Chong v Chong[2010] QDC 530

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   HIS HONOUR: The respondent Doramie Grace Chong was sentenced by Judge Kingham DCJ, on 3 September, 2007, at the District Court, Mornington Island, to two and a half years imprisonment on a single count of unlawful wounding of the applicant (who is the mother of the respondent). The respondent was placed on immediate parole on the day of sentence.

2. [2]
   This sentence was the subject of an unsuccessful Attorney-General's appeal, (R v Chong; ex-parte, Attorney-General (Qld) [2008] QCA 22.)

FACTS

3. [3]
   The facts are neatly and appropriately summarised at paragraphs 5 and 6 of the decision in R v Chong, ex-parte, Attorney-General (Qld), and I quote:  "The unlawful wounding occurred on the evening of 19 February, 2007, when the [applicant], who is the [respondent's mother], the respondent and the respondent's defacto husband went back to their home after some substantial drinking at the hotel.

4. [4]
   The [applicant] was then living with the respondent and her husband.  The respondent and her husband had an argument, and the respondent left the house.  There was then an argument between the [applicant] and the respondent's husband, and he hit the [applicant] on the head with a plastic bucket, and then a length of hard plastic pipe.

5. [5]
   The respondent returned home and saw them fighting and went inside the house and came outside with a knife.  Her husband walked away, and the respondent said to the [applicant] 'I'll stab you'.  She stabbed her mother in the leg, she then stabbed her twice more in the back, and then walked off, desisting in the attack of her own accord.  The [applicant] called for help and an ambulance was summonsed."

INJURIES 

6. [6]
   The injuries were outlined by the prosecutor to the sentencing Judge in the following terms:  {Exhibit JCJ-1 (Sentencing Submissions) pp 6-7, affidavit of Jenna Johnsen, sworn 8 September, 2010}:  "The [applicant] told the [respondent] that she was bleeding.  The [respondent] then walked away with the knife, and that was the conclusion of the incident.  The [applicant] yelled out for help, and two girls came to her assistance, and the ambulance and the police were called as a result of that.

7. [7]
   In all, the [applicant] suffered three puncture wounds, so there is a bit of ambiguity there...in that there were only two wounds to the back, although the [applicant] felt that she was stabbed three times.  One was to the right leg, one to the right shoulder blade, and one to the back, to the left of the spine.

8. [8]
   Each of the wounds were 1 to 2 centimetres long.  The physical depths of the wounds was not recorded, but each of the wounds did require suturing.  A statement from Dr Eritara Tekieru confirms that in relation to each of the injuries, the true skin was broken, and each of the wounds satisfies the definition of wounding."

9. [9]
   The Court of Appeal summarised the injuries as follows, Paragraph 6 R v. Chong ex-parte Attorney-General (Qld) [2008] QCA 22:  "The [applicant] suffered three wounds, each being 1 cm to 2 cm long which required superficial suturing but not surgery.  The stab wounds were relatively minor."

THE LAW

10. [10]
    The application in this matter was filed on 18 December, 2009, subsequent to the repeal of the Criminal Offence Victims Act (COVA), on 1 December, 2009, by the Victims of Crime Assistance Act [2009] (VOCAA).

11. [11]
    I refer to and adopt my exposition of the relevant applicable law in respect of VOCAA at paragraph 6 of Kennedy v. Faafeu [2010] QDC 21.  This current application is compliant with the relevant transitional provisions of VOCAA.  Accordingly, it proceeds pursuant to the repeal provisions of COVA.

12. [12]
    I refer to and adopt my exposition of the relevant applicable law in respect of COVA as set out in paragraph 6 of Paterson v. Chand & Chand [2008] QDC 214.

COMPENSATION 

13. [13]
    Ms Johnsen who appears for the applicant seeks compensation as follows:-

3. (1)
   Item 26 - gunshot/stab wound (severe) - 15 per cent - 40 per cent.

14. [14]
    Ms Johnsen seeks an award at the mid range of Item 26, noting that the wounds were 1 - 2 cm deep, required suturing, and that the applicant was experiencing on-going pain, as reported to Dr Walkley (Exhibit RMW-3 p.5 Affidavit of Robert Walkley, sworn 23 November, 2009).

15. [15]
    However, I am mindful of requirement to scale awards within the range as set out in the compensation table (para 8, Ward v. Dooley [2000] QCA 493).

16. [16]
    Given the description of the injuries by the Court of Appeal as "relatively minor", (para 6 R v Chong, ex-parte, Attorney-General (Qld) [2008] QCA 22) taking into account the nature and extent of those injuries, and balancing that against at least some on-going effects, it is in my view, more appropriate to make an award under Item 25 (gunshot/stab wound (moderate)).

17. [17]
    Accordingly, I award 10% of the scheme maximum ($7500) pursuant to Item 25.

3. (2)
   Item 33 - mental or nervous shock (severe) - 20 per cent - 34 per cent.

18. [18]
    Dr Robert Walker, psychologist, diagnoses the applicant as suffering from post traumatic stress disorder (PTSD), with a duration post injury of 6 - 8 months.  Dr Walker notes that the applicant "is left with some remnants and residual transient symptoms of her PTSD, but would not presently [as at 3 November, 2009] qualify for such a diagnosis."  Exhibit RMW‑3, p.6 Affidavit of Robert Walkley, sworn 23 November, 2009.

19. [19]
    Dr Walker considered that the applicant's mental or nervous shock was, in the initial 6 - 8 months post offence, in the moderate level, but had subsided (as at the date of his report) to the minor level.

20. [20]
    In my view, therefore, despite Ms Johnson's submissions that an award should be made in the range of 25 - 30 per cent, it seems more appropriate in my view, to make an award towards the mid-range of Item 32 (that is mental or nervous shock (moderate)).

21. [21]
    Accordingly, I award 18 per cent of the scheme maximum ($13,500) pursuant to Item 32.

CONTRIBUTION

22. [22]
    I do not consider that the applicant has contributed in any way, direct or indirect, to her own injuries, (COVA  s.25 (7)).

CONCLUSION

23. [23]
    I order that the respondent, Doramie Grace Chong, pay the applicant, Karen Lee Chong, the sum of $21,000.