Trindorfer v Dickson[2010] QDC 258

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent Jed Dickson pleaded guilty (relevantly) to one count of grievous bodily harm before me at the Beenleigh District Court on 6 May 2008. The applicant was sentenced to three years’ imprisonment with a parole release date fixed at 5 May 2009^[1].

Missing transcript of sentencing submissions and sentencing remarks

2. [2]
   The applicant’s instructing solicitors were advised by the State Reporting Bureau that “the recording of this matter has been listened to and a transcript is unable to be produced to the recording being faulty”^[2]. It has been necessary, therefore, in dealing with this application for criminal compensation, to have resort only to the Schedule of Facts and Victim Impact Statement tendered on the sentence, as well a copy of the handwritten notes from my Judge’s Notebook (pp 189-197).

Facts

3. [3]
   The applicant arrived at Dooley’s Tavern, Loganlea at approximately 2.15 am on 18 November 2006. As the applicant was sitting in his car waiting for his girlfriend to come out of the pub, the respondent walked up to the car and said “Why are you fucking laughing at me? Do you want me to hit you?”. The applicant said “What is your problem I was just talking to you and I thought we were mates?” The applicant then got out of the car and asked the respondent what was wrong with him.

4. [4]
   The respondent then said something and threw a punch at the applicant with a closed right fist. That hit did not connect so the applicant grabbed the respondent in an attempt to restrain him. Security staff and other patrons pulled the applicant and respondent apart. The security staff told the respondent to leave, although he was still trying to hit the applicant.

5. [5]
   The respondent then walked out onto the roadway (Logans Down Road) and waited in the street until the applicant drove his car out of the car park. As the applicant approached the red light at the intersection with Loganlea Road, the respondent threw a large tree branch into the path of the applicant’s car which resulted in the applicant having to stop abruptly. The applicant approached the driver’s side of the car, then walked around to the front passenger side window, and punched the closed window once with his fist, causing the window to shatter. At this time, a glass shard from the window entered into the right eye of the applicant. The respondent walked away from the car. The applicant then got out of the car and said something to the respondent who continued to walk away. The applicant then walked back to the tavern to find his girlfriend and was driven to the Logan Hospital^[3].

Injuries

6. [6]
   The applicant was assessed at the Logan Hospital before being transferred to the Princess Alexandra Hospital where he underwent surgery for a penetrating eye injury that required suturing the applicant’s ruptured eyeball. Although the applicant later underwent further surgery, he suffered a permanent injury to his health and eyesight as a result of the incident^[4].

The law

7. [7]
   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).

8. [8]
   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

9. [9]
   Mr Bagley, who appears for the applicant, seeks compensation as follows:-

1. Item 29 – loss of vision (one eye) – 70%

Mr Bagley submits that the eye injury is severe, and that the applicant has suffered permanent damage. The report of Dr Kevin Vandeleur, ophthalmic surgeon, notes that the applicant initially spent four days in the PrincessAlexandraHospital where he had an operation to repair his lacerated cornea, then subsequently had a second operation to remove the injured crystalline lens of his eye (known as a traumatic cataract). The applicant’s lacerated cornea healed well but with a marked corneal scar. Some of the scarring extends in to the pupil zone, and affects the cornea so that it is no longer a perfect optical surface. Dr Vandeleur notes that this scarring of the applicant’s cornea means that he will not be able to achieve perfect vision with a spectacle lens, and when the applicant’s eye is ready to be provided with spectacles, the irregular corneal scarring will limit the best visual acuity to about 6/12.

In addition, Dr Vandeleur notes that the applicant’s right eye is not normally aligned with his left eye, and the injured right eye has drifted outwards causing a squint and double vision. This may require muscle adjustment surgery. Dr Vandeleur notes further that “the rehabilitation of [the applicant’s] right eye requires the implantation of an intraocular lens” which is planned at some time in the future at the PrincessAlexandraHospital, although it has not yet been determined whether the lens implantation or possible squint surgery should proceed first. Dr Vandeleur notes that the applicant’s “work capacity has been very severely impaired by the severe injury to his right eye and the severely impaired vision [the applicant] is experiencing and will experience until his surgical treatment is completed”. Dr Vandeleur advises that the cost of the squint operation would be approximately $3,000.00 and the implantation of an artificial lens would be approximately $5,000.00^[5].

Mr Bagley submits that an appropriate award would be at the upper range of item 29 namely 65% of the scheme maximum. Given the circumstances, I consider this to be an appropriate submission and accordingly I award 65% ($48,750.00) pursuant to Item 29.

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

The applicant was examined by Dr Peter Stoker, psychologist, on 23 November 2009 and Dr Stoker provided a report dated 2 December 2009^[6].

Dr Stoker diagnosed the applicant as suffering “an adjustment disorder with mixed depressed and anxious mood (DSM-IV)”. Dr Stoker noted that the applicant’s “depression and anxiety are secondary to ongoing impaired vision and co-ordination problems, self-consciousness regarding his eye problems, relational, vocational, social and recreation difficulties”. Dr Stoker considered the applicant “would benefit from approximately 17 sessions of psychological counselling to improve his emotional function [at a] cost per session, based on the current Australian Psychological Society recommended rate [of] $206.00 [per session]”^[7]. Dr Stoker noted that the applicant was abusing alcohol after the assault and had suffered an alcohol abuse disorder, now in remission (since a period of incarceration for drink driving). Dr Stoker concluded that the applicant had suffered “a moderate degree of mental and nervous shock”, that the applicant would “suffer periods of depression on and off throughout his life” if he continues to have significant optical difficulties in the future, and considered this permanent partial psychological impairment to be at the middle to upper level of the moderate range^[8].

Accordingly, Mr Bagley submits that an appropriate assessment for the applicant’s mental or nervous shock would be at the upper end of the moderate range, namely 20% of the scheme maximum ($15,000.00). I accept this submission, in the light of Dr Stoker’s report, and accordingly award $15,000.00 pursuant to Item 32.

Contribution

10. [10]
    The applicant did not contribute in any way, direct or indirect to his own injuries^[9].

Conclusion

11. [11]
    I order that the respondent Jed Dickson pay the applicant Robert Douglas Trindorfer the sum of $63,750.00.