Bowman v Ba-Che[2010] QDC 271

DISTRICT COURT OF QUEENSLAND

Introduction

HIS HONOUR:  The proceedings before me today are two criminal compensation applications, Shirley Joy Bowman against Larry James Ba-Che and John Edward Inwood against Larry James Ba-Che.  Both injuries occurred as a result of the one event (although with different charges relating to each of the two complainant/applicants) and it is convenient to deliver these reasons as a single set of reasons although, of course, dealing separately with matters relating to each of the applicants.

The respondent, Larry James Ba-Che, has not appeared before me this morning.  In respect of the applicant Shirley Joy Bowman he pleaded guilty to one count of serious assault and was sentenced by me to 100 hours community service which, upon further application, was revoked (on 1 February 2008) and a prison sentence of three months, wholly suspended, with an operational period of 18 months imposed in substitution.

In respect of the applicant John Inwood the respondent pleaded guilty to one count of assault occasioning bodily harm whilst armed and was sentenced by me to 100 hours community service.  Both the sentences in respect of the applicant Shirley Bowman and the applicant John Inwood occurred in the Beenleigh District Court on 5 June 2007.

Similarly to the outcome of the matters involving Ms Bowman, Mr Ba-Che was re-sentenced upon an application to revoke the community service order which proceeded before me on 1 February 2008 and was sentenced to three months, wholly suspended, with an operational period of 18 months.

Facts

The incident occurred on 6 September 2006.  The applicant Shirley Bowman was then 61 years old and was the de facto wife of the applicant John Inwood who was then 62 years old.  The respondent was their neighbour at the time of the incident.

On 6 September 2006 the respondent walked into the front yard of the home of the two applicants armed with a wooden pole which was the wooden mount for a beach umbrella.  The respondent yelled, "You all stand aside.  The police are coming and I want all of you to stay inside.  I'm ready for them."

The respondent then ran to the front door of the home of the two applicants and hit it with the wooden pole.  The applicant John Inwood said, "What's the problem, Larry?"   And the respondent yelled back, "You all stay in-bloody-side."  The applicant Shirley Bowmen then walked out of the house and asked the respondent what the problem was.  The respondent advanced towards her with the pole and she turned to retreat into the house.  As she did so, the respondent struck the screen door to the house causing it to hit the applicant Shirley Bowman in the right side of the head (constituting the serious assault).

Once inside the house the applicant Shirley Bowman asked the respondent to leave.  The respondent came after the applicant Shirley Bowman again with the wooden pole and the applicant John Inwood moved over to defend Ms Bowman.  The respondent then struck the applicant John Inwood in the face several times, cutting open his eye and causing blood to spurt from his face.  After a brief struggle the applicant John Inwood managed to get hold of the pole and held the respondent on the ground.

Injuries

The applicant Shirley Bowman suffered minor bruising to the right side of her body and face.

The applicant John Inwood required stitches to his face and sustained bruising to his ribs.

Exhibit PJS1, affidavit of Peter John Saggers sworn 28 May 2010 is a photograph which illustrates clearly the injury immediately beside the left eye of the applicant John Inwood which required stitches.

The Law

I refer to my exposition of the law as set out in Kennedy v Faafeu [2010] QDC 21 and adopt that exposition of the relevant law.

I refer to and adopt my exposition of the relevant applicable law under the Criminal Offence Victims Act 1995 (COVA) (repealed but still operative in respect of this application) as set out in paragraph 6 of Paterson v Chand and Chand [2008] QDC 214.

Mr Saggers appears for each of the applicants.  I will deal with the applications in turn.

Compensation re applicant Shirley Joy Bowman

(1) Item 1 - Bruising/Laceration etc minor/moderate/1%-3%

The applicant Shirley Bowman suffered minor bruising to the right side of her body and face.  Mr Saggers submits (and I accept) that an assessment at the bottom of item 1 is an appropriate assessment for the physical injuries suffered by Ms Bowman.  Accordingly I award 1% of the scheme maximum ($750) pursuant to item 1.

(2) Item 32 - Mental or nervous shock - moderate - 10% - 20%

Bowman has been diagnosed by Frank Bergmann, clinical psychologist, as suffering from "generalised anxiety disorder" as described by the diagnostic and statistical manual of mental disorders (DSM - IV - TR).  (Exhibit FB2 (addendum) affidavit of Frank Bergman, sworn 26 May 2010.)

The difficulty in assessing the applicant Shirley Bowman's mental or nervous shock injuries are her pre-existing adult life long history of depression which has been chronic (although she's been able to work consistently throughout her adult life).  The physical injury has, however, affected Ms Bowman and as Mr Bergmann indicates, it has exacerbated her pre-existing vulnerability to depression.  Ms Bowman suffers from major depression, significant suicidal ideations and presented to Mr Bergmann with some clinical post-traumatic stress disorder features but did not meet the criteria for post-traumatic stress disorder.  However, as I have indicated, she does meet the criteria for generalised anxiety disorder, which I accept is a recognisable psychiatric illness or disorder (RMC v. NAC [2009] QSC 149 per Byrne SJA).

As Mr Saggers conceded in oral submissions, however, the Court does have to consider the diagnosis arising from the relevant offence committed by Mr Ba-Che and as best as possible, take into account the exacerbation of Ms Bowman's mental or nervous shock caused by the relevant offence in the context of her pre-existing psychiatric illness.

Mr Bergmann, in his report, indicates that Ms Bowman has suffered, "Excessive worry and anxiety (apprehensive expectation) for over six months, which [Ms Bowman] finds difficult to control."  Mr Bergmann noted further that, "Ms Bowman reported sufficient symptomology with complaints of restlessness, difficulty concentration and sleep disturbance [which] ... appear to have caused clinically significant distress in important areas of functioning, ie. her social functioning and her working as a Justice for [sic] the peace."  (Exhibits FB-1 and FB-2 affidavit of Frank Bergmann sworn 26 May 2010.)

In the circumstances, although Mr Saggers, in his written submissions, submits that I should assess Ms Bowman at 15% of the scheme maximum, it does seem to me that a more appropriate assessment, balancing the particulars of the pre-existing illness and the exacerbation of that illness, as well as taking into account the diagnosis of generalised anxiety disorder, is an assessment of 10% of the scheme maximum ($7,500).

Contribution

The applicant did not contribute in any way, direct or indirect, to her own injuries (COVA (S.25) 7).

Conclusion

Accordingly I award the applicant $8,250.  The order of the Court is as follows:-

That the respondent Larry James Ba-Che pay the applicant Shirley Joy Bowman the sum of $8,250.

Compensation re applicant John Edward Inwood

Mr Saggers submits as follows in respect of the applicant John Inwood.

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

Mr Saggers submits that the bruising and lacerations suffered by Mr Inwood (and I note this includes the stitching of an injury beside Mr Inwood's left eye) should be compensated at the top end of the minor to moderate range, namely 3% of the scheme maximum ($2,250).  In my view the submission is appropriate and accordingly I award 3% of the scheme maximum ($2,250) pursuant to Item 1.

(2) Item 32 - Mental or nervous shock (severe) - 20% - 34%

In respect of Mr Inwood, Mr Bergmann has diagnosed Mr Inwood as meeting "all the criteria for a diagnosis of post-traumatic stress disorder (PTSD) under the DSM - IV - TR categorisation system."  Mr Bergmann concludes that the applicant Mr Inwood "experienced a significant cognitive and emotional distress at the time of the incident and ... experienced overall post-traumatic stress symptoms of a severe level."  (Exhibit FB-1 affidavit of Frank Bergmann sworn 26 May 2010 (re applicant John Inwood).

Mr Bergmann does note that the applicant John Inwood suffered "childhood and previous trauma experience [which] is likely to have predisposed him to being vulnerable to any violent and aggressive incidents."  Mr Bergmann notes further that "although [the applicant John Inwood] appears to have experienced certain depressive and anxiety symptoms prior to this incident it seems reasonable to assume that this traumatic event has significantly exacerbated these symptoms."

In this context it is in my view clear that an award for Mr Inwood should fall in the severe range (Item 32) of mental or nervous shock.  Mr Saggers submits for an award of 30% which in my view is a little high but I consider that an appropriate award in the circumstances is an award of 25% of the scheme maximum ($18,750).

Contribution

The applicant John Inwood did not contribute in any way, direct or indirect, to his own injuries (COVA (S.25 (7)).

Conclusion

In the circumstances the applicant John Inwood should receive an award of $21,000 for criminal compensation suffered by him arising out of this incident.  The Court order is as follows:-

The respondent Larry James Ba-Che pay the applicant John Edward Inwood the sum of $21,000.