WNH v RLB[2012] QDC 213

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act (1995) (Qld)(The Act) for physical injuries claimed to have been sustained by him as a result of an offence of grievous bodily harm of which the respondent was convicted on his plea of guilty in the Childrens: Court of Queensland at Mt Isa on 24 March 2004.

On that date, Wylie QC DCJ, released the respondent who like the applicant, was a child at the time of the commission of the offence, on two years probation.  A conviction was not recorded. 

The Act was repealed by the Victims of Crime Assistance Act (2009) (Qld)(the 2009 Act), which commenced on 1 December 2009.  As the application for compensation was commenced in this Court when it was filed on 1 December 2008 and had not been finally determined before 1 December 2009, pursuant to section 167(2) of the 2009 Act, the Court must hear and decide it under the Act despite the fact it has been repealed. 

Section 40(1)(b) of the Act requires that the application be made before the end of three years after the applicant child became an adult.  The applicant was born on 4 December 1987, as set out in the medical reports of Doctors Freeman and Lynham which are evidence before me.  By virtue of section 36 of the Acts Interpretation Act 1954 (Qld), he became an adult on 4 December 2005 which was his 18th birthday, therefore, the end three years after which he became an adult was 3 December 2008.  As the application was filed two days before this date, it was made within the required time. 

Further, I am satisfied on the evidence, that the originating application was filed before the applicant was incarcerated on 16 December 2008 for a period of three years after conviction, for an indictable offence.  Therefore, the Public Trustee is not required to consent to the bringing of the application under Part 7 of the Public Trustee Act 1978 (Qld); see sections 90(a), 91, and 95(1)(b).  This is also the view of the Public Trustee in its letter to the applicant's solicitors of 21 June 2012. 

In coming to this conclusion, I rely, as has the Public Trustee, on the factual propositions advanced by the applicant's solicitor that although the applicant was held on remand on 10 October 2007 he was not convicted and sentenced to serve a period of imprisonment for a term of three years or upwards until 16 December 2008.  As I have said, the Court records confirm that the application was filed on 1 December 2008. 

For completeness, I observe that when the applicant was sentenced to a term of three years imprisonment on 16 December 2008, he was also sentenced to a cumulative term of imprisonment of 12 months which was activated for breach of a suspended sentence.

Rule 105(1) of the Uniform Civil Procedure Rules 1999 (Qld) (the UCPR) provides that a person serving an originating process must serve it personally on the person intended to be served.  Rule 27(1) provides that an application must be filed and served on each respondent at least three business days before the day set for hearing of the application.  The delay in proceedings in this case appears to have been due to a difficulty in locating the respondent to effect service of the originating application and the documentary evidence relied on by the applicant.

Mr Ward, a bailiff, deposes in his first affidavit sworn on 18 November 2011, to personal service upon the respondent on 28 September 2011, of the application which was originally to be heard on 9 February 2009, together with the affidavit of Christopher David Campbell, including annexures.  Mr Campbell is the applicant's solicitor; the affidavit was sworn on 9 August 2011.  The annexures to his affidavit are the evidence upon which the applicant relies. Accordingly, the respondent was duly served in accordance with Rules 105 and 27 of the UCPR.  The service of the originating application, together with this evidence also satisfied the requirement under Rule 389(1)that no step having been taken in the proceeding for over one year from the time the last step was taken, the applicant give a months notice to the respondent of his intention to do so. 

The application has been adjourned from time to time since 24 November 2011, without an appearance by the respondent.  It would seem that this was because of further difficulty in locating the respondent to serve him with a notice as to the actual date on which he was required to appear for the application to be heard. 

According to a further affidavit from Mr Campbell sworn on 13 April 2012, as at that date, the respondent had not resided at the address where he had been served with the originating summons for approximately three months.

Mr Campbell's inquiries established that the respondent was incarcerated at the Maryborough Correctional Facility.  Correspondence was faxed on that date to Sentence Management at that facility, requesting that it be forwarded to the respondent.  This enclosed by way of service, the applicant's affidavit sworn on 11 April 2012 and also filed the following day.  He was also advised that the application was to be heard on 18 April 2012.  However, on that date, the application was further adjourned before me on 4 June 2012.  As the respondent had not been advised of this date, I further adjourned it until 14 June 2012, with a direction that the respondent be advised that it was to be heard at this time. 

As a result, on the evidence before me, Mr Campbell forwarded correspondence to this effect to the respondent, care of the Maryborough Correctional Centre.  As inquiries establish, despite this belief, the respondent was not incarcerated there at that time, however, it has since become apparent that he was released shortly prior to this date, therefore he was not notified of the hearing date on 14 June 2012.  As a consequence, I adjourn the matter to be heard before me in Brisbane at 9 a.m. today.

On 15 June 2012, according to a further affidavit from Mr Ward, sworn on 20 June 2012 and read and filed by leave today, he served all affidavit material which had been filed prior to that time and the applicant's submissions on the respondent.  The respondent was advised that the matter had been transferred to the District Court at Brisbane and the date and time of hearing. 

Mr Ward asked him if he wished to contest the matter.  He indicated he would like to be heard by phone.  He wrote and signed a note which is annexed to Mr Ward's affidavit of service, advising that although he would not be attending before me in Brisbane today, he would speak to any person by phone and provided his contact number.  Since that time, he has been notified to be available by phone at 10 a.m. on this date, due to other matters which I had to hear earlier on this date. 

The respondent did appear by telephone on this date and made some oral submissions to me about the application.  I am therefore satisfied that he has been duly served as required and notified of the hearing date and time.  It is therefore appropriate for me to proceed to hear this application. 

In addition, it has become clear that the respondent estate is not managed by the Public Trustee, particularly as he has now been released from custody.  Therefore, as the Public Trustee has advised, it does not have any role in respect of him concerning this application. 

JURISDICTION:

The respondent was convicted in the Childrens Court of Queensland, however, this application has been filed in the District Court.  The Childrens: Court of Queensland is a separate court to the District Court as Bradley DCJ said in Boyd-Bush v. Barden [2010] QDC 348 at [12].  In Laning v. C-K [2010] QDC, unreported, number 3795 of 2009, 20 August 2010, Martin SC DCJ came to the view in paragraph [16] of the decision, that it is reasonably open (given the ties between the District Court and the Childrens: Court of Queensland; the legislative intention behind the Acts; and the omission of any reference to the Childrens Act of Queensland in the definition section of the Act) to read the Act as conferring jurisdiction on both the District Court and the Childrens Court of Queensland, to hear applications for compensation resulting from convictions in the Childrens: Court of Queensland for indictable personal offences. 

I agree with her Honour with reference to R v. Callaghan and Fleming ex parte Power [1986] 1 Qd R 457 per Connolly J; Summers v. Dougherty and Anor [2000] QSC 365 per White J and Pettingill v. the Minister for Justice and Attorney-General [2003] QSC 385, that this view of Martin SC DCJ is consistent with a benign interpretation of the Act given that it is remedial legislation.  I am of the same view and like their Honours, I am satisfied that the District Court has jurisdiction to hear this application. 

This is also consistent with my statement of the law, applying the authorities I have mentioned in J K M G by her litigation guardian, A A M R v. J J T [2012] QDC 117. 

CIRCUMSTANCES OF THE OFFENCES:

The applicant was 15 years of age and the respondent 16 years of age at the time of the offence.  In accordance with the factual basis for the respondent's sentence which was placed before the Court by the Crown Prosecutor, the applicant deposes in his affidavit that on 29 September 2003 at Murgon, he was with friends outside a video shop when the respondent walked up behind him and without saying anything, punched him to the jaw.  He was unable to defend himself and described it as a "king hit" for which he saw no reason.  Although the prosecutor said that the punch was to the right side of his jaw, this was contrary to the applicant's statement to which he referred during his submissions.  The applicant's affidavit is also to the effect that the punch was to the left side of his jaw.  This is in accordance with the medical evidence to which I will refer.  For completeness, I mention that after a brief altercation with other persons present, the respondent left the scene. 

During the respondent's oral submissions to me today, he said that the applicant's jaw was not sore at the time.  However, the respondent pleaded guilty and was sentenced on this basis of the factual situation that I have described.  It is now too late to argue that he should have been sentenced on this basis or that this application be heard on a different factual basis than that on which he was sentenced. 

INJURIES AND MEDICAL REPORTS:

According to the applicant's statements, he was sitting on his BMX bike at the time of the punch.  This knocked him off balance and he stumbled off the bike, holding his jaw, which was aching and swelled up immediately.  He had to hold his jaw and spit out blood, as it was hurting so much.  He was initially treated at Cherbourg Hospital where he was admitted overnight.  Although the hand-written medical notes from that hospital are difficult to read, it is reported that there was swelling and he was unable to open his mouth.  He was transferred to Kingaroy Hospital for X-rays.  He was transferred to the RBH where he underwent surgery to repair the fracture of his right mandible.  He was in hospital for approximately two days after the operation.

Dr Lynham, a maxillio-facial surgeon reports that the applicant suffered a fracture of his right mandibular body which was repaired at the RBH on 2 September 2003.  This involved using two titanium plates and eight titanium screws.  The applicant also sustained a left condylar fracture which was undisplaced.  The applicant deposes that because he could not eat any solid foods, he required a liquid diet for three weeks.  He also gives evidence that after the operation he experienced considerable pain, swelling and bruising.  The injury caused him initial difficulties eating. 

As at 12 April 2012, he still felt a small amount of pain, particularly on the lower left-hand side of his jaw, on the odd occasion.  But on the whole, his injuries have fully healed.  Therefore, the grievous bodily harm charge was based on the injury being of such a nature as to be likely to cause a permanent injury to his health without medical intervention. 

In his oral submissions to me, the respondent has said that the applicant's headaches and nausea were caused by taking drugs.  However, there is no medical evidence before me that that was the case.  It also must be remembered that this offence occurred when the applicant was 15 years of age and whatever knowledge the respondent might have to him now, not only is there no evidence before me that he presently takes drugs, but there is no evidence before me that he was taking drugs at that time.  Therefore, I do not take that submission into account in determining the award of compensation which I make. 

APPLICABLE PRINCIPLES:

The assessment of compensation is governed by Part 3 of the Act.  Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6]. "A personal offence is an indictable offence committed against the person of someone:  Section 21 of the Act.  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act prescribed under a regulation:  Section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act.  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled:  Section 22(3) of the Act. A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000:  See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation) section 2; See also Riddle v. Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [12].

An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: section 25(3)-(4) of the Act.  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to make an order for the prescribed amount.  If the injury does not come within those itemised in the compensation table or specified under a Regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table:  Section 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table:  Riddle v. Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 438, 440.

It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication:  Riddle v. Coffey at 224; and at [18]; JMRoboSRR v. Hornsby at [6].  However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward:  Riddle v. Coffey at 224; and at [18].  Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted:  Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6]. However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item, in order to avoid duplication it may therefore be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item:  Wren at [29]; Hornsby at [6]. 

Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

Section 25(7) of the Act provides that in deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury.  In Zaicov & McKenna v Jones [2001] QCA 442 Holmes J (with whom McMurdo P and Williams JA agreed) held at [33] that section 25(7) comes into operation at the time when the amounts to be paid for the respective injuries are to be assessed and not at a latter stage when the total amount payable under the order is being determined.  That is to say, it is in determining the percentage allowed for each injury that the court must have regard to relevant matters, including contribution. 

The issues of fact on this application must be decided on the balance of probabilities:  Section 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS:

Mr Davies of counsel who prepared the applicant's written submission, submits that the applicant suffered the following injuries and should be compensated on the following basis:

• Item 1 - Bruising/laceration etc, (minor/moderate) - 3 per cent - $2,250.

• Item 8 - Facial fracture (severe) - 20 per cent - $15,000.

Therefore an award is sought of 23 per cent of the scheme maximum; this is $17,250. 

ASSESSMENT:

• Item 1 - Bruising/laceration etc, (minor/moderate) - 1 per cent - 3 per cent.

I am of the view that the injury suffered by the applicant is best described as a  facial fracture and thus to avoid duplication do not intend to make a separate award for swelling and pain.  This is what is specifically relied upon in the written submissions, as the basis for compensating the applicant under this item of the compensation table. 

I have taken this into account in assessing compensation for the entirety of the injury under Item 8. 

• Item 8 -  Facial fracture (severe) - 20 per cent - 30 per cent.

I agree with the submission that the fracture of the right mandibular body, together with the undisplaced left condylar fracture considered in the context of the associated swelling and pain, entitles the applicant to compensation at 20 per cent of the scheme maximum.  This is $15,000.  The respondent's submission in relation to this was that he did not care if the applicant got compensation, but said that the compensation would not be got out of him.  He also stated that the award of compensation would only allow the applicant to obtain more drugs.  He asked whether or not the applicant had been checked for drugs in his system.  However, as I have indicated, there is no admissible evidence before me that the applicant was taking drugs at the time of the offence of grievous bodily harm committed on him by the respondent or is presently taking drugs.  It is not relevant to my determination of the quantum of the compensation to be awarded as to what the applicant might subsequently do with the money if it is obtained either from the respondent or by way of an ex gratia payment, if the respondent is unable to pay. 

I am satisfied in coming to the conclusion that the appropriate award of compensation is $15,000, by reference to Laning v. C-K, in which Martin SC DCJ assessed compensation for a fractured jaw into which plates were required to be inserted, in consequence of the assault in that case at 25 per cent.  His Honour accepted that associated with the injury was some sensation problem in the applicant's lower lip, for which there had been a gradual improvement.  He also continued to suffer pain in the jaw.  However, my impression is that this was more than pain on the odd occasion which the applicant has reported in the present case. 

SECTION 25(7) OF THE ACT - CONTRIBUTIONS:

I do not consider that the applicant has contributed to his own injuries such that the award should be reduced for this.  Again, although the respondent referred in the course of his submissions to the applicant's jaw not being sore when, as the respondent put it, he "doubled me", this was not the basis on which the applicant was sentenced and it would be inappropriate for me to take a different factual basis into account in determining whether the applicant has contributed to his own injuries.  Accordingly, the respondent is liable to pay the total amount of compensation assessed. 

CONCLUSION AND ORDER:

Accordingly, I assess compensation in terms of the compensation table as follows:

• Item 8 - Facial fracture (severe) - 20 per cent - $15,000. 

This is the total amount of compensation that I order.