DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation for injuries he sustained as a result of an assault by the respondent on 26 November 2008. The respondent pleaded guilty to one count of assault occasioning bodily harm and was sentenced on 14 October 2009 by Judge Dearden to 120 hours of unpaid community service. The respondent was also ordered to pay compensation to the applicant in the sum of $500. At the time of the assault the applicant was about 48 ½ years of age.

2. [2]
   On 26 November 2008, the applicant and the respondent, in the company of two other adults, were drinking alcohol at the applicant’s house. After about one and a half cartons of heavy beer had been consumed, the respondent increased the volume of music being played. The applicant asked the respondent to turn the music back down. The respondent reacted to this request by abusing, then assaulting, the applicant. The particulars of the assault were described in the agreed Schedule of Facts in these terms:

“(The respondent) jumped up and punched the left side of the complainant’s jaw with one closed fist and his right eye with the other closed fist.  The accused punched the complainant’s left eye.  The complainant fell backwards to the floor and yelled at the accused to stop.  The accused kept punching the complainant while he was on the ground …”

3. [3]
   The next day, 27 November 2008, the applicant attended Dr F Morgan who reported:

“On examination he had an abrasion of the mucosal surface on the left side of the upper lip that runs vertically for 1 cm to the lip margin.  He has swelling and pain over both eyebrows.  He has marked pain of the left posterior lower chest wall.  Pain on movement and inspiration.  Pain to palpitation and AP and lateral compression over the posterior left lower chest wall.  Abdomen soft, non-tender. …”

4. [4]
   On 2 December 2008, the applicant attended the Nanango Hospital where he was treated by Dr John Robinson.  Dr Robinson observed that the applicant had tenderness of the left lower ribs and a subsequent X-ray revealed a fracture of the left eleventh rib. 

5. [5]
   A more serious consequence of the assault is the psychological damage suffered by the applicant. On 19 January 2010 the applicant was examined by Dr Trevor Lotz, a consultant psychiatrist. The following are extracts from his report dated 20 January 2010:

“Mr Smallwood has been living in fear since the assault, that Mr Weimer would return and assault him again.  He also feels that because of his associations with ‘shady characters’, Mr Weimer could send someone else around to assault him.

As a result, Mr Smallwood lives in fear.  He has boarded up his windows and his doors, he is anxious all day and especially at night, and has described hyper-vigilance and an increased startle response to any noise around his unit.

Mr Smallwood lives close to the road, and whenever he hears cars pulling up in the street he becomes distressed and anxious. …

He has described problems with concentration, memory and forgetfulness.  He is distracted and has described dissociated episodes. 

He has become totally socially reclusive, rarely leaves his home, and his girlfriend has to bring around their one year old child for a visit, as he will not visit her.

He has nightmares on most nights of pending assaults.”

6. [6]
   It is also reported that prior to the assault the applicant had had a brief episode of depression following the separation from his first partner. This led him to drink increased amounts of alcohol. He was also prescribed the anti-depressant, Mirtazapine. There was some family history of depression in the case of his brother.

7. [7]
   On mental state examination Dr Lotz reports:

“His speech was slow and laboured, and I took the liberty of doing a gross cognitive assessment.  I noted he had severe short term memory loss, could not perform serial 3 examinations, but was orientated to time and place.

There was no evidence of psychosis or anxiety, however, his mood was dysthymic and his affect was restricted. …

Considering the history and mental state examination, it appears Mr Smallwood has symptoms of Post Traumatic Stress Syndrome, but does not fulfil the DSM-IV diagnosis for PTSD.

Using DSM-IV criteria:

My recommendation is that Mr Smallwood does engage in psychological counselling especially to help debrief his anxiety, and help deal with his ongoing fears. He may also benefit from a few visits to a psychiatrist to rationalise his medication. The average cost of a visit to a psychologist or psychiatrist is $250 per session, and I would expect at least 12 sessions over the next six months.

Considering the length of time since the assault, I do not believe the prognosis is favourable, although there should be some improvement with psychological and psychiatric treatment. In my opinion, the injury can be considered moderate.”

The compensation claim

8. [8]
   Compensation in the sum of $21,750 is claimed made up as follows:

9. [9]
   Pursuant to s 22(4) of the Criminal Offences Victims Act 1995 (COVA)^[1] the maximum amount of compensation provided for under the act is reserved for the most serious of cases. The amounts provided for in other cases are intended to be scaled according to their seriousness.

Bruising/laceration etc

10. [10]
    Schedule 1 of the COVA provides for a percentage range of 1%-5% for this form of injury. The range of 1%-3% for minor/moderate injury and the range of 3%-5% for severe levels of this injury. The range contended for is thus at the maximum end of the minor/moderate scale or the lowest end of the severe scale. Given the particulars of this classification of injury suffered by the applicant I accept that an allowance of 3% is reasonable.

Neck/back/chest injuries

11. [11]
    In the Schedule of Facts relied on by the sentencing judge, the physical injuries sustained by the applicant were described as follows:

“The complainant suffered cuts, abrasions and swelling to both eyes and pain and swelling to his abdomen.”

12. [12]
    No mention is made of the complainant suffering a fractured rib. As set out above there is, however, medical evidence linking the fractured left rib of the applicant to the assault. Accordingly, that injury needs to be brought into account when determining compensation.

13. [13]
    For injuries under this category the range is 2%-7% for minor injuries and 5%-10% for moderate injuries. For severe injuries the percentage range increases to 40%. The 6% contended for places the percentage claim at just below the maximum provided for minor injuries under this category. In my opinion, the fractured rib together with the other relevant symptoms described by Dr Morgan reasonably justify the 6% claimed.

Mental or nervous shock

14. [14]
    The percentage range for mental or nervous shock is 2%-10% (minor), 10%-20% (moderate) and 20%-34% (severe). What constitutes mental or nervous shock is not defined within the COVA^[2]  There appears to be a difference of judicial opinion surrounding the extent and meaning of the words “mental and nervous shock”. In RMC v NAC^[3] His Honour Byrne SJA said that “nervous shock” for the purpose of COVA is confined to a recognisable psychiatric illness or disorder. A wider interpretation of the words “mental or nervous shock” was favoured by Her Honour Atkinson J in the decision of the Court of Appeal JI v AV^[4]. In this case it is not necessary to have to resolve the difference because major depression with anxiety is a recognisable psychiatric illness or disorder and, as such, constitutes “mental or nervous shock” for the purpose of the act. There is no reason to depart from Dr Lotz’s opinion that the degree of mental or nervous injury suffered by the applicant is moderate.

15. [15]
    The percentage claimed for this injury of 20% is at the very upper end of the moderate range for this form of injury and at the lowest end of the severe range. I can find nothing in the material put before me which shows that the applicant’s injuries under this heading are at the most severe end of the moderate range or at the lower end of the severe range. Notwithstanding that, the report makes it clear that the assault has had a significant negative impact on the mental health of the applicant. Doing the best that I can with the evidence before me I propose to adopt an allowance of 17½% under this heading.

Contribution

16. [16]
    Section 25(7) of the COVA provides that in deciding what amount should be paid by way of compensation the court must take into account any behaviour on the part of the applicant that directly or indirectly contributed to the injury. All that the applicant did leading up to the assault was to ask the respondent to turn down the music. This could not reasonably be said to constitute behaviour that directly or indirectly contributed to the injuries sustained. There is no evidence to warrant a reduction or discount of compensation awarded under this head because of the complainant’s prior “brief episode of depression” reported on by Dr Lotz.

The prior payment of compensation

17. [17]
    As I have already referred to, a part of the sentence imposed by the sentencing judge was to require the respondent to pay $500 to the applicant by way of compensation. That order was made pursuant to s 35 of the Penalties and Sentences Act 1992. As at the date of the hearing of this application the respondent had paid to the applicant the sum of $396.42. Mr Byrnes, counsel for the applicant, submitted that it would be appropriate to proceed on the basis that the respondent is more likely than not to pay the whole of the amount. I will proceed on that basis.

18. [18]
    Compensation payments ordered pursuant to s 35 of the Penalties and Sentences Act 1992 have been the subject of consideration by this court on a number of occasions. In Wilson v Kairouz^[5] his Honour, Judge Dearden, after having regard to s 25(7) of the COVA, considered that it would be appropriate to reduce the compensation assessed under COVA by the amount of compensation ordered by the sentencing judge under the Penalties and Sentences Act 1992.  The reason that his Honour reduced compensation by the full amount so ordered was to ensure that there was no “double dipping” in respect of compensation.

19. [19]
    In Pereria v Peterson^[6] the amount of compensation awarded under COVA was reduced by the amount of compensation ordered by the sentencing Judge which had actually been paid. In Wilson the amount of $1,500, as at the time the application was being considered, remained outstanding and had been referred to SPER. In Barnier v Campbell^[7] his Honour Judge McGill relevantly said:

“Bearing in mind the basis upon which compensation is assessed under the Criminal offences Victims Act, even compensation which had been paid under the Penalties and Sentences Act would not necessarily operate to achieve a reduction pro tanto in the order for compensation under the 1995 Act. However, it would I think be a factor which would be relevant and therefore would be appropriately taken into account under sub-section 7.

In circumstances where the compensation has not actually been paid I think that the mere existence of the order is of really little relevance. The position is simply that there is an entitlement under an order under the Penalties and Sentences Act, but the right under the Criminal Offences Victims Act is specifically made additional to that entitlement by s 22(1), so that I should properly ignore the mere existence of the order.”

20. [20]
    Without having to finally decide this question I am respectfully inclined to agree with the observations of his Honour, Judge McGill. The reason I am not required to decide this issue now is that I accept Mr Byrnes’s submission that where it is more likely than not that the whole of the $500 will in fact be paid, and, where the respondent was not represented at these proceedings, it would be appropriate to reduce compensation awarded under the COVA by the full amount. I should note here that this was not a concession that Mr Byrnes necessarily had to make as the respondent expressly declined any interest in being heard in this matter.

Final orders

21. [21]
    For the reasons expressed above I determine compensation in the amount of $19,375 made up as follows:

• Bruising/laceration $75,000^[8] at 3% = $2,250;
• Neck/back/chest injury $75,000 at 6% = $4,500;
• Mental or nervous shock $75,000 at 17½% = $13,125;
• Less compensation under the Penalties and Sentencing Act 1992 =          -$500.

22. [22]
    Accordingly, I order that:

1. The respondent, George Raymon Weimer, pay the applicant, Jonathan Smallwood, the sum of $19,375 compensation pursuant to the Criminal Offence Victims Act 1995.