Hallam v Hess[2011] QDC 43

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Raymond Hess, pleaded guilty in the Beenleigh District Court on 6 October 2008 to one count of unlawful wounding of the applicant, Bradley Jon Hallam.  The respondent was sentenced to three years imprisonment with a parole release date set at the date of sentence (6 October 2008).  A period of 408 days (approximately 13½ months) of pre-sentence custody was declared time served in respect of the sentence.^[1]

Facts

2. [2]
   The applicant and the respondent had been mates for about 10 years. The applicant had been married to Ms Tina Le Clair, and they had three children together. Ms Le Clair revealed in January 2007 that she had been having an affair with another man. That person, it turned out, was the respondent. Ms Le Clair moved in with the respondent.

3. [3]
   By August 2007, the applicant and the respondent had had discussions about living together again. Ms Le Clair returned to live with the applicant, having by then spent some months living with the respondent.

4. [4]
   On the day in question (24 August 2007), the applicant was at his mother’s house where he was residing with his children. Ms Le Clair had been in discussions with the respondent about returning to live with him. The respondent kicked open the gate of the 6 ft fence at the applicant’s mother’s house, then charged at the applicant. The applicant and the respondent fell to the ground. The respondent had a knife and called out to the applicant. As the applicant and the respondent got to their feet, the applicant felt a piercing pain to his right bicep, which began bleeding profusely. The applicant told the respondent that the respondent had stabbed him. The applicant then knocked the respondent to the ground and kicked him in the head and upper body a number of times, to the point of unconsciousness. The applicant kept the respondent down until police arrived. Ms Le Clair arrived at the applicant’s mother’s house during this part of the altercation.^[2]

Injuries

5. [5]
   The applicant was treated for a 1 cm puncture wound on the inside elbow area of the right bicep.^[3]

The Law

6. [6]
   This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA) which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009.

7. [7]
   The application in these proceedings was filed on 7 December 2009 and is compliant with the transitional provisions of VOCAA ss. 154 and 155.

8. [8]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

9. [9]
   Mr McCarthy, who appears for the applicant, seeks compensation as follows:-

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

It is submitted on behalf of the applicant that he suffered serious bruising to his arm from approximately half way up his bicep and half way down his forearm, as evidenced in photographs exhibited to the applicant’s affidavit.^[4]

I accept the submission that an appropriate award for this bruising/laceration is 3% of the scheme maximum ($2,250).

(2) Item 24 – Gunshot/stab wound (minor)

It is submitted on behalf of the applicant that the stab wound to the applicant’s arm required stitches, caused short term pain, and overnight hospital admission, and the performance of arm exercises to regain strength and aid healing.^[5]  It appears that the wound required two stitches.^[6]   In the circumstances, I consider that the appropriate award is at the bottom of the item 24 range, namely 6% of the scheme maximum ($4,500).

(3) Facial disfigurement or bodily scarring (minor/moderate) – 2% - 10%

It is conceded on behalf of the applicant that the scar to his right arm is small, but it is noted that the site of the scar (inside of the applicant’s right elbow) leads other people to believe that the applicant is a “junkie”.^[7]

In the circumstances I consider it appropriate to make an award under item 27 at the bottom of that range (2% of the scheme maximum).  Accordingly I award $1,500 pursuant to item 27.

(4) Mental or nervous shock (moderate) – 10% - 20%

The applicant was examined by Dr Steve Morgan, forensic psychologist on 24 March 2009 and he provided a report dated 24 April 2009.^[8]

Dr Morgan concluded (as at the date of the report) that the applicant was suffering from post traumatic stress disorder (PTSD) and major depressive disorder.  Dr Morgan also expressed the view that it was likely that the applicant was experiencing alcohol and cannabis dependency, which were long standing and pre-existing conditions, likely to further undermine the applicant’s mood, cognitions and social behaviour.^[9]

The applicant was assessed by Dr Morgan as being resistant to professional treatment, even though such treatment was clearly necessary.  Dr Morgan considered 9 to 12 months of treatment for the PTSD and depressive disorder, as well as counselling towards alcohol reduction and illicit drug abstinence would be essential elements of effective overall treatment of the applicant’s mental health issues.

In the circumstances, I consider that an appropriate award, recognising the relative severity of the condition (initially “moderate severity” and “moderate effect” in terms of impairment, resolving to “mild-moderate severity” and “mild-moderate” effect as at the date of assessment)^[10] is an assessment at 15% of the scheme maximum ($11,250).

Contribution

10. [10]
    Although there was obviously a long standing unhappiness between the applicant and the respondent arising out of the complicated relationship of each of them with Ms Le Clair, the mother of the applicant’s children, I do not consider (in respect of the unlawful wounding count which grounds the application) that the applicant has contributed in any way to his own injuries.^[11]

Order

11. [11]
    I order that the respondent Raymond Hess pay the applicant Bradley Jon Hallam the sum of $19,500.