DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Darryl Leslie McKeen seeks compensation in respect of injuries suffered by him in an incident which occurred on 23 April 2003 at Doomadgee. This incident resulted in the respondent Kelly David Doolan pleading guilty (among other counts) to a count of unlawful wounding, for which the respondent was sentenced to 15 months imprisonment suspended after serving a period of four months imprisonment, with an operational period of 18 months, on 8 June 2005.

Facts

2. [2]
   The respondent was drinking with friends and relatives, firstly at Waterfall and then at a house in Diamond Street, Doomadgee. At the house in Doomadgee, the respondent got into an argument with another person which became physical. The applicant and the respondent then got into a fight. The respondent was hit with a wheel spanner by the applicant. The respondent then went off and got a knife and stabbed the applicant in the back while the applicant was standing at the sink in the house. Someone yelled a warning but there was not enough time for the applicant to do anything, and the applicant ended up with a stab wound in his back. The stab wound was inflicted by a kitchen knife with a sharp blade.^[1]

Injuries

3. [3]
   The applicant received a stab wound in his back about three centimetres and a centimetre in depth over his left scapula (the top of the left of his back). This stab wound caused deep tissue damage and the injury created severe pain and discomfort. The applicant had to have some stitches inserted. Although the applicant was in a lot of pain for a number of days, he appears to have recovered.^[2]

The Law

4. [4]
   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.^[3] 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”.^[4] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[5]

Compensation

5. [5]
   Mr Pate on behalf of the applicant seeks compensation as follows:-

(1) Item Gunshot/stab wound (severe) – 15% - 40%

Mr Pate submits that the stab wound, 3 cm x 1 cm in the back above the left scapula “caused quite deep tissue damage and injury” and was “a severe puncture wound”.  Apart from the report of Dr Rehman,^[6] I have been provided with no other relevant information on which to undertake the assessment required by R v Ward; ex parte Dooley^[7] which involves scaling within the ranges set out in the compensation table.  In my view there are clearly far more serious examples of gunshots or stab wounds than the wound described by Dr Rehman in his report.  In my view, the injury is more appropriately compensated by an award under Item 25 (Gunshots/stab wounds moderate).  Accordingly, I award a figure at the mid-range of that item (12 % of the scheme maximum), being $9,000. 

2. (2)
   Item 32 – mental and nervous shock (moderate) – 10% - 20%

6. [6]
   The report of Robert Walkley, forensic psychologist concluded that “as a consequence of his stabbing wound at the hands of [the] respondent … the applicant, in all likelihood developed an acute stress disorder (DSM-IV TR: 308.3) which traversed approximately a month period of time [and] it appears that [the applicant] then exhibited evidence of a post traumatic stress disorder (DSM-IV TR:309.81) of an acute duration with most symptoms abating by about the four month juncture.”^[8]  Mr Walkley, as at the date of his report, advised that the applicant did not “report any ongoing psychological difficulties” although there was still a certain degree of fear and trepidation about the respondent. Mr Walkley did not consider that the applicant would “exhibit any further adverse psychological consequences as a result of his ordeal [which] … was reasonably circumscribed in time for about a period of four months”.  Further, Mr Walkley did not believe that any treatment was required, and in any event “[the applicant] does not have the intellectual or verbal skills to profit from talk-based psychiatric or psychological therapeutic intervention.”^[9]

7. [7]
   In these circumstances, I consider it appropriate to make an award at the bottom of the range for Item 32, namely 10% of the scheme maximum ($7,500).

Contribution

8. [8]
   There was some variance in the prosecution and defence versions of events placed before the court on the respondent’s sentence^[10].  On the respondent’s version of events, there was a physical confrontation between the respondent and the applicant, which started with punching and included the respondent being hit by a wheel spanner by the applicant.  Despite these circumstances, Mr Pate submits that there should be no reduction for contribution, because the preceding fight had concluded prior to the applicant going into the house where the incident occurred to get a drink of water and at that point he was stabbed from behind.  I accept in these circumstances (particularly taking account of the stabbing from behind) that whatever may have preceded the wounding, the applicant could not be said to have contributed to his own injuries at a level sufficient to reduce his award for contribution.^[11]

Conclusion

9. [9]
   Accordingly I order that the respondent Kelly David Doolan pay the applicant Darryl Leslie McKeen the sum of $16,500.