Murphy v Orbell[2010] QDC 30

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No D105 of 2009

TOOWOOMBA

..DATE 04/02/2010

ORDER

1. [1]
   HIS HONOUR:  This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act 1995(Qld)(the Act) for injuries sustained, because of the offences of grievous bodily harm and deprivation of liberty to the applicant on 6 May 2008 at Toowoomba, of which the respondent was convicted on indictment on 22 January 2009.

2. [2]
   In relation to these offences he was sentenced to be imprisoned for a period of five years for grievous bodily harm and for three years on the deprivation of liberty.  He was also convicted and sentenced on further related offences on the same date but these do not form the basis of the application.  The overall effect of sentence was that the respondent be imprisoned for five years with his parole eligibility date fixed at 1 January 2010.

3. [3]
   The originating application and the relevant supporting material was served on the respondent on 5 January 2010 by delivering them to the Visits Processing Officer at the correctional centre where the respondent is in inmate.  The person to whom the documents were delivered advised that she was authorised to accept them on behalf of the respondent.  There was no appearance by the respondent at this hearing.

4. [4]
   Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for an injury suffered by an applicant because of that offence: JMR obo SRR v Hornsby (2009) QDC 147 at (6).  A personal offence is an indictable offence committed against the person of someone:  section 21 of the Act.  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in schedule 1 of the Act, or prescribed under a regulation:  section 20 of the Act. 

5. [5]
   Under section 25(8)(a) an award of criminal compensation does not invoke the principles applicable to common law damages.  As stated in section 22(3), it is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.

6. [6]
   A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000:  see section 25(2) of the Act and section 2 of the Criminal Offence Victims Regulation 1995 (Qld) and Riddle v Coffey [2002] 133 A Crim R 220;  [2002] QCA 337 at (12).

7. [7]
   Having regard to section 25(3)-(4) an award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum.  If the injury does not come within those itemised in the compensation table, or specified under a regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table:  section 25(6).

8. [8]
   Section 22(4) of the Act requires compensation under that section to be calculated by assessing the injury as, or similar to, an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table:  Riddle v Coffey at (15) applying R v Ward:  ex parte Dooley [2001] 2 Qd R 436 at 438, 440.

9. [9]
   It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in that table on the basis that the maximum amount of compensation allowed, in respect of each type of injury listed in the table, is reserved for the most serious cases:  Ward at 440.

10. [10]
    Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication:  Riddle v Coffey at (18); JMR obo SRR v Hornsby [2009] QDC 147 at (6).  However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation, for a number of injuries arising out of one episode, by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward:  Riddle v Coffey at (18).

11. [11]
    Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst, at the same time, avoiding duplication, that course should be adopted:  Wren v Gaulai [2008] QCA 148 at (24).  However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury, under another item in order to avoid duplication, it may therefore be necessary to make an adjustment to cater for differences between the ranges or the maximum for each item:  Wren at (29).  Ultimately, the Court should ensure there is compliance with the use of methodology prescribed by section 25, which is mandatory:  Wren at (22).  See also JMR obo SRR v Hornsby at (6).

12. [12]
    Section 25(7) of the Act provides that in deciding whether an amount, or what amount, should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury.

13. [13]
    In determining the factual basis for this application I am assisted by the affidavit of the applicant as well as the medico legal reports to which I will refer.  The sentencing remarks by her Honour Judge O'Sullivan do not give the factual basis for her sentence in detail, however, the facts which are deposed to in the applicant's affidavit and the medical reports detailing the consequences of these offences upon her are consistent with the observations which were made by her Honour when sentencing the respondent.

14. [14]
    Her Honour did not detail the circumstances of the offences in her sentencing remarks because they were set out in a schedule of facts which were not before me.  They involved an assault on the applicant and another woman.  The applicant was the respondent's grandmother.  The other woman was the respondent's mother.  According to the sentencing remarks this occurred during a drug-induced psychosis.

15. [15]
    Her Honour said:  "Even with that being some sort of explanation for your behaviour, it is still behaviour which would appal and shock every member of the community.  It shocks me, Mr Orbell - having looked at those photographs, I am shocked and I am saddened that you would do that to your grandmother and your mother, even with the explanations that I have been given.  You clearly have both drug and psychological problems that you could show such utter cruelty and callousness to these two women.  Their victim impact statements show they have been deeply traumatised and their statements are very moving.  You have ruined their lives, Mr Orbell.  You have ruined their lives and they can never get that back."

16. [16]
    On the basis of the applicant's affidavit I proceed on the following factual basis:  at approximately 9 a.m. on 6 May 2008, her daughter opened the door of the applicant's house.  At this time the respondent barged past her into the house.  He sat in a recliner chair.  He was told he was not welcome but responded that he was not moving.  The applicant then proceeded to walk down the hallway.  The respondent came up behind her and sent her flying by a push in the back.  As a result, she hit the door and the frame of the door opening.

17. [17]
    Her daughter came and tried to pick her up.  He then sent her daughter flying back into the lounge room.  The applicant tried to pick up her daughter and was pushed over the gas heater.  The applicant thought that they were going to die.  All the neighbours were away and she felt isolated.  They would have been kept in the house for over an hour.  As the applicant tried to get out the front door the respondent came behind her and grabbed her by the neck with both hands and said, "Don't you move off this chair."

18. [18]
    They were able to get out of the house when the applicant's daughter convinced the respondent that she had to take the applicant to the hospital.  By this time the applicant had blood all over her.  The respondent agreed to this on the basis that he would drive.  When they got out the door the appellant was going up the street to someone whose car was there.  The respondent chased after her and grabbed her and pushed her into her motor car.  He then went back inside, telling the applicant and her daughter to remain in the car.  As a result, they were too scared to move and they remained waiting in the car for 10 minutes until the respondent came out and drove off.

19. [19]
    He stopped the vehicle opposite St Vincent's Hospital.  At this point, he got out of the car and moved out of sight.  The applicant's daughter was then able to attract the attention and assistance of a passer by.  As a result, the police were called and the respondent was apprehended.  The applicant was then taken to St Vincent's Emergency.

20. [20]
    She deposes that her injuries were quite painful and she had a lot of painkillers.  They were more on the left side of her face and her left cheek.  She was still suffering as a consequence at the time of her affidavit, which was sworn on 16 November 2009, approximately 18 months after the incident.

21. [21]
    She also refers to bruising on the back of her face and her chest that lasted for about 10 days.  It was necessary for Dr Houston to fix up her nose and the left side of her face.  As she says, she had a broken jaw and also some facial bones.  She said that she still got numbness in her head and she feels pressure building in her head.  She still has pains in the knees.  She continues to have residual fears of a similar assault occurring.  She does not go out to social engagements anymore and she is nervous and afraid of the respondent getting out of gaol in 2010.

22. [22]
    I am satisfied, on the balance of probabilities, that the applicant suffered injuries as a result of indictable offences committed by the respondent against her person on 6 May 2008.  These indictable offences are grievous bodily harm and deprivation of liberty.  I consider that all of the injuries which are disclosed by her and the medical evidence were committed in the course of depriving her of her liberty and in the assault upon her that also occasioned the specific injuries which constituted the grievous bodily harm, which I would take to be the facial fractures.  The deprivation of liberty was accomplished by creating a climate of fear through, amongst other things, the physical assaults which were committed upon the applicant.

23. [23]
    I am satisfied that the applicant suffered bodily injuries that were serious as a result of the respondent's conduct towards her on this occasion.  I am satisfied that those injuries involved a laceration, bruising, a fractured nose that required surgery, other facial fractures, mental or nervous shock and an injury to her neck and back area.

Item 1 - Bruising/Laceration etc. (Minor) - 1 percent - 3 percent

24. [24]
    Dr Steele, who is a general practitioner who treated the applicant, found that there were lacerations to both of her eyebrows.  The applicant, in her victim impact statement, says that she had to have quite a number of stitches just above her eyebrows.  I consider that in these circumstances the applicant suffered a minor laceration within Item 1 of the table.  Having regard to the requirement to scale the amount of compensation within the ranges set out in the table, on the basis that the maximum amount of compensation allowed in respect of each injury listed in the table is reserved for the most serious cases, I assess that it is 1 percent as submitted (out of a maximum of 3 percent).  This is an amount of $750.

Item 2 - Bruising/Laceration etc. (Severe) - 3 percent - 5 percent

25. [25]
    In her victim impact statement the applicant states that she was covered in bruises all over her body.  She says that she was in St Vincent's Hospital for seven days and in a lot of pain.  Dr Steele notes in his report that the applicant sustained bruising to her head, neck, trunk and left temporo-mandibular joint and the applicant, at the time of his report on 9 November 2009, was still having neck and back pain due to the force of the attack.  I agree with the submission on behalf of the applicant that as the neck and back area is part of the area where the bruising occurred, it can be inferred that continued pain in that area persisting approximately 18 months after the offence demonstrates that the bruising was severe in this area.

26. [26]
    I consider that the bruising is a separate injury from the laceration.  I consider that, in the circumstances, the applicant suffered bruising which was severe in nature, within Item 2 of the table.  I assess it at the bottom of the range set out in the table, that is, it is 3 percent (out of a maximum of 5 percent).  That is $2,250.

Item 4 - Fractured Nose (Displacement/Surgery) - 8 percent - 20 percent

27. [27]
    This relates to a fracture to the nasal bridge of the applicant's nose associated with bilateral peri-orbital swelling and deviation of the nasal bridge line.  Dr Houston, the maxillo-facial surgeon who examined and operated on the applicant, states in his report that the nasal bridge complex was fractured.  To correct this he undertook a reduction of the fractured nasal bones.  He notes that he undertook surgical reduction of all fractured bones, except the maxilla, on 14 May 2008 and after surgery her nasal bridge line was straight.  Dr Steele states in his report that the applicant sustained a fractured nose.

1. [28]
   I consider that, in these circumstances, the applicant suffered an injury which required surgery within item 4 of the table.  I assess that, as submitted for the applicant, this injury is towards the bottom of the range set out in the table at 11 percent (out of a maximum of 20 percent).  That is $8,250.

Item 6 - Facial Fracture (Minor) - 8 percent - 14 percent

29. [29]
    This aspect of the application relates to the bilateral frontal processes, the maxillary bones, the left zygomatic arch and the maxilla.  According to Dr Houston, the applicant had a fracture in these areas.  In his operation, on 14 May 2008, Dr Houston elevated the zygomatic arch.  He says that, as a result, the cheek bones were symmetrical.  The associated frontal process of the maxillary bone had to be reduced as well.  He states that the applicant has no cosmetic disability.  As a result of the fracture of the maxilla the applicant also required the insertion, by a dental technician, of a soft liner into the old full upper dentures.

30. [30]
    I consider that in these circumstances, separately from the fracture to the nose, the applicant suffered facial fractures which were minor in nature and within Item 6 of the table.  I assess, as submitted on behalf of the applicant, that the seriousness of this injury is at the mid-point in the range of percentages of the scheme maximum in the table, that is, it is 11 percent (out of a maximum of 14 percent).  This is $8,250.

Item 32 - Mental or Nervous Shock (Moderate) - 10 percent - 20 percent

31. [31]
    The application is on the basis of a post-traumatic stress disorder.  Consistently with the victim impact statement of the applicant, Dr Venugopalan, who interviewed the applicant on 3 September 2009, stated that the applicant whom he refers to as a 77 year old widow describes herself as having been a happy and independent person, able to look after her own affairs before the assault.  She denied any significant physical health problems before this.  She also stated that she had not needed any psychiatric medication until after the assault and she denied any previous psychiatric history.

32. [32]
    She told him that she was very frightened and thought she was going to be killed during the assault and when the respondent refused to let her and her daughter leave the house after the assault.  For the next few weeks she experienced severe anxiety and insomnia and lost a considerable amount of weight.

He details her persisting symptoms as follows: 

• Recurrent dreams associated with the assault.  She dreams about someone assaulting her and wakes up in a panic, with palpitations and sweating.  This happened most nights for several months after the assault.  The frequency, at the time of the report, was two or three times a week.  She thinks the severity of anxiety associated with this had diminished in recent months, in conjunction with her current treatment.
• Anxiety during the day if she leaves home.  She rarely leaves home by herself, although she continues to drive.  She has given up her previous activities like bowling.
• Avoids social activities, does not like talking to others.
• Feels anxious when talking about the assault and avoids this if she can.
• Persistent fear of the respondent coming back to kill her, although he is in prison.  She said, "People have escaped from gaol before."
• Disturbed sleep.  Although she is taking medication to help with sleep, her daughter told her that she was restless and yelled in her sleep.
• She gets very anxious if she sees a car stopping near her home or if she hears a car door closing.  She has installed new security screens and deadlocks in her unit.
• She stated that she thinks about the assault several times every day and this is upsetting to her. 

33. [33]
    He observed that she was visibly anxious when talking about the assault and its consequences.  He gave a diagnosis of post-traumatic stress disorder.  He said that the severity of this condition was severe for the first four months and is currently moderate (in a mild to severe scale).  His opinion is that this condition is the result of the assault on 6 May 2008.  He states there is evidence of significant impact on her activities of daily living and enjoyment of her life as a result of the condition.

34. [34]
    He considers that she is likely to benefit from active psychological help as she remains significantly affected by the condition after 12 months.  As a result, she is likely to need 10 to 12 sessions of psychological treatment at a cost of $3,000.  His prognosis is that she has made slow process in the severity of her symptoms in the last 12 months.  He says that her post-traumatic stress disorder will require more intensive psychological treatment if symptoms are not well controlled by about 12 months.  While active psychological treatment will better control her symptoms, some residual anxiety symptoms are likely to persist, in her case, for several years.

35. [35]
    In RMC v NAC (2009) QSC 149, Burn SJA preferred the view of Lee J in R v Tiltman:  ex parte Dawe [1995] QSC 345 to that of Thomas JA in Ferguson v Kazakoff [2001] 2 Qd R 320; [2000] QSC 156 and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.

36. [36]
    In AT v FG (2004) QCA 293, Jerrard JA made reference to:  "establishing the existence of post-traumatic stress disorder and therefore of mental or nervous shock."  In these circumstances, I accept the psychiatric opinion of Dr Venugopalan and proceeding on the basis of Tiltman and RMC v NAC, that for the purposes of Item 32 of the table, there must be a recognisable psychiatric illness or disorder, I find that the applicant's post-traumatic stress disorder is compensable as mental or nervous shock, within the meaning of those words in the Act.  And having regard to that opinion, I am satisfied that the respondent's conduct, constituting the offences which I have identified, was the material cause of that disorder and is a proper subject for compensation.

37. [37]
    Having regard to the psychiatric opinion I consider that this injury is properly to be placed within Item 32 as involving moderate mental or nervous shock.  I also consider, particularly having regard to the persistent symptoms, the need for ongoing treatment and the likelihood of some residual anxiety symptoms, that the proper assessment of the entitlement under this head is as submitted on behalf of the applicant at 15 percent (out of a maximum of 20 percent).  That is the amount of $11,250.

Item 21 - Neck/Back/Chest Injury (Minor) - 2 percent - 7 percent

38. [38]
    This aspect of the application is based on Dr Steele's report that the applicant continues to have neck and back pain due to the force of the attack and approximately 18 months later it continues to require ongoing management for pain relief daily.  It is Dr Steele's opinion that her neck pain, in particular, will continue to worry her in a minor way.

39. [39]
    I consider that this is a separate injury from the other injuries that she suffered, having regard to its persisting nature.  I consider that in these circumstances, the applicant has suffered a minor neck and back injury.  Within Item 21 of the table, I assess that, as submitted by the applicant, it is towards the bottom of the range set out in the table.  I assess this injury at 3 percent (out of a maximum of 7 percent).  This is $2,250.

Section 25(7) of the Act - Contribution

40. [40]
    I find that the applicant's actions have not contributed, in any way, to her bodily injuries or to her mental or nervous shock.  Further, I find there is nothing else that directly or indirectly contributed to these injuries which would affect the amounts that I have assessed should be awarded for them.

Conclusion and Order

I assess compensation as follows: 

1. (a)
   For the minor laceration in Item 1 of the compensation table - at 1 percent of the scheme maximum ($750).
2. (b)
   For severe bruising within Item 2 of the compensation table - at 3 percent of the scheme maximum ($2,250).
3. (c)
   For the nose fracture requiring surgery within Item 4 of the compensation table - at 11 percent of the scheme maximum ($8,250).
4. (d)
   For the minor facial fracture within Item 6 of the compensation table - at 11 percent of the scheme maximum ($8,250).
5. (e)
   For moderate mental or nervous shock within Item 32 of the compensation table - at 15 percent of the scheme maximum ($11,250).
6. (f)
   For the minor back and neck injury within Item 21 of the compensation table - at 3 percent of the scheme maximum ($2,250).

This results in a total amount of $33,000.

41. [41]
    I order the respondent to pay the applicant the sum of $33,000, by way of compensation, for the injuries suffered by her because of the offences of grievous bodily harm and deprivation of liberty committed by the respondent against her person on 6 May 2008 for which the respondent was convicted, on his plea of guilty, upon being charged on an indictment, presented on 22 January 2009 and in respect of which he was sentenced on that date.

Those are the orders of the Court.  Mr Davies.

MR DAVIES:  Thank you, your Honour.

HIS HONOUR:  You'll note that I increase the amount slightly over that which was claimed by you-----

MR DAVIES:  Yes, there was a-----

HIS HONOUR:  -----because I think you'd asked for an amount that was 1 percentage point below the minimum amount-----

MR DAVIES:  Yes.

HIS HONOUR:  -----on one of the items.

MR DAVIES:  I did see that, your Honour, yes.  That was my mistake.

HIS HONOUR:  And I hope that in recalculating the matter as I delivered my decision, I have adjusted it correctly in coming to the amount of $33,000.

MR DAVIES:  Yes, thank you, your Honour.  That is the same as my calculation as well so-----

HIS HONOUR:  All right.  Unless there's any further matter,
Mr Davies, I thank you for your comprehensive submissions which have been of great assistance and I will excuse you and I'll adjourn the Court to reconstitute for the continuation of the trial.

MR DAVIES:  Thank you, your Honour.

HIS HONOUR:  Thank you.