Kennedy v Faafeu[2010] QDC 21

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Saulo Aminatapu Faafeu pleaded guilty in the Beenleigh District Court on 22 April 2008 to one count of grievous bodily harm in respect of the applicant Roy Stanley Kennedy. The respondent was sentenced by me to two years imprisonment with a parole release date effective on the date of sentence.^[1]

Facts

2. [2]
   The offence occurred on 2 August 2003 at Kingston when the respondent was a taxi driver then aged 42. The applicant was driving a woman and her young son home to a unit complex from a nearby shopping centre. The respondent, who was then in receipt of a disability pension, was delivering pamphlets to supplement that pension. While the applicant was putting a pamphlet in the letterbox, the respondent drove his cab up to him. The applicant was nudged by the respondent’s vehicle and the horn went off. The applicant touched the vehicle and received a static electricity shock. The respondent thought the applicant was going to hit him and shifted his position inside the cab. The respondent was not actually hit nor was there any intention to hit the respondent, but the respondent appears to have interpreted the applicant’s actions as a movement to hit him.

3. [3]
   The respondent then got out of his cab, went over to the applicant and struck him in the face while yelling at him. The respondent got the applicant by the throat up against a picket fence and punched him. The applicant was trying to defend himself and recalls poking the respondent either in the eyes or nose and distracting him enough that the applicant was then able to push the respondent away with his foot. Prior to the applicant calling out for police, the respondent stopped the assault but not before delivering a further punch, after which the applicant escaped down the street to his partner who was in a vehicle assisting with deliveries. The applicant’s partner then contacted police, the applicant having been unsuccessful prior to that in contacting police through the office of the manager of the unit complex where the respondent’s passenger was residing.^[2]

Injuries

4. [4]
   The applicant suffered a fracture of the left maxilla (upper jaw), a fracture of the left zygoma (cheek bone), neuropraxia of the left intra-orbital nerve associated with the left maxilla and zygoma fractures, associated bruising and swelling to the left hand side of the face, a laceration to the left lower ear, two superficial lacerations to the right cheek and a bruising on the lower neck and upper left chest.

5. [5]
   The applicant was referred to the Princess Alexandra Hospital because of the risk of permanent disability without further medical treatment. At that hospital, it was noted that there was a decreased upper lip sensation on the left hand side and a flattening of the left malar prominence (one of the aspects of the cheek bone). X-rays showed that there was a fracture of the left zygoma and a titanium plate was fixed on the orbital rim (i.e. underneath the eye socket) to repair the fractured cheek bone. If the injury had remained untreated the applicant would have suffered permanent facial disfigurement.^[3]

The Law

6. [6]
   This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. Pursuant to VOCAA s. 155(1), where a conviction has occurred before the commencement of VOCAA, a person may apply to the court for orders for criminal compensation if VOCAA s. 154(1)(a)(i) is satisfied. In the present proceedings, the applicant had a right (prior to the commencement of VOCAA) to apply for compensation pursuant to COVA s. 24, and consequently, having brought proceedings in accordance with the time limits applicable under VOCAA s. 155(2), is entitled to an order pursuant to the repealed provisions of COVA. The application was filed within the relevant time limit pursuant to COVA s. 40(1).

7. [7]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

8. [8]
   Mr Seth who appears for the applicant seeks compensation as follows:

(1) Item 1 - Bruising/laceration etc. (minor/moderate) – 1% - 3%

Mr Seth submits that the bruising and swelling to the left hand side of the face, the laceration to the left lower ear, two superficial lacerations to the right cheek and a bruising on the lower neck and upper left chest^[4]justify an order in the mid-range of item 1(i.e. 2% of the scheme maximum, namely $1,500). I consider this to be an appropriate award for the bruising, swelling and lacerations suffered by the applicant, and accordingly I award 2% ($1,500) pursuant to item 1.

(2) Item 7 – Facial Fracture (moderate) – 14% - 20%

Mr Seth’s submission is that the fractured upper jaw and fractured left cheek bone which required surgical reduction and the fixing of a titanium plate^[5]should receive an order towards the upper end of the moderate range for facial fracture pursuant to item 10. The facial fractures suffered by the applicant were substantial, had a significant risk of permanent disability and required surgery including the insertion of a titanium plate. I accept that the award under item 10 should be towards the upper end of that range and accordingly I award 18% of the scheme maximum ($13,500) pursuant to item 10.

(3)Item 33 – Mental or Nervous Shock (severe) – 20% - 34%

The report of Mr Geoffrey Grantham, clinical psychologist dated 30 October 2006^[6]diagnoses the applicant as suffering from post traumatic stress disorder (PTSD). However, Mr Grantham notes that the applicant presents with “a complex presentation of physical and psychological symptoms”.^[7]The applicant was struck by a car in 1978, receiving a back injury but despite this he continued to work and travel around Australia. Then in 1980 the applicant was the victim of a hit and run accident in which he sustained serious injuries, including brain injury, which required the use of a wheel chair for three years. The applicant recovered sufficiently to work as a self employed carpenter renovating houses. The applicant was in reasonable physical health at the time of assault by the respondent, but considers that his previous motor vehicle accident injuries were “reignited” by the assault. The applicant in particular suffers significant ongoing pain since the assault.^[8]

The applicant’s treating general practitioner, Dr Tim Lloyd-Morgan notes that the applicant “has had psychological issues which on occasions caused him to be aggressive and he has required considerable psychological counselling, support and medical assistance since [the assault in 2003].”  Dr Lloyd-Morgan considers that the applicant “has a permanent acquired brain injury and long term psychological adjustment disorders, which was severely aggravated by the assault and facial injuries in 2003”.^[9]

Given the diagnosis of PTSD by Mr Grantham, from which the applicant was (as of 2006) “recovering”,^[10] and given the complications which arise from the applicant’s pre-existing injuries, in my view the appropriate assessment for the applicant’s mental or nervous shock attributable to the assault which is the subject of this application, is an order in the upper range of item 32 (mental or nervous shock – moderate). Accordingly I award 18% of the scheme maximum ($13,500) pursuant to item 32.

Contribution

9. [9]
   Although there appears to have been some element of the respondent misconstruing the applicant’s response to being nudged by the respondent’s cab, I do not consider that the applicant has contributed in any way to his own injuries. Accordingly there should be no reduction for contribution.^[11]

Order

10. [10]
    I order that the respondent Saulo Aminatapu Faafeu pay the applicant Roy Stanley Kennedy the sum of $28,500.