Newman v Neville[2010] QDC 257

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Mark Laurence Neville pleaded guilty in the Beenleigh District Court on 20 August 2009 to one count of unlawful wounding in respect of the applicant Kevin Michael Newman. The respondent was sentenced by Judge Irwin to three years’ imprisonment with a parole release date fixed at 20 August 2009 (the respondent having served 349 days in pre-sentence custody up to the date of sentence).

Facts

2. [2]
   The respondent and Sarah Ellis were involved in a relationship between 2003 and December 2007 and a son was born to that relationship in 2004. After the relationship between the respondent and Ms Ellis finished, Ms Ellis began a relationship with the applicant. After the respondent found out about this relationship, he sent numerous abusive and threatening text messages to the applicant, threatening variously to do some violence to or kill the applicant, and telling the applicant to stay away from Ms Ellis. On a Wednesday prior to the incident, the respondent came to the home of the applicant and Ms Ellis, and told the applicant “I told you to stay away from her and I’m going to kill you”. The applicant was at the relevant time on parole and failed to report for a parole appointment as he was afraid the respondent or his associates would do him harm.

3. [3]
   At the same time, the applicant was also threatening to kill the respondent. The applicant had told Ms Ellis that the respondent was in the way of them having a happy relationship, and he planned to buy a gun with some tax return money he was expecting and to kill the respondent. That plan had progressed to the applicant talking to someone over the phone, and the applicant advised Ms Ellis that the person was selling him a gun for the purpose of killing the respondent. The applicant had talked about this with Ms Ellis several times and convinced her that he was serious. At some stage, Ms Ellis saw the applicant with a black pistol and heard the applicant threatening the respondent over the phone that he was going to shoot him dead. Ms Ellis told the respondent about the applicant’s plan and that she had seen him with a gun.

4. [4]
   On the morning of Friday 4 September 2008, the respondent attended at the house of a friend, Clinton Farrell, in Kingston, where Mr Farrell resided with his partner Toni Tyce.  At about 10.00 am Ms Ellis arrived at Mr Farrell’s unit with the applicant.  The respondent was waiting in another room for Mr Farrell to speak with Ms Ellis before the respondent also spoke with her.  The respondent did not know that the applicant was with Ms Ellis.

5. [5]
   When Ms Ellis entered the address, Mr Farrell took Ms Ellis to another room to talk to her about the way she was leading her life and her involvement in drugs, leaving Ms Tyce and the respondent in another room. Mr Farrell started talking with Ms Ellis and told her that the respondent was in the flat. Ms Ellis ran from the room and Mr Farrell followed her.

6. [6]
   Meanwhile the respondent had come out of the room he was in and, upon seeing the applicant, picked up a fishing knife that was in the house belonging to Mr Farrell. The knife had a six inch blade. The respondent charged at the applicant and a brief struggle ensued, during which the applicant was stabbed in the lower left side. When Mr Farrell returned to the lounge room, he saw the respondent standing over the applicant who was lying on the ground. Ms Ellis yelled “Get off him”. Mr Farrell saw that the respondent had the knife in his hand. The respondent picked the applicant up and told him to run, which he did, going to a nearby telephone box, where he was attended to by a passing nurse and an ambulance was called^[1].

Injuries

7. [7]
   The nurse who originally attended on the applicant noted that the wound was “5cm in length and quite deep [and that] part of [the applicant’s] stomach was protruding but the bleeding had stopped”. The ambulance officers noted the injury as a wound 6-7cm long, below the applicant’s bottom rib. The applicant was treated in the back of the ambulance and transferred to the Princess Alexandra Hospital, where he was seen in the Emergency Department and later taken to surgery, where doctors removed his spleen and a small part of his bowel^[2].

The law

8. [8]
   I refer to and adopt my exposition of the relevant law pursuant to the transitional provisions of the Victims of Crime Assistance Act 2009 (VOCAA) as set out in Kennedy v Faafeu [2010] QDC 21 at paragraph 6.  The application before me complies with the relevant provisions of VOCAA and the now repealed Criminal Offence Victims Act 1995 (COVA). 

9. [9]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

10. [10]
    Ms Thompson, who appears for the applicant, seeks compensation as follows:-

1. Item 2 – bruising/laceration etc (severe) – 3%-5%

Ms Thompson submits that an award should be made for the bruising suffered as a result of the stab wound.  Ms Thompson’s submission is that 5% of the scheme maximum would be appropriate.  It appears on the material that the applicant suffered a single stab wound, and in my view the consequent bruising/laceration which is inevitable in a stab wound is substantially compensated pursuant to Item 26 (gunshot/stab wound (severe)).  However, it would still be appropriate, in my view, to award 3% of the scheme maximum ($2,250.00) pursuant to Item 2.

2. Item 26 – gunshot/stab wound (severe) – 15%-40%

In a letter from Ms Tasha Power, RMO, Breast and Endocrine Unit, PrincessAlexandraHospital, it was noted that “[The applicant] presented to the PAH on the 4^th September [2008] with a stab wound to his left flank.  He was taken directly to the operating theatre where he underwent an exploratory laparotomy which revealed a stab track through the 11^th intercostal space, lateral diaphragm without opening of plural cavity, through the spleen with arterial bleeding, through the transverse mesocolon and into the jejunum. A splenectomy and a short small bowel resection was subsequently performed. [The applicant’s] post-operative recovery was unremarkable. He was seen by the infectious diseases team who recommended that he remain on lifelong post-splenectomy prophylaxis with amoxicillin 250mg daily. He was also immunised against pneumococcal, meningococcal and hemopilus influenza B”^[3].

Dr Brian Purssey, specialist in general surgery and orthopaedics, prepared a report dated 27 December 2009^[4]. Dr Purssey was not able to examine the applicant, who was then an inmate at the Capricornia Correctional Centre, and so prepared the report solely from documents provided, including the Victim Impact Statement, police statement of the applicant, and records of the PrincessAlexandraHospital. Dr Purssey noted that the applicant, as a result of his total splenectomy, will “have a lifetime risk of overwhelming infection … estimated to be in the region of 58 times normal”. The applicant’s immunisations must be repeated every three years and there is a 0.6 per cent risk of death from sepsis. In addition the applicant is “at risk of developing an incisional hernia through the midline abdominal incision” with a 10 per cent chance of developing such a hernia. The applicant also has a fairly low chance of developing a small bowel obstruction at any time throughout his life^[5].

Ms Thompson submits that an award should be made at the top of the item 26 range. Although I accept that the applicant suffered a serious injury requiring a spleenectomy, and has heightened risks of infection and further medical complications, it in my view is not a “worst case” example, and should more appropriately bring an assessment at 30% of the scheme maximum, namely $22,500.00.

3. Item 27 – facial disfigurement or bodily scarring (minor/moderate) – 2%-10%

The applicant has a long vertical midline abdominal scar and also a scar to the left side of his lower chest^[6]. Ms Thompson submits an appropriate award would be 10% of the scheme maximum. Given the nature and situation of the applicant’s scars, I consider that to be an appropriate submission. Accordingly I award 10% ($7,500.00) pursuant to Item 27.

4. Item 33 – mental or nervous shock (severe) – 20%-34%

The applicant was examined by Bruce Acutt, consultant psychologist who prepared a report dated 16 December 2007^[7]. Mr Acutt diagnosed the applicant as suffering from post-traumatic stress disorder concurrent with raised levels of anxiety” and noted further that the applicant “suffered a psychological injury in that he is now very much conscious of the large vertical scar on his abdomen and the scar in his side”. Mr Acutt considered that the applicant’s post-traumatic stress disorder would “continue to impact on [the applicant] probably for the rest of his life with symptoms reducing in severity and occurrence over time”^[8]. Mr Acutt considered that the applicant’s “mental or nervous shock” would be assessable “at the lower end of the severe category” and although it could be considered “swearing the issue”, proposed an assessment of “approximately 25%”. I note that Ms Thompson has adopted Mr Acutt’s assessment and submits for an award at that level pursuant to Item 33. In my view given the nature of the psychiatric illness suffered and its potential chronicity, that is an appropriate submission, and accordingly I award 25% ($18,750.00) pursuant to Item 33.

Contribution

11. [11]
    Although there was a lengthy history of deep unhappiness between the respondent and the applicant, there does not appear to have been anything that the applicant did immediately prior to him being stabbed, which could be said to have contributed to the injuries he suffered. Judge Irwin, in an exchange with the prosecutor Ms Heywood during the sentence stated “It would seem to me on the face of things … that the [respondent] had information which might have caused him to engage in some pre-empted activity towards the [applicant], but what he did by arming himself with a knife and engaging with a struggle with the [applicant] went beyond what was reasonably necessary to defend himself [and] … at least on the Schedule of Facts there is no suggestion that the [applicant] on that particular occasion had produced a gun or come towards him in any threatening manner”^[9]. In these circumstances, I do not consider that the applicant has contributed to his own injuries such that there should be any award of the compensation order made.^[10]

Conclusion

12. [12]
    I order that the respondent Mark Laurence Neville pay the applicant Kevin Michael Newman the sum of $51,000.00.