Bamboo v Temple [2010] QDC 402

DISTRICT COURT OF QUEENSLAND CITATION: Bamboo v Temple [2010] QDC 402 PARTIES: DEBORAH LOUISE BAMBOO (Applicant) v JACK EPHRAIM TEMPLE (Respondent) FILE NO/S: 300 of 2009 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Cairns DELIVERED ON: 29 October 2010 DELIVERED AT: Cairns HEARING DATE: 7 October 2010 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant the sum of $9,750.00. CATCHWORDS: Criminal compensation – physical injuries – psychological injuries Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] QdR 303 at 310 COUNSEL: SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). [2] The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 7 March 2008, namely assault occasioning bodily harm. Facts [3] The applicant and the respondent were in a long term de facto relationship. On 7 June 2007, the respondent came home drunk at about 9.00 pm and started arguing with the applicant. She called the police and he was taken into custody and released -- 1 of 3 -- 2 at 1.30 am the following day. In the meantime, the applicant had locked herself and her children in a bedroom of their house. She awoke at approximately 4.00 am to find the respondent striking her on the head with a metal spoon. He proceeded to punch her in the face and verbally abuse and threaten her (“the incident”). Injuries [4] The applicant suffered the following injuries as a consequence of the incident: • Bruising to the left side of her face; • Psychological sequelae. The relevant law [5] COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation”. [6] Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of the COVA. In R v Jones ex parte Zaicov1 Holmes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” [7] Relevantly, the Compensation Table prescribes: • Item 1 Bruising/laceration etc (minor/moderate) … 1% - 3% • Item 32 Mental or nervous shock (moderate) … 10% - 20% [8] Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”. Furthermore, the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.2 If an injury is not specifically listed in the Compensation Table the court must decide the amount of compensation by comparing the injury or injuries to injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.3 The assessment 1 [2002] 2 QdR 303 at 310 2 s 25(8) referring to s 22(4) 3 s 25(6) -- 2 of 3 -- 3 [9] In her affidavit the applicant deposes to the fact that the bruising suffered by her subsided after about 3 days. [10] In her report dated 17 December 2008, Dr Richardson, psychologist expressed the view that the applicant was suffering from a Post Traumatic Stress Disorder in the moderate range and Mild Depression as a consequence of the incident. [11] I am satisfied that the applicant did not contribute to the injury. [12] Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows:- • Item 1 – 1% $ 750.00 • Item 32 – 12% $ 9,000.00 $ 9,750.00 Order [13] I order that the respondent pay the applicant the sum of $9,750.00. -- 3 of 3 --