Hunt v Anitema[2009] QDC 78

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Luafululima Hunt seeks compensation in respect of injuries suffered by her in an incident which occurred on 11 March 2006 at Kingston. This incident resulted in the respondent Teise Anitema pleading guilty to a count of grievous bodily harm before me on 28 April 2008 for which she was sentenced to two years’ imprisonment, with a parole release date of 28 April 2008.

Facts

2. [2]
   The incident occurred on Saturday 11 March 2006 at Kingston. The respondent and the applicant were together with a large number of other people at a volleyball practice at the Kingston College Hall. During the course of that practice there was an altercation involving the applicant’s sister, Ms Kofe Lee, which arose because of an affair that had been taking place between Ms Lee and the husband of the respondent’s niece.

3. [3]
   The altercation took place in the context of a Samoan community with shared ethnic and cultural background and a shared involvement in the Marsden ward of the Church of Jesus Christ of the Latter Day Saints. Ms Kofe Lee and Ms Ah Chong (a cousin of the respondent’s niece) became involved in a fight.

4. [4]
   After the game ended at about 4.00pm Ms Lee left the hall to go to her car and Ms Ah Chong followed Ms Lee out and a fist fight ensued. Some witnesses stated that Ms Ah Chong hit Ms Lee with a tree branch and felled her to the ground. The applicant pulled Ms Ah Chong away from Ms Lee. At this stage Ms Ah Chong was dominating the fight. Ms Lee then got hold of the tree branch and started to chase Ms Ah Chong with it. The respondent’s older sister, Mrs Pepe Skelton, became involved in trying to separate the fight. The applicant pushed Mrs Skelton away and she fell to the ground. The respondent saw Mrs Skelton fall to the ground and walked over to the applicant and pushed her with both hands in the region of her upper chest and neck. Almost immediately afterwards, a large amount of blood came from the applicant’s neck. The applicant was administered emergency aid by a number of other women who were present at the scene and was taken to the Princess Alexandra Hospital emergency department for treatment. It appears that the injury was inflicted with a small Swiss Army knife which the respondent had in her hand when she pushed the applicant in the upper chest and neck area.^[1]

Injuries

5. [5]
   The knife caused an 8.9 cm laceration to the applicant’s neck which required 20 sutures to seal the open wound. The laceration cut through the external jugular vein of the neck, and consequently it was necessary to operate further, resulting in a longer scar in order to repair the external jugular vein which had to be tied off. The “grievous bodily harm” was constituted by the potential for serious blood loss which had it not been treated, could have endangered the applicant’s life. As at the date of sentence, the applicant still had a significant scar on her neck causing both physical pain (then being treated by Nurofen and Panadol) and long term psychological consequences.^[2]

6. [6]
   The photographs of the applicant’s injuries^[3] starkly illustrate the serious nature of the injury. The applicant was released from hospital the day after surgery was performed on her at the Princess Alexandra Hospital.^[4]

[7] The applicant also seeks compensation in respect of a cut to the right index finger.  There was no reference in the sentencing submissions nor in the sentencing remarks to such an injury occurring in the incident.  Consequently, in my view, no compensation can be awarded for that injury, however it may have occurred.

The Law

8. [8]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[5] Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[6] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[7]

Compensation

9. [9]
   Mr Seth, on behalf of the applicant, seeks compensation as follows:-

1. (1)
   Bruising/laceration etc (severe) – 3% - 5%

Mr Seth submits that there should be an award in the middle of the severe range for the bruising and laceration inflicted by the knife. In my view this seems appropriate and I award 4% of the scheme maximum ($3,000) pursuant to Item 2.

2. (2)
   Item 28 – bodily scarring (severe) – 10% - 30%

Mr Seth submits that the applicant’s scarring, which was significant as at the date of the respondent’s sentence, is still clearly visible at present.^[8] The scarring to the applicant’s neck is still clearly visible on current photographs and is unable to be concealed, either cosmetically or by clothing. In these circumstances, and given the nature and prominence of the scar, it does seem appropriate to award compensation as submitted at the middle range of Item 28. Accordingly I award 20% ($15,000) pursuant to Item 28.

3. (3)
   Item 33 mental and nervous shock (moderate) – 10% - 20%

The report of Dr Barbara McGuire indicates (unsurprisingly) that the applicant suffers from Post Traumatic Stress Disorder (PTSD) with symptoms including nightmares, flashbacks, avoidant behaviour, security fears, irritability and low self-esteem. Dr McGuire considers that the applicant’s PTSD is suffered to a moderate degree, and further considers that the applicant would benefit from undertaking counselling with a trauma counsellor which would cost about $150.00 per session. Dr McGuire does not offer an opinion on how many sessions would be required if such counselling were obtained in the private sector.^[9]

10. [10]
    In my view, given the nature of the mental and nervous shock suffered by the applicant, it is appropriate to make an award at the middle of the range in Item 33. Accordingly, I award 15% ($11,250) pursuant to Item 33.

Contribution

11. [11]
    Despite the nature of the confrontation preceding the injury inflicted on the applicant, I do not consider that the applicant has contributed to her own injuries such that any award should be reduced for contribution.^[10]

Conclusion

12. [12]
    Accordingly, I order that the respondent Teise Anitema pay the applicant Luafululima Hunt the sum of $29, 250.00.