Johnston v Ingham[2010] QDC 351

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act 1995.

The respondent was convicted, on her own plea of guilty, of assault occasioning bodily harm.  The conviction occurred on 29 June 2009 and related to events which occurred on 20 June 2008.

In my sentencing remarks, I said as follows: 

"The facts are as set out in the schedule of facts, which is Exhibit 2. I won't repeat everything which is contained therein, but I will refer to some aspects of it, which show the severity of the attack.  In particular, the schedule of facts states that you went to the house where the complainant was.  You ended up grabbing the complainant by her hair and throwing her down on the front stairs.  You punched the complainant several times with both hands.  The complainant was hunched over on the ground near her car and was trying to cover her face.  She stood up and was struck on the side of her face and knocked unconscious.  You were seen standing in front of the complainant pulling her hair as if you wanted her to get up.  You were seen with your right arm around the complainant's neck in a restraint type hold.  You were heard to say:  'I should knee you in the face, bitch.'"

As a result of that offence, the applicant suffered personal injury of both a physical and of a mental kind.

Her physical injuries were by way of bruising and also by way of a whiplash-type injury to her cervical spine.

Compensation for those matters falls under item 1 and 22 of the schedule to the Act.  The amounts claimed in each case are 2 per cent and 10 per cent, respectively, and I am well satisfied on the evidence that that is an appropriate assessment.

Therefore, the appropriate award for physical injuries is 12 per cent or an award of $9,000.

The more difficult aspect of this claim relates to the claim for mental and nervous shock.  I accept the evidence of the applicant and of Dr Maguire, a psychiatrist.  It is evident that the degree of her mental or nervous shock is in the severe category and I accept that the assessment of 32 per cent, which was contended for on behalf of her solicitor, is reasonable in terms of describing her current condition.  Not all of that, however, can be attributable to the offence with respect to which the application is brought.

The applicant has had a rather unfortunate upbringing in which she has been the victim of other offences, which caused her to suffer post-traumatic stress disorder in any event. The solicitor for the applicant submits that I should, consistently with the decision in SAY v AZ ex parte AG of Queensland [2006] QCA 462, engage in an exercise of discounting or fixing on a lower percentage, on the compensation scale, to allow for the role of other factors in arriving at an appropriate assessment under the Act for the injury arising out of the subject offence.  I accept that that is the appropriate approach.

In carrying out that exercise, I am assisted by the assessment of Dr Maguire whose report states in part as follows: 

"From her account she had reached some form of equilibrium in relation to her post-traumatic stress disorder and she believed that she was clinically improving.  However, the assault by the respondent disturbed this fragile equilibrium and the effect of causing recurrence of all her symptoms."

In her report, Dr Maguire also expresses the view that, but for the subject offence, the applicant would have suffered post-traumatic stress disorder, but to a lesser degree and probably only to a moderate degree.

In the circumstances, it was submitted that an appropriate basis of fixing on a lower percentage, having regard to the role of other factors, would be to discount the assessment of her current condition at 32 per cent by an amount of 17 per cent for the role of other factors, leaving an award of 15 per cent or $11,250.  I accept that that is a reasonable approach.

There is no basis for finding that the applicant contributed in any way to her injuries.

Accordingly, I order the respondent pay the applicant compensation in the amount of $20,250.