DISTRICT COURT OF QUEENSLAND

Introduction

2. [2]
   The application in this proceeding was filed on 18 November 2009 and seeks what is commonly called criminal compensation for injuries received as a result of an offence which led to a conviction of the Respondent on 17 December 2007 upon indictment for assault.

3. [3]
   There was no appearance for the Respondent and I am satisfied the Respondent has been appropriately served.

Background

4. [4]
   The application came on hearing before me on 3 March 2010.

5. [5]
   Although the Criminal Offence Victims Act 1995 (“the Act’) was repealed by the Victims of Crime Assistance Act 2009, by reason of the transitional provisions (in particular, ss 154 and 155) an applicant may still apply for a relevant order pursuant to s 24 of the Act.

Section 24(1)

6. [6]
   Section 24(1) of the Act provides that the section applies if the convicted person – here the Respondent – is convicted on indictment of a personal offence. (See paragraph (a).) From the Certificate of Indictment of Details it is clear that the Respondent pleaded guilty to one count of assault on 31 August 2005 at Brisbane in the State of Queensland, with the Respondent so pleading guilty on 19 September 2007.

7. [7]
   Section 24(2) of the Act states that the person against whom the personal offence is committed – here the Applicant – may apply to the court before which the person was convicted for an order that the convicted person pay compensation to the Applicant for injuries suffered by the Applicant because of the offence. The Respondent was convicted before the District Court. So that is satisfied.

8. [8]
   As for the matter of both the “personal offence” and the “injury”, since “personal offence” is defined by s 21 of the Act as an indictable offence committed against the person of someone, and since it is clear that the Applicant has suffered, as a result of the offence, personal injuries, the legislation is satisfied to that extent also.

9. [9]
   With respect to the claimed injury of “mental or nervous shock”, it is clear from the decision of Byrne SJA in RMC v NAC [2009] QSC 149, a decision which I intend to follow, that “nervous shock” in the Act is confined to a recognisable psychiatric injury or disorder: at [38]. Consequently, since the psychiatrist, Dr Barbara McGuire, has concluded that the Applicant has suffered post traumatic stress disorder (“PTSD”), “mental or nervous shock” has been established.

Sentencing judge

10. [10]
    From decisions such as Chong v Chong [2001] Qd R 301 and Facer v Bennett [2002] 2 Qd R 295, it is necessary for me to proceed on the basis on which the offender was sentenced. Nase DCJ on 19 September 2007 noted that the offence of which the respondent was convicted was constituted by a single blow to the side of the complainant’s face.  This happened at a time when she had her young son and elderly mother in the car with her. He further held that he had no doubt that the origin of the offence lay in the respondent’s own bad temper, with it reflecting very badly on him that the victim of the bad temper was a woman.

Application

11. [11]
    It was noted by Irwin DCJ in VL v HHL [2010] QDC 12 that s 26 of the Act read in its entirety aims to encourage only one criminal compensation order for one episode of injury without duplication, referring primarily to Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337: at [14]. As also noted in VL, when the issue came before the Court of Appeal in Wren v Gauli [2008] 2 Qd R 383, it was held that, where it is practical to make separate assessments under each applicable Item in the Table whilst at the same time avoiding duplication, such a course (can and) should be adopted: at 389 [24].

12. [12]
    Here, it was noted by Nase DCJ, at least so far as the physical injuries are concerned, that the offence was constituted by a single blow.

13. [13]
    As the reasons in Wren went on to observe, in some cases the “more than one order” approach may be impractical and it may be equally open to the judge to regard, what otherwise appears to be a distinct result of the offence, as part and parcel of the major aspect of the offence: at 389 [25]-[26].  On such occasions, if an injury that is best described in one Item is instead assessed together with another injury under another Item in order to avoid duplication, it may be necessary to make an adjustment to cater for differences between the ranges or maxima for each Item: at 390 [29].

14. [14]
    Applying such principles here, I conclude that it is not appropriate to make separate assessments under both Item 1 and Item 21. Rather, applying the legislative requirement imposed upon me, I determine that: first, Item 2 reflects better the combination of the results of the single blow dealt; and, secondly, Item 2 deals appropriately with the injury of bruising/laceration etc (severe), being a range of 3% to 5%.

Physical injuries

15. [15]
    Thus, applying Item 2 of Schedule 1, taking into account the clinical notes of Dr Vincent Crowley, a general practitioner from the Chermside Medical Centre, and the affidavit of the Applicant, I determine that the appropriate percentage overall is 4%. This scaling exercise is mandated because s 22(4) of the Act states that the maximum amount of compensation provided is reserved for the most serious cases. While this is a serious case, it does not fall within the characterisation of being the “most serious” of such cases.

Psychiatric injury

16. [16]
    The diagnosis and prognosis of Dr McGuire is that the Applicant’s condition “was severe and is now moderate” (emphasis in original report).

17. [17]
    What that raises is a problem that the Act does not directly address. Nor have I been able to find anything in appellate authority which commands one approach over the other.

18. [18]
    Therefore, the approach that I adopt is that when the Act requires me to make a decision about what Item in Schedule 1 applies, concern must be directed at what the nature of the “injury” is that was suffered “because” of the offence. That can only be the injury that is originally suffered which, in turn, means that where a later diagnosis is that the severity of the original injury is now moderated, that is merely something that is taken into account in assessing, pursuant to the second limb of s 22(4) of the Act, where in the scaling a particular case falls.

19. [19]
    Bearing in mind that approach, in this case while the original injury would therefore fall within Item 33 covering “severe” mental or nervous shock, it must be near the lower end of that range because of the prognosis reached by Dr McGuire.

20. [20]
    Hence, I assess the percentage at the bottom part of that range, namely, 20%.

Order for compensation

21. [21]
    Since the addition of the percentages under Item 2 and Item 33 add, in total to, 24%, and since regulation 2 of the Criminal Offence Regulations 1995 ascribes in essence, $750.00 to each 1%, the amount that I order is $18,000.

22. [22]
    The orders I make are:

1. That the Respondent pay to the Applicant an amount of $18,000 under s 24 of the Criminal Offences Victims Act 1995 for injuries sustained as a result of the offence which led to a conviction of the Respondent on 17 December 2007 upon indictment for assault.

2. In accordance with the Act, there is no order as to costs.