DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the respondent on 27 January 2007.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.  The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.

2. [2]
   On 4 December 2008 in the District Court at Brisbane the respondent pleaded guilty to, inter alia, one count of assault occasioning bodily harm while armed.  He was sentenced to 3 years imprisonment suspended after serving a period of 409 days for an operational period of 3 years.  The period of 409 days of pre-sentence custody served by the respondent was declared to be imprisonment already served under the sentence.^[1]

3. [3]
   The application and supporting affidavit material were served on the Public Trustee on 9 April 2010,^[2] on the basis of searches that revealed that the respondent was in custody.^[3]  The Official Solicitor to the Public Trustee subsequently advised the applicant’s solicitors that the respondent was on remand only and that the Public Trustee was therefore not the manager of his estate.^[4]  Personal service was effected on the respondent at the Arthur Gorrie Correctional Centre on 21 July 2010.^[5]  There was no appearance by or for the respondent at the hearing.

Circumstances of the offence

4. [4]
   On the night of 27 January 2007, the applicant was walking through the South Bank bus station with 4 friends. They approached a group of 4 males, including the respondent, who were waiting at the bus station. While driving around South Bank earlier that night, the applicant had observed 2 members of his group being chased by 2 of the males at the bus station. One of the males giving chase was armed with a baseball bat. One of the males at the bus station picked a fight with the applicant. The applicant refused to fight and turned away. While doing so, the applicant was grabbed by the shoulder and pulled back to face his aggressor. The respondent then produced a concealed metal baseball bat and struck the applicant to the head, causing a laceration to his left forehead that bled profusely.^[6]

Injuries and medical reports

5. [5]
   The applicant was transported by ambulance to the Emergency Department at the Mater Adult Public Hospital, where he remained overnight.^[7]

6. [6]
   In her statement dated 28 February 2007,^[8] Dr Cherie Watts of the Mater Adult Public Hospital states that the applicant sustained a 3cm laceration to the left eyebrow involving the full thickness of the skin and subcutaneous tissue extending to the surface of the skull and a swelling of the tissues of the nose with evidence of a recent nose bleed.  The laceration was explored and sutured under local anaesthesia.^[9]  Swelling was present around the applicant’s left eye.^[10]  Subsequent CT imaging showed a comminuted fracture of the nose and noted a slight deviation in the applicant’s nasal septum.^[11]

7. [7]
   Dr Barbara McGuire, psychiatrist, examined the applicant on 1 February 2010. In her report dated 3 February 2010,^[12] Dr McGuire states that the applicant exhibits posttraumatic stress disorder.  Dr McGuire states that this condition is likely to settle over time, possibly taking some years to do so.  The applicant has restricted his social activities at night, in particular avoiding the South Bank precinct.  He is hypervigilant when in public, even during daytime hours.  He suffers from nightmares of being assaulted, has flashbacks of the incident, has an exaggerated startle reflex and has security fears at home.  Dr McGuire states in her report that she discussed counselling with the applicant and advised him to further discuss counselling with his general practitioner.

8. [8]
   In his victim impact statement, the applicant states:^[13]

“I had a headache for a week after being hit in the head. I still get headaches on and off.

…

After this assault on me, I missed school for two weeks. I was in grade 12 at the time. As a result, I failed some subjects.”

9. [9]
   The applicant’s nose wound subsequently became infected, for which he was prescribed antibiotics by his general practitioner.^[14]

The applicable principles

10. [10]
    The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

11. [11]
    The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00.  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid.  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

12. [12]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.^[15]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:^[16]

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%.  This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.”

The applicant’s submissions

13. [13]
    In her written submissions, Ms Christopherson for the applicant submits that the following injuries in the compensation table are applicable:

14. [14]
    Ms Christopherson therefore sought an award of 35% of the scheme maximum, which is $26,250.00.

Assessment

15. [15]
    Ms Christopherson submitted that the applicant’s physical injuries, namely a fractured nose, laceration to his face and associated scarring, should be separately assessed under items 1 (Bruising/laceration etc. (minor/moderate)), 4 (Fractured nose (displacement/surgery)) and 27 (Facial disfigurement or bodily scarring (minor/moderate)) of the compensation table. I accept that separate assessment of the applicant’s physical injuries is appropriate without leading to the duplication of compensation.^[17]

16. [16]
    The applicant sustained a 3cm laceration to the left eyebrow that involved the full thickness of the skin. It required suturing under local anaesthetic. The range in item 1 is 1% - 3% of the scheme maximum. Taking into account the requirement to scale injuries according to their seriousness, I accept Ms Christopherson’s submission that an award of 2% of the scheme maximum under item 1 is appropriate. This leads to an award of $1,500.00.

17. [17]
    At the hearing of the application, Ms Christopherson accepted that there was no medical evidence that the applicant suffered a displaced fracture of the nose. She therefore accepted that item 3 (Fractured nose (no displacement)) was the appropriate injury. The range in the compensation table is 5% - 8% of the scheme maximum. There is no evidence of any ongoing difficulties for the applicant in relation to his fractured nose. I would assess an award of 5% of the scheme maximum, namely $3,750.00.

18. [18]
    The applicant indicates that he has been left with facial scarring as a result of the assault upon him.^[18]  Photocopies of photographs of the applicant taken on 29 January 2010 and exhibited to his affidavit filed 12 March 2010 show a scar above the applicant’s left eyebrow.  At the hearing, Ms Christopherson produced the colour photographs.  The scarring is not particularly prominent or severe.  The range in item 27 is 2% - 10% of the scheme maximum.  Bearing in mind that the scarring is to the face I assess this injury at 4% of the scheme maximum, leading to an award of $3,000.00.

19. [19]
    In her report, Dr McGuire states that the applicant exhibits posttraumatic stress disorder, evidenced by the applicant’s nightmares, flashbacks, avoidant behaviour, exaggerated startle reflect, hypervigilance and security fears. Dr McGuire comments that the likelihood is that this condition will settle over time, possibly taking some years. Dr McGuire does not comment upon the severity of the applicant’s condition. She notes that the applicant retains a positive outlook for his life.

20. [20]
    Dr McGuire discussed counselling with the applicant. While she foresaw some difficulties as a result of the applicant’s limited understanding of English, she advised him to discuss this with his general practitioner. Dr McGuire states that counselling is available to the applicant in the private sector at no cost. However, there is no indication in the applicant’s affidavit that he has undergone any counselling or other medical treatment for his psychiatric condition.

21. [21]
    The applicant has not given any explanation for his failure to seek counselling. Presumably his symptoms would diminish with appropriate counselling which is available to him at no cost. Moreover, the applicant has not verified the symptoms referred to by Dr McGuire.^[19]  The only ongoing symptoms mentioned in his affidavit sworn 11 March 2010 are headaches and some avoidant social behaviour.  The applicant has restricted his social activities at night, avoids the South Bank precinct at night and worries about going to parties where alcohol will be present.

22. [22]
    I accept Ms Christopherson’s submission that the applicant’s psychiatric condition should be assessed under item 32 (Mental or nervous shock (moderate)) in the compensation table. The range in item 32 is 10% - 20% of the scheme maximum. I am not of the view that the applicant’s psychiatric condition warrants an award at the very top of the moderate range. An award of 20% would also fall at the bottom of the severe range prescribed for mental or nervous shock in the compensation table. Taking into account the requirement to scale injuries according to their seriousness, I would assess an award of 15% of the scheme maximum, namely $11,250.00.

23. [23]
    I assess compensation as follows:

24. [24]
    Therefore the total assessment is $19,500.00.

25. [25]
    There is no behaviour of the applicant that contributed directly or indirectly to his injuries.

Order

26. [26]
    I order that the respondent pay to the applicant the sum of $19,500.00 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm while armed which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008.