Garner v Rauhina[2010] QDC 400

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to section24 of the Criminal Offence Victims Act 1995 (Qld) (the COVA) for physical injury and mental or nervous shock claimed to have been sustained by her 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 she 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   The COVA was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the VCAA) which commenced on 1 December 2009.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 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 two 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, three 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 two 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, three years for the other count of assault occasioning bodily harm whilst armed and in company,^[1] 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 respondent was sentenced to a total of four years imprisonment.  I suspended their period of imprisonment after serving 18months, 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 offence, compensation pursuant to section24 of the COVA.^[2]  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.^[3]  Neither of the victims in those matters is the present applicant.

6. [6]
   There was no appearance by the first respondent, and after several attempts, service was effected. I am satisfied he was served in accordance with rule110(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.  I therefore proceed I his absence.

7. [7]
   The other respondents accepted the jurisdiction of the court by the 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

8. [8]
   It is necessary for me to proceed on the basis on which the respondents were sentenced.^[4]  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.”^[5]  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.^[6]  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 at sentence 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.

9. [9]
   The offending behaviour took place on 25 February 2007.  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.”^[7]  The Bandidos are a motorcycle club.  Each of the respondents were members of the Rebels motorcycle club.  HisHonour 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.”^[8]

10. [10]
    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 motorcycle 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.”^[9]

11. [11]
    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.^[10]

12. [12]
    In my sentencing remarks I outlined the context of the offending behaviour of the second, third and fourth respondents as follows:^[11]

“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.”

13. [13]
    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.

14. [14]
    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.^[12]

15. [15]
    Pursuant to the plan, the respondents, together with the other members of the Rebels followed the Bandidos to Ningi, where they ambushed them. One car was swerved into the motorcycles, causing their 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 on which the applicant, who was then 45 years, was a pillion passenger. It was being ridden by her partner, Mr Bertucci.^[13]  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.^[14]

16. [16]
    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. As the Senior Judge stated with reference to the first respondent’s involvement in the assault, he was armed with and used a bat.^[15]  A pistol was also discharged to heighten the fear of those being assaulted.^[16]  The applicant and her partner were both assaulted.

17. [17]
    Because of the issue which arises in relation to the applicant’s claim for mental or nervous shock, due to her partner being assaulted in her presence,^[17] I refer to the circumstances of that assault.  He was severely beaten.  As a consequence he was rendered unconscious.  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:^[18]

“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 that the applicant witnessed.

18. [18]
    The applicant was assaulted when she attempted to assist her partner by grabbing a stick and hitting one of his assailants. In response, she was struck with a bat, causing bruising and swelling to her forearms, which she lifted to protect herself.^[19]

19. [19]
    I sentenced the second, third and fourth respondents on the basis they were equally involved in the violence which occurred to the applicant and her partner because even if they did not physically assault them, they each provided direct assistance for this to occur pursuant to the plan.^[20] 

20. [20]
    As I specifically said with reference to the assault on the applicant:^[21]

“The Crown again puts its case against you on the basis that you were either directly involved as principal offenders in the assault or you assisted in the assault upon him (sic).  Again, in my view, it does not matter.  Your presence there and involvement in the plan makes you equally responsible for the assault upon her in company and whilst armed.”

21. [21]
    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.^[22]  As indicated, they were each sentenced to the same term of imprisonment for their assault on the applicant.  This was the same penalty as 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

22. [22]
    As indicated, the applicant seeks compensation for physical injury and mental or nervous shock claimed to have been sustained by her as a result of this incident for which the respondents have been convicted of assault occasioning bodily harm whilst armed in company, of which she was the victim.

23. [23]
    On the hearing of the application I gave leave to read and file an affidavit of the applicant, sworn on 23June 2010.  In this affidavit she states she has read the medical reports of Mr Stoker, a psychologist, and Dr Chalk, a psychiatrist, which are relied on in support of her claim on the basis of mental or nervous shock.    Those reports also refer to her physical injuries.  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 of her police statement, I have concluded the affidavit is sufficient to permit me to act upon these medical reports as evidence of her medical condition.  This is consistent with section30(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

24. [24]
    Proceeding on the basis of my sentence, as indicated at [18] of this judgment, the applicant received bruising and swelling to her forearms as a result of protecting herself against being struck by a bat during the incident.

25. [25]
    Consistent with this, Mr Stoker reports that she was hit on the back of the right elbow, which was swollen and bruised.^[23]  According to Dr Chalk, she was hit on the back of her arm a few times, but did not feel it at the time.^[24]  He added that she was not severely physically injured and received no specific treatment.^[25]

Mental or nervous shock

26. [26]
    MrStoker assessed the applicant’s psychological state on 18 February 2008, about one year after the incident.  The assessment included an interview with the applicant and selected psychological tests.  He concluded that she suffered psychological distress, both as a result of witnessing a car impacting Mr Bertucci’s motorcycle causing him to be thrown off it, and from witnessing the subsequent assault upon him.  According to him, the former cause of her distress constitutes the personal injury claim, and the latter constitutes the criminal compensation claim.^[26]

27. [27]
    The applicant advised him she had previously had psychological counselling. This commenced between 1994 and 1995 for six months and resumed in 1996/1997 when she was prescribed anti-depressant medication. She told him she had not had counselling since 1997. She stated she worries a lot and has some obsessive qualities.^[27]  Mr Stoker expresses the opinion that her somewhat dysfunctional family background would have had an adverse effect on her psychological development.^[28]

28. [28]
    The applicant told him she had lived in a defacto relationship with Mr Bertucci since 2000.  Since the incident her libido was poor.  She feels less motivated to work and is more irritable with her work colleagues.^[29]

29. [29]
    According to Mr Stoker, the applicant is more introverted; has flashbacks to the “assault incident” on a weekly basis with no improvement over time; is frustrated and depressed; is more emotional and irritable; has sleep disturbance; has not been on a bike since as she is too fearful; has a panic episode when she sees a car that resembles the one involved in the ambush; and becomes panicky when she sees people who look like the offender.^[30]

30. [30]
    Testing indicated she was suffering moderate to severe depression. MrStoker noted she felt discouraged about the future.  He considered this to be commensurate with her emotional state on assessment.^[31]

31. [31]
    In his opinion, as a consequence of “the accident/incident”, she is suffering a post‑traumatic stress disorder.^[32]

32. [32]
    He also considered she has developed a specific phobia (being a pillion passenger on a motorcycle). I note that it is not submitted this is a basis for which an award of compensation can be made.^[33]  Therefore, I do not further consider it.

33. [33]
    With reference to the post-traumatic stress disorder he considers the applicant would benefit from approximately twenty sessions of psychological counselling to improve her emotional functioning, at a recommended rate of $192 a session. Ten sessions would be related to the motor vehicle and approximately ten would relate to the trauma of witnessing the assault.^[34]

34. [34]
    As a result of the assault, it is his opinion she has suffered a mild degree of mental and nervous shock. He considers her psychological impairment is in the mid to upper level of the mild range.^[35]

35. [35]
    His final categorisation of the applicant’s psychological injuries is that she suffered whole person impairment on the Psychiatric Impairment Rating Scale (PIRS) of 15%. However, he revised this to 8% by deducting 7% due to the assault component of the incident.^[36]

36. [36]
    Dr Chalk interviewed and assessed the applicant on 19 May 2008, about 15 months after the incident.  She told him that the motorcycle was pushed down an incline onto her partner’s ankle.^[37]  His report goes on to state:^[38]

“There then followed what was clearly the most upsetting and indeed distressing part of all this.  She remembers seeing fellows running towards her partner with pieces of wood carved into the shape of baseball bats.  They beat him and ‘laid into him’ … Ms Garner told me that all she could see was ‘chaos’, she became panicky when they were hammering him.”

37. [37]
    The applicant also told Dr Chalk that she hit one of the attackers as hard as she could with a stick and then found a second stick and hit him again.  This person then came at her, causing the injuries that I have described.^[39]

38. [38]
    She told him that she “found it really tough recalling all of this.”^[40]  At the time she felt as though she was “on another planet”.  Dr Chalk states that it appears as though she had some disassociative experiences at the time.^[41]

39. [39]
    Dr Chalk says that she had no previous psychiatric treatment, but consistent with what she had told Mr Stoker, had seen a psychologist in the past.  According to her, this followed a work-related injury which was doubted, with a claim dragging on over a period of four years as a result.^[42]  She also referred to having other psychological treatment arising out of her relationship with a man who basically fleeced her of everything she had.  These difficulties seem to have gone on over a period of some years and it seems as though she had psychological treatment intermittently from 1994 through to 1997, or perhaps later.^[43]  This is a longer period than referred to by MrStoker.

40. [40]
    Dr Chalk states that she appears to have had some form of regressive therapy. It was somewhat difficult to understand precisely what treatment she had. Although it appeared to be on and off over a period of time, during which she had multiple relapses. She was on lovan for some 18 months during this period.^[44]  Dr Chalk describes this psychological treatment as being “quite extensive”.^[45]

41. [41]
    The applicant indicated she had been on cipramil, perhaps two years before the incident, to help her get off marijuana. She stopped taking it after two months.^[46]

42. [42]
    She told him that at the time of the incident, she thought both she and MrBertucci were going to die.^[47]  She described significant emotional difficulties since this time.  She was referred to see Dr Kazalaukas, a psychiatrist in early 2008.^[48]  She saw him on a regular basis and found this helpful.  Before this she had been commenced on cipramil by her general practitioner and had found this “beneficial”.^[49]  She had stopped taking it, but was planning to start it again.^[50]

43. [43]
    She has no patience, angers easily and is intolerant. She sleeps poorly, but was better for a time on cipramil. She has become tearful and apathetic and appears to- be grieving about the change in her relationship. The sexual relationship has ended.^[51]

44. [44]
    She told Dr Chalk that she felt sad and pretty hopeless about some aspects of her life, but no obsessive compulsive symptoms were described.^[52]

45. [45]
    According to Dr Chalk, she feels pretty angry about what has occurred, but believes that the psychiatric treatment has put her in touch with the anger.^[53]  He observes:^[54]

“She was having images in her head of the assault and the treatment has helped her to get these under control.  She does not describe general anxiety but does describe at times panic symptoms.  She is irritable at times and occasionally feels hopeless and helpless, though these feelings are not pervasive.”

46. [46]
    Dr Chalk concludes that the applicant has undoubtedly developed psychiatric symptomatology as a result of these events.  This is a post-traumatic stress disorder.^[55]

47. [47]
    In his view, witnessing MrBertucci being flung off the motorcycle, while upsetting, has not led to her post-traumatic stress disorder.^[56]  As he puts it:^[57]

“… in my view, it is fairly clear that this has developed as a result of the assault that she witnessed and endured over a period of time.

…

Indeed, her history confirms that it is the vicious assault that ensued where she thought that her boyfriend was going to be killed and where she herself may have been seriously injured, that has led to her current symptomatology.

…

The incident involving the bike as such in my view, has not contributed in any substantial way to her ongoing symptomatology.  In those circumstances, a separate PIRS rating for that is in my view, not appropriate.” (my emphasis)

48. [48]
    He accepts that the applicant is in need of further psychiatric treatment and needs to resume her antidepressant medication which has a role in the treatment of post-traumatic stress disorder. I take this to be a reference to cipramil.^[58]

Applicable principles

49. [49]
    The assessment of compensation is governed in Part 3 of the COVA.  Section 19(1) provides that the part establishes a scheme for the payment of compensation to a person (the applicant):

“(a) for injury suffered by the applicant caused by a personal offence committed against the applicant.”

50. [50]
    Section 24 of the COVA provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by the applicant because of that offence.^[59]  In particular, section 24(2) provides that:

“The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence.” (my emphasis)

A personal offence is an indictable offence committed against the person of someone.^[60]  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule1 of the COVA or prescribed under a regulation.^[61]

51. [51]
    An award of criminal compensation under the COVA does not involve the principles applicable to common law damages.^[62]  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.^[63]  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000.^[64]

52. [52]
    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.^[65]  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.^[66]

53. [53]
    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.^[67]

54. [54]
    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.^[68]

55. [55]
    Section 26 of the COVA, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.^[69]  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 section25(3) of the COVA and Ward.^[70]  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.^[71]  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 a judgment to cater for the differences between the ranges or maximum for each item.^[72]

56. [56]
    Ultimately, the court should ensure there is compliance with the use of the methodology proscribed by section 25 of the COVA, which is mandatory.^[73]

57. [57]
    Section25(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.

58. [58]
    The issues of fact in this application must be decided on the balance of probabilities.^[74]

Assessment of compensation

59. [59]
    It is submitted on behalf of the applicant that she be compensated within Item 1 of the compensation table for bruising/lacerations, etc (minor/moderate) at 3% of the scheme maximum ($2,250.00) and within Item 32 of the table for mental or nervous shock (moderate) at 15% of the scheme maximum $11,250).  Accordingly, the submission is that she be paid $13,500 by way of compensation.

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

60. [60]
    I am satisfied on the balance of probabilities that the applicant suffered bruising and swelling to at least one of her arms, as a result of protecting herself against being struck by a bat. This is consistent with the view of the evidence that I took at sentence, and was therefore 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.

61. [61]
    I am satisfied that the applicant suffered an injury as a result of the indictable offence of assault occasioning bodily harm whilst armed and in company committed against her by the respondents. I am satisfied that the injury was bruising and swelling.

62. [62]
    MsWillson, who advanced the oral argument on behalf of the applicant, submits the nature of the injury is such as to place it at the top of the minor/moderate range for this type of injury.  This is also at the bottom of the severe range for this type of injury.

63. [63]
    The case of Moorhouse v Parker^[75] was relied on.  In that case 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,^[76] the bruising to her forehead was described as “extensive”.^[77]  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.^[78]

64. [64]
    MrNolan submitted on behalf of the second, third and fourth respondents that the state of the evidence in relation to this injury, made the issue of the award of compensation a matter of guesswork.

65. [65]
    However, as I have stated, I am satisfied on the balance of probabilities that this injury involved bruising or swelling to at least one of her arms. In my sentencing remarks I proceeded on the basis that she suffered bruising and swelling to her forearms.^[79]  Because she told MrStoker she was hit on the back of her right elbow, which was swollen and bruised, and she told Dr Chalk she was hit on the back of her arm,^[80] I have made the finding as expressed in the first sentence of this paragraph.

66. [66]
    In making that assessment, I am not assisted by any photographs or medical evidence as to the extent of this bruising and swelling. However, according to Dr Chalk she was not severely physically injured as a result of being hit a few times and received no specific treatment.

67. [67]
    In Ward the court reduced an award of 5% of the scheme maximum, which was at the top of the range for bruising/laceration etc (severe) (Item 2 of the compensation table), to one of 2% for moderate areas of swelling to the upper lip, right side of the mouth, three fingers and the right elbow.  There as no evidence that this swelling was long lasting or caused significant pain.

68. [68]
    While comparisons of awards in cases under the COVA can be fraught with difficulty because no two cases are exactly alike, I have had regard to Moorhouse v Parker and Ward in assessing the extent of the applicant’s entitlement to compensation in this case.

69. [69]
    In circumstances where the extent of the bruising and swelling suffered by her is vague and there is no evidence she was severely injured or received any specific treatment, I have concluded that the injury in this case is less serious than those suffered by the applicants in Moorhouse v Parker and Ward.  In these circumstances I assess an award at 1% of the scheme maximum.  This is $750.

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

70. [70]
    In WHG v LJC^[81] I applied the decision of ThomasJA in R v Kazakoff, ex parte Ferguson^[82] in preference to that of ByrneSJA in RMC v NAC^[83] and proceeded on the basis that nervous shock within the compensation table is not confined to a recognisable psychiatric illness or disorder.

71. [71]
    However, this distinction is of no relevance in the present case because I am satisfied that a post-traumatic stress disorder 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^[84] to “establishing the existence of Post-Traumatic Stress Disorder and therefore of mental or nervous shock.”

72. [72]
    In these circumstances, I accept Dr Chalk’s opinion and find that the applicant developed a post-traumatic stress disorder as a result of the incident of which the respondents have been convicted. As I have observed Mr Stoker is also of this opinion. 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 three months after Mr Stoker he is in a better position to consider the progress of her symptoms.

73. [73]
    Therefore, the applicant’s post-traumatic stress disorder would be compensable as mental or nervous shock under the COVA if I am satisfied on the balance of probabilities this injury was caused by a personal offence committed by the respondents against the applicant.

74. [74]
    Mr Nolan orally submitted on behalf of the respondents that I cannot be so satisfied, because this injury was received by her as a result of witnessing the offence of assault occasioning bodily harm whilst armed and in company committed against Mr Bertucci, and not as a result of the offence of assault occasioning bodily harm whilst armed and in company committed against her.

75. [75]
    In the written submissions on behalf of the respondent it is suggested that a factor to be taken into account in relation to this injury is that the applicant has been prescribed the anti-depressant drug, cipramil. It is submitted that in circumstances where she has previously been prescribed this drug for assistance with her withdrawal from cannabis use, no compensable injury is identified.^[85]

76. [76]
    In support of his oral submission, Mr Nolan relies on the decision of McGill SC DCJ in GKB v Bell^[86] where, after a review of the authorities, his Honour found that the mere fact a person is a witness to an offence or present when an office is committed does not mean that injury (usually in the form of mental or nervous shock) suffered by that person can be the basis for an application under section 24 of the COVA.

77. [77]
    His Honour held that the application failed in the circumstances of that case where the respondent had been convicted of 10 counts of offences of a sexual nature against the applicant’s half sister, one of which was committed in the presence of the applicant, who was then a three year old child. The applicant was present in a car seat in a motor vehicle while the offence was committed in the vehicle. Although the factual information about the circumstances of this occasion suggested an offence of exposing the applicant to an indecent act, no such charge was brought and it was accepted by counsel for the applicant that the respondent had not been convicted of any offence against the applicant. Although the sentencing judge did mention the presence of the applicant in the vehicle at the time of the offence, the judge did not say this involved any circumstances indicating a personal offence committed against the applicant, or that he took any such matter into account on sentencing.

78. [78]
    In coming to this conclusion his Honour said:^[87]

“In my opinion the crucial issue is whether the applicant was the person, or at least a person, against whom a personal offence was committed, being an offence of which the respondent has been convicted.  It is not enough in my opinion for a personal offence to have been committed against someone; the applicant must be the person against whom the personal offence was committed.”

79. [79]
    Mr Nolan’s submission is to the effect that the personal offence committed against the applicant was the assault occasioning bodily harm whilst armed and in company of which she was the victim, and that her post-traumatic stress disorder did not result from this offence. He is able to rely on Mr Stoker’s evidence that she suffered psychological distress as a result of witnessing a car impacting with Mr Bertucci’s motorcycle on which she was the pillion passenger and the subsequent assault upon him. In Mr Stoker’s opinion she suffered the post-traumatic stress disorder as a consequence of the “accident/incident”. Dr Chalk’s opinion that she developed this disorder as a result of “the assault that she witnessed and endured” is also relevant to a determination of this issue.

80. [80]
    Ms Willson submits on the applicant’s behalf^[88] that GKB v Bell is distinguishable because in that case all of the charges of which the respondent was convicted related only to the applicant’s half-sister and the applicant had no involvement and was not physically affected by the crime.  On the other hand it is submitted that the respondents in the current matter were convicted of an offence relating to the applicant.^[89]  Reliance is also placed on the involvement of the applicant in the violence including:

• being the pillion passenger on the bike driven by her partner, Stephen Bertucci, when they were approached by the respondents;
• witnessing her partner being beaten “with pieces of wood carved into the shape of baseball bats, and being kicked “like a rag doll and hearing “bone in his face breaking”;^[90]
• feeling like there was “not a thing I could do”; and
• being “hit on the arm a few times”.

81. [81]
    In these circumstances it is submitted that the applicant was not just “a mere bystander” to the offences, but was a victim who suffered an injury caused by a personal offence committed against her, and consequently is eligible to make a claim pursuant to section 24 of the COVA. The reference to the applicant being a ‘victim” is to section 5 of the COVA.^[91]

82. [82]
    Reference is made to Brennan v Smith; Grech v Smith^[92] where it was held that applicants who were threatened at a TAB, although not physically hurt, were not “mere bystanders” but were within the scope of the offence.

83. [83]
    It is submitted it does not matter that the injury complained of cannot be wholly isolated to a particular offence or respondent because the applicant was a victim of a personal offence committed against her.

84. [84]
    Notwithstanding these submissions it is accepted on behalf of the applicant that the medical reports highlight that the witnessing of the bashing of her partner forms a basis for the applicant’s mental disorder. Dr Chalk’s report relevantly provides as quoted at [47] of this judgment:

“Indeed her history confirms that it is the vicious assault that ensued where she though that her boyfriend was going to be killed and where she herself may have been seriously injured, that has led to her current symptamology”.

85. [85]
    However, it is submitted the application, including a claim for mental disorder, should not be prevented on the grounds that she was a “mere bystander” as referred to by McGill SC DCJ in GKB v Bell.

86. [86]
    As his Honour also held in that case, he did not consider it to have been the legislative intention that all victims of crime within the definition in section 5 should have access to compensation under Part 3 of the COVA. In that case, the applicant satisfied the requirements of paragraph (b) of the definition in section 5.^[93]  I agree with his Honour’s reasoning.  Therefore, it is not sufficient that the applicant is a “victim” to entitle her to compensation under the COVA if she is not at least a person against whom a personal offence was committed, being an offence of which the respondents have been convicted, and which offence caused the injury, in this case the post-traumatic stress disorder suffered by her.

87. [87]
    In order to determine this issue, assistance is gained by reviewing the authorities referred to in coming to the decision in GKB v Bell.

88. [88]
    The first of these authorities is R v Callaghan and Fleming, ex parte Power^[94] in which Connolly J considered the scope of the somewhat differently worded, previous legislation, section 663B of the Criminal Code 1899 (Qld) (the Code).  That provided “where a person is convicted of an indictable offence relating to the person of any person” the court, on application of the person aggrieved by the offence, may order compensation be paid to the applicant.  In that case the respondents had been convicted of armed robbery with violence.  During the course of the armed robbery, violence had been offered to the applicant, but the applicant was not the person named in the indictment as having been subject to the violence, or having been robbed.

89. [89]
    In holding that the applicant, who had suffered an acute anxiety state as a result of the incident, was entitled to compensation, his Honour said:^[95]

“Further the offence must be one which relates to the person of any person.  Certain offences of this nature must relate to the person of some person such, for example, as assault and rape.  On the other hand, an armed robbery with actual violence does postulate a factual situation in which violence is done to the person of somebody.

 The question is whether it must be the person named in the indictment as being the subject of the actual violence for this subsection to apply.  I accept Mr Poole’s argument that this is remedial legislation and should therefore be given a benign construction.

 However, I am persuaded, as I indicated in argument, that the reference in the subsection to an application on behalf of “the person aggrieved” means that the applicant must be the person or one of the persons to whose person the violence was offered.  As the applicant does answer that description I hold that he is within s 663B(1).  It follows from what I have said that in my opinion it would not be sufficient for a bystander to whose person no violence was even offered to say that he had suffered a nervous disorder as a result of having witnessed the offence.  This however is not this case and I hold that the applicant is entitled to compensation.” (my emphasis)

90. [90]
    As McGill SC DCJ observed, in GKB v Bell^[96] this approach was endorsed by the Court of Appeal in R v Moors, ex parte Alex,^[97] another decision under the Code.  As summarised by his Honour, in that case the respondent was convicted of manslaughter of a person who was riding in the same vehicle as the appellant, after having fired a volley of shots at the vehicle.  The deceased was the only person suffering any physical injury, though there was evidence that the appellant had suffered mental or nervous shock as a result.  The Court of Appeal (by majority) upheld a decision dismissing an application for compensation under the Code.  Thomas JA (who agreed with the reasons of Mckenzie J) accepted the correctness of the decision in R v Callaghan and Fleming, ex parte Power because proof of actual violence against some person or persons (who in the event included the claimant) was an element of the offence charged.^[98]  By contrast his Honour said:

“In the present case the charge of manslaughter alleges violence against no person other than the deceased.  It is true that the evidence which was led to prove the charge reveals a generally violent intention on the part of the offender who indiscriminately aimed at persons including the appellant.  However, there was no charge or conviction of any offence relating to the person of the appellant.  I respectfully agree with Pincus J.A.’s conclusion that if “the aggrieved person” must be, as was held in Callaghan, the person to whose person the offence relates, then the appeal must fail.  As I consider that the aggrieved person must be such a person, and that Callaghan was correctly decided, I consider that the appeal fails.” (my emphasis)

91. [91]
    McKenzie J explained the approach of Connolly J in R v Callaghan and Fleming, ex parte Power with reference to the offence charged in the circumstances of that case as follows:^[99]

“He awarded compensation to a bank employee to whom actual violence was offered during the course of an armed robbery.  He held that the person the subject of the actual violence need not be a person named in the indictment provided he was a person to whom violence was offered in the course of the offence alleged in the indictment.  Proof of actual violence was a necessary element of the offence, and if that evidentiary requirement was satisfied by proof that the violence related to the person of the bank employee there was a proper basis for the award.” (my emphasis)

His Honour continued:^[100]

“That pragmatic approach has much to commend it.  In my opinion it conforms to the intent of the legislation.  However, the difficulty in the present case is that the applicant is not a person to whom violence was offered in respect of the offence charged.  No doubt what happened was an assault upon him, as the violence was offered indiscriminately to the occupants of the vehicle.  No doubt a charge of assault at the very least could have been laid against the respondent in respect of the appellant.  However … such a charge was not pursued against the respondent ...  It follows from these propositions, in my view, that the learned trial judge was correct in refusing the application.  The appellant does not fit the description of a person aggrieved by the offence of manslaughter…” (my emphasis)

This was consistent with the earlier statement by McKenzie J that:^[101]

“The person aggrieved by the offence in my opinion is a person in respect of whose person the offence was committed.  The relevant offence is the offence referred to in the indictment.”

 (my emphasis)

The majority decision was expressed by White J (as she then was) in Brennan v Smith; Grech v Smith as:^[102]

“… the applicant was not a person to whom violence was offered in respect of the offence charged.  That is, he was not a person aggrieved by the offence of manslaughter on the victim.”

92. [92]
    In French v Green^[103] the Court of Appeal considered the statement by McKenzie J last quoted at [91] of this judgment effectively answered the applicant’s argument that because the fraud offence of which the respondent was convicted, and of which the applicants were victims, had a consequence which was adverse to the applicants’ mental health, the offences were offences “relating to the person of any person”.^[104]  In this context the court said:^[105]

“The use of the expression ‘any indictable offence relating to the person of any person’ is intended to define a particular category of cases in connection with which compensation is to be payable.  The relevant qualifying factor is that the offence related to the person of any person … it is quite clear that the reference is to the physical person and not to a person’s property.  Further, it is the offence which must relate to the person, not any injury caused thereby.  In order that compensation be payable, the offences charged must have a relationship to the person of the applicant.” (my emphasis)

93. [93]
    As McGill SC DCJ also observed in GKB v Bell^[106] the decision of French v Green was referred to with apparent approval by the Court of Appeal in RZ v PAE.^[107]  Their Honours also agreed with and adopted what was said about the meaning of section 663B by McKenzie J in R v Moors, ex parte Alex.^[108]  In that case it was held that an offence of attempted indecent treatment of a child which involved a promise by the respondent to give the child money in return for the child permitting the respondent to perform an indecent act on him, was an indictable offence committed against the person of someone, although the child declined to do so.  The majority said that it was unnecessary that such an offence involve actual contact with the body of the victim.

94. [94]
    In Summers v Dougherty^[109] the same approach was adopted by White J to the COVA.  In that case the respondents were convicted of home invasion involving charges of housebreaking, armed robbery with personal violence and assault occasioning bodily harm whilst armed and in company.  The indictment mentioned Mr Summers as the person against whom actual violence was perpetrated.  His application for compensation had been concluded with an award in his favour in respect of this incident.  The applicants before White J were his wife on her own behalf and as litigation guardian for her two sons.  Violence was offered to each of them personally in the course of carrying out the robbery.  In the context of section 24(2) of the COVA, and bearing in mind the remedial nature of the legislation, her Honour held their entitlement to apply for compensation was not excluded by reason only that they were not named in the indictment.^[110]  Importantly her Honour said:^[111]

“Mrs Summers’ responses to the home invasion are attributable to the threats to her own life.  That they are also attributable to the physical acts of violence which she heard and saw inflicted upon her husband and the threats to her two children does not lead to any reduction in the award. She was not in the position of a mere bystander, R v Callaghan and Fleming; ex parte Power; supra.” (my emphasis)

95. [95]
    In Pettingill v Minister for Justice & Attorney-General^[112] the applicant was present when her defacto husband was shot and killed in circumstances constituting murder or manslaughter.  Mullins J proceeded on the basis that as the applicant was being pushed up a set of stairs in front of the deceased, it could be inferred that when the gun was fired, it was pointing in the direction of both the deceased and the applicant.  She did not suffer from any physical injuries, but did suffer a chronic post-traumatic stress disorder as a result.  On an application for judicial review it was held that the application was rightly refused, because it was out of time, but her Honour also considered whether the applicant was a person against whom a personal offence had been committed.  On the applicant’s statement, the only act of violence was the firing of the one shot which killed the applicant’s de facto husband.  Because there was no evidence of any violence offered to the applicant, her Honour concluded that none of the offences created by sections 75, 306, 317 and 345 of the Code had been made out in relation to her.

96. [96]
    As Mullins J recognised, the applicant was in a different position to the two police officers in Byles v Palmer^[113] as the firing of the shot in the applicant’s case was not equally consistent with an intention to alarm or harm both the applicant and her de facto husband.^[114]  In that case the respondent was found guilty of attempting to unlawfully kill a named person or another.  The evidence was that the respondent fired a shot whilst he was in a moving car at a police vehicle driven by the applicant, in which the named person, another police officer, was a passenger.  It was not necessary to determine which occupant of the police car the respondent intended to kill, provided there was an intention to kill one of them.  Helman J concluded that:^[115]

“the verdict was of an offence committed against both police officers, each of whom was under fire.” (my emphasis)

Therefore, it was an offence committed against the person of each of them.  Accordingly a compensation order was made.

97. [97]
    In Brennan v Smith; Grech v Smith^[116] the respondent and a co-accused held up a TAB at gun point, where the applicants were customers.  The respondent pleaded guilty to robbery whilst armed and in company.  The applicants were not named in the indictment as the person from whom money was stolen.  Apart from the nature of the offence itself, no actual violence was inflicted on any person.  Nevertheless both applicants were commanded to get down on the floor and were generally threatened, in the case of Mr Brennan, and particularly, in the case of Mr Grech, with the firearm.  White J posed the question as:^[117]

“are the applicants person against whom a personal offence has been committed?”

Her Honour referred to R v Callaghan and Fleming, ex parte Power and the majority decision in R v Moors, ex parte Alex and said:^[118]

“Whilst the provisions of the present legislation are differently expressed, the meaning and purpose are, in my view, no different from those of section 663B of the Criminal Code.  Only a person against whom the personal offence is committed may apply for a compensation order.” (my emphasis)

In that case her Honour concluded that:^[119]

“Here both applicants were the victims of the indicted offence of armed robbery with actual violence.  They were not mere bystanders but had been commanded to get down on to the floor … They would have been under no illusion that had they attempted to disregard the order they would have sustained injury.” (my emphasis)

Accordingly they were both held to be within the scope of the offence and were awarded compensation.

98. [98]
    In GKB v Bell^[120] McGill SC DCJ discussed his earlier decision of Schmith v Nolan^[121] in which he rejected an application for compensation under the COVA in circumstances where the respondent had been convicted of an offence of entering premises and stealing contrary to section 421(2) of the Code, which was committed at a take-away food store where the applicant was working.  On an occasion where the applicant had opened the till, the respondent jumped across the counter, pushed her away, grabbed money from the till and fled.  The applicant alleged that as a result she had suffered mental or nervous shock.  His Honour held that the offence of entering premises and stealing was not a personal offence committed against the person of someone, specifically against the person of the applicant; it was simply an offence against property.  Accordingly the conditions for compensation were not satisfied.  Although the factual circumstances suggested that the respondent had also committed an offence against the applicant, namely the offence of assault, he had not been convicted of that offence.

As his Honour said in that case:^[122]

“The present application is founded on the commission by the respondent of the offence of entering premises and stealing: Criminal Code s 421(2).  It is not an element of that offence that anything be done or threatened to the person of any person.  That may be contrasted with the offence of robbery in s 409, an offence in respect of which compensation orders are made under the Act from time to time.  In my opinion an offence under s 421(2) of the Code is not a “personal offence” as defined in s 21 of the Act, unless the indictable offence referred to in s 421(2) is itself a “personal offence” as defined in s 21 of the Act.  That was not the case here; the indictable offence referred to here was the offence of stealing.  It would not matter for present purposes if at some point the respondent had been charged with some offence which would be a personal offence committed against the applicant, since compensation can only be ordered in respect of an injury suffered because of an offence of which the respondent has been convicted on indictment: s 24.  I acknowledge that the Act is remedial legislation, but in the present case the applicant falls outside its scope.” (my emphasis)

99. [99]
    On the basis of this review of the authorities I agree with the conclusions of McGill SC DCJ in GKB v Bell that it is clear the legislative intention was that section 24 of the COVA would produce the same result as in R v Moors, ex parte Alex^[123] and the other authorities referred to.  In particular, R v Moors, ex parte Alex and Pettingill v Minister for Justice & Attorney-General clearly establish that the mere fact a person is a witness to an offence or present when an offence is committed does not mean that injury (usually in the form of mental or nervous shock) suffered by the person can be the basis of an application under section 24 of the COVA.

100. [100]
     However, in this case I agree with the submission on behalf of the applicant that she was not a “mere bystander” who was a witness to, or present when, the offence of assault occasioning bodily harm whilst armed and in company was committed against Mr Bertucci. The applicant was a person against whom a personal offence of the same description was committed. That offence was committed against her person. And for reasons I will give, she suffered an injury, in the form of mental or nervous shock because of that offence.

101. [101]
     As I have stated I am satisfied on the balance of probabilities that the applicant suffered bruising and swelling to at least one of her arms, as a result of protecting herself against being struck with a bat. It was on this basis I sentenced the second, third and fourth respondents to imprisonment for two years for assault occasioning bodily harm against the applicant, whilst armed and in company. The sentence was on the basis they were equally involved in the violence which occurred to her. As I have also stated I regard the first respondent who received the same sentence from the Senior Judge for the same offence as being equally involved in this violence.

102. [102]
     The applicant was therefore a person to whose person violence was offered as a result of that offence.^[124]  To adopt the statement by McKenzie J in R v Moors, ex parte Alex^[125] which has been referred to with approval in other cases, she is a person in respect of whose person the offence was committed and which offence is referred to in the indictment.

103. [103]
     The present case is to be distinguished from R v Moors, ex parte Alex where the difficulty facing that applicant was that he was not a person to whom violence was offered in respect of the offence charged.  In this case while the respondents have been convicted of assault occasioning bodily harm whilst armed and in company in respect of Mr Bertucci, they have also been charged and convicted of a separate offence of the same description against the applicant.  Similarly it is distinguishable from Pettingill v Minister for Justice and Attorney-General where no offence had been made out in relation to that applicant.^[126]

104. [104]
     This case is also distinguishable from the two decisions of McGill SC DCJ to which I have referred. Unlike the situation in Schmith v Nolan^[127] the respondents have been convicted of an offence involving an assault against the applicant.  It is also unlike the situation in GKB v Bell^[128] where the sentencing judge did not say that the presence of that applicant in the motor vehicle involved any circumstances indicating a personal offence committed against the applicant, or that he took any such matter into account in sentencing.

105. [105]
     To adopt the language of the court in French v Green,^[129] in this case there is an offence charged which has a relationship to the person of the applicant.  This is an offence of which the respondents have been convicted.

106. [106]
     I am also satisfied on the balance of probabilities that the applicant suffered an injury, in the form of mental or nervous shock, because of that offence.

107. [107]
     As quoted in [47] of this judgment Dr Chalk expresses the view that it is fairly clear her post-traumatic stress disorder has developed as a result of the assault that she witnessed “and endured” over a period of time.

108. [108]
     Although during argument I expressed the view to Ms Willson that this was a very ambiguous statement which could mean the applicant endured the assault by having to watch it, upon reflection I am satisfied in context that the reference to the applicant enduring the assault is to the assault upon her, when she attempted to go to MrBertucci’s aid by grabbing a stick and hitting one of his assailants.

109. [109]
     As Dr Chalk also states, her history confirms the current symptomatology has resulted not only from the vicious assault where she thought Mr Bertuccui was going to be killed, but also where she may have been seriously injured herself. This follows her telling Dr Chalk that at the time of the incident she thought they were both going to die.

110. [110]
     Although Mr Stoker concluded that the applicant suffered psychological distress both as a result of witnessing the car impacting Mr Bertucci’s motorcycle and the subsequent assault on him, for the reasons I have given at [72] of this judgment, where there are differences between his opinion and that of Dr Chalk, I give most weight to Dr Chalk’s opinion. In addition the suggestion that any of the cars driven by the Rebels impacted Mr Bertucci’s motorcycle is inconsistent with the view I took at sentencing for the offence of dangerous operation of a motor vehicle, which was that the third respondent, although swerving his car into the motorcycle riders, narrowly missed contact with them. I proceeded on the basis that the evidence suggested the motorcycle ridden by Mr Bertucci, on which the applicant was a pillion passenger, 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, sustaining injuries as a result. The other rider was the applicant in Hines v Rauhina.^[130]  Dr Chalk also refers to a car smashing into the back of Mr Bertucci’s motorcycle, in summarising the facts which were related to him.  However, unlike Mr Stoker, he does not state that the applicant suffered psychological distress as a result.  To the contrary in his opinion the incident involving the motorcycle has not contributed in any substantial way to her ongoing symptomatology.  He states that it is not the event which has lead to her post-traumatic stress disorder.  In these circumstances he does not consider a separate PIRS rating to be appropriate.  I proceed on this basis.

111. [111]
     It follows in my view that the applicant’s post-traumatic stress disorder is attributable to the offence of assault occasioning bodily harm whilst armed and in company which was committed against her by the respondents, and from which she thought she was going to die.

112. [112]
     I accept it is also attributable to the physical acts of violence which she saw inflicted on Mr Bertucci, which as Dr Chalk stated, was clearly the most upsetting and distressing part of it all.^[131]  However, this does not lead to any reduction of the award, in circumstances where she was not a mere bystander.  This is consistent with the approach taken by White J in Summers v Dougherty & Anor^[132] to the situation of Mrs Summers, whose responses to the home invasion were attributable not only to the threats to her, but also to the physical acts of violence which she heard and saw inflicted upon her husband and the threats to her two children.  This did not lead to a reduction of the award of compensation to her.  I do not consider that it makes any difference that violence was offered to Mrs Summers personally as part of the same conduct for which the respondent was convicted for offences in which her husband was named as the victim.  In this case the respondents have been convicted of discrete offences of assault occasioning bodily harm whilst armed and in company against Mr Bertucci on the one hand and the applicant on the other.  As the applicant described it all she could see was ‘chaos’, and as a matter of commonsense her own feelings of fear from the assault upon her were clearly heightened from the closely associated assault she witnessed against Mr Bertucci.

113. [113]
     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 her injury in the form of mental or nervous shock. She is therefore entitled to compensation for this injury under the COVA.

114. [114]
     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 her post-traumatic stress disorder at the time of their interviews with her. In the case of Dr Chalk, this was about 15 months after the incident. Dr Chalk agrees with Mr Stoker that she is in need of further treatment. In his opinion this is psychiatric treatment as opposed to the psychological counselling that Mr Stoker recommends. As I have previously observed, I give most weight to Dr Chalk’s opinion to the extent of any differences between them.

115. [115]
     However, there is substantial consistency in evidence about the applicant’s symptoms. This includes flashbacks of the “assault incident”, as Mr Stoker describes it, and general anxiety and panic symptoms.

116. [116]
     Dr Chalk referred to her having images of the assault in her head, although he thought treatment had helped get these under control. Whereas Mr Stoker considered there had been no improvement over time in the flashbacks which he said happened on a weekly basis.

117. [117]
     Dr Chalk referred to her suffering panic symptoms at times. She told Mr Stoker she becomes panicky when she sees people who look like the offender.

118. [118]
     The applicant described to Dr Chalk experiencing significant emotional difficulties since the time she thought she might die during the incident. This is said to include her having no patience, angering easily and being intolerant. Consistently, Mr Stoker refers to her being more emotional and irritable.

119. [119]
     Dr Chalk refers to the end of her sexual relationship with Mr Bertucci, and of her becoming apathetic since the incident. He also refers to her sleeping poorly without the assistance of cipramil. Similarly Mr Stoker describes her libido becoming poor, her being less motivated to work and experiencing sleep disturbance.

120. [120]
     Dr Chalk says she occasionally feels hopeless and helpless, but that these feelings are not pervasive. Mr Stoker noted she felt discouraged about the future.

121. [121]
     In addition Mr Stoker describes her as becoming more introverted and experiencing sleep disturbance since that time. He also refers to her being too fearful to get back on a motorcycle.

122. [122]
     Dr Chalk opines she was suffering mild to moderate depression. He considered she needed to resume her antidepressant medication for treatment of the disorder. As previously observed, I take this to be a reference to cipramil. On the other hand Mr Stoker thought she was suffering from moderate to severe depression when he saw her three months earlier.

123. [123]
     Dr Chalk did not state his opinion as to the degree of mental or nervous shock suffered by the applicant. Mr Stoker’s opinion was that this was mild, and placed her psychological impairment in the mid to upper level of the mild range.

124. [124]
     Mr Stoker had expressed a similar opinion in relation to the applicant in Hines v Rauhina.^[133]  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 assessment concerning that applicant because his mental or nervous shock arose out of the same incident.

125. [125]
     I was satisfied on the balance of probabilities that the applicant in Hines v Rauhina suffered this injury as a result of the indictable offence committed against him by the respondent, who is the first respondent in the current application, and which caused him grievous bodily harm.

126. [126]
     In that case I assessed compensation at 15% of the scheme maximum. This is the level of compensation sought on behalf of the applicant in this case.^[134]

127. [127]
     I considered that assessment to be appropriate in circumstances where the applicant suffered an adjustment disorder with depressed mood and anxiety, associated with lower frustration tolerance, anxiety when riding his motorcycle, 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.

128. [128]
     It is readily apparent that there are significant similarities between the symptoms associated with the current applicant’s post-traumatic stress disorder and those of the adjustment disorder experienced by the applicant in Hines v Rauhina.  I note that similarly to the anxiety experienced by that applicant when riding his motorcycle, the current applicant had been too fearful to get back on a motorcycle in the period of about 12 months between the incident and when she saw Mr Stoker.  Given her de facto relationship with Mr Bertucci, who was associated with the Bandidos, it is reasonable to infer this was an activity which had previously been a source of pleasure to her.

129. [129]
     It is clear from Dr Chalk’s opinion that her post-traumatic stress disorder was not only persisting after 15 months but would persist in the future, such that she continued to be in need of psychiatric treatment. She also needed to resume her anti-depressant medication. Consistently with this, according to Dr Chalk she was seeing the psychiatrist, Dr Kazlauskus, on a reasonably regular basis.

130. [130]
     In Hines v Rauhina I referred to Sheppard v Moefaaua^[135] in which 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%.

131. [131]
     I considered, in all the circumstances, that the applicant in Hines v Rauhina had suffered a more serious injury than the applicant in that case.  I have reached the same conclusion in respect of the current applicant.  Having regard to the significant similarities between her symptoms and those of the applicant in Hines v Rauhina I consider that an award at 15% of the scheme maximum for mental or nervous shock (moderate), namely $11,250, is appropriate.  This is in accordance with the submission on the applicant’s behalf.

Contribution

132. [132]
     However, 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 to which regard must be had, and if so, whether they 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 that directly or indirectly contributed to her injuries.

133. [133]
     I have already concluded that the fact the applicant’s post-traumatic stress disorder is also attributable to the physical acts of violence she saw inflicted on MrBertucci, does not lead to any reduction of the award in circumstances where she was not a mere bystander.^[136]

134. [134]
     The written submissions on behalf of the respondents argue that in circumstances where the applicant has previously been prescribed the anti-depressant drug, ciprimal, for assistance with her withdrawal from cannabis use, no compensable injury is identified.

135. [135]
     However, the use of ciprimal to help her get off cannabis was about two years before she suffered a post-traumatic stress disorder as a result of the offence committed against her by the respondents. She stopped taking it after two months. My interpretation of the evidence is that she only commenced taking it again, after this incident, when it was prescribed by her general practitioner. There is no suggestion this had anything to do with cannabis use. When Dr Chalk says she found this “beneficial” he is clearly referring to the symptoms of the post-traumatic stress disorder and not cannabis use. It is for the treatment of the depressive symptoms associated with the disorder that Dr Chalk considered it necessary for her to resume taking this medication.

136. [136]
     Therefore, I do not consider there is anything about the circumstances in which she had previously been prescribed ciprimal for an unrelated purpose, which contributed directly or indirectly to her injuries in anyway.

137. [137]
     Similarly, I do not consider the fact she received what Dr Chalk referred to as “quite extensive” psychological treatment (including the prescription of anti-depressant medication from 1994 through to 1997 or perhaps later), contributed in anyway to her injury.^[137]  Nor does the fact that her somewhat dysfunctional family background would have had an adverse effect on her psychological development; or that she worries a lot and has some obsessive qualities.

138. [138]
     There is no evidence that any of these factors pre-disposed her towards a post-traumatic stress disorder or she had any symptoms of the disorder before the respondents committed the offence against her person on 25 February 2007. Dr Chalk says she had no previous psychiatric treatment, and she described no obsessive compulsive symptoms to him.

139. [139]
     Further, there is no evidence that there was anything in the applicant’s behaviour which operated to reduce the amount which would otherwise be awarded. Mr Nolan did not advance any such submission concerning this applicant. He specifically limited his submission, that there had been participation in activity which concerned possible violence from one bikie group to another, to the application by MrBertucci.

140. [140]
     Therefore, I conclude there was nothing in the applicant’s actions which requires a lower percentage of compensation to be fixed for her injuries as a consequence of section 25(7) of the COVA.

Liability of the respondents

141. [141]
     A single compensation order may be made against more than one convicted person.^[138]  Such an order may provide for separate and joint liability.^[139]  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 her.  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

142. [142]
     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 (minor/moderate)

The applicant is awarded 1% of the scheme maximum, namely $750.

Item 32 – Mental or nervous shock (moderate)

The applicant is awarded 15% of the scheme maximum, namely $11,250.  Therefore, the total assessment is 16% of the scheme maximum, namely $12,000.

Order

143. [143]
     The respondents pay compensation jointly and severally to the applicant, Debra Gaye Garner, in the sum of $12,000 pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld).