DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld). The respondent did not appear and has filed no material. He was served.^[1]

2. [2]
   On 19 October 2005 the respondent was convicted on his plea of 1 count of unlawfully assaulting the applicant and doing him bodily harm while armed with a dangerous weapon, namely, a rifle and 1 count of threatening to do an injury to the applicant with intent to cause public alarm.

3. [3]
   The circumstances of the offence include some prior animosity between the applicant and the respondent. The learned sentencing Judge observed:

“I will not go into the details of the bad blood that was between you but, clearly, there was a history or antagonism between yourself and the Williams and, on the day in question, they came to your mother’s house to complain about what was happening and they were clearly quite aggressive but you, of course, took things to a higher level by bringing out a gun and firing the gun. You fired three shots in the general areas of the complainant’s group. No one was hit directly but Albert Williams was hit by a ricochet and ended up with a wound in his leg although thankfully it was not particularly serious.”

 The submissions made at sentence by the prosecutor reveal the background to be that the applicant had borrowed $200.00 from the respondent’s mother in December in 2004. In January 2005 the respondent asked for it back and subsequently telephoned the applicant abusing him and asking for the money. The respondent threatened to go and see the applicant with a stick and sent text messages making threats to the applicant. The applicant became aware that the respondent had made offensive gestures to two sisters of the applicant. There was other bad blood between the applicant’s family and the respondent’s family. On 12 March 2005 at about 1.15pm the applicant decided to go to the respondent’s mother’s home to sort things out. He was angry about what had been going on and the applicant and five companions drove to the area of the respondent’s mother’s home and parked three or four houses away concerned that something might happen to the car, that it might be damaged. The applicant asked for the respondent to come out of the house. There was some yelling and screaming between the group and the respondent. The applicant’s group were behind the fence of the property. In a statement to police the applicant advised:

“I told my mother that I was sick of what was happening with Duncan and that I was going to go around to his place and sort everything out with Duncan. I thought that if I went there on my own I might get flogged so I took my two sisters, Elsie and Kelly, my auntie, Elsie Prince, and my two cousins, Kada Blake and Dean Hutchison with me for safety in numbers …I called out to Duncan to come out because I wanted to speak to him. He did not come out of the house. My sister, Kelly, then called out to Duncan to come out and he came out of the front door of the house and started to swear at us … I saw him reach in the front of the car and (he) pulled out a gun. I saw that this gun was a .22 rifle with a brown handle and a black barrel. I saw him walk … towards us and pointed the rifle in the air and fired it … I said: “Duncan, put the gun down and come and talk to me like a man.” He replied, “I don’t want to talk to you, you fucken scum. You need help.” Duncan then pointed the rifle at me and aimed along the sights and fired another shot towards my head. I said, “You’re fucken mad.” … I asked him again to put the gun down. He then slammed the butt of the gun on the ground again and a shell popped out. He then loaded the gun again and cocked it. He then again pointed the gun at me and fired it. This shot was unaimed and did not hit me. I again asked him what he was doing and he again slammed the butt on the ground and the empty shell popped out and he then loaded the gun again. This time Duncan pointed the gun towards my sister, Elsie, and fired the gun. The shot did not hit Elsie. Duncan then slammed the butt of the rifle on the ground and the empty shell popped out. He then loaded the rifle again and pointed the gun towards my sister, Kelly, and fired the gun. … Then he slammed the rifle on the ground again … and he reloaded … again. I said, “Duncan what are you doing? Why don’t we sort this out like men without a gun?” It was after this that the Respondent pointed the gun towards the Applicant’s legs and fired.”

4. [4]
   The applicant was born on 28 July 1981 and is currently 27 years of age. He was 23 years of age when the offending occurred on 12 March 2005.

5. [5]
   The applicant suffered a one centimetre wound to his right medial thigh. That wound was stitched at the Ipswich Hospital. The applicant has not seen nor sought any medical specialist treatment for the wound since 12 March 2005. He has found that the wound area becomes tight if he has been walking for long distances. He reports that when attempting to train for rugby league competition he has noticed a tight or tense feeling in the wound area. There is a scar which is noticeable. The applicant does not suggest that the scar causes him embarrassment or that the tight feeling in the wound area is disabling. I am satisfied that the injury was caused when the respondent discharged a rifle causing the applicant to be struck in the leg by a ricochet.

6. [6]
   It was submitted to me that the scar is something that can be concealed by long shorts. It was submitted to me that because the applicant is indigenous, that the colour of his skin makes the scar more noticeable than it would be on a lighter skinned person. This may be true. However, the applicant has made no complaint about embarrassment as a result of his scar and I decline to find, on the balance of probabilities that it concerns the applicant because of its appearance.

7. [7]
   A psychologist formed the opinion that the applicant has experienced a degree of mental and nervous shock as a result of being shot at and wounded and that the impact is in the high end of the moderate range 10% to 20%. I accept that evidence on the basis of the report of the psychologist.^[2]

8. [8]
   I am required by s 25(7) of the Act to have regard to any behaviour of the applicant that directly or indirectly contributed to the injuries he suffered.

9. [9]
   The applicant went to the respondent’s home in company with three female relatives and two male cousins expecting a confrontation and aware of the risk of violence. That is conduct which I regard as relevant in deciding what amount should be ordered to be paid for the injury. The fact that the respondent had twice fired his rifle when the applicant continued to stand his ground and said, “Duncan what are you doing? Why don’t we sort this out like men without a gun?” is conduct which is also relevant. The applicant was continuing to confront the respondent while the respondent was armed with a rifle and behaving recklessly.

10. [10]
    Ms Bishop, for the applicant, submitted that because the respondent’s firing of a rifle was grossly disproportionate to the initial confrontation there should be no reduction from any award of compensation on account of the applicant’s behaviour. Ms Bishop submitted that if there is to be any reduction it should be modest and no more than 5%. I was referred to Hohn v King [2004] QCA 254 and the cases cited there at paragraphs [105] to [115].

11. [11]
    The applicant was significantly responsible for the confrontation with the respondent at the respondent's home. Physical injury to himself was something the applicant must have had in mind when he went, with his companions, to the respondent’s home. The respondent’s use of a firearm when the applicant and his companions remained outside the fence was disproportionate to the threat. Despite that, the applicant then added another reckless act by standing his ground. This subsequent decision to stay makes the facts distinguishable from those in Jones v Coolwell [2001] QSC 130.The applicant continued to be reckless for his own safety knowing the respondent was offering violence disproportionate to the applicant’s threat. I regard the applicant as responsible to the extent of  20%. This assessment is consistent with the approach taken in Crosbie v Lawrence [2002] QSC 217 at [21].

12. [12]
    The Compensation Table found in Schedule 1 of the Act provides that a person who suffers bodily scarring in a minor /moderate range is entitled to 2% - 10% of the Scheme maximum. Having regard to the applicant’s mild but continuing sensation, I regard a proper percentage as 2% of the Scheme maximum.

13. [13]
    With respect to the Post-Traumatic Stress Disorder, item 32 of the Schedule provides that for mental or nervous shock (moderate) the appropriate percentage of the Scheme maximum is 10% - 20%. Having regard to my acceptance of the opinion of the psychologist that the impact is in the high end of the moderate range, I find 17% to be appropriate.

14. [14]
    The Scheme maximum is $75,000.00. For the two injuries referred to above I have estimated an entitlement to a total of 19% of the Scheme maximum subject to a reduction by 20% for the applicant’s contribution to his injuries. This assessment results in an amount of $11,400.00.

15. [15]
    I order that the respondent pay to the applicant the sum of $11,400.00 compensation in respect of the injuries suffered by him as a result of the offences for which the respondent was convicted on 19 October 2005.