Gibbins v Bugslag[2010] QDC 383

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent Corey Bugslag pleaded guilty (relevantly) in the Beenleigh District Court before me on 25 May 2007 to a count of assault occasioning bodily harm in respect of the applicant Belinda Jane Gibbins. The respondent was sentenced to nine months imprisonment, wholly suspended, with an operational period of 18 months. The respondent was sentenced to shorter concurrent periods of imprisonment for three other counts on the indictment which occurred during the course of the same events leading to the offence against the applicant.

Facts

2. [2]
   On the evening of 13 March 2004, the applicant attended an address at 13 Macauley Drive, Browns Plains for the 21^st birthday party of her boyfriend, Michael Pearce, which was held at the residence of Michael’s father Wayne Raymond Pearce.  At some time around midnight, the respondent and his girlfriend Peta Lovell (a friend of the applicant), along with several others, attended the home and were told that the party was over and that they should leave.  This group refused and wanted to get the party started up again, repeatedly requesting that the music be turned back on. 

3. [3]
   The applicant told Ms Lovell that she [Ms Lovell] was the “only one whom she had invited, the party started at 6, it’s past party time, the party’s over. Your fuckhead boyfriend here who wants to go sleeping around wasn’t invited.” There was then an argument and altercation between the applicant and the respondent. The respondent pushed the applicant over and the applicant hit the respondent twice in the face. The respondent complained of damage to a tooth. The applicant ran in the direction of the backyard and saw that the respondent was being restrained from following her.

4. [4]
   The respondent then broke the glass to the open front door, pushed over a fridge and threatened to get the applicant. The applicant ran outside the house and was grabbed by Ms Lovell (the respondent’s girlfriend). The respondent caught up to the applicant where he punched her in the face and knocked her out. The respondent then stomped on the applicant’s head while she was unconscious on the ground. The applicant’s boyfriend Michael Pearce ran over and tackled the respondent and others at the party, then helped the applicant inside once she regained consciousness where the applicant waited for police and the ambulance to arrive.^[1]

Injuries

5. [5]
   The injuries suffered by the applicant included:-

• Depressed fracture of the skull on the applicant’s frontal sinuses;
• Tenderness around the applicant’s right eye;
• Infected wound to the applicant’s small right finger.^[2]

The Law

6. [6]
   The application in these proceedings was filed after the repeal of the Criminal Offence Victims Act 1995 (COVA) on 1 December 2009, but prior to 1 February 2010, therefore satisfying the relevant transitional provisions (ss. 154 and 155) in the Victims of Crime Assistance Act 2009 (VOCA) which commenced on 1 December 2009.  I refer to and adopt my exposition at the relevant applicable law set out in paragraph [6] of Kennedy v Faafeu [2010] QDC 21.

7. [7]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of Paterson v Chand & Chand [2008] QDC 214.

Compensation

8. [8]
   Ms Chekirova, who appears for the applicant, seeks compensation as follows:-

(1)Item 1 – bruising/laceration (minor/moderate) – 1% - 3%

Ms Chekirova submits that the injuries as described in the Schedule of Facts^[3] and in a report of Dr Sonny Feng^[4], including “tenderness around the right eye”, “an infected wound to her small right finger” and “a depressed fracture of the skull around the right frontal sinuses” should being an assessment for bruising and laceration at 3% of the scheme maximum, namely $2,250.  Mr Schefe who appears for the respondent, submits that the bruising and laceration suffered by the applicant were not the worst case possible within this item^[5] and submits consequently that this aspect of the injuries should be assessed at 2%.  I accept that submission and I award 2% ($1,500) pursuant to Item 1. 

(2)Item 9 – Fractured skull/head injury (no brain damage) – 5%-15%

The Schedule of Facts^[6] notes that the applicant suffered a “depressed fracture of the skull on the complainant’s frontal sinuses”.  This was confirmed by a CT scan of the applicant’s head^[7].  Dr Feng noted in a further report dated 27 October 2009^[8] that the applicant had been suffering ongoing headaches in May 2009 but Dr Feng could not say for sure whether or not the headaches were a direct result of the assault in 2004.  Dr Ohlrich, neurologist, examined the applicant on 16 February 2010 and provided a report dated 18 February 2010^[9] which concluded that “from the neurological perspective [the applicant’s injuries] were relevantly minor with no brain damage [and the applicant] would have suffered from headaches for some weeks to a few months as a result of the mild head injuries.  There have been no permanent ill effects from the neurological perspective.”  Dr Ohlrich noted further that the applicant’s headaches as at the date of examination had migraine features, may have also been partly muscle contraction or tension headaches, and were not related to any neurological injury sustained in the assault^[10].

Ms Chekirova submits that the injury should be assessed under Item 9 at 15% of the scheme maximum (ie at the top of the scale for a fractured skull in which no brain damage was suffered) but Mr Schefe submits, in contrast, that the assessment should be in the range of 7%-10%, noting that the injury sustained by the applicant was similar to that sustained by the applicant in Atkinson v DiMurro^[11].  Mr Schefe also stresses the lack of long term neurological consequences from the skull fracture.  In addition, Mr Schefe raises the possibility that the applicant may have suffered the skull fracture from being headbutted by Ms Lovell.  However, in respect of the causation issue, the respondent was sentenced on the basis that he was responsible for the applicant’s depressed fracture of the skull,^[12] and it is clear that I should take a view on this application for criminal compensation that is consistent with the facts submitted on sentence^[13]. However, I accept Mr Schefe’s  submission that the injuries to the applicant in this case are similar to that suffered by the applicant in Atkinson v DiMurro^[14], and accordingly I award 10% of the scheme maximum ($7,500) pursuant to Item 9. 

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

The report of Peter Stoker, psychologist, dated 12 December 2008, concludes that the applicant suffered post traumatic stress disorder (PTSD) as a result of the relevant assault, and that she suffered an alcohol abuse disorder for approximately two years after the assault.  Mr Stoker considered that the applicant would benefit from 20 sessions of cognitive behaviour therapy, would expect to have her emotional functioning improve with counselling in the passage of time and had suffered a mild to moderate degree of mental or nervous shock, in the upper level of the mild range or the lower level of the moderate range^[15].  In these circumstances Ms Chekirova submits an award of 12% of the scheme maximum ($9,000) while Mr Schefe, relying on the decision in Tooley v Eyears,^[16]submits that a more appropriate award would be 10% of the Scheme maximum^[17].  I accept Mr Schefe’s submissions and accordingly award 10% of the scheme maximum ($7,500) pursuant to Item 32.

Contribution

9. [9]
   Mr Schefe argues that there should be a reduction in the applicant’s award, on the basis of the initial altercation between the respondent and the applicant, which the Schedule of Facts^[18] records involved an argument between the applicant and the respondent, followed by the respondent pushing the applicant over and the applicant hitting the respondent twice in the face, causing the respondent to complain of damage to a tooth.  In these circumstances, Mr Schefe argues that the applicant has contributed to her own injury and should have her compensation award reduced by 25%. 

10. [10]
    However, as I noted in my sentencing remarks, the respondent, despite what may have precipitated the start of the fight, had responded with violence while the applicant was incapacitated, was clearly a fit, tall, capable young man and had the potential of causing significant injury^[19].  In my view, the most serious of the applicant’s physical injuries (the facial fracture) is likely to have occurred either from the respondent’s punch to the applicant’s face, or from the respondent stomping on the applicant’s head while she was unconscious on the ground^[20].  In these circumstances, the applicant having fled from the initial altercation, I see no basis on which any award to her should be reduced^[21]. 

Order

11. [11]
    I order that the respondent Corey Bugslag pay the applicant Belinda Jane Gibbins the sum of $16,500.