Bertucci v Rauhina[2010] QDC 399

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the COVA) for physical injuries and mental or nervous shock claimed to have been sustained by him as a result of the offence of assault occasioning bodily harm whilst armed and in company, of which the respondents have been convicted on their pleas of guilty, and of which he was the victim.

2. [2]
   The COVA was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the VCAA) which commenced on 1 December 2009. The transitional provision in section 167 requires this criminal compensation application to be determined in accordance with the COVA, as the application was made on 25 November 2009.  Consequently, any assessment of compensation is to be made under the relevant provisions of the COVA. 

3. [3]
   The first respondent pleaded guilty to this offence before his Honour Senior Judge Trafford-Walker in the District Court at Brisbane on 10 September 2009 and was sentenced to three years’ imprisonment. This sentence was ordered to be served concurrently with sentences of four years’ imprisonment for dangerous operation of a motor vehicle causing grievous bodily harm, two years for another count of assault occasioning bodily harm whilst armed and in company, and 12 months’ imprisonment for affray. A sentence of 12 months’ imprisonment for perjury was ordered to be served cumulatively. Consequently, he was sentenced to a total of five years’ imprisonment. This period of imprisonment was suspended after serving two and a half years, with an operational period of five years.

4. [4]
   The second, third and fourth respondents were convicted on their pleas of guilty to this offence before me on 21 September 2009 and were each sentenced on 1 October 2009 to three years’ imprisonment. In each case, this sentence was ordered to be served concurrently with sentences of two years’ imprisonment for dangerous operation of a motor vehicle, two years for another count of assault occasioning bodily harm whilst armed and in company and 12 months’ imprisonment for affray. A sentence of 12 months’ imprisonment for perjury was ordered to be served cumulatively in each case. Consequently, each was sentenced to a total of four years imprisonment. I suspended their period of imprisonment after serving 18 months, with an operational period of five years.

5. [5]
   On 6 August 2010 I ordered the first respondent to pay the victim of the dangerous operation of a motor vehicle causing grievous bodily harm compensation pursuant to section 24 of the COVA.^[1]  An application against each of the respondents for compensation by the victim of the other offence of assault occasioning bodily harm whilst armed and in company is the subject of a separate decision published on this date.^[2]  Neither of the victims in those matters is the present applicant.

6. [6]
   All of the counts the respondents have been convicted of were part of the same course of offending. However, only the assault occasioning bodily harm whilst armed and in company, to which the respondents were sentenced to three years imprisonment, was an offence for which the applicant was named as a victim. This is confirmed by the Certificate of Indictment details.^[3]  The Certificate expressly states, “All other counts do not relate to the victim Stephen Bertucci.”  Further, the written submission on behalf of the applicant only refers to the respondents being charged with this personal offence.^[4]  Although in oral submissions on his behalf Ms Willson’s primary submission was that the offence of dangerous operation of a motor vehicle, of which the second, third and fourth respondents were convicted, together with the assault occasioning bodily harm whilst armed and in company, constituted the personal offences by virtue of which he suffered injuries. She submitted it was unrealistic to attempt to determine which event caused which injuries.

7. [7]
   There was no appearance by the first respondent, and after several attempts by the applicant’s legal representatives service did occur. I am satisfied the first respondent was served in accordance with rule 110(c) of the Uniform Civil Procedure Rules 1999 (Qld) by service on the person in charge of the prison in which he is imprisoned. I am therefore satisfied he is aware of the application and all relevant material relied upon to support it and I proceed in his absence.

8. [8]
   The second, third and fourth respondents accepted the jurisdiction of the court by appearance of counsel on there behalf to oppose the application. I am therefore satisfied they have been served with all relevant material.

Circumstances of the offence

9. [9]
   It is necessary for me to proceed on the basis on which the respondents were sentenced.^[5]  I must take a view of the evidence consistent with the view that was taken at sentencing, as to do otherwise “would result in unfairness and would be incongruous.”^[6]  This is best done by placing the transcript of counsel’s submissions at sentence, together with the judge’s sentencing remarks, before the judge hearing the criminal compensation application.^[7] Only the sentencing remarks of the Senior Judge and myself were placed before me. Both counsel agreed to me perusing the transcript of counsel’s submissions and the summary of allegations relied on before me, on the basis that if I decided to rely on this material I would make it available to counsel for the purpose of making any further submissions. I have obtained and read the transcript and summary of allegations. Because my sentencing remarks are consistent with them I have simply proceeded on the basis of those remarks. Consequently, it has not been necessary to provide counsel with the additional material and no further submissions have been received. However, I have refreshed my memory from the medical report and photographs tendered at sentence and which are incorporated into my sentencing remarks.^[8] I note the medical report was completed by the medical practitioner who attended to the applicant on admission to the Royal Brisbane and Women’s Hospital.

10. [10]
    The offending behaviour took place on 25 February 2007. On this day the applicant had been at a social function on Bribie Island with members of the Bandidos motorcycle club.^[9] The applicant himself admits to being a member of this club.^[10] The respondents were all members of the Rebels motorcycle club and on the day in question they heard that members of the Bandidos were gathered together at Bribie Island.

11. [11]
    In sentencing the first respondent the Senior Judge referred to his behaviour as being part of a “plan, not well thought out of course, but a plan to get at the Bandidos.”^[11] His Honour stated that a member of the first respondent’s “gang” had suffered injuries and problems, “and that it was for this reason you and others decided to attack the Bandidos.”^[12]

12. [12]
    As my sentencing remarks make clear, the second, third and fourth respondents were among the others who decided to attack the Bandidos. Consistent with the Senior Judge’s remarks I said that they, the first respondent and other members of the Rebels motor cycle club, “left in cars to drive to Bribie Island with a plan, ill‑conceived though it may have been, which involved inflicting some violence on members of the other club, something which would be achieved by impeding their ability to get away by using motor vehicles to block their path for this purpose.”^[13]

13. [13]
    As both sets of sentencing remarks make clear, this plan arose from a desire to seek some sort of revenge on members of the Bandidos.^[14] In my sentencing remarks I outlined the context of the offending behaviour of the second, third and fourth respondents as follows:^[15]

“You were drinking at a Caboolture hotel when you received news that members of the Bandidos Motor Cycle club were in a Bribie Island park with some of their partners and children. This was of interest to you and other members of your club and associates of your club who were present at the hotel on that day because previously one of your members had been knocked off his motorbike and injured and it was the view of the members of your club that the Bandidos were responsible for this.

In addition … this tension which had existed between the two clubs for some period of time was heightened on that day because of your knowledge of activities that the Bandidos were engaging in, including their picnic in the park near the Rebels Club House and also, I understand, near Mr Skilton’s residence.”

14. [14]
    There were, perhaps, about 12 members of the Rebels in about six cars. The first respondent was in one of those vehicles. Another vehicle was drive by the third respondent. It is not clear whether the second and fourth respondents were in this vehicle. However, because of their involvement in the plan, the vehicle they were in was irrelevant.

15. [15]
    The respondents arrived at Bribie Island where they discussed further what was going to be done. It was agreed not to fight the Bandidos in the park because there were women and children there at the time. However, at about the time of making this decision, the sense of tension was heightened by a realisation that the children had disappeared. The fourth respondent made contact with the first respondent by phone to ensure he was coming to participate in what was to occur.^[16]

16. [16]
    Pursuant to the plan, the respondents, together with other members of the Rebels followed the Bandidos to Ningi, where they ambushed them. One car was swerved into the motorcycles, causing the riders to stop and take evasive action. The third respondent also swerved his motor vehicle into the riders, narrowly missing contact with them. One motorcycle was forced down an embankment. The evidence suggests that this was the motorcycle being ridden by the applicant, who was then 46 years. Ms Garner, the applicant’s partner, was a pillion passenger at the time.^[17] On the basis of these actions, the second, third and fourth respondents were convicted of dangerous operation of a motor vehicle. As indicated, the first respondent was convicted of dangerous operation of a motor vehicle causing grievous bodily harm. This was as a result of the motor vehicle in which he was a passenger forcing another rider to lose control of his motorcycle and crash into a gully, with the rider sustaining injuries as a result.^[18]

17. [17]
    In accordance with the plan the third respondent parked his motor vehicle across the road to block traffic. Each of the respondents were then involved, whether physically or not, in the systematic assault of the Bandidos. Wooden bats or metal poles were used for this purpose. The reference to bats is to baseballs bats or items shaped like baseball bats. A pistol was also discharged to heighten the fear of those being assaulted.^[19] As the Senior Judge stated with reference to the first respondent’s involvement in the assault, he was armed with and used a bat.^[20]    The applicant and his partner were both assaulted.

18. [18]
    The applicant was severely beaten and rendered unconscious at the scene. Counsel for the second, third and fourth respondents said at the sentence that it would not be inappropriate to describe this beating as savage. He suffered bruising, swelling and lacerations to his face and body as a result. I summarised the medical report which was an exhibit at the sentence as indicating that:^[21]

“amongst other things, he had a missing tooth. There was a nose fracture. In fact, he had a small piece of bone protruding from his nose. He also suffered a hand fracture. He was sutured for a number of lacerations and a plaster cast slab was attached to his hand. The photographs which have been placed before me indicate how severely he was beaten.”

This emphasises the savagery of the assault to the applicant.

19. [19]
    For completeness I note that the applicant’s partner was also assaulted by being struck with a bat when she attempted to come to his aid. As indicated, this is the subject of a separate application and a separate decision, published on this date.

20. [20]
    I sentenced the second, third and fourth respondents on the basis they were equally involved in the violence which occurred to the applicant and his partner.^[22]

21. [21]
    As I specifically said with reference to the assault on the applicant:^[23]

“You either individually participated in that assault or knowingly assisted by your presence and your involvement in assaults on other members of the Bandidos Motorcycle Club which were carried out in a similar fashion. That prevented them coming to his aid and it also encouraged the assaults that were engaged in by the other members of the motorcycle pursuant to that plan.

So even if you didn’t physically assault him yourselves, you provided direct assistance for that to occur by your behaviour.”

22. [22]
    Consequently, in sentencing these respondents, I considered there was no need to distinguish between their respective involvement, or to determine what individual part each of them played in executing the overall plan.^[24] As indicated, they were each sentenced to the same term of imprisonment for their assault on the applicant. This is the same penalty that was imposed on the first respondent. As the first respondent was also armed with and used a bat in accordance with this plan, I regard him as equally involved in this violence.

Injuries and Medical Reports

23. [23]
    The applicant seeks compensation for physical and mental or nervous shock claimed to have been sustained by him as a result of the incident for which the respondents have been convicted of assault occasioning bodily harm whilst armed and in company, of which he was the victim.

24. [24]
    On the hearing of the application I gave leave to read and file an affidavit of the applicant, sworn on 23 June 2010. In that affidavit he states he has read the medical reports of Mr Stoker, a psychologist, Dr Chalk, a psychiatrist, and Doctors Wallace and Journeaux who are orthopaedic surgeons, which are relied on in support of his claim. The applicant deposes:

“3. I confirm that I have suffered the personal injuries that are set out in those medical reports and the consequences of those injuries are as described by myself to the medical practitioners that have provided those reports.

4. The content of my reporting of injuries and symptoms to those medical practitioners is true and correct to the best of my knowledge and belief.”

Although it would have been of greater assistance to the court if the applicant’s affidavit had expressly catalogued those injuries, consequences and symptoms independently of the medical reports, including by exhibiting and swearing to the truth and accuracy of his police statements and relevant photographs, I have concluded that this affidavit is sufficient to permit me to act upon these medical reports as evidence of his medical condition. This is consistent with section 30(3) of the COVA which provides that on an application to a court for compensation:

“the court may receive information in any form the court considers appropriate.

Example—

The court may decide to receive information about the applicant’s medical condition in the form of a medical report produced and tendered by the applicant …”

There remains an issue as to the weight to be given to such a report, and in particular the opinions expressed in it, in the absence of sworn evidence from an applicant that what he/she told the author of the report was true. However, this is addressed by the applicant’s affidavit in the current case.

Physical Injuries

25. [25]
    Proceeding on the basis of my sentence, as indicated at [18] of this judgment, the applicant suffered bruising, swelling and lacerations to his face and body as a result of the savage beating. He lost a tooth, suffered a nose fracture with a small piece of bone protruding from his nose, and suffered a hand fracture as a result. A number of the lacerations were sutured and a plaster cast slab was attached to his hand.

26. [26]
    In the written submissions on behalf of the applicant the following physical injuries are identified as resulting from the respondents’ assault on him:^[25]

• Bruising and lacerations;
• Fracture to the hand;
• Fracture to the nose (with bone protruding);
• Dental injury;
• Scarring;
• Soft tissue injury to the hip.

27. [27]
    Compensation is only claimed specifically for the first four of those injuries.^[26] During oral submissions Ms Willson said the scarring was absorbed into the claim for bruising and lacerations. She confirmed there was no claim for the soft tissue injury to the hip. Therefore, I do not consider this further.

28. [28]
    The applicant lost consciousness during the assault and had to be airlifted to the Royal Brisbane and Women’s Hospital for treatment.^[27]   He was treated for his fractures and lacerations and discharged the next day. The records of his examination and treatment at the hospital on this date are reported by Dr Journeaux as follows:^[28]

“… the diagnosis was fractured nasal bones…He has a fractured 2^nd and 3^rd metacarpal on his left hand. This was cast but it was a closed injury. He had a comminuted and compound fracture to his nose…he also had a laceration through his lip and over his right eyebrow as well as a left eye contusion…I placed five…sutures through his eyebrow lag. I placed three sutures through his lip. We also placed three absorbable sutures in his internal mucosa but there is considerable damage here and I suspect he will have some scarring. I closed his nose wound using seven sutures.”

29. [29]
    Dr Journeaux also refers to an investigation of this date providing more specific information about his nasal fracture as follows:^[29]

“Comminuted fractures of nasal bones and nasal septum. Fractured medial well of left maxillary antrum with mild opacification and fluid level demonstrated.”

30. [30]
    The hospital records also make reference to “laceration over bridge healing well.” There is also a reference to “pain in both hands and around the pelvic area” and a “bruised right wrist”.^[30]

31. [31]
    On 28 February 2007 an x-ray confirmed “left undisplaced fractured 2^nd MC shaft, left undisplaced fracture 3^rd metacarpal base.”^[31]

32. [32]
    Reference is also made to general practitioner records which describe the removal of sutures on 2 March 2007, including from his “left eyebrow”.^[32] A medical certificate from Dr Armstrong of 16 March 2007 describes his injuries as:^[33]

“Fractured second and third metatarsals right hand, comminuted compound fractures of nose, multiple facial lacerations. “

In context, this is likely to be a reference to the left hand.

33. [33]
    On 17 April 2007 there is the first reference to his having also sustained a fractured left little finger. An x-ray of that finger revealed “a fracture through the base of the middle phalanx extending into the proximal interphalangeal joints.”^[34]

34. [34]
    Dr Wallace’s report is based on taking a history from and examining the applicant on 5 March 2008, about 12 months after the incident. He also reviewed medical imaging and medical records from the Royal Brisbane and Women’s Hospital and Dr Armstrong.^[35] He states the medical records are consistent with the history given by the applicant and add nothing further to the substance of his report.^[36]

35. [35]
    Dr Wallace’s examination of the applicant’s left hand revealed:^[37]

“…some decrease in volar tone. He had a 30% reduction in grip strength in the left hand. He had a 30 degree mallet finger deformity of the left hand which was passively correctable. He was unable to demonstrate any active flexion at the interphalangeal joint which was held in extension. The MP joint had normal movement. Passively the PIP joint was able to be flexed about 30 degrees. The long flexor tendons were intact.” (my emphasis)

36. [36]
    This was consistent with the applicant’s statement to Dr Wallace about his symptoms which is recorded as:^[38]

“With respect to left hand he has a mallet finger deformity and reduced movement in the left PIP joint. He has problems with dexterity and reduced grip strength.”

37. [37]
    Dr Wallace also referred to the applicant having a fracture to his left small finger.^[39]

38. [38]
    The applicant also told him that prior to the incident he had no significant past medical history. He had no history of injury to the hand. His past surgical history included a work related ligamentous injury to his ankle.^[40]

39. [39]
    Dr Wallace concluded that using the AMA Guides, 5^th edition, the applicant had a 6% whole person impairment as a result of the injury to his left hand.^[41] He further stated that the injuries were stable and stationary and it is unlikely they would be improved with any surgical treatment, although an attempt could be made to free the PIP joint and stabilise the distal interphalangeal joint with fusion into a better position. He estimated this procedure would cost about $5000 in a private hospital.^[42]

40. [40]
    Dr Wallace’s examination confirmed soft tissue damage to the left hip, describing some tenderness over the tensor fascia lata, but full range of motion in the hip.^[43] He concluded that he had a 1% whole person impairment as a result of the soft tissue injury, using Chapter 18 of the AMA 5^th edition as a guide.^[44] However, as I have said, no claim is made for this.

41. [41]
    Dr Wallace also refers to the applicant receiving scarring to the face and apparently having impaired vision in his left eye. He says that these should be assessed by a suitably qualified medical practitioner.^[45] I note that no claim is brought on the basis of an eye injury. Accordingly, I do not further consider it.

42. [42]
    He was of the opinion that as a result of the injuries to the hand and eye the applicant had been unable to return to his previous occupation of truck driving and had problems riding his motorcycle^[46] and playing snooker. It was also his opinion the applicant would be permanently disabled from driving trucks and, taking into account his training, education and experience, his employability on the open labour market had been significantly adversely affected.^[47]

43. [43]
    Dr Journeaux’s report is similarly based on taking a history from and examining the applicant, as well as a review of the previous medical reports and notes to which reference has been made. His examination was conducted, on 8 December 2008. This was 9 months after Dr Wallace examined the applicant, and about 21 months after the incident.

44. [44]
    Following his examination of the applicant, Dr Journeaux concluded the applicant had sustained:^[48]

• Multiple facial lacerations particularly involving the left upper lip, the bridge of his nose and the left eyebrow;
• Open fracture of nasal bones medial wall of left maxillary antrum;
• Fracture of the upper left and right incisors;
• Essentially undisplaced fractures of the second and third metacarpals of left hand;
• Probable soft tissue injuries to the pelvic area.

45. [45]
    In relation to a claim by the applicant that he sustained injuries to the cervical and lumbar spine as a result of the accident and assault, after examining the applicant and considering the Royal Brisbane and Women’s Hospital records, Dr Journeaux expressed the opinion that the applicant’s symptomatology in respect of this was wholly related to constitutional pathology and could not be reasonably attributed to the motorbike accident or the subsequent assault.^[49] In any event, no claim for compensation is made in relation to alleged cervical or lumbar spine injuries. Consequently, this has not been considered further.

46. [46]
    In relation to assessing the applicant’s injuries, Dr Journeaux states that “the injuries are consistent with the history and mechanism of injury and have been well documented in the contemporaneous records.”^[50] He further states that the applicant “has reached maximal medical improvement and can be assessed for permanent impairment.”^[51]

47. [47]
    Consistently with what the applicant had told Dr Wallace, he disclosed no significant medical history to Dr Journeaux.^[52]

48. [48]
    With reference to the left hand injury the applicant advised he saw his local general practitioner on a regular basis for the prescription of painkillers and also had some physiotherapy for the hand and wrist. In respect of the left little finger, he described stiffness but no other specific complaints.^[53]

49. [49]
    On examination Dr Journeaux stated that the “left upper limb is normal to inspection. He is able to make a full fist and there is not tenderness in any of the digits or thumb…Examination of grip subjectively revealed no difference between the right and left hand.”^[54]

50. [50]
    In conclusion, Dr Journeaux stated:^[55]

“In respect of his left hand injury, he in my view has made a full recovery. There is no evidence in the medical documentation that his left little finger was injured and to all intents and purposes he has made a full recovery. It is possible that he has a rather odd triggering effect in the finger, but I do not think this is related to either the motorbike accident or the assault.”

51. [51]
    Dr Journeaux also stated:^[56]

“No impairment rating is applicable for his dental injury, nor his hand injury as he has a full and unimpaired range of movement of the hand and wrist…The claimant is not undergoing any specific treatment and nor does he require any for the injuries sustained in the motor vehicle accident.”  (my emphasis)

52. [52]
    If Dr Journeaux’s observations and opinion are accepted the applicant’s left hand injury has significantly improved during the nine month period following the examination by Dr Wallace.

53. [53]
    The only impairment rating given by Dr Journeaux is a 1% whole person impairment for the lacerations, particularly to the applicant’s face and nose, which he describes as clearly unsightly and cosmetically disfiguring.^[57] In reporting on his examination of the applicant he stated:

“Examination of face reveals ragged scars in the left eyebrow over the bridge of the nose and in the left upper lip area. These are well healed and non-tender.”

His conclusion about his lacerations and nose injury was:^[58]

“His lacerations to his face have healed well and he has been left with no significant cosmetic defect in respect of his nose or any functional problems in terms of the airway passages.”  

 I do not consider there is any inconsistency in these observations. In my view he has said that while the lacerations have healed well they are nonetheless unsightly and cosmetically disfiguring. However, he has been left with no significant cosmetic defect in respect of the nose itself.

54. [54]
    Dr Journeaux also makes reference to the applicant’s dental injuries in his report stating that “Examination of teeth reveals fractured upper left incisor and lower right incisor.”^[59] Further, he indicates that the applicant would probably benefit from dental repair work, but accepts it is outside his area of expertise to comment further. As indicated, he gave no impairment rating for the dental injury.^[60] I note the applicant had told Dr Wallace that he was due to have some dental treatment to his left upper incisors but could not afford it.^[61]

55. [55]
    Dr Journeaux was of the opinion there would have been some impairment for the applicant in carrying out his day to day work duties and employment for at least six weeks following the incident. Although he suspected the applicant’s psychological injuries had a greater bearing on this than his physical injuries.^[62]

56. [56]
    For completeness I note the applicant told Dr Journeaux:^[63]

“he is back to riding a motorcycle but does find it hard to ride on longer journeys. He had given up his deep sea fishing due to the aggravation of symptoms. He also indicates that he is unable to have sex anymore as he really does not feel up to it.”

57. [57]
    The applicant completed a form for Dr Journeaux stating that his hobbies and recreational activities prior to the incident included “Motorbike Riding – Fishing Deep Sea”.

58. [58]
    In his first report of 17 December 2008, Dr Journeaux states his conclusion that the applicant’s injuries which are set out in [44] of this judgment were sustained as a result of “the motorbike accident…and the subsequent assault.”^[64] I note the applicant told him that he was deliberately hit from behind with enough force to throw him off the bike and into a ditch.^[65] However, the suggestion that any of the cars driven by the Rebels impacted the applicant’s motorcycle is inconsistent with the view I took at sentencing for dangerous operation of a motor vehicle, which was that the third respondent, although swerving his car into the riders, narrowly missed contact with them. I proceeded on the basis the evidence suggested the motorcycle ridden by the applicant, was forced down the embankment. The Senior Judge sentenced the first respondent for dangerous operation of a motor vehicle causing grievous bodily harm on the basis the car had forced another rider to lose control of his motorcycle and crash into a gully, with that rider sustaining injuries as a result. The other rider was the applicant in Hines v Rauhina.^[66]

59. [59]
    However, in his supplementary report of 27 January 2010, Dr Journeaux says:^[67]

“It would be my view in answer to the specific question as to whether these injuries were as a result of the vehicle collision or as a result of the assault, that the injuries are wholly related to the assault and unlikely to be related to the fact he was knocked off his bike when struck from behind by a vehicle.”

Therefore, he states that the motor vehicle injuries were extremely minor and insignificant compared to the well documented assault injuries.^[68]

Mental or nervous shock

60. [60]
    Two reports have been provided in relation to the applicant’s psychiatric/psychological injuries. Mr Stoker, a psychologist, interviewed the applicant on 18 February 2008 and provided a report dated 28 February 2008. Dr Chalk, a psychiatrist, assessed the applicant on 17 June 2008 and provided a report dated 19 June 2008. Therefore, Mr Stoker’s interview was about 12 months after the incident, and Dr Chalk’s assessment was about 4 months later.

61. [61]
    Mr Stoker concluded that as a consequence of what he describes as the “accident/incident”, the applicant suffered an Adjustment Disorder with depressed mood.^[69] He also states that his depression was secondary to ongoing pain, physical limitations and other difficulties and he would benefit from psychological counselling to help improve his emotional functioning.^[70] Mr Stoker is of the opinion that ten sessions would be needed for the effects of the motor vehicle knocking the applicant from his bike and ten sessions would focus on the assault.^[71]

62. [62]
    Mr Stoker also considered the applicant was suffering a Postconcussional Disorder as a result of a mild head injury. While Mr Stoker notes it is difficult to ascertain whether this was caused by him coming off his bike, or the subsequent assault, nothing further is said about this in the report.^[72]

63. [63]
    He concluded that the applicant was suffering a mild degree of mental and nervous shock as a result of the assault, and his percentage psychological impairment was in the mid to upper level of the mild range.^[73] He assessed whole person impairment on the Psychiatric Impairment Rating Scale (PIRS) as being 15%, but deducted 7% as a result of the applicant’s decompensation due to the assault.^[74] The revised whole person impairment was 8%.

64. [64]
    Mr Stoker says the applicant was knocked unconscious for an indeterminate period, and has pre-assault amnesia of two to three hours, but no post assault amnesia.^[75] However, the applicant told Dr Journeaux that he could not remember exactly what happened after he was thrown off the motorcycle, as he was knocked out and apparently assaulted with wooden bats and an iron bar, with multiple blows to the body.^[76]

65. [65]
    According to Mr Stoker the applicant had no previous psychological history and no family history of serious mental illness.^[77] He describes the applicant as presenting with anxious and mildly depressed mood,^[78] although testing revealed no clinically significant level of anxiety.^[79]

66. [66]
    The applicant said he had been in a de facto relationship for the past nine years.^[80] He described suffering poor libido since the incident, with a reduction in regularity of sexual relations. At the time of the assessment he had not had sexual relations for about six weeks. He spoke of a loss of desire.^[81] As indicated, he told Dr Journeaux about nine months later that he is unable to have sex as he really does not feel up to it.^[82]

67. [67]
    Consistently with this, the applicant told Mr Stoker he had lost interest in everything.^[83] For example, he is less motivated to work and his care factor is zero.^[84] He only rides a motorcycle if he goes out in a group. He tends to drive his car to the Bandidos Clubhouse, rather than his motorcycle. He said he is now more hypervigilant and anxious when he rides a motorcycle and avoids doing this.^[85] I note that by the time he was interviewed by Dr Journeaux he indicated he was back to riding a motorcycle but found it hard to ride on longer journeys.^[86] This suggests some improvement.

68. [68]
    The applicant described himself to Mr Stoker as being more introverted and less social, whereas before the incident he was “happy-go-lucky”.^[87] Further, since the accident he was frustrated by his inability to do things, more depressed, more forgetful, more apathetic, discouraged about the future, more suspicious of people and more fearful of another assault.^[88]

69. [69]
    Mr Stoker considered he now had generally poorer cognitive functioning, including diminished concentration and memory.^[89] However, I note Dr Chalk considered his cognition was intact.^[90]

70. [70]
    Mr Stoker also refers to his receiving sutures to his face, lip and mouth, his teeth being fractured and his left finger broken.^[91]

71. [71]
    Dr Chalk also concluded that the applicant had developed an adjustment disorder. He classified it as mild, and with depressed and anxious mood. In his opinion this related to the assault and not being knocked off the motoercycle. In the circumstances, he did not think it appropriate to attribute any part of the applicant’s psychiatric impairment to the act of being pushed off the motorcycle. As he puts it, “In my view, his symptomology is entirely due to the assault and it’s ramifications.”^[92]             

72. [72]
    The applicant told Dr Chalk that he had no recollection of the actual accident. However, he was not knocked out, and while lying on the ground was then assaulted by four men with baseball clubs and iron bars. He then became unconscious.^[93]

73. [73]
    He thought he might die when they were beating him.^[94] He had not previously met the men who did this to him. He was later told by police the assault was in relation to events on the Sunshine Coast. He knew nothing of these events.^[95] Amongst the injuries he described were “significant dental injuries”. He also described a fracture of his left hip and a soft tissue injury to his ankle.^[96] However, there is no other evidence that he suffered either of those injuries. He also described ongoing difficulties with his vision, with chewing, with walking and with not responding as he has in the past.^[97]

74. [74]
    The applicant described no known family history of psychiatric illness. He had no past history of anti-depressant medication, psychiatric hospitalisation or deliberate self-harm.^[98]

75. [75]
    In his report Dr Chalk notes that the applicant complained of feeling guilt about not being able to protect his partner, Ms Garner; getting weepy on occasion when he thinks of the incident; becoming nervous and fidgety with noises and not going for walks as comfortably as he did before; having difficulty handling crowds; needing to go to the toilet some thirty times a day; having headaches about three times and week; feeling irritable and being indecisive. He also said his concentration and energy levels were not good and he would ride his motor bike occasionally, but not alone.^[99]

76. [76]
    Although the applicant did not describe generalised anxiety he described becoming panicky at night when hearing noises. He walked with a baseball bat. Further, his sleep was poor. He confirmed having lost interest in sex and not being as active as he was before the incident. He described being suicidal in the previous year, but denied engaging in deliberate self harm. He believed he was more emotional than in the past.^[100]

77. [77]
    The applicant did not describe pervasive sadness, hopelessness or helplessness. He described some checking but no clear obsessive compulsive disorder.^[101]

78. [78]
    During the mental state examination, Dr Chalk described him as mildly anxious but not hypervigilant.^[102] Dr Chalk summarised this examination as follows:^[103]

“His thought content reflected some depressive themes, uncertainty about the future, a heightened wariness of strangers and some but mild depressive symptoms. His affect did not show any significant degree of restriction. I thought that it reflected a degree of anxiety rather than significant depression. Marker lability was not present. Reactivity was diminished but his mood euthymic. No perpetual disturbances were described. I thought that he had some insight and his cognition was intact.”

The applicable principles

79. [79]
    The assessment of compensation is governed by Part 3 of the COVA. Section 24 of the COVA provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence.^[104] A personal offence is an indictable offence committed against the person of someone.^[105] An injury is a bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the COVA or prescribed under a regulation.^[106]

80. [80]
    An award of criminal compensation under the COVA does not invoke the principles applicable to common law damages.^[107] It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.^[108] A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000.^[109]

81. [81]
    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.^[110] In deciding the amount of compensation to be paid for an injury specified under a regulation, the Court is limited to making an order for the prescribed amount. 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.^[111]

82. [82]
    Section 22(4) of the COVA requires compensation under the 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.^[112]

83. [83]
    It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the 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.^[113]

84. [84]
    Section 26 of the COVA, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.^[114] 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 from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the COVA and Ward.^[115] 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.^[116] 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 be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item.^[117]

85. [85]
    Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the COVA which is mandatory.^[118]

86. [86]
    Section 25(7) of the COVA provides that in deciding whether an amount should be ordered, or in deciding what amount should 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.

87. [87]
    The issues of fact in this application must be decided on the balance of probabilities.^[119]             

Assessment of Compensation

88. [88]
    It is submitted on behalf of the applicant that a total of $34,500.00 should be awarded in compensation for the physical injuries and mental or nervous shock sustained as a result of the offences committed by the respondents. This is made up of the following:

• 5% of the scheme maximum ($3,750) for cuts and bruising; 
• 8% ($6,000) for a fractured nose;
• 10% ($7,500) for fractured teeth;
• 8% ($6,000) for the fracture to the hand; and
• 15% ($11,250) for moderate nervous shock.

Item 2 - Bruising/lacerations etc (severe) - 3%- 5%

89. [89]
    As indicated at [20] of this judgment I sentenced the second, third and fourth respondents on the basis that as a result of the savage beating for which they were equally responsible the applicant suffered bruising, swelling and lacerations to his face and body and a number of these lacerations were sutured. I have also previously found the first respondent to be equally involved in this violence.

90. [90]
    The records of the Royal Brisbane and Women’s Hospital, which are outlined at [28] of this judgment, refer to the need to suture lacerations to an eyebrow, through a lip and inside his mouth. It was also necessary to close his nose wound using sutures. The records make reference to a laceration over the bridge of the nose which was healing well, and a bruised wrist. The medical certificate from Dr Armstrong referred to at [32] of this judgment identifies “multiple facial lacerations”.

91. [91]
    This evidence is well summarised by Dr Journeaux as “multiple facial lacerations particularly involving the left upper lip, the bridge of the nose and the left eyebrow.”^[120] For the reasons I have previously given at [53] of this judgment, I am satisfied on the balance of probabilities not only that the applicant suffered these injuries during this incident, but also that even though they had healed well by the time he was examined by Dr Journeaux about 21 months later, they were nonetheless unsightly and cosmetically disfiguring. He described them as ragged scars. As a consequence he gave them a 1% whole person impairment rating.

92. [92]
    I am also satisfied on the balance of probabilities that the applicant suffered these injuries as a result of the beating constituting the assault occasioning bodily harm whilst armed and in company, and not from being knocked from the motorcycle. This is consistent with the view of the evidence that I took at sentence and was the basis on which I sentenced the second, third and fourth respondents. It is also consistent with the view I have taken of the involvement of the first respondent. I am entitled to proceed on this basis in determining the application.

93. [93]
    This is also the basis on which the respondents were charged with the offence of assault occasioning bodily harm whilst armed and in company against the applicant. It is also consistent with Dr Journeaux’s opinion, as set out at [59] of the judgment, that the injuries which are the subject of this application are wholly related to the assault and unlikely to be related to the applicant being knocked off his bike when struck from behind by a vehicle.

94. [94]
    Further, as discussed at [58] of this judgment the suggestion that any cars driven by the Bandidos impacted with the applicant’s motorcycle is inconsistent with the view I took on sentencing for dangerous operation of a motor vehicle. As I also observed, the first respondent was sentenced on the basis of a dangerous operation of a motor vehicle causing grievous bodily harm to another person. The inconsistency in what the applicant said about this may be explained from his statement to Dr Chalk that he had no recollection of the accident.^[121]

95. [95]
    I am therefore satisfied the applicant suffered these physical injuries as a result of the personal offence of assault occasioning bodily harm whilst armed and in company for which the respondents have been convicted on indictment.

96. [96]
    Therefore it is not necessary to consider Ms Willson’s submission that the offence of dangerous operation of a motor vehicle for which the second, third and fourth respondents were convicted, together with the offence of assault occasioning bodily harm whilst armed and in company, globally constituted the personal offences by virtue of which the applicant suffered this injury, or the other physical injuries the subject of his claim.

97. [97]
    The fact the first respondent was sentenced for dangerous operation of a motor vehicle causing grievous bodily harm to a person who is not the applicant also answers the written submissions on behalf of the second, third and fourth respondents, which are as follows:^[122]

“In relation to the injuries by Bertucci, it is submitted that the physical injuries are attributable to the conduct of Rauhina. Rauhina pleaded guilty to dangerous operation of a motor vehicle causing grievous bodily harm. That injury is the injury suffered by Bertucci. It is submitted that the offence to which Hopkins, Picard and Skilton pleaded is dangerous operation of a motor vehicle simpliciter. It is submitted that where a person has been dealt with for a specific offence causing a specific injury it is that person who is liable under these rules to compensate the victim thereof. It is submitted that Hopkins, Picard and Skilton are therefore not liable in relation to this claim.”

In short, the injury suffered by the applicant was not caused by the conduct involving the dangerous operation of a motor vehicle for which the first respondent has been convicted. As previously indicated this injury was the subject of a discrete application in Hines v Rauhina.   None of the respondents have been sentenced on the basis that any of this applicant’s physical injuries were caused by the offence committed by the first respondent. Further, as I have said, the suggestion that any of the cars driven by the Bandidos impacted with the applicant’s motorcycle is inconsistent with the basis on which the respondents were sentenced.

98. [98]
    The submission on the applicant’s behalf is that the nature of the cuts and bruising is such as to place these injuries at the top of the severe range for this type of injury.

99. [99]
    In R v Ward; ex parte Dooley the court stated:^[123]

“To qualify for the five per cent which is the top of the ‘severe’ range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the ‘most serious cases.’”

In that case their Honours reduced an award at the top of the range to one of two percent for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the right elbow. They could find nothing in the evidence that this swelling was long lasting or caused significant pain. There were no lacerations.

100. [100]
     In Moorhouse v Parker^[124] which was referred to me by Ms Willson, the applicant suffered bruising and/or lacerations to the forehead, scalp and hands. In conjunction with the bruising to the applicant’s cheek, which was compensated under another item,^[125] the bruising to her forehead was described as “extensive”.^[126] Dearden DCJ considered that these injuries, which were “starkly illustrated” in the photographs, exhibited at the original sentence would appropriately bring an award of 2% of the scheme maximum.^[127]

101. [101]
     While comparisons of awards in cases under the COVA can be fraught with difficulty because no two cases are exactly alike, I have regard to Moorhouse v Parker and Ward in assessing the extent of the applicant’s entitlement to compensation in this case.

102. [102]
     In the present case where the applicant not only suffered facial lacerations, but 21 months after the incident has been left with unsightly and cosmetically disfiguring scars, I have concluded the injuries in the present case are such as to make it one of the most serious cases for this type of injury. This is particularly so because it is appropriate to assess this injury together with the item for facial disfigurement. Facial disfigurements (minor/moderate) are compensable within a range of 2% - 10% of the scheme maximum.^[128] Therefore, it is necessary to make an adjustment in the award of compensation to cater for the differences between these ranges in order to avoid duplication.^[129] I consider the lacerations in this case have some claim to being one of the most serious cases of this type of injury. In these circumstances I assess an award at 5% of the scheme maximum. This is $3,750.^[130]

Item 3 - Fractured nose (no displacement) - 5%-8%

103. [103]
     Moorhouse v Parker was also relied upon to support the submission that I should compensate the applicant for his fractured nose at the top of the range for this item. In that case the applicant was awarded 10% of the scheme maximum for an injury to his nose within item 4 of the compensation table. Item 4 is for a fractured nose (displacement/surgery) which provided for a range of 8%-20%. That applicant had suffered a mildly depressed fracture of the wall of the left maxillary sinus. It did not require surgical intervention and there was no permanent impairment.

104. [104]
     Proceeding on the basis of my sentencing remarks at [18] of this judgment, the applicant suffered a nose fracture with a piece of bone protruding as a result of the assault. The Royal Brisbane and Women’s Hospital records which are referred to at [28] and [29] of this judgment describe the applicant as having a comminuted and compound fracture of his nasal bones and nasal septum. This involved a fractured medial wall of the left maxillary antrum. Dr Journeaux describes it as an open fracture of the nasal bones.^[131] Relying on Moorhouse v Parker as a guide I consider the applicant’s nose fracture has a claim to be one of the most serious cases of this type of injury and therefore an award of 8% of the scheme maximum is appropriate. This is $6,000.

Item 5 - Loss or damage to teeth - 1% - 12%

105. [105]
     It is submitted that I should compensate the applicant for damage to his teeth at 10% of the scheme maximum. Although it is unfortunate that a specialist dental report was not introduced into evidence, this is probably explained by his telling Dr Wallace that he was due to have some treatment to his left upper incisors but could not afford it.^[132]

106. [106]
     In any event I sentenced the second, third and fourth respondent’s on the basis of the medical report from the attending doctor at the Royal Brisbane and Women’s Hospital that the applicant had a missing tooth.^[133] Further, Dr Journeaux concluded that the applicant had a fracture of the upper left incisor and lower right incisor on the basis of his examination.^[134] Although Dr Journeaux is not a dentist, he is an orthopaedic surgeon. As such he can be expected to possess the expertise to make such a diagnosis. The applicant has consistently told medical practitioners about his dental problems as a result of the assault upon him by the respondents. I have already referred to what he told Dr Wallace. He told Dr Chalk about 12 months later as referred to at [73] of this judgment, that he had ongoing difficulties with chewing. It is reasonable to infer this related to his teeth damage. He also told Mr Stoker that his teeth were fractured.^[135]

107. [107]
     I am therefore satisfied that as a result of the assault for which the respondents are equally responsible, the applicant lost a tooth and suffered a fracture to his upper left incisor and lower right incisor, which caused him difficulty with chewing for at least twelve months.

108. [108]
     Ms Willson referred me to Boulter v Bradford^[136] and Gleeson v Akee^[137]as guides to assist in my assessment of the quantum of compensation under this item.

109. [109]
     In Boulter v Bradford the applicant suffered a fractured jaw with displacement associated with a root fracture of the second molar. The tooth which sustained the root fracture was removed at the time of the operation for the fractured jaw due to its mobility and involvement in the fracture line. Given the nature of the lost tooth Dearden DCJ awarded 5% of the scheme maximum pursuant to item 5.^[138]

110. [110]
     In Gleeson v Akee the applicant suffered a cracked tooth which eventually had a ceramic crown fitted. Everson DCJ assessed compensation at 1% of the scheme maximum.

111. [111]
     Having regard to these decisions I consider that the extent of the current applicant’s teeth damage, involving not only the loss or removal of a tooth but also a fracture to both an upper and lower incisor requiring treatment and causing him residual difficulties with chewing, is more serious than the injury suffered by the applicant in Boulter v Bradford. In these circumstances I consider the appropriate award pursuant to this item to be 8% of the scheme maximum. This is $6,000.

Item 17 - Fracture/loss of use of finger - 2%-8%

112. [112]
     It is submitted that I should compensate the applicant for the fractures to fingers of his left hand at the top of the range for this type of injury.

113. [113]
     In support of this submission, Ms Willson relied on the evidence that he suffered a mallet finger deformity and reduced movement in the left PIP joint, with resultant problems with dexterity and reduced grip strength.^[139] Dr Wallace considered these injuries were stable and stationery and unlikely to be improved by surgery.^[140] He concluded the applicant had a 6% whole person impairment as a result of the injury. He also referred to the applicant having a fracture to his left small finger.^[141]

114. [114]
     Based on the medical report I sentenced the second, third and fourth respondents on the basis the applicant suffered a hand fracture as referred to at [18] of this judgment. This is consistent with the Royal Brisbane and Women’s Hospital records on which that report was based, and which as set out at [28] of this judgment, recording a fractured 2^nd and 3^rd metacarpal on his left hand. There is no reference to his having sustained a fractured left little finger until the x-ray of 17 April 2007 referred to at [33] of this judgment.

115. [115]
     As Dr Journeaux has stated there is no evidence in this medical documentation that the applicant’s left little finger was injured.^[142] In those circumstances I am not satisfied on the balance of probabilities that this injury was sustained as a result of the assault by the respondents.

116. [116]
     However, more significantly, Dr Journeaux, who had access to the earlier report of Dr Wallace, expressed the opinion based on his examination that the applicant had made a full recovery in respect of the left hand injury. He was able to make a full fist and there was no subjective difference in the grip between his left and right hand. He had a full and unimpaired range of movement of the hand and fist. Consequently, he concluded no impairment rating was applicable for this injury.^[143]

117. [117]
     On the evidence before me there is no reason to reject the evidence of Dr Journeaux’s examination of the applicant. This evidence has been advanced in support of the applicant’s case. It is relied on in the statement of the applicant’s loss and damage.^[144] The applicant has deposed to suffering the personal injuries set out in the medical reports, including both of Dr Journeaux’s reports.^[145] There was no suggestion in submissions that I should not rely on any part of his reports.

118. [118]
     Therefore, I accept Dr Journeaux’s observations and opinion. Consequently, I conclude that the applicant’s left hand injury has improved during the nine month period following his examination by Dr Wallace. The improvement has included the applicant returning to motorcycle riding.

119. [119]
     However, Dr Journeaux’s report is not inconsistent with the applicant suffering the impairment described by Dr Wallace for a period which falls somewhere between 12 months and 21 months after the assault.

120. [120]
     I accept this disabled him from continuing in his occupation of truck driving and caused him problems riding his bike during this period.^[146] Although I also accept, as stated by Dr Journeaux, that with the passage of time it was his psychiatric/psychological injuries which had a greater bearing on this than his physical injuries.^[147]

121. [121]
     In these circumstances I do not consider it is appropriate to compensate the applicant at the top of the range for this item. I consider the appropriate award to be 6% of the scheme maximum. This is $4, 500.

Item 32 - mental or nervous shock (moderate) - 10%-20%

122. [122]
     In WHG v LJC^[148] I applied the decision of Thomas JA in R v Kazakoff, ex parte Ferguson,^[149] in preference to that of Byrne SJA in RMC v NAC,^[150] and proceeded on the basis that nervous shock within the compensation table is not confined to a recognisable psychiatric illness or disorder.

123. [123]
     However, this distinction is of no relevance in the present case because I am satisfied that an adjustment disorder with depressed and/or anxious mood is a recognisable psychiatric illness or disorder and consequently, constitutes mental or nervous shock so as to be compensable under the COVA.

This is consistent with the reference by Jerrard JA in AT v FG^[151] to “establishing the existence of Post-Traumatic Stress Disorder and therefore of mental or nervous shock.”

124. [124]
     In these circumstances, I accept Dr Chalk’s opinion and find that the applicant developed an adjustment disorder with depressed and anxious mood as a result of the incident of which the respondents have been convicted. As I have observed Mr Stoker is also of this opinion, although he limited the disorder to being associated with a depressed mood. Where there are differences between them, I give most weight to Dr Chalk’s opinion because he gives it about the applicant’s psychiatric symptomatology, as a psychiatrist, whereas Mr Stoker does so as a psychologist. In addition, because Dr Chalk interviewed the applicant about four months after Mr Stoker he is in a better position to consider the progress of his symptoms.

125. [125]
     Although Mr Stoker appears to proceed on the basis that the applicant suffered this disorder both as a result of being knocked from the motorcycle and the assault,^[152] for the reason I have given above I prefer the opinion of Dr Chalk where there are differences between them. In this case it is Dr Chalk’s opinion that the applicant’s psychiatric symptomology is entirely due to the assault and its ramifications and not to being knocked off a bike.^[153]

126. [126]
     In addition, as I have previously stated, the suggestion that any of the cars driven by the Rebels impacted the applicant’s motorcycle is inconsistent with the view I took at sentencing and with the basis on which the Senior Judge sentenced the first respondent for dangerous operation of a motor vehicle causing grievous bodily harm to another motorcyclist.^[154] Dr Chalk also refers to a car apparently hitting the applicant from behind and eventually pushing him off the bike, however, he states that the applicant has no recollection of the actual accident.^[155] As I have also said, unlike Mr Stoker he does not attribute any part of the applicant’s disorder to the applicant coming off the motorcycle.

127. [127]
     It follows in my view that the applicant’s adjustment disorder is attributable to the assault committed against him by the respondents, and from which he thought he might die.

128. [128]
     I am therefore satisfied on the balance of probabilities that the offence of assault occasioning bodily harm whilst armed and in company committed by the respondents against the applicant on 25 February 2007 materially contributed to his injury in the form of mental or nervous shock. He is therefore entitled to compensation under the COVA.

129. [129]
     In quantifying this injury for the purposes of the compensation table I have regard to the fact, as I interpret the opinions of Dr Chalk and Mr Stoker, that the applicant was still suffering from his adjustment disorder at the time of their interviews with him. In the case of Dr Chalk, this was about 16 months after the incident.

130. [130]
     Although I give most weight to Dr Chalk’s opinion, to the extent of any differences, there is substantial consistency in their evidence about the applicant’s symptoms.

131. [131]
     Dr Chalk referred to him being nervous and fidgety with noises, and particularly being panicky at night time, having a heightened wariness of strangers, not walking as comfortably as he did before, and walking with a baseball bat. Consistent with this, Mr Stoker described him as being more suspicious of people and more fearful of another assault.

132. [132]
     Mr Stoker’s report that the applicant was more hypervigilant and anxious when riding a motorcycle is also consistent with this. As is the fact that both he and Dr Chalk say he only occasionally rode his motorcycle when in a group. He also told Mr Stoker he now drove, rather than rode his motorcycle, to the Bandidos Clubhouse. This is significant, in circumstances where he had previously regarded motorbike riding as a recreational hobby.

133. [133]
     However, it is also relevant that about five and a half months after Dr Chalk’s assessment, Dr Journeaux had reported that the applicant was back riding his motorcycle. Although he did find it hard to ride on longer journeys.

134. [134]
     Both Dr Chalk and Mr Stoker report the applicant has lost interest in sex. This was still the case when he was examined by Dr Journeaux 21 months after the incident.

135. [135]
     Dr Chalk referred to him feeling guilty about not being able to protect his partner, weepy on occasions when he thought about the incident, being irritable, indecisive, not having good concentration and energy levels, and sleeping poorly. In my view it is not inconsistent with this that Mr Stoker reports the applicant as being more introverted, less social and less motivated to work.

136. [136]
     Both say that he reported no family history of mental illness and no personal psychiatric or psychological history.

137. [137]
     They each classify his condition as mild, with Mr Stoker adding his percentage impairment is in the mid to upper level of the mild range. This is the same opinion he gave of the extent of the mental or nervous shock suffered by the applicants in the related cases of Hines v Rauhina^[156] and Garner v Rauhina & Ors.^[157]

138. [138]
     Dr Chalk found him to possess some uncertainty about the future. Mr Stoker found on testing that he felt discouraged about the future.

139. [139]
     Dr Chalk reported that after an initial assessment with a psychologist he did not return because he did not particularly get on with him.^[158]

140. [140]
     Whereas Dr Chalk considered the applicant’s cognitive functioning to be intact, Mr Stoker considered it to be poorer.

141. [141]
     Only Mr Stoker diagnosed the applicant as also suffering from a Postconcussional Disorder (DSM-IV) as a result of a mild head injury. This is not advanced as an additional basis for compensation in submissions on behalf of the applicant. Therefore, I do not further consider it. In any event it is unlikely to add anything to the extent of the adjustment disorder as a basis for compensation as mental or nervous shock, particularly when nothing further is said about it in the report.

142. [142]
     Whereas Mr Stoker was of the opinion that the applicant would benefit from psychological counselling to help improve his emotional functioning, Dr Chalk makes no reference to this. This is in contrast to his position with reference to the applicant in Garner v Rauhina & Ors about whom he said her post-traumatic stress disorder would persist in the future, such that she would continue to need psychiatric treatment and needed to resume anti-depressant medication.^[159] At that time her disorder had persisted for 15 months.

143. [143]
     In that case I was satisfied on the balance of probabilities that as a result of a discrete indictable offence of assault occasioning bodily harm whilst armed and in company committed against her by the respondents in this case, she suffered mental or nervous shock (moderate) within item 32 of the compensation table. I assessed compensation at 15% of the scheme maximum. This is the level of compensation sought on behalf of the applicant in this case.

144. [144]
     In that case Dr Chalk did not state his opinion as to the degree of mental or nervous shock suffered by the applicant, although he did state he thought she had symptoms of mild to moderate depression. Mr Stoker’s opinion was that the mental or nervous shock was mild, and placed her psychological impairment in the mid to upper level of the mild range. As I have indicated, he has given the same opinion as to the extent of the adjustment disorder in this case.

145. [145]
     I considered the assessment in Garner to be appropriate in circumstances where the applicant suffered flashbacks of the incident; suffered panic symptoms at times, particularly when seeing people who looked like the offender; had ended her sexual relationship with the current applicant; was more emotional and irritable; was experiencing sleep disturbance; was less motivated to work; had become more introverted; and was too fearful to get back on the motorcycle.

146. [146]
     I also assessed compensation at 15% of the scheme maximum against the first respondent in Hines v Rauhina^[160]where the applicant’s mental or nervous shock, as diagnosed by Dr Chalk, consisted of an adjustment disorder with depressed mood and anxiety. This disorder was subject to the same opinion from Mr Stoker as has been given in this case.

147. [147]
     In that case I considered the assessment to be appropriate in circumstances where the applicant’s adjustment disorder was associated with lower frustration tolerance; anxiety when riding his motor cycle; lack of motivation regarding work; aggravation of a long term sleeping problem and generally becoming more introverted. Although the disorder was in partial remission it was still affecting him 18 months after the incident. I regarded the anxiety associated with his bike riding to be of particular significance, because this was obviously an activity which had previously been a source of pleasure to him. The same can be said of the applicant in the present case.

148. [148]
     Although as I have recognised, comparisons in awards under the COVA are fraught with difficulty because no two cases are exactly alike, I have regard to the assessments concerning the applicants in Hines and Garner because the current applicant’s mental or nervous shock arose out of the same incident.

149. [149]
     Ms Willson also referred me to Sheppard v Moefaaua.^[161] In that case the applicant, as a result of being unlawfully wounded through an attack to his head with a beer glass, suffered a post-traumatic stress disorder for about two months after the incident. While the symptoms had settled, Dearden DCJ considered that these symptoms, taken together with the applicant’s indication that he felt threatened when he saw persons of the same racial group as the respondent and had a residual fear of crowded pubs, justified an award at the upper end of Item 31 (mental or nervous shock (minor)), namely 10%.

150. [150]
     I considered, in all the circumstances, that the applicant in Hines v Rauhina had suffered a more serious injury than the applicant in Sheppard v Moefaaua. I have reached the same conclusion in respect of the current applicant. I recognise there are some differences between the situation of the present applicant and the applicant in Garner v Rauhina & Ors, in particular, as identified at [142] of this judgment, the applicant in that case suffered a disorder which Dr Chalk opined would persist and require psychiatric treatment together with anti-depressant medication in the future, whereas he has not expressed a similar opinion in this case. I nonetheless consider there are sufficient similarities of significance between the applicants in each of the three cases arising out of the same incident, to make it appropriate to assess compensation at 15% of the scheme maximum for mental or nervous shock (moderate) within item 32 of the compensation table.   It is relevant that in this case the disorder was persisting after 16 months, and Dr Chalk does not suggest that it was in remission. I therefore assess compensation in accordance with the applicant’s submissions at $11,250.

Contribution

151. [151]
     In deciding what amount is payable for these injuries, I am required under section 25(7) of the COVA to consider whether there are other relevant factors that should operate to reduce the amount which might otherwise be awarded. Therefore it is necessary to consider whether there was any other factor, including for example, any behaviour by the applicant, which directly or indirectly contributed to his injuries.

152. [152]
     Mr Nolan orally submitted that if an award of compensation was to be made in favour of the applicant his behaviour would operate to reduce the amount which would otherwise be awarded. His submission was that the applicant had participated in activity which concerned possible violence from one bikie group to another.

153. [153]
     While Mr Nolan accepted there was no specific evidence he had participated in such violence, he argued I was entitled to take into account that bikie groups are not things that gentleman normally join.

154. [154]
     Mr Nolan relied on the fact the applicant was present at what was obviously going to be an altercation. He argued his clients had been sentenced on the basis there was a standoff for some short period of time while the women and children were removed from the field of battle, after which a number of the Bandidos participated in the violence which followed.

155. [155]
     On that date, as counsel for the second, third and fourth respondents said at their sentence, the Bandidos picnic was in a park near the Rebels Clubhouse and Mr Skilton’s home and after the Rebel’s vehicles arrived at Bribie Island there was a heightened sense of tension because of a realisation that the children had disappeared. However, any suggestion that the applicant’s behaviour directly or indirectly contributed to his injuries as a result, is clearly inconsistent with the basis on which I sentenced them. It is also inconsistent with the basis on which the Senior Judge sentenced the first respondent.

156. [156]
     The basis of the sentences was that the offence the respondents committed against the applicant, which is the subject of this application, was part of a plan in which they were involved to inflict violence on members of the Bandidos because of a belief the Bandidos were responsible for injuring a fellow member of the Rebels. This did not give the respondents a legitimate reason for taking the law into their own hands. As the Senior Judge said in sentencing the first respondent, “Well of course we can’t run our society on that basis and such conduct must be deterred.”^[162]

157. [157]
     Further, there is no evidence the applicant himself had been involved in any alleged conduct against any member of the Rebels. There is no evidence the applicant had previous dealings with the respondents, or did anything that could be considered any kind of provocation. In fact, the evidence is that the applicant told Dr Chalk he had not previously met the men who did this to him, and he was later told by the police the assault was in relation to events on the Sunshine Coast, of which he said he knew nothing.^[163]

158. [158]
     Nor can the circumstances surrounding the offence in anyway be considered to involve any conduct by the applicant alone, or in association with other members of the Bandidos, which might somehow have been contributory to what happened to him. As the applicant said he and his colleagues were engaged in a picnic at Bribie Island Park with some of their partners and children.^[164] In these circumstances the fact this was near the Rebels Clubhouse and near the second respondent’s residence did not provide provocation for the actions of the respondents and their colleagues. And in particular it did not justify the respondent’s forming a plan to inflict violence on the Bandidos, which involved driving to Bribie Island and then following them to Ningi for this purpose. It could also not be considered provocation or justification that after arriving at Bribie Island it was noted the children had disappeared, when it had been agreed not to fight the Bandidos because women and children were there. After the children left, it was the respondents’ decision to follow the Bandidos, ambush them and cut off their avenues of escape. This included the fourth respondent contacting the first respondent by phone to ensure he was coming to participate in what was going to occur.

159. [159]
     Accordingly, there is no evidence the applicant contributed either directly or indirectly to the injuries caused to him by the respondents.

160. [160]
     Therefore, I conclude there was nothing in the applicant’s actions which requires a lower percentage of compensation to be fixed for his injuries as a consequence of section 25(7) of the COVA.

Liability of the respondents

161. [161]
     A single compensation order may be made against more than one convicted person.^[165] Such an order may provide for separate and joint liability.^[166] At sentence no distinction was made between the respondents. I sentenced the second, third and fourth respondents on the basis they were equally involved in the violence to the applicant. As indicated, I also regard the first respondent as equally involved in this violence. Each of the respondents was sentenced to the same term of imprisonment for their assault on him. This is also the appropriate approach to the question of compensation. Therefore each of the respondents should be made separately and jointly liable for the amount of this order.

Conclusion

162. [162]
     Accordingly, having regard to the medical and other evidence discussed above and the applicable principles governing the award of compensation in these applications, compensation for the applicant is assessed as follows:

Item 1 – Bruising/laceration (severe)

The applicant is awarded 5% of the scheme maximum, namely $3,750.

Item 3 - Fractured nose (no displacement)

The applicant is awarded 8% of the scheme maximum, namely $6,000.

Item 5 - Loss or damage to teeth

The applicant is awarded 8% of the scheme maximum, namely $6,000.

Item 17 - Fracture/loss of use of finger

The applicant is awarded 6% of the scheme maximum, namely $4, 500.

Item 32 – Mental or nervous shock (moderate)

The applicant is awarded 15% of the scheme maximum, namely $11, 250. Therefore, the total assessment is 42% of the scheme maximum, namely $31,500.

Order

163. [163]
     The respondents pay compensation jointly and severally to the applicant, Stephen Bertucci, in the sum of $31,500 pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld).