R v Stone; ex parte Rose[2002] QSC 291

SUPREME COURT OF QUEENSLAND

[1] This is an application for a compensation order against a convicted person under the Criminal Offence Victims Act 1995.  The applicant is a man born on 22 May 1968.  On 20 March 2000 the respondent came before Jones J. sitting in Cairns charged with unlawfully doing grievous bodily harm to the applicant on 6 June 1998 at Innot Hot Springs, Queensland.  The respondent was also charged with wilfully and unlawfully damaging a car door, the property of the applicant, at the same time and place.  The respondent pleaded guilty to each count and was convicted.  For unlawfully doing grievous bodily harm he was sentenced to imprisonment for four years.  The sentence was wholly suspended with an operational period of four years.  His Honour summarized the events in question as follows:

The circumstances of the offences were that on 6 June 1998 at Woodleigh Station near Innot Hot Springs, where you were residing, you were in a dispute with Matthew Rose, the circumstances of which I will come to shortly, and in the course of that you fired a rifle in the direction of Rose whilst he was in a vehicle.  The bullet pierced the door of the vehicle, entered Mr Rose’s arm causing a fracture of the radius and thereby occasioned him grievous bodily harm.

Mr Stone, it seems clear on the material that these events occurred on the third day of a very serious drinking binge that you had engaged in with Mr Rose and his de facto wife Deborah Bong.  That binge was undertaken at various places between the Ravenshoe Hotel and your residence and on the third day you were looking for some sexual gratification and either propositioned or tried to have your way with Mr Rose’s de facto wife.  She, it seems from the information before me, was drunk to the point of being comatosed at that particular time.

Nevertheless, you were found in bed with her when she was partially unclothed and you were unclothed.  Naturally enough that angered Mr Rose and he assaulted you, dragged you out of your residence and left.

The matter could have perhaps ended there except his de facto wife was still in your bed.  When he returned I accept that you were fearful that the fight was going to continue and in your drunken state, probably not thinking terribly well about the consequences, you fired the rifle, as I mentioned before.

Drunkenness is no excuse for this type of offence but it does perhaps explain your thought processes and your lack of control on this occasion.  Mr Rose was a younger man, 30 years of age, probably much stronger than you and had he been intending to continue the fight, you were right to apprehend that you would suffer further injury.  But the remedy that you took of using a rifle to protect yourself is an extreme one and it is a form of defence that you have used on other occasions, as your criminal history reveals.

[2] Although the applicant had assaulted the respondent before the respondent took the extreme step of shooting the applicant, I conclude, taking all of the circumstances into account including of course the grossly disproportionate response by the respondent to any threat posed by the applicant in a predicament of the respondent’s own making, that there is no reason to reduce any award to the applicant under s.25(7) of the Act. 

[3]  Following the shooting the applicant drove to the Ravenshoe ambulance station and from there was taken to the Atherton District Hospital.  At the Atherton hospital an examination revealed him to have an entry wound on the radial aspect of his proximal left forearm with no exit wound evident,  local swelling of his left forearm, and an oblique laceration over the proximal phalanx of the right ring finger consistent with its being a tooth-knuckle injury.  X-rays of the left forearm were interpreted as revealing a non-displaced comminuted fracture of the left radius at the junction between the proximal and middle thirds.  Multiple bullet fragments were evident in situ.  After some treatment at the Atherton hospital he was taken by ambulance to the Cairns Base Hospital for orthopaedic review and further treatment.  There it was found that he had a compound comminuted displaced fracture of the left proximal radius with an entry wound on the dorso-radial aspect of his proximal forearm of approximately five mm by three mm.  There was considerable disruption of the muscle of the forearm and a major bullet fragment was found medially to the radius.  He was operated on on 7 June 1998 when the fracture was fixed internally with a plate and screws.  He returned to the operating theatre on 9 June 1998, on which day he discharged himself from the hospital against medical advice.  He later attended the Fracture Clinic on 11 June 1998 and 16 July 1998.  His progress was noted to be satisfactory.  His arm was in a short-arm fibreglass plaster up to his armpit for about nine weeks as a result of which he had difficulty eating, showering, and dressing.

[4] On 21 November 2000 Dr Murray Page, orthopaedic surgeon, examined the applicant, and, in a report dated 28 November 2000, Dr Page set out the results of his examination as follows:

When I examined this man today he’s a healthy looking man of stated age.  He has a scar 8 centimetres distal to the head of left radius on the lateral aspect of his forearm and also a surgical scar on the volar aspect of the upper left forearm. There is completely normal movement and function of his left upper limb with no abnormality to find in his elbow, wrist and hand.  He has very strong grip strength and the only real abnormality to find other than the scars is slightly altered sensation over the antero lateral aspect of his left forearm.  With this area sensation is supplied by the lateral antebrachial nerve.  There is no suggestion of any radial nerve impairment and all the other major nerves and vessels of the left upper limb appear to be intact.  There is an area of slight numbness on the lateral side of the left forearm and is the only obvious ongoing abnormality now.

Dr Page gave his opinion as to the need for future treatment and the effects of the injury on the applicant’s ability to work etc.:

As far as ongoing treatment goes the only thing this man needs now is to consider having the plate and screws removed as these can occasionally cause some discomfort and ache although they do not significantly interfere with the normal function of his left upper limb.

He’s fit to undertake the type of work he’s done in the past such as labouring and other non skilled manual work.  I do not think there are any restrictions placed on him either with his working or social activities.

Overall I do not feel this man has been left with any permanent impairment as a result of this injury other than the very slight sensory change on his left forearm but this will not interfere with any normal function of the limb.

[5] On 22 February 2001 the applicant was interviewed by Dr Keith Le Page, psychiatrist, who recorded in a report dated 1 March 2001  that, as a result of the shooting, the applicant had suffered from a post-traumatic stress disorder, phobic anxiety about being killed, and a sense of guilt about abandoning his de facto wife to the respondent.  Dr Le Page found that the applicant’s response to the shooting was ‘moderately severe’ and persisted for eighteen months.

[6] Although the evidence before me shows that on examination at the Atherton hospital it was thought that the applicant had suffered a non-displaced fracture of the left radius, it is clear that on a closer examination at the Cairns hospital it was revealed that the fracture was displaced.  I accept the result of examination at the Cairns hospital as the more accurate.  The item in the Compensation Table in Schedule 1 to the Act most relevant to the physical injury suffered by the applicant is, I conclude, item 16 ‘[f]racture … of arm .. (displaced and immobilised)’.  Applying the method assessment explained in Dooley v. Ward [2000] Q.C.A. 493 especially at paras. 5 to 7, I assess the applicant’s entitlement in respect of his physical injury at twenty-five per cent. of the scheme maximum, taking into account the gunshot wound and the scarring.  It is not necessary for me to consider an assessment under item 25, ‘[g]un shot … wounds (moderate)’, and item 27, ‘… bodily scarring (minor/moderate)’, which could also have applied to this case had I not taken into account the gunshot wound and the scarring under item 16.  Had I not done so I should have allowed ten per cent. of the scheme maximum under each of items 16 and 25 and five per cent. under item 27.  As to the questions that arise when more than one item on the table might be resorted to to compensate a victim on the one application, see  R. v. Pangilinan, ex parte Owens [2001] Q.S.C. 391.

[7] The mental effects of the injury call for another ten per cent. under item 32 ‘[m]ental or nervous shock (moderate)’.

[8] It follows that the applicant should be awarded $26,250 by way of compensation.  I shall order that the respondent pay to the applicant $26,250 by way of compensation for the injury suffered by the applicant as a result of the commission of the offence against the applicant of which the respondent was convicted.