DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks a compensation order pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) (“COVA”). The respondent was convicted on his guilty plea before Judge Brabazon QC in the District Court at Toowoomba on 19 October 2007. The respondent was charged that on the 4^th day of July 2006 at Crows Nest in the State of Queensland he unlawfully did grievous bodily harm to Gaylene Joy Wiemers. The victim is the applicant. The respondent was sentenced to imprisonment for 12 months to be served by way of an intensive correction order. It was further ordered that he pay compensation in the sum of $10,000.00 to the solicitors for the applicant by 31 October 2007 for transmission to the applicant. In default of payment he was to be imprisoned for a period of 12 months.

2. [2]
   The order made upon sentence for the payment of compensation was made pursuant to s 35 of the Penalties and Sentences Act 1992 (Qld). Mr Connolly, solicitor for the applicant submitted to me that, at the hearing relating to sentence, counsel for the respondent had submitted:

“Compensation of $10,000.00 would not impact on any Criminal Compensation action the woman could pursue against his client in the future.” (sic)

I do not have transcript of that submission by counsel on the sentencing hearing. I accept the submission of Mr Connelly as substantially accurate.

3. [3]
   Section 35 of the Penalties and Sentences Act 1992 provides, so far as is relevant:

“35 Order for restitution or compensation

1. (1)
    the court may order that the offender—

3. (c)
    pay compensation for personal injury suffered by a person (whether or not the person is the victim against  whom the offence was committed) because of the commission of the offence.

2. (2)
    An order may be made under subsection (1) in addition to any other sentence to which the offender is liable…”

The learned sentencing judge had power to make the order for compensation at sentence pursuant to s 35(1)(c).  The power to make that order for compensation, deriving from s 35(1)(c) of the Penalties and Sentences Act is different from the power which derives from s 24(3) of COVA. 

4. [4]
   Section 24 of COVA provides so far as is relevant:

“24 Court may make an order compensating someone injured by personal offence

1. (1)
    This section applies if someone (the convicted person)—

1. (a)
    is convicted on indictment of a personal offence; or

2. (b)
    is convicted on indictment and a personal offence is taken into account on sentence.

2. (2)
    The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.

3. (3)
    The court may make an order (a compensation order) for an amount to be paid by the convicted person to the applicant because of the injury.”

Injuries

5. [5]
   The sentencing Judge observed that after an unhappy exchange between the applicant and the respondent about the respondent’s behaviour, the respondent pushed the applicant and then punched her twice on the left side of the chest as she fell out of bed. The effect of the punches was a fracture of a rib on her left side which also punctured her lung. She spent a week in hospital. It was a painful injury which needed treatment and as a result she suffered ongoing psychological and emotional difficulties. I am satisfied that the respondent was convicted on indictment of a personal offence and that the applicant suffered injuries because of the offence.

6. [6]
   The injuries have been more particularly described in the evidence as “rib fractures on left sixth rib … with associated left pneumothorax (collapsed lung)”.^[1] As part of the applicant’s treatment an intercostal chest drain was inserted and it required a 2.5 cm incision to be made. Dr Burrows’ opinion was that the injury was serious but not complicated by infection and that her uncomplicated situation would be classified as “section 22 Neck/back/chest injury (Moderate) category”. I take that opinion to be a reference to Item 22 of Schedule 1 to the Act. I accept the opinion that the applicant’s situation was accurately described as a moderate chest injury. I regard the opinion by Dr Burrows as likely to have taken into account the fact that an incision was necessary for the insertion of a chest drain. I regard the incision and the need for a chest drain as matters relevant to my assessment that there was a moderate chest injury.

7. [7]
   The applicant developed a post-traumatic stress disorder. A clinical psychologist^[2] expressed two opinions relating to the cause of the post-traumatic stress disorder.^[3] In his first opinion the psychologist summarised:

“Ms Weimers is a 39 year old woman who has reported that she had been physically, verbally and mentally abused for approximately five years by her partner. The termination of the relationship came about following an assault which resulted in Ms Weimers’ suffering two broken ribs and a punctured lung. As a consequence of this relationship, Ms Weimers appears to have developed a post-traumatic stress disorder. She has been receiving treatment from various sources; however, on the basis of treatment provided by myself I believe that her condition will be long term given the negative self-image that she has developed from the abuse.”

8. [8]
   That report creates the impression that a cause of the disorder was the five year relationship. The psychologist, 16 months later, clarified that report as follows:

“Though I reported that she had suffered physical and mental abuse for approximately five years, it was only following the assault in July 2006 that she developed her Post-traumatic Stress Disorder.”

9. [9]
   With respect to this disorder, I find that the applicant’s post-traumatic stress disorder is compensable as “mental or nervous shock” within the meaning of those words in the Act. Mr Connolly, appearing for the Applicant, accepted that it was reasonable to conclude that, aside from the offence, the prior history of a five year relationship between the applicant and the respondent which was abusive, and a prior abusive marriage to another person were also causes which contribute to the symptoms suffered as a result of the post-traumatic stress disorder. Having regard to the second opinion of the psychologist I am satisfied that the respondent’s conduct constituting the offence has materially contributed to the disorder and is a proper subject for compensation despite other causes for the disorder’s symptoms.^[4]

10. [10]
    Section 25(7) of COVA is relevant and provides, so far as is relevant:

“(7)  in deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant …”

 It has been held^[5] that where there is a single state of injury produced by a number of factors the court in assessing compensation may make allowance for the contribution of those other factors and may discount or fix a lower percentage in the compensation scale to allow for those matters.

11. [11]
    In respect of the chest injury and related injuries there is no sensible basis for reducing the assessment because of prior years of abuse. With respect to an assessment for mental or nervous shock there is a basis for a reduction to take account of the contributing factors arising from prior years of abuse.

12. [12]
    For mental or nervous shock, having regard to the prognosis that the condition will be long term, I accept that the applicant’s current condition could be described as falling within the low end of the severe range. Having regard to the contribution from prior years of abuse for which the applicant is not entitled to compensation I assess the entitlement for this head at 20% of the Scheme maximum. That is an amount of $15,000.00.

13. [13]
    With respect to the chest injury, the range for moderate chest injury is 5% to 10%. I estimate it as 8% inclusive of the bruising and laceration which would have been involved.

14. [14]
    The applicant has also suffered a scar resulting from the incision. It would be visible if she wore certain types of swimming costumes. I regard it as appropriate to compensate that with an assessment of 2% of the Scheme maximum to reflect a minor bodily scarring at Item 27 of Schedule 1 of COVA.

15. [15]
    The total is 30% of the Scheme maximum of $75,000.00 being $22,500.00.

Consequence of the Compensation Order at Sentence

16. [16]
    The Applicant submitted that I should ignore the payment made by the respondent of $10,000.00 by way of compensation in compliance with the order made upon sentence. It was submitted that the requirement of s 25(7) of COVA that the court must have regard to “everything relevant” in deciding what amount should be ordered was not a requirement to consider the payment ordered to be made at sentence. In support of that submission the applicant referred to ss 22 and 29(a) of COVA. Those sections provide, so far as seems relevant:

“22(1)  A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise…

(3)  Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise…

29  A compensation … order made by a court against a convicted person –

1. is in addition to any other sentence or other order the court may make against the person; and
2. is not, for any purpose to be taken to be part of a sentence passed against the person.”

17. [17]
    The applicant did not refer me to any decisions which consider the relationship between ss 22 & 29(a) of COVA on the one hand and s 25(7) of COVA and orders for compensation made pursuant to s 35 of the Penalties and Sentences Act on the other hand.  The submissions with respect to ss 22 & 29(a) of COVA did no more than refer to those sections as a basis for exempting the order for compensation made at sentence from the matters to be considered by the court when applying s 25(7) of COVA. 

18. [18]
    A likely interpretation of s 22(1) of COVA is that an entitlement to an order for compensation made pursuant to s 24(3) of COVA is in addition to the right or entitlement which an applicant had or has to an order made upon sentence pursuant to s 35 of the Penalties and Sentences Act.  Section 22(1) of COVA distinguishes one remedy from others.  It makes clear that an applicant has a right to seek a compensation order pursuant to s 24(3) of COVA despite the existence of different rights under the common law or otherwise and despite the existence of the right or entitlement to the benefit of an order made upon sentence pursuant to s 35 of the Penalties and Sentences Act.  In distinguishing between one right and another, s 22(1) does not expressly provide that in the assessment of the amount of compensation to be ordered under COVA that the court must ignore the amount of compensation which an applicant has received pursuant to a common law remedy or persuant to an order made pursuant to s 35 of the Penalties and Sentences Act.

19. [19]
    Nothing in ss 22(3) & 29 of COVA expressly requires a court to ignore what an applicant has received pursuant to some other remedy when the court assesses the amount of compensation which is to be ordered pursuant to COVA.

20. [20]
    When assessing compensation payable pursuant to COVA, courts are obliged to perform the task required by COVA fairly and reasonably and to avoid double compensation for the same consequences of an applicant’s injuries.^[6]  This approach guides courts in determining whether to combine different items in the schedule to COVA under one head to avoid double compensation.  A similar principle of fairness and reasonableness guides my interpretation of COVA.  In the absence of clear words in COVA showing an intention to ignore the amount of compensation which an applicant has received from a respondent for bodily injury, mental or nervous shock or other injuries specified in the compensation table to COVA, principles of fairness and reasonableness require that compensation received by an applicant be taken into account.  I interpret s 25(7) of COVA as requiring the court to have regard to everything relevant and, in this case, requiring the court to have regard to the applicant’s receipt of $10,000 by way of compensation for personal injury suffered by her because of the commission of the offence.

21. [21]
    It was further submitted that the submissions at the sentence^[7] amounted to a waiver by the respondent. I reject that submission. The submission at sentence did not expressly assert that the respondent waived any entitlement to make submissions upon a subsequent application for criminal compensation. The sentencing remarks do not show that the sentence proceeded on the basis that the respondent should be disentitled from raising his payment if there was a subsequent criminal compensation hearing. I do not regard the submission at sentence as amounting to a waiver.

22. [22]
    In fixing the amount of compensation to be ordered I propose to deduct $10,000 from the $22,500 which represents 30% of the scheme maximum. Pursuant to s 24(3) of COVA, I order the respondent to pay $12,500 to the applicant because of her injuries.