicant’s mental or nervous shock under Item 33 of the compensation table at 20% of the scheme maximum.  This leads to an award of $15,000.

21. [21]
    The total assessment is $26,250.

Order

22. [22]
    I order that the respondent pay to the applicant the sum of $26,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 3 December 2007.