G v Blanco
[2009] QDC 77
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- G v Blanco[2009] QDC 77
- Add to List
G v Blanco[2009] QDC 77
G v Blanco[2009] QDC 77
DISTRICT COURT OF QUEENSLAND
CITATION: | G v Blanco & Anor [2009] QDC 77 |
PARTIES: | G (Applicant) v JAMAYCA CHANTEL BLANCO (First Respondent) and LISA-MARIE MLADENOVIC (Second Respondent) |
FILE NO/S: | 144 of 2008 |
DIVISION: | Civil |
PROCEEDING: | Application for criminal compensation |
ORIGINATING COURT: | District Court Beenleigh |
DELIVERED ON: | 20 March 2009 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 19 December 2008 |
JUDGE: | Dearden DCJ |
ORDER: | That the respondents JAMAYCA CHANTEL BLANCO and LISA-MARIE MLADENOVIC pay the applicant G the sum of $ 14, 250.00. |
CATCHWORDS: | APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm while in company – bruising – loss or damage to teeth – mental or nervous shock |
CASES: | SAY v AZ; ex parte A-G [2006] QCA 462 |
LEGISLATION: | Criminal Offence Victims Act (Qld) 1995 s 25(7) |
COUNSEL: | Mr G Gunn for the applicant Mr S Seth for the first respondent And as friend of the Court for the second respondent |
SOLICITORS: | Smith & Associates, solicitors for the applicant Seth Solicitors for the first respondent |
Introduction
- [1]The applicant G seeks compensation in respect of injuries suffered by her in an incident which occurred on 25 August 2005 at Browns Plains. The incident resulted in the first respondent, Jamayca Chantel Blanco and the second respondent, Lisa-Marie Mladenovic, each pleading guilty to a count of assault occasioning bodily harm in company, for which each was sentenced by me to 12 months probation and 80 hours community service at the District Court Beenleigh on 19 September 2007.
Facts
- [2]The Schedule of Facts tendered on the sentence proceedings as Exhibit 1 sets out (relevantly) the following facts in relation to the incident:
“The [applicant] was sixteen years old at the time of the offences. The [applicant] knows the [first and second respondent] through her ex-boyfriend Hieu Dang, as they are his friends. The [applicant] and Dang commenced a relationship in April 2005. The [applicant] ended the relationship in June 2005 as she felt that Dang was treating her poorly. When [the applicant] returned from holidays in August 2005 some of Dang’s female friends commenced harassing and threatening the [applicant] and this lasted for some four months. The climax of this harassment was the assault which is the subject of [these proceedings].
At about 11pm on 25 August 2005 [the applicant] was at the 7-11 convenience store on Waller Road in Browns Plains. Dang and his friends, including [the first and second respondents] were also present. The [first and second respondents] and three others [Rene Schmidt, Danielle Woods and Erica Sylvester] were yelling out to the [applicant], calling her a slut and asking how she could have hurt Dang. The [applicant] tried to walk away and told them to leave her alone.
The [applicant] was backing away from the [first and second respondents] when she walked into a garden near a fence. Woods attempted to punch the [applicant] but missed. The [second respondent] then punched the [applicant] 3-4 times. The [applicant] was crying and trying to protect herself by putting her arms up over her face. All five offenders then started to punch the [applicant]. [The first respondent] reached out and grabbed out the [applicant] by the throat and pushed her up against the fence as [the first respondent] was yelling into [the applicant’s] face. The [applicant] does not know how many times she was hit, but recalls that it was a lot. [The applicant] was finding it hard to breath and her vision was blurred. A male came over and told the offenders to leave the [applicant] alone. This allowed the [applicant] to runaway to a nearby house where she sought refuse. While in this house the [applicant] was vomiting, coughing up blood and felt dizzy; like she wanted to go to sleep. The [applicant] called a friend who came and collected her.”
Injuries
- [3]The Schedule of Facts indicates the following injuries:
“…[the applicant] suffered a swollen face and the braces on her teeth were broken off. [The applicant] also had damage to the inside of her mouth.
The [applicant] delayed telling her family of the assault as her father was in hospital at the time recovering from heart surgery. On 24 October 2005 the [applicant] attended her orthodontist for a routine examination. The doctor noticed the broken braces and observed bruising and ulcerations to her oral cavity, which [the doctor] believed would have caused the [applicant] pain and discomfort and are consistent with being punched/hit in the facial area. The doctor questioned the [applicant] about this and she burst into tears but refused to tell her doctor of how [sic] she sustained these injuries. [The applicant] did however later tell the receptionist of the assault.”[1]
The law
- [4]Mr Gunn on behalf of the applicant seeks compensation as follows:
1.Item 1- Bruising/laceration etc. (minor/moderate) – 1%-3%
Mr Gunn submits that the bruising and ulcerations observed by the orthodontist on 24 October 2005 are a basis for an award at the upper end of the minor range for Item 1. Mr Seth, solicitor, who appeared on behalf of the first and second respondents, drew my attention to the submissions made on behalf of the respondents in the sentencing process to the effect that the observation of bruising and laceration two months after the event was “just impossible” (in terms of connecting it to the assault).[2] However, as Mr Barry (who appeared for the first and second respondents at the sentence) conceded, there was no doubt on the factual matrix outlined at the sentence that the applicant had suffered some bruising and injury as the result of the assault. In the circumstances, and in the absence of any contemporaneous medical report, it seems appropriate to award a minimum 1% of the scheme maximum ($750) under Item 1.
2.Item 5 – loss or damage of teeth – 1%-12%
Mr Gunn submitted that the damaged braces observed by Dr Chang on 26 September and 24 October 2005[3] amounted to a “loss or damage of teeth”. It is clear, in my view, that the damage which the applicant suffered to her braces, even if it was directly causally linked to the assault which is the subject of the application, is not a “loss or damage of teeth” as contemplated by Item 5. Accordingly, I make no award under this item.
3.Item 32 – mental or nervous shock (moderate) – 10%-20%; Item 33 – mental or nervous shock (severe) – 20%-34%
Mr Gunn submits that an award should be made either at the top of the range of Item 32 (mental or nervous shock – moderate) or at the bottom of the range for Item 33 (mental or nervous shock – severe). The applicant relies on two psychiatric reports, the first from Dr Barbara McGuire dated 10 April 2008[4] and the second from Dr AG (Tony) Cook dated 9 April 2008[5]. Dr Cook is the applicant’s treating psychiatrist. He formed the opinion that the applicant was suffering from a post traumatic stress disorder (PTSD) as a result of the assault but that the symptoms had largely settled as at the date of his report (9 April 2008). Dr Cook considered that the applicant had suffered from post traumatic stress disorder from the time of the assault until the end of 2007 with some mild residual symptoms. Dr Cook’s opinion was that although there was a significant family history of psychopathology, it was more probable than not that the applicant’s PTSD was caused by the assault which is the subject of these proceedings. Dr Cook considered that the applicant’s life became quite chaotic with “acting out behaviour” but the applicant had largely improved[6]. Dr McGuire, on the other hand, in her reported stated, “It is a little difficult to make a psychiatric diagnosis at this stage. There are indications that [the applicant] demonstrated some psychological problems prior to the incident and a lot of the features described by the [applicant’s] father are more consistent with a diagnosis of anti-social personality disorder than with post traumatic stress disorder related to the incident. There is some disparity between the account of the father and that of [the applicant] but her own account indicates that [the applicant] has had features of post traumatic stress disorder. This probably occurred within the context of a pre-existing personality disorder. The symptoms of post traumatic stress disorder in my view should settle over a period of approximately a year[7].
- [5]Doing the best I can with these two reports, which to some degree are in conflict, it seems to me that the application has suffered “mental or nervous shock”, and an appropriate award is towards the higher end of the moderate range for mental or nervous shock. Accordingly I award 18% ($13,500) pursuant to Item 32.
Causation
- [6]Ultimately, the approach of a court in assessing compensation in matters such as these needs to be a commonsense approach[8]. I do not consider, despite the other difficulties that the applicant appears to suffer, that it is appropriate in these circumstances to reduce the award which I have identified as appropriate under Item 32.
Contribution
- [7]
Conclusion
- [8]Accordingly I order that the first respondent, Jamayca Chantel Blanco, and the second respondent, Lisa-Maree Mladenovic pay the applicant, G, the sum of $14, 250.00.
Footnotes
[1] Sentence Exhibit 1
[2] Exhibit JPA3 (Sentencing Submissions) pp 8-9 Affidavit of Justin Peter Ashcroft sworn 21 July 2008
[3] Exhibit AC-01 Affidavit of Dr Anna Chang sworn 2 August 2008
[4] Exhibit BMG-01 Affidavit of Dr Barbara McGuire sworn 17 July 2008
[5] Exhibit AGC-01 Affidavit of Dr AG Cooke sworn 20 July 2008
[6] Exhibit AGC-01 pp8,9,11 Affidavit of Dr AG Cooke sworn 20 July 2008
[7] Exhibit BMG-01 Affidavit of Dr Barbara McGuire sworn 17 July 2008
[8] SAY v AZ; ex parte A-G [2006] QCA 462
[9] COVA s 25(7)