Tulloch v Sambo[2010] QDC 531

DISTRICT COURT OF QUEENSLAND

INTRODUCTION

1. [1]
   HIS HONOUR:  The respondent, Leroy Trevor Sambo, pleaded guilty before me at the Mt Isa District Court on 19 November 2007 to an indictment which alleged that he entered premises and committed assault occasioning bodily harm while armed on the applicant, Ms Daphne Adele Tulloch.

2. [2]
   On 20 November 2007 the respondent was sentenced to twelve months imprisonment with parole ordered after serving three months (exhibit DAT-6 affidavit of Daphne Tulloch sworn 3 March 2009). The circumstances of the offending were outlined by the Prosecutor on sentence at pp 1-2 - 1-3 (Exhibit JCJ-5 affidavit of Jenna Johnsen sworn 5 August 2010).

FACTS 

3. [3]
   "On the 8th of May 2007, the applicant, Daphne Adele Tulloch, a 69 year old woman, was the manager of Tulloch Music World, located at 11 Simpson Street in Mt Isa. The applicant was working in her store when the respondent entered the premises with a plank of wood. He entered - he was the only person other than the applicant in the store at the time - and approached the applicant, who was sitting at her desk. Without speaking to the applicant in any way, he struck her across the back of the head with the plank of wood. That caused part of the plank to break off. He then sought to strike her again. The applicant brought up her left arm to protect herself and she was hit twice in that arm. The applicant screamed and, in what is a real act of bravery, attempted to fight back. The respondent ran from the store up Simpson Street. He was chased by numerous members of the public and he was located by police when members of the public waved them down".

INJURIES

4. [4]
   As the applicant's Victim Impact Statement indicates, the broken bone in her left hand required specialist treatment at Townsville Hospital, including the insertion of a wire in the applicant's finger to hold the bone together, lengthy periods with casts and an operation to remove the wire (exhibit DAT-2, affidavit of Daphne Tulloch sworn 3 March 2009).

THE LAW

5. [5]
   The application in these proceedings was filed on 27 March 2009 pursuant to the Criminal Offence Victims Act (COVA) which was repealed by the Victims of Crime Assistance Act [2009] (VOCAA) on 1 December 2009. This application proceeds pursuant to the repealed provisions of COVA, as provided for in VOCAA s.167(2).

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

COMPENSATION

7. [7]
   Ms Johnsen, who appears for the applicant, seeks compensation as follows:-

3. (1)
   Item 2 - Bruising/Laceration etc (severe) - 3% - 5%.

8. [8]
   The applicant suffered bruising when struck on the head and arm by the respondent with a piece of wood. That bruising is clearly illustrated in exhibits JCJ8 - JCJ13 (affidavit of Jenna Johnsen, sworn 5 August 2010).

9. [9]
   I consider that this bruising, although serious, is not at the most serious end of the scale, and accordingly should receive an award at the mid-range of item 2, namely, 4% of the scheme maximum ($3,000).

3. (2)
   Item 17 - Fracture/Loss of Finger - 2% - 8%.

10. [10]
    The applicant suffered a fracture of her left hand little finger. It was a complicated fracture, it required surgery, it meant that she could not longer play or teach piano or type properly, and forced her to sell her music business, which she had run for many years. In short, it was a catastrophic injury for her as a musician and business owner. I have no hesitation, as submitted by Ms Johnsen, in awarding the maximum of 8% of the scheme for this particular item, namely, $6,000.

3. (3)
   Item 32 - Mental or Nervous Shock (moderate) - 10% - 20%.

11. [11]
    The report of Dr Robert Walkley, Psychologist, dated 7 April 2009 (exhibit RMW-3, affidavit of Robert Walkley sworn 20 May 2009) diagnoses the applicant as suffering from post-traumatic disorder (PTSD) - acute sub-type.

12. [12]
    Dr Walkley notes the following symptoms (exhibit RMW-3 p.7, affidavit of Robert Walkley sworn 20 May 2009), "Intrusive distressing recollections of the event; a generalised elevated fear response; some hyper-vigilance and exaggerated startled response as well as a withdrawal from certain aspects of [the applicant's] life as a result of her experience". Dr Walkley notes that, "It appears that in the main, these symptoms went into remission at about the three to four month junction post-assault".

13. [13]
    Dr Walkley then notes that the symptoms, "To some degree…were reactivated towards the middle and end of 2008 when Mr Sambo was released from prison. The overwhelming impact upon Ms Tulloch has been the impact of these injuries upon her capacity to manage her business. As a result of her lack of strength and inability to carry out certain tasks within her business - a business she had run for some thirty years - she was forced to divest herself of this business at a loss.

14. [14]
    As well, and following the death of her husband, the shop and the music tuition she engaged in had filled a very big portion of Ms Tulloch's life in terms of providing her with variety, social interactions, opportunity and enjoyment. As she describes it, this whole experience has left a 'very large hole' in her life and she feels continually victimised by her experience and something which she has no control over.

15. [15]
    Indeed, much of her present thinking on the crime involves her rather ineffective quest to understand a random violent act that has had such dramatic impacts upon the life she had made and envisaged for herself.

16. [16]
    To date, Ms Tulloch has not developed any depressive symptomatology of alternate anxiety disorders. Ms Tulloch still experiences some aversive feelings with regards [to] young Aboriginal males, but it is a feeling that she regrets, feels somewhat embarrassed by and works to overcome.  It is likely to remain a characteristic of her presentation.

17. [17]
    It's also very likely that at certain times of the year, and also at times when triggered by certain events some elements of her traumatic experience will be reactivated but this is likely to remain short lived".

18. [18]
    Dr Walkley did recommend that Ms Tulloch should access treatment namely, six sessions at $200 per hour. (Exhibit RMW-3 pp 7-8 affidavit of Robert Walkley sworn 20 May 2009).

19. [19]
    In my view, in these circumstances, it's entirely appropriate to make an award at the top of the item 32 range, namely, 20% of the scheme maximum ($15,000).

CONTRIBUTION

20. [20]
    I do not consider that the applicant has contributed in any way whatsoever, direct or indirect, to her own injuries (COVA s.25(7)). As Dr Walkley noted, it truly was an irrational random act of violence by a stranger.

CONCLUSION

21. [21]
    I order that the respondent, Leroy Trevor Sambo, pay the applicant, Daphne Adele Tulloch, the sum of $24,000.