Pavey-Hutchinson v McPhail[2011] QDC 9

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Troy McPhail pleaded guilty on 8 October 2008 in Beenleigh District Court to a single count of common assault of the applicant Lee Pavey-Hutchinson (the respondent’s sister). The respondent also pleaded guilty to the arson of the applicant’s house, the serious assault of a third person, and another count in respect of the use of a carriage service to make a threat to kill a person from the Housing Commission.

2. [2]
   The applicant was sentenced to five years imprisonment in respect of the arson count, and relevantly (in respect of this application), three months imprisonment in relation to the common assault on the applicant.

Facts

3. [3]
   The applicant arrived home at about 11 a.m. on 17 January 2007 and was approached by the respondent in the dining room of her home in Rochedale South. The applicant said to the respondent “all is good” (a reference to her appointment having gone well). The respondent replied “all is not good”, and started rambling about something which the applicant could not understand.

4. [4]
   The respondent then started yelling at the applicant about an argument they had had the previous evening. The respondent became very aggressive and made threats to kill family members. The respondent then approached the applicant up close, raised a fist beside his face and proceeded to punch the applicant once in the mouth. This caused the applicant immediate pain and she could taste blood. The applicant quickly moved to the other side of the dining table and the respondent chased her and punched her again, twice in the back of the head.

5. [5]
   At 11.30 am on 17 January 2007 the applicant attended a police station and made a formal complaint against the respondent. Police did not observe any injuries to the applicant at this time. The respondent was arrested by police at 11.50 am on 17 January 2007, at the Commonwealth Bank, Springwood. At the time he was uncooperative with police and was acting in an aggressive and erratic manner.^[1]

6. [6]
   The respondent set fire to the applicant’s house on 4 March 2007 (approximately six weeks after the assault on the applicant).^[2]

Injuries

7. [7]
   In the applicant’s police statement, she described the assault being constituted by the respondent poking her “in the eye”, punching her “in [the] face whilst he was yelling at [her]”, splitting her lip, making her jaw sore and causing pain at the back of her head from the respondent punching her behind her head.^[3]The applicant states that “subsequent to the assault I was unable to obtain medical treatment as I was shattered by the assault and terrified of the respondent.”^[4]

8. [8]
   The applicant also suffered mental or nervous shock as a result of the assault.

The law

9. [9]
   The application in these proceedings was filed on 29 January 2010. The application proceeds pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), which repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The provisions of VOCAA ss. 154 and 155 preserve the application pursuant to s. 24 of COVA. The application was filed within the relevant time limit pursuant to COVA s. 40(1).

10. [10]
    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

11. [11]
    Mr Williams, who appears for the applicant, seeks compensation as follows:

(1) Item 1 – Bruising/Laceration Etc (Minor/Moderate) – 1%-3%

Mr Williams submits that the bruising and lacerations suffered by the applicant should receive and award of 3% of the scheme maximum. However, in the absence of any evidence as to the nature of the bruising and lacerations (if any) suffered by the applicant, it is difficult to see how this submission can be accepted. Although the applicant’s statement refers to a poke in the eye, a punch in the face, a split lip, a sore jaw and pain at the back of the applicant’s head,^[5]there is no independent medical evidence in respect of bruising/laceration, nor did the police observe any bruising or laceration when the applicant attended at a police station to report the assault shortly after it occurred on 17 January 2007^[6]. In the circumstances, I consider it appropriate to award 1% of the scheme maximum ($750) pursuant to item 1.

(2) Item 33 - Mental or Nervous Shock (severe) - 20%-34%

The applicant was examined by Steve Morgan, registered psychologist, on 11 November 2009. Mr Morgan provided a report diagnosing the applicant as suffering from post traumatic stress disorder (PTSD), chronic and of severe effect. In addition, the applicant was suffering from alcohol dependency, which Mr Morgan believes arose from a maladaptive coping with trauma response, as well as an absence of any professional psychological or psychiatric intervention subsequent to the PTSD suffered by the applicant.^[7]

12. [12]
    The difficulty in assessing an appropriate award pursuant to item 33 is the causation issue i.e. the linkage between the personal offence committed against the applicant (common assault) and the injury suffered by the applicant (chronic and severe PTSD).

13. [13]
    The complicating factors include the following:

1. The applicant had been involved in two previous relationships (each of which produced children), which were described by the applicant as “very violent”.^[8]

2. The respondent was living with the applicant for some period on his release from prison and during that time the applicant and her family were subject to abusive, aggressive and controlling behaviour by the respondent. After the assault to which this application relates on 14 January 2007, the applicant moved out of her house until she was advised by her ex husband that the respondent had moved to Sydney. The applicant returned to her house and approximately a week later found that the respondent had moved back in, and he continued to behave in a controlling and aggressive manner.

3. Subsequently, when the applicant was staying at her sister’s address, she was advised by her ex husband that her house was on fire. The applicant subsequently became aware that the respondent had been responsible for the arson of her house.^[9]

4. The applicant reported a continuing belief that her life and the lives of her children remain at risk from the respondent.

14. [14]
    In SAY v AZ [2007] 2 Qd R 363, Holmes JA (with whom Jones and Mullins JJ agreed) stated:

“[22]The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If as in Stannard [2000] QSC 86, it is possible to identify on the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

[23]Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction of the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski [2000] QSC 270 will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it will be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant’s state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the related to the relevant offences, and the relationship of victim and offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified.”^[10]

15. [15]
    In the proceedings before me, I consider that, absent any issues with causation, the appropriate award for the severe and chronic PTSD suffered by the applicant would be an award of 30% of the scheme maximum.

16. [16]
    Taking into account the aggressive and controlling behaviour by the respondent both before and after the common assault on the applicant, and the respondent’s uncompensable (but despicable) act of burning down the applicant’s house, it would in my view be appropriate, applying a broad brush approach, to reduce the award pursuant to item 33 to an award of 25% of the scheme maximum ($18,750).

Contribution

17. [17]
    I do not consider that the applicant has contributed in any way, either direct or indirect to her own injuries.^[11]

Order

18. [18]
    I order that the respondent pay the applicant the sum of $19,500.