DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an assault by the respondent on 6 May 2008.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.  The originating application was filed on 29 January 2010.  The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined pursuant to the Criminal Offence Victims Act 1995. 

2. [2]
   On 22 January 2009 in the District Court of Queensland at Toowoomba, the respondent pleaded guilty to, inter alia, assault occasioning bodily harm. He was sentenced to 3 years imprisonment. He was sentenced to 5 years imprisonment for grievous bodily harm inflicted upon his grandmother on the same occasion. His parole eligibility date was set at 1 January 2010. Pre-sentence custody of 261 days was taken into account, but was not declared as imprisonment already served under the sentence.^[1]

3. [3]
   The application and supporting affidavit material were served on the respondent at the Borallon Correctional Centre on 9 July 2010.^[2]

4. [4]
   The Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978.  The applicant’s written submissions and supporting affidavit material were served on the Public Trustee on 9 September 2010.  The applicant’s originating application and supporting affidavit material were served on the Public Trustee on 10 September 2010.^[3]

5. [5]
   There was no appearance by or for the respondent at the hearing on 1 November 2010.

Circumstances of the offences

6. [6]
   The applicant and her mother were assaulted by the respondent on 6 May 2008. The respondent is the applicant’s son.^[4]

7. [7]
   The applicant was living with her mother at the time of the offence. The respondent came to his grandmother’s home in a drug-induced psychosis. He became angry with the applicant and her mother and then assaulted both of them. The applicant was punched and knocked to the ground. The respondent then kicked the applicant while she lay on the ground.^[5]

Injuries and medical reports

8. [8]
   In her affidavit filed 29 January 2010, the applicant states that she remained in hospital for 4 days following the assault and that she remained away from work for 2 weeks because of the extent of her facial bruising. She has been prescribed medication for sleeping problems, anxiety and depression. She states that she is unable to sleep well since the assault, causing her to make mistakes at work. She remains nervous and has feelings of guilt about the assault on her mother. The applicant has undergone psychological treatment and counselling. At the time of swearing her affidavit, the applicant was awaiting Medicare funding to undergo further psychological treatment.

9. [9]
   In his report dated 17 June 2010,^[6] the applicant’s general practitioner Dr Mark Macdermott states that on examination in hospital on 7 May 2008 and again prior to discharge on 9 May 2008, the applicant:

“…had extensive bruising to her left periorbital region of the eye, bruising of the left corner if her mouth, bruising of the back of her left side of her head, swelling and bruising of her left ankle, and she was suffering from acute anxiety associated with the assault.

On re-examination on 09/05/08 and prior to discharge from hospital, it was evident that further bruises were appearing on her right thigh, right loin, left forearm as well as those previously documented.

…

She has continued to have some pain of her right upper limb following the trauma, requiring injection therapy.”

10. [10]
    Dr Macdermott also notes the applicant to have had “a severe exacerbation of her psychological symptoms including anxiety and depression and that will require ongoing therapy for a number of years.”

11. [11]
    In his report dated 20 June 2010,^[7] psychologist Gary Logan states suffers from posttraumatic stress disorder with major depression, along with the exacerbation of a long standing attention deficit and hyperactivity disorder.  He considers the assault has had a severe effect upon the applicant’s work, family and social life and that it will require long term medical and psychological treatment.  Mr Logan states that the applicant presented with extensive depressive, re-experiencing and avoidant symptoms as a consequence of the assault, including:^[8]

• an enduring and pervasive sense of depression and sadness since the assault;
• suicidal ideation, however without any plan or urge to act upon this;
• insomnia;
• persistent nightmares of the event, occurring on average three time per week;
• being withdrawn and avoiding socialising;
• avoiding men wherever possible;
• being less affectionate to her other son, causing the applicant great distress;
• increased irritability and frequently having angry outbursts; and
• hyper vigilance with an exaggerated startle response.

12. [12]
    Mr Logan states that the applicant reported suffering intermittent depression throughout her life. Mr Logan notes that a history of physical, psychological and verbal abuse both from the applicant’s father and ex-husband likely acted as precursors to her anxious and depressed reaction to the subject assault. He suggests that the applicant has suffered from attention deficit with hyperactivity throughout her life and that her current psychological symptoms have exacerbated this condition.

The applicable principles

13. [13]
    The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

14. [14]
    The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00.  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

15. [15]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley.^[9]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%.  This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.”^[10]

The applicant’s submissions

16. [16]
    Ms Glynn for the applicant submitted that the following injuries in the compensation table were applicable:

17. [17]
    She therefore sought an award of 26% of the scheme maximum, which is $19,500.

Assessment

18. [18]
    The report of Dr Macdermott clearly indicates that the applicant sustained extensive bruising in the assault. Item 2 in the compensation table (Bruising/laceration etc (severe)) provides for a range of 3%-5% of the scheme maximum, while item 1 in the compensation table (Bruising/laceration etc (minor/moderate)) provides for a range of 1%-3% of the scheme maximum. I accept Ms Glynn’s submission that an assessment of 3% of the scheme maximum is appropriate, leading to an award of $2,250.

19. [19]
    The applicant also suffers from quite extensive psychological symptoms as a consequence of the assault. Mr Logan states that these symptoms have had a severe effect upon the applicant’s life. Both Mr Logan and Dr Macdermott state that the applicant will require extensive psychological treatment. The range provided for in item 33 in the compensation table (Mental or nervous shock (severe)) is 20%-34% of the scheme maximum. I am of the view that Ms Glynn’s submission for an award of 23% of the scheme maximum is reasonable. I therefore assess an award of $17,250 under item 33 in the compensation table.

20. [20]
    This leads to a total assessment of $19,500.

Contribution

21. [21]
    In SAY v AZ,^[11] Holmes JA stated:

“Only those injuries to which the relevant offence has materially contributed will be compensable. … Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas J.A. in Sanderson v. Kajewski will be necessary.  The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment.”

22. [22]
    In his report, Mr Logan is of the view that the applicant’s posttraumatic stress disorder with major depression is the result of the assault upon her by the respondent while recognising the precursor role played by the applicant’s history of physical, verbal and psychological abuse. I am of the view that the assessment takes into account the applicant’s history of depressive symptoms and reflects the effect of the assault upon her.

23. [23]
    There is no behaviour of the applicant that contributed directly or indirectly to her injuries.

Order

24. [24]
    I order that the respondent pay to the applicant the sum of $19,500 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Toowoomba on 22 January 2009.