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 the offence of wounding committed by the respondent on 19 March 2006.

2. [2]
   On 22 November 2007 the respondent pleaded guilty to, inter alia, one count of wounding. On 23 November 2007 he was sentenced to 3 years imprisonment in relation to that count. A period of 5 years imprisonment was imposed in relation to an unrelated count of grievous bodily harm. A period of 307 days of pre-sentence custody was declared as imprisonment served under the sentence. A parole eligibility date was fixed at 18 July 2008.

3. [3]
   As the Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978, on 7 December 2009 the Public Trustee was served with a letter from the applicant’s solicitor notifying of the date of hearing.^[1]

4. [4]
   The respondent was served with the originating application and supporting material on 8 December 2009.^[2]

5. [5]
   There was no appearance by or for the respondent at the hearing of the application.

Circumstances of the offence

6. [6]
   On the evening of 19 March 2006 the applicant was at his house at Tara with friends. The respondent, described by the applicant as a welcome visitor was also there.^[3] The group were drinking socially.

7. [7]
   The applicant went into his bedroom. The respondent followed him into the room and without provocation threw a knife at the applicant hitting him in the stomach. They began to fight when others in the house pulled them apart. The respondent then ran away.

8. [8]
   The respondent was sentenced on the basis that the attack on the applicant was unprovoked. The applicant stated that he did not provoke the respondent in any way and that there had been no prior disagreements with him. A witness to the attack stated she was unable to explain why the respondent threw the knife at the applicant. A psychiatrist’s report tendered at sentence indicated that the respondent suffered from schizophrenia, was intoxicated and driven by psychotic experiences when he attacked the applicant.

Injuries and medicalreports

9. [9]
   The applicant was taken by ambulance to hospital. He suffered a 5 centimetre laceration to his lower abdomen which required 3 stitches.^[4] The laceration broke the true skin and extended into the subcutaneous fat layer.^[5]

10. [10]
    The applicant in his affidavit states that he had a tetanus vaccination. The wound was cleaned and stitched.^[6]

11. [11]
    The applicant was examined by Mr Peter Stoker, Clinical Psychologist on 23 September 2009.

12. [12]
    In his report dated 5 October 2009^[7], Mr Stoker states:

“It is my opinion that, as a consequence to the incident, this man is suffering a Posttraumatic Stress Disorder (Diagnostic & Statistical Manual of Mental Disorders-American Psychiatric Association [DSM-IV]).

He continues to have flashbacks of the assault on a regular basis and is leading a more circumscribed lifestyle, as outlined in my report.

He is now more suspicious of people and avoids socializing.”^[8]

13. [13]
    Mr Stoker notes that the applicant continues to suffer from posttraumatic stress disorder arising from unrelated events as a teenager.

14. [14]
    Mr Stoker states that the assault would have caused a further decompensation to his already poor psychological health. Mr Stoker states that applicant suffered a moderate degree of mental or nervous shock and that his impairment is in the upper level of the mild range to the lower level of the moderate range.^[9] 

The applicable principles

15. [15]
    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)).

16. [16]
    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)).

17. [17]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[10]  The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[11] 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.”^[12]

Assessment

18. [18]
    Ms Cappellano for the applicant submitted in her written outline that compensation for the stab wound should be assessed at 8% of the scheme maximum. ($6000)

19. [19]
    The range for a minor gun shot/ stab wound in item 24 of the compensation table is 6% to 10%. There is limited material before the court in relation to the stab wound. Having regard to the minor nature of the injury, I award 6% of the scheme maximum. ($4,500)

20. [20]
    The range for mental or nervous shock in item 32 (moderate) is 10%- 20%.

21. [21]
    It was submitted that having regard to the applicant’s pre-existing psychological conditions, the report of Mr Stoker and the decision of the Court of Appeal in SAY v AZ^[13] that 15% of the scheme maximum be awarded for mental or nervous shock. ($11,250)

22. [22]
    Ms Cappellano submitted that in accordance with approach in SAY v AZ^[14] the award for mental or nervous shock should be discounted slightly to allow for the pre-existing posttraumatic stress disorder suffered by the applicant. Often, a broad brush approach is necessary.^[15]

23. [23]
    In my view the appropriate assessment for mental or nervous shock is 11%. ($8,250)

24. [24]
    The total assessment therefore is $12,750.

Order

25. [25]
    The respondent pay to the applicant the sum of $12,750 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of wounding which led to the conviction of the respondent in the District Court at Brisbane on 22 November 2007.