Laning v C-K[2010] QDC 425

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”).  On 10 June 2008, the respondent was convicted upon a plea of guilty to, inter alia, one count of assault occasioning bodily harm.  The applicant was the victim.  An issue as to jurisdiction has arisen in this case.  Written submissions on behalf of the applicant in relation to this issue were received on 16 June 2010.

Service

2. [2]
   I am satisfied that the respondent was duly served. There was no appearance by or on behalf of the respondent.

Jurisdiction

3. [3]
   The application for compensation pursuant to the Criminal Offence Victims Act 1995 has been brought in the District Court.  In relation to the relevant offence, the respondent was convicted before the Children’s Court of Queensland.  The Children’s Court is a court separate to the District Court.  I can find no power to transfer an application from the District Court to the Children’s Court.

4. [4]
   With the recent changes in legislation, if the applicant has brought the application in the wrong jurisdiction, he will be shut out from reapplying for compensation before the Children’s Court with the effect that he will be unable to seek compensation under the Criminal Offence Victims Act.  Any compensation would then only be available to him pursuant to the new compensation régime.

5. [5]
   Section 256 of the Juvenile Justice Act 1992 provides:

“To remove doubt, it is declared the Criminal offence Victims Act 1995, applies to an offence committed by a child, unless the contrary intention appears.”

A similar provision exists in the new legislation, The Youth Justice Act.

This provision says nothing about the court or courts within which an application for compensation is to be made.

6. [6]
   Section 24(1) of the Criminal Offence Victims Act provides, relevantly, as follows:

“This section applies if someone (the “convicted person”) –

1. (a)
    Is convicted on indictment of a personal offence; …”

Section 24(2) provides:

“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.”

7. [7]
   Section 24(2) is clear in its terms. Departure from the literal meaning of the words in the statute would rarely occur:

“… it is not unduly pedantic to begin with the assumption that words mean what they say … If, when the section in question is read as part of the whole instrument, its meaning is clear and unambiguous, generally speaking ‘nothing remains but to give effect to the unqualified, words’ …”.^[1]

Gibbs CJ continued:

“There are cases where the result of giving words their ordinary meaning may be so irrational that the court is forced to the conclusion that the draftsman has made a mistake, and the canons of construction are not so rigid as to prevent a realistic solution in such a case … .”

8. [8]
   In the same case, Mason and Wilson JJ stated:

“Generally speaking, mere inconvenience of result in itself is not a ground for departing from the natural and ordinary sense of the language read in its context.  But there are cases in which inconvenience of result or improbability of result assists the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because of the alternative interpretation more closely conforms to the legislative intent discernible from other provisions in the statute.”

...

“… when the judge labels the operation of the statute as ‘absurd’, ‘extraordinary’, ‘capricious’, ‘irrational’ or ‘obscure’ he assigns a ground for concluding that the legislature could not have intended such an operation and that an alternative interpretation must be preferred.  But the propriety of departing from the literal interpretation is not confined to situations described by these labels.  It extends to any situation which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.” (emphasis added).

9. [9]
   In schedule 3 of the Criminal Offence Victims Act, the following definitions exist:

‘Court’ for an application to a court before which a person has been convicted, includes a court of the same court level as that court.

‘Court of the same court level’ –

1. (a)
    As the Supreme Court – means the Supreme Court at any sittings anywhere; or

2. (b)
    As a District Court – means any District Court at any sittings anywhere.

8. [8]
   These definitions clearly deal with locality. However, what is significant is the omission in the definitions of any reference to the Children’s Court.

9. [9]
   There is no doubt that there are three separate courts before which a person may be convicted on indictment: Supreme Court, District Court and Children’s Court. Consequently, pursuant to s 24(2) of the Criminal Offence Victims Act, the person against whom the personal offence is committed may apply to the court before which the person is convicted.

10. [10]
    However, the Criminal Offence Victims Act must be regarded as legislation beneficial to a victim of an indictable personal offence.  Part 3 of the Act is headed:

“Compensation for personal injury from indictable offence”.

Section 19(1), relevantly, provides:

“This part establishes a scheme for the payment of compensation to a person (the “applicant”) –

1. (a)
    For injury suffered by the applicant caused by a personal offence committed against the applicant; …”

11. [11]
    The policy behind the legislation is to “advance the interest of victims”^[2] and, as part of that, to ensure payment of compensation to victims of indictable personal offences.

12. [12]
    In reality, whether a Children’s Court application for compensation or a District Court application for compensation, the application is lodged with the same registry staff. Although not all District Court judges are Children’s Court judges, all Children’s Court judges are District Court judges.^[3]  Indeed, the Children’s Court Act provides, relevantly, as follows:

5(2)If an Act expressly requires the Children’s Court to be constituted by a Children’s Court judge, the court must be constituted by either of the following –

1. (a)
    A Children’s Court judge;

2. (b)
    If a Children’s Court judge is not available – a District Court judge.^[4]

…

(5)In this section –

‘available’ means having regard to the orderly and expeditious exercise of the jurisdiction of the District Court and Children’s Court”.

13. [13]
    Whilst there exists a protocol that the judge who sentences an offender also hears any relevant application for compensation, that procedure is by no means necessary. Indeed, it is not infrequent that judges hear applications for compensation in respect of sentences imposed by retired judges and, when on circuit, judges not infrequently hear applications for compensation in respect of sentences imposed by other judges. It follows that in this matter had the application been filed in the Children’s Court and had all Children’s Court judges been unavailable on the hearing date (which may readily occur), a District Court judge may have heard the application.

14. [14]
    As it is, I am both a District Court judge and a Children’s Court judge. The respondent was convicted before me. As one might expect, if I were sitting in the Children’s Court jurisdiction and not the District Court jurisdiction to determine this application, my assessment would not be different.

15. [15]
    As noted above, it is my view that the omission of any reference to the Children’s Court in the definition of “court of the same court level” in the Criminal Offence Victims Act, is significant.  If the legislature intended that an application for compensation arising out of a conviction in the Children’s Court may only be brought in the Children’s Court (that is, to the exclusion of the District Court), there can be no logical explanation for not including in the definition of “court at the same court level”:

“(c) As a Children’s Court – means any Children’s Court at any sittings anywhere”.

16. [16]
    When one considers the unmistakable tie between the District Court and the Children’s Court, to which the legislature would not be blind, together with the policy behind the legislation to benefit victims and the clear legislative intent to compensate victims of indictable personal offences, and, in conjunction with these matters, the omission of any reference to the Children’s Court in the definition of “court of the same court level” in the Criminal Offence Victims Act, there is good reason to conclude that a literal reading of s 24(2) of the Act does not conform to the legislative intent “as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”. The realistic solution, reasonably open, is to read the Act as conferring jurisdiction on both the District Court and the Children’s Court to hear applications for compensation resulting from convictions in the Children’s Court for indictable personal offences.

17. [17]
    In my view the application has been brought in a correct jurisdiction.

Facts

18. [18]
    On 14 October 2006, the applicant and another were involved in a verbal altercation. It did not concern the respondent. However, the respondent punched the applicant in the jaw, knocking him to the ground. This punch was described in the sentencing remarks as “a cowardly king hit”.

Injuries

19. [19]
    The applicant sustained a fractured jaw as a result of the assault and consequently required plates to be inserted into his jaw region. On the day of the incident, the applicant was examined by Dr Meara of the Royal Brisbane Hospital.  Dr Meara stated in his report dated 29 March 2007:

“He was noted to have a fractured jaw and this was repaired on 16 October 2006 using plates and screws.  The plates were placed on the right parasymphyseal and angle regions of the jaw.  It was also noted at the time there were some crown fractures of his teeth for which he was to have dental follow up.”^[5]

20. [20]
    The applicant was examined by Dr Marty, dental surgeon, on 16 November 2006, who observed:

“…he presented with a missing upper left central incisor, the incisal 1/3^rd of his upper left lateral incisor missing (fractured off).  This fractured tooth (already slightly dark) had been splinted to his upper left canine and bother were still a bit loose.

His upper right canine, lateral incisor and central incisor were splinted together also and were now solid.”^[6]

21. [21]
    As a result of the dental injuries, the applicant was required to undergo treatment, including root canal treatment and is required to wear a denture. Importantly, Dr Marty stated that the long term consequences of such dental injuries are unpredictable and long term monitoring will be necessary as injuries may develop over time.

22. [22]
    On 1 March 2010, Dr Cole examined the applicant’s teeth and provided the following treatment prognosis:

“Due to the poor condition of the upper anterior teeth, I feel the treatment of choice would be to extract the remaining three incisor teeth and replace all four upper incisor teeth with an implant retained prosthesis.  This would also require some soft and hard tissue grafting in the anterior region.  This treatment would take approximately nine months to complete.  An estimated cost for this treatment would be $25,000.”^[7]

23. [23]
    On 8 September 2009, Dr Stoker, psychologist, examined the applicant and reported that the applicant is suffering from “Adjustment Disorder with Mixed Anxious & Angry Mood (Diagnostic & Statistical Manual of Mental Disorders – American Psychiatric Association [DSM-IV]).” Furthermore, Dr Stoker noted:

“He is leading a more circumscribed lifestyle, as outlined in my report. 

He is fearful of further assault and is more suspicious of people – he now avoids going out to social situations where there is the potential for violence.

…

It is my opinion he suffered a moderate degree of mental and nervous shock. 

His permanent partial percentage psychological impairment is in the mid to upper level of the moderate range.”^[8]

24. [24]
    Dr Stoker also noted that the applicant continues to suffer a cannabis and alcohol dependency disorder and that “He is using alcohol and Cannabis as a means of assuaging his psychological pain.”^[9]

25. [25]
    The injuries sustained by the applicant were categorised by counsel for the applicant as follows:

1. (a)
   Bruising and lacerations;

2. (b)
   Loss or damage of teeth;

3. (c)
   Facial fracture;

4. (d)
   Mental or nervous shock.

Assessment

26. [26]
    The maximum amount of compensation is reserved for the most serious cases and amounts in other cases are intended to be scaled according to their seriousness. The scheme maximum provided under the Act is $75,000.00. The award in a particular case is assessed by reference to the percentages of the scheme maximum provided in a compensation table (see s 25(4) of the Act).

27. [27]
    Section 25(7) of the Act requires the court, in deciding what amount should be ordered, to have regard to everything relevant including any behaviour of the applicant that directly or indirectly contributed to the injuries. I am satisfied that there was no behaviour on the part of the applicant that directly or indirectly contributed to his injuries, within the meaning of s 25(7) of the Act.

28. [28]
    The relevant items in the compensation table for the applicant’s injuries are:

Item 1   Lacerations/bruising (minor/moderate) - (1% - 3%) = $750 - $2,250.

Item 5 Loss or damage of teeth – (1% - 12%) = $750 - $9,000.

Item 8 Facial Fracture (Severe) – (20% - 30%) = $15,000 - $22,500.

Item 32 Nervous or mental shock (moderate) – (10% - 20%) = $7,500 - $15,000;

29. [29]
    In relation to the lacerations/bruising, it is submitted that the applicant be awarded 3% of the scheme maximum. The only evidence in relation to this head of damage comes from a photograph of the applicant’s face showing abrasions. Doing the best I can, it is my view that an award of 1% of the scheme maximum would be appropriate.

30. [30]
    In relation to the loss or damage of teeth, it is submitted that the applicant be awarded 12% of the scheme maximum. In my view, the applicant ought be awarded 12% of the scheme maximum for the loss and damage to teeth. The applicant has suffered, and it seems likely that he will continue to suffer, significantly as a result of this damage and loss.

31. [31]
    In relation to the facial fracture (severe), it is submitted that the applicant be awarded 25% of the scheme maximum. Associated with this injury was some sensation problem in the lower lip. The evidence discloses that in relation to that matter there was gradual improvement up to November 2006 and it was then hoped that this problem would continue to improve. There is no further evidence in relation to this matter. However, in his affidavit sworn 1 April 2010, the applicant has stated, and I accept, that he continues to suffer pain in his jaw. On the material before me, I agree that 25% of the scheme maximum would be the proper award.

32. [32]
    In relation to nervous or mental shock, it is submitted that the applicant be awarded 18% of the scheme maximum. In my view, on the material, an award of 15% of the scheme maximum would be the appropriate award under this head.

Orders

33. [33]
    The total amount of compensation is $39,750.

34. [34]
    The compensation awarded for each category of injury is as follows:

1. (a)
   Lacerations/bruising:  $750 (1%);

2. (b)
   Loss or damage of teeth:  $9,000 (12%);

3. (c)
   Facial fracture:  $18,750 (25%);

4. (d)
   Nervous or mental shock:  $11,250 (15%).

35. [35]
    I order that the respondent pay to the applicant the sum of $39,750 compensation pursuant to the Criminal Offence Victims Act 1995 in respect of the injuries suffered by him as a result of the personal offence for which the respondent was convicted in the District Court at Brisbane on 10 June 2008.