Lee v Fisher[2010] QDC 367

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 an attack by the respondents on 1 June 2006.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.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 17 October 2008 in the Childrens Court of Queensland, the first respondent pleaded guilty, inter alia, to one count of robbery in company with personal violence. He was sentenced to 12 months imprisonment, to be served by way of intensive correction order.^[1]

3. [3]
   On 12 October 2007, the second and third respondents pleaded guilty, inter alia, to one count of robbery in company with personal violence. The second respondent was sentenced in the Childrens Court of Queensland to 497 days detention.^[2]  The third respondent was sentenced in the District Court to 18 months imprisonment, wholly suspended, with an operational period of 2 years.^[3]

4. [4]
   The first respondent was personally served on 30 September 2010.^[4]  The documents had previously been left at the Borallon Correctional Centre, who had advised the applicant’s solicitors on 29 September 2010 that service had been incorrectly accepted on the first respondent’s behalf.  He was served at a residential address on 30 September 2010.  Ms Chekirova submitted that the matter should proceed in accordance with r 27(3)(b) Uniform Civil Procedure Rules 1999.  I am satisfied that the first respondent will not suffer any significant prejudice and it is therefore appropriate to proceed.

5. [5]
   The application and supporting affidavit material were served on the second respondent on 28 September 2010.^[5]

6. [6]
   The application and supporting affidavit material were served on the third respondent at the Wolston Correctional Centre on 27 September 2010.^[6]  I sentenced the third respondent to a wholly suspended sentence of imprisonment on 12 October 2007.  Ms Chekirova was unable to inform the Court whether the third respondent was being held on remand or if he was serving a sentence.  It is not known, for example, whether the Public Trustee is the manager of the third respondent’s estate.  A prudent step would have been to serve the Public Trustee but that was not done.  As the matter was previously before the Court on 4 June 2010, I decided that it would be appropriate to proceed with the hearing of the application.  In the circumstances the solicitors for the applicant should provide a copy of this judgment to the Public Trustee.

7. [7]
   There was no appearance by or for the respondents.

Jurisdiction

8. [8]
   A preliminary issue for determination is whether the application can be appropriately dealt with in the District Court insofar as it relates to the first and second respondents. Both respondents were convicted in the Childrens Court of Queensland.

9. [9]
   Section 24(2) of the Act provides for the victim of a personal offence to apply to the court before which an offender is convicted for an order that the offender pay compensation to the victim for injuries suffered because of the offence.

10. [10]
    The omission of any reference to the Childrens Court in the Dictionary contained in Schedule 3 of the Act raises the question of whether the District Court has the power to order compensation to be paid by an offender sentenced in the Childrens Court.

11. [11]
    This question has been dealt with in two recent decisions of the District Court.^[7]  In Laning v Cherry-Kelly at paragraph [16], Martin SC DCJ stated:

“When one considers the unmistakable tie between the District Court and the Childrens Court, to which the legislature would not be blind, together with the policy behind the legislation to benefit victims and the clear legislative intent to compensate victims of indictable personal offences, and, in conjunction with these matters, the omission of any reference to the Childrens Court in the definition of “court of the same court level” in the Criminal Offence Victims Act, there is good reason to conclude that a literal reading of s 24(2) of the Act does not conform to the legislative intent “as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”. The realistic solution, reasonably open, is to read the Act as conferring jurisdiction on both the District Court and the Childrens Court to hear applications for compensation resulting from convictions in the Childrens Court for indictable personal offences.”

12. [12]
    I adopt the reasoning of Martin SC DCJ and Bradley DCJ. I am of the same view that the District Court has jurisdiction to hear this application insofar as it relates to the first and second respondents.

13. [13]
    The first respondent was 19 years old when sentenced on 17 October 2008. The second respondent was 17 years and 11 months when sentenced on 12 October 2007. There is therefore no requirement for litigation guardians to be appointed for the first and second respondents: r 96 UCPR.

Circumstances of the offence

14. [14]
    The applicant was a Korean student in Australia on a working holiday.^[8]  He was walking at night in South Brisbane towards his home when a light was shone in his eyes, after which he was punched in the mouth with a closed fist by the second respondent.  The applicant was grabbed by the third respondent as he tried to run away, causing him to stumble.  He was subsequently punched several times by the second and third respondents and fell to the ground, losing consciousness.  When the applicant regained consciousness, he awoke to find his shoulder bag had been stolen.^[9]

15. [15]
    When sentencing the first respondent, Clare SC DCJ said:^[10]

“You and your co-offenders planned to rob people, and in the course of a single day you robbed three different people of their wallets and valuables.

From the description given, it seems to me that three of you acted as a pack, viciously and cowardly. There was punching and kicking about the heads and bodies of the three young men. The first victim was kicked unconscious by one of your co-offenders. It has been said that you played a lesser role in the violence, and I accept on the material placed before me that I must treat you in that light, but your assistance in those three offences made you a party to the violence.”

16. [16]
    When sentencing the second and third respondents, I said:^[11]

“In respect of the robberies committed on 1^st June 2006 you, along with others, were involved in a joint plan to rob people.

Over a period of about one hour you targeted three male persons aged between 23 and 28. The offences involved a joint attack during which the complainants were kicked to the stomach and kicked while on the ground. The offences were protracted in some instances and one of the complainants actually lost consciousness.”

Injuries and medical reports

17. [17]
    In his addendum statement provided to the police on 3 April 2007,^[12] the applicant states that he was unable to go out for 2 months following the assault on account of his injuries.  He ceased his English lessons after approximately 6 months because of stress associated with being assaulted.

18. [18]
    In his affidavit filed 22 September 2010, the applicant states:^[13]

“I was transported to the MaterHospital by ambulance. Fortunately, despite being knocked out and sustaining severe bruising to my face and the back of my head, a scan performed on my skull showed no fractures.

I lost teeth as a result of the assault and must undergo continuing dental work in order to repair this damage.

I suffered fractures to my lower incisors and upper incisor. I have been advised that these teeth will require repair or they may need to be removed completely.

I returned to Korea in February 2007 as my mother has passed away.  I then returned to Australia to continue with my study and finalise the prosecution of this matter.

Unfortunately the trauma related to this assault caused me so much anxiety and anger that I could not continue with my studies and returned to Korea to live.

I have attended upon the Kaya Neuropsychiatric Clinic due to the fact that I am still suffering from depression and anxiety as a result of the assault. This anxiety is being treated with medication.”

19. [19]
    Photographic exhibits show the nature of some of the applicant’s bruising and abrasions.^[14]

20. [20]
    In his report dated 5 April 2007,^[15] dentist Dr Billy Choi states that the applicant had some fractures to his lower incisors along with the devitalisation of the upper left lateral incisor.  The root of the upper left lateral incisor had a surrounding abscess.  Dr Choi recommended that the applicant undergo considerable dental treatment.  The applicant’s upper left lateral incisor required root canal therapy, internal bleaching and crown capping because of the extent of the crack lines along the tooth.  The lower incisors required fillings.  Dr Choi stated that there was a chance the applicant’s remaining front teeth could become infected in the future. If infection arose, the front teeth would require extensive treatment.

21. [21]
    The applicant underwent psychiatric treatment at the Kaya Neuropsychiatric Clinic in South Korea.  On 11 March 2009, the applicant was diagnosed with Social Phobia and prescribed medication.^[16]

22. [22]
    The applicant was examined via Skype with the assistance of an interpreter by Peter Stoker, clinical psychologist, on 19 July 2010. In his report dated 29 July 2010,^[17] Mr Stoker states that the applicant exhibits posttraumatic stress disorder.  Mr Stoker states that the applicant has intermittently used anti-anxiety medication since his return to South Korea in 2007, most recently being prescribed medication in March 2009.  The applicant attends the Kaya Neuropsychiatric Clinic on an intermittent basis, attending when he feels in need of treatment.  At the time of Mr Stoker’s examination, the applicant was not taking medication or seeing a psychiatrist, as he was concerned to avoid becoming reliant upon medication.

23. [23]
    Mr Stoker states that the applicant is more suspicious of people, in particular males and groups of males. He continues to be fearful of assault, particularly when seeing foreigners in South Korea and suffers from flashbacks approximately on a weekly basis and nightmares every 2 months.  He is more introverted since the assault however has become less so since his return to Korea.  The applicant’s increased introversion affected his ability to learn English.  Mr Stoker considers the applicant to be suffering from mental and nervous shock to a moderate degree.  He considers the applicant’s percentage impairment to fall within the mid to upper level of the moderate range and recommends the applicant undergo a further 20 sessions of psychological counselling.

The applicable principles

24. [24]
    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)).

25. [25]
    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)).

26. [26]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.^[18]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:^[19]

“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

27. [27]
    In her written submissions, Ms Chekirova for the applicant submitted that the following injuries in the compensation table were applicable:

28. [28]
    Ms Chekirova therefore sought an award of 24% of the scheme maximum, which is $18,000.

Assessment

29. [29]
    The applicant sustained some facial bruising and abrasions in the attack upon him. That bruising is evident in the photographs of the applicant’s face and mouth exhibited to the affidavit of Lauren Maree Wilkie filed 15 January 2010.^[20]  It properly falls within item 1 in the compensation table (Bruising/laceration etc. (minor/moderate)) with a range of 1%-3% of the scheme maximum. I accept Ms Chekirova’s submission and would assess an award of 2% of the scheme maximum, namely $1,500.

30. [30]
    The applicant sustained significant dental injuries in the attack. The report of Dr Choi indicates that significant dental treatment was recommended to treat the applicant’s devitalised upper left lateral incisor and fractures to his lower incisors, however it does not appear that the applicant underwent that treatment while in Australia because of a lack of funds.^[21]  Item 5 in the compensation table (Loss or damage of teeth) has a range of 1%-12% of the scheme maximum.  The applicant’s injuries must be scaled according to their seriousness.  I consider Ms Chekirova’s submission for an award of 5% of the scheme maximum to be reasonable and would assess an award of $3,750.

31. [31]
    In her written submissions, Ms Chekirova details the applicant’s psychiatric diagnosis on his return to South Korea in 2007 and the symptomatology Mr Stoker states the applicant to be suffering from as a consequence of the attack.^[22]

32. [32]
    An applicant must suffer from a recognisable psychiatric illness or disorder for the injury to be compensable under the scheme established by the Act.^[23]

33. [33]
    In his affidavit filed 22 September 2010, the applicant deposes to suffering from depression and anxiety as a consequence of the attack. The anxiety and anger he felt following the attack led him to cease his studies in Australia and return home to South Korea.  He sought psychiatric treatment on his return to South Korea and was diagnosed with a psychiatric illness, however it appears that the applicant only undertook psychiatric treatment on an intermittent basis and is not presently receiving psychiatric treatment.  I note that the applicant did explain his reasons for this in his interview with Mr Stoker.^[24]

34. [34]
    I accept the opinion of Mr Stoker that the applicant suffers from posttraumatic stress disorder. I consider item 32 (Mental or nervous shock (moderate)) is the appropriate item in the compensation table as submitted by Ms Chekirova. I would assess an award of 15% of the scheme maximum, namely $11,250.

35. [35]
    I assess compensation as follows:

36. [36]
    Therefore the total assessment is $16,500.

37. [37]
    There is no behaviour of the applicant that contributed directly or indirectly to his injuries.

Apportionment of liability

38. [38]
    In my view the respondents are equally responsible for the applicant’s injuries. I propose to make a single order for compensation pursuant to s 26(5). The respondents are jointly liable for the award of compensation (s 26(6)(b)).

Order

39. [39]
    I order the respondents pay to the applicant the sum of $16,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of robbery in company with personal violence.