Heron v Baker[2011] QDC 299

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Kim Baker, pleaded guilty in the District Court, Beenleigh on 19 August 2009 to one count of assault occasioning bodily harm on the applicant, Robyn Heron, as well as other counts of attempted arson, dangerous operation of a motor vehicle, wilful damage (two charges) and serious assault (on a police officer).

2. [2]
   In respect of count 1 (the only count relevant to the “person”^[1] of the applicant) the respondent was sentenced to nine months imprisonment, concurrent, wholly suspended with an operational period of three years, on 18 November 2009.^[2]

Facts

3. [3]
   The applicant and respondent had been in a relationship for approximately ten years, although at the time of the relevant incident (12 March 2008) the applicant and respondent were no longer in that relationship. The schedule of facts states as follows:-

“At approximately 2.15 pm on 12 March 2008 the [applicant] received text messages from the [respondent].  In the messages, the [respondent] requested that the [applicant] return property. After receiving the messages, the [applicant] collected the [respondent’s] belongings and put them in a plastic bag.  The [applicant] sent a text message to the [respondent] advising that the property was ready for collection and requesting some property that the [respondent] had.

The [respondent] then attended the [applicant’s] house. As the [respondent] was walking up the driveway, the [applicant] asked “where is my stuff?”  The [respondent] replied that she had not had time to gather the [applicant’s] property.  The [respondent] then reached and grabbed the plastic bag that the [applicant] was holding.  The [applicant] gripped on to the plastic bag.  The [respondent] held the [applicant] with her right arm and hit the [applicant] with her left arm.  The [applicant] grabbed the [respondent] at the back of her hair with her right hand and forced the [respondent’s] face down on to the car bonnet to prevent the [respondent] from hitting her.  The [respondent] then left in her car.^[3]”

Injuries

4. [4]
   The applicant suffered bruising as a result of the incident,^[4]  and also asserts she suffered mental or nervous shock.

The Law

5. [5]
   The application in these proceedings was filed on 22 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.  The application is, however, compliant with the relevant transitional provisions of VOCAA in ss. 154 and 155 and has been brought within the relevant timeframe prescribed by COVA s. 40(1).

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 Muirhead, for the applicant, seeks compensation as follows:-

1. (1)
   Item 1 – bruising/laceration etc. (minor/moderate) 1%-3%

8. [8]
   The applicant was examined by Dr Neil Fletcher, General Practitioner, on 14 March 2008. He observed that the applicant had “an 8 cm area of bruising on her left forearm, and further located bruising to the left anterior fossa”, which amounted to bodily harm.^[5]

9. [9]
   Ms Muirhead submits that an assessment should be made at 1% of the scheme maximum ($750) in respect of the bruising. I accept that submission and accordingly award $750 pursuant to item 1.

1. (2)
   Item 33 – mental or nervous shock (severe) – 20%-34%

10. [10]
    The applicant was examined by Dr Barbara McGuire, psychiatrist on 10 January 2011. Dr McGuire provided a report dated 19 January 2011.^[6]

11. [11]
    Dr McGuire diagnosed the applicant as suffering from severe post traumatic stress disorder and adjustment disorder with depressed mood.^[7]

12. [12]
    Ms Muirhead, in her submissions, acknowledges the pre-existing vulnerabilities canvassed by Dr McGuire in her report.  These included the fact that the applicant was adopted and did not meet her siblings until she was aged forty-two, has an unhappy relationship with her adoptive brother, has suffered from faecal incontinence for ten years, had a thirteen year marriage which broke up because of her homosexuality, and was suffering from long term depression for which she was being medicated by her general practitioner.^[8]

13. [13]
    The submission on behalf of the applicant is that the offence for which the respondent was convicted made a “significant and material contribution” to the injury presently suffered by the applicant. In SAY v AZ; ex-parte Attorney General,^[9] Holmes, J acknowledged the difficulties where a single state of injury is produced by a number of factors and indicated that a “broad brush” approach will often be necessary.

14. [14]
    It is submitted by Ms Muirhead, relying on Dr McGuire’s opinion that the offence materially and significantly contributed to the applicant’s condition, and that she would have suffered post traumatic stress disorder, although the severity may have been less, if the applicant were not subjected to subsequent harassment by the respondent, that the award should not be reduced just because of the applicant’s physical and psychiatric vulnerabilities.

15. [15]
    I substantially accept that submission, and I award 30% ($22,500) pursuant to item 33.

Contribution

16. [16]
    I do not consider that the applicant has contributed in any way, either direct or indirect, to her own injuries.^[10]

Conclusion

17. [17]
    I order that the respondent Kim Baker pay the applicant Robyn Myra Heron the sum of $23,250.