Brazier v Pember; Brazier v Ryan [2010] QDC 393

DISTRICT COURT OF QUEENSLAND CITATION: Brazier v Pember; Brazier v Ryan [2010] QDC 393 PARTIES: Jay Brazier (applicant) v Luke Matthew Pember (respondent) and Jay Brazier (applicant) v Wade Ryan (respondent) FILE NO/S: D116/09 and D117/09 DIVISION: PROCEEDING: ORIGINATING COURT: District Court Toowoomba DELIVERED ON: DELIVERED AT: 15 October 2010 HEARING DATE: 7 October 2010 JUDGE: Bradley DCJ ORDER: Order that the respondent Pember pay to the applicant the sum of $16,500 and the respondents Pember and Ryan be jointly and separately liable to pay the applicant the sum of $5,250 by way of criminal compensation. CATCHWORDS: CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the respondent Pember was convicted of assaulting the applicant and doing him bodily harm – where the respondent Brazier was convicted of assaulting the applicant – where both offences arose out of the same incident – where the applicant suffers with mental and nervous shock as a result of the incident – where both respondents are jointly and separately liable for the compensation for the mental and nervous shock suffered by the applicant – where the main -- 1 of 5 -- 2 physical injury was caused by the respondent Pember’s actions – where the amount of compensation payable by the respondents should reflect the culpability of each respondent. Criminal Victims Act 1995, ss 24, 26. COUNSEL: SOLICITORS: S Loader solicitor, Clewett Lawyers for the applicant No appearance on behalf of the respondent Pember S Seth solicitor, Seth Solicitors for the respondent Ryan [1] On 1 October 2008 in the District Court at Brisbane the respondent Pember was convicted of assaulting the applicant and doing him bodily harm and the respondent Brazier was convicted of assaulting the applicant. The offences were committed on 5 May 2007 in Brisbane. [2] The applicant now seeks an order for compensation for the injuries suffered by him because of the offences pursuant to s 24 of the Criminal Victims Act 1995 (the Act). [3] The respondent Ryan has been personally served with the application and the supporting material but as the whereabouts of the respondent Pember could not be ascertained I made an order that service be effected upon him by way of the publication of a notice in the Courier Mail newspaper. Such service was effected on 10 September 2010. There was no appearance by or on behalf of the respondent Pember at the hearing of this application. [4] The applicant was born on 30 September 1982 and is currently 28 years of age. The offences were committed on the evening of 5 May 2007 when he was 24. [5] I was not the sentencing judge, however, the sentencing remarks of Forde DCJ revealed the affects upon which both respondents were sentenced. The offences arose out of an incident at the Calamvale Hotel in Brisbane where the applicant was allegedly staring at a young woman who the respondent, Ryan said was his sister. That was not true. The woman concerned was not apparently upset by the conduct of the applicant but nevertheless both respondents as part of a group subsequently left the Hotel and located the applicant and his companions about 100 metres away at a McDonald’s restaurant. [6] There was some talk between the respondent Ryan, and the applicant who was then king hit by the respondent Pember. That blow fractured the zygoma or cheekbone of the applicant. [7] Another person (a friend of the applicant) attempted to intervene and was also assaulted. [8] The respondent Pember admitted to police that he had struck the applicant. Forde DCJ in reference to the respondent, Ryan, said: “It is clear to me that you were part of a group that was looking for trouble.” -- 2 of 5 -- 3 [9] It seems clear from the sentencing remarks and the material before me that there was no behaviour on the part of the applicant which contributed to his injuries. [10] In an affidavit sworn on 20 July 2010 and filed in support of his application the applicant states that after the blow to his face he felt very disorientated and had a splitting headache. His eye was aching and his nose was bleeding. Following the assault the applicant was unable to work and could not eat properly or rest adequately because of the discomfort of his injury. He has, however, subsequently recovered and at the time of swearing his affidavit stated that he did not feel any discomfort. [11] The applicant suffered a displaced fracture to the right zygoma and a severely comminuted and depressed fracture of the anterior wall and lateral wall of the right maxilla sinus. The applicant remained at the QEII Hospital under observation until about 12pm on 5 May 2007, and was then sent to the Mater Hospital for the review of his x-rays. [12] The applicant was admitted to the Princess Alexandra Hospital on 8 May 2007 where he underwent an open reduction and internal fixation surgery on the right zygoma. The applicant was discharged from hospital the following day. [13] With respect to the non-physical consequences of the assault on the applicant, he states that following the assault he increased his alcohol intake and was smoking more heavily and taking drugs to help pass the time. He feels slower in his movements and thought processes and worries that there may be long term damage resulting from the blow that he suffered to his head. The applicant finds that he is not as outgoing as he once was, he is more reserved, and that he is more reserved when he goes out. He does not go out very often any more and does not feel comfortable in hotels. [14] On 5 February 2010 the applicant was interviewed and assessed by Rachelle Hampson, a psychologist. In her report dated 10 April 2010 Ms Hampson gives her opinion that the applicant’s psychological condition meets the DSM - IV-TR criteria for chronic adjustment disorder. Ms Hampson notes that the applicant’s testing indicates that he is still struggling with some post traumatic symptoms and it is her assessment that he is now in a period of Sustained Remission from Substance Abuse. Ms Hampson goes on:- “It would be useful for Mr Brazier to gain some understanding of his avoidance mechanisms when dealing with stressors in his life. He may be susceptible to further drug and alcohol misuse in the future when he is under stress.” [15] Ms Hampson concludes:- “That Mr Brazier has experienced a degree of mental and nervous shock as a result of this attack on him.” And that such mental or nervous shock would be within the minor range. It is Ms Hampson’s view that the:- -- 3 of 5 -- 4 “Applicant may find it useful to attend sessions with a trained therapist with a good understanding of post trauma symptoms and drug and alcohol misuse.” [16] The applicant is entitled to compensation assessed in accordance with the Compensation Table which is Schedule 1 to the Act as follows:- Item 1 Bruising around his left eye (minor) 2% $1,500. Item 7 Facial fracture (moderate) 17%-20% $15,000. Item 31 Mental or nervous shock (minor) 7% $5,250. Total $21,750. [17] Section 26 of the Act relevantly provides:- (3) Subject to subsections (7) and (8), only 1 compensation order may be made in favour of an applicant because of – (a) injury suffered from a substantially single incident, whether consisting of 1 or more than 1 personal offence; or (b) a substantially single state of injury suffered from a series of incidents of personal offences. (4) In deciding whether an applicant has suffered a substantially single state of injury, the court may have regard to the following – (a) the applicant’s injuries; (b) the time over which the injuries were caused; (c) the similarity of, or connection between, the injuries; (d) the similarity of, or connection between, the events that caused the injury; (e) anything else that is relevant. (5) A single compensation order may be made against more than 1 convicted person. (6) If a single compensation order is made against more than one convicted person, the order may provide for – (a) separate liability of a convicted person scaled according to the persons direct and material contribution to the injury; or (b) joint liability of more than one convicted person for an amount payable under the order; or (c) both for separate liability mentioned in paragraph (a) for the amount and joint liability for the amount. (7) Without limiting subsection (5), if each of more than1 convicted person directly and materially contributed to injury mentioned in subsection (3)(a) and (b), a court may make a compensation order against each of more than 1 of the convicted persons. -- 4 of 5 -- 5 (8) If compensation orders are made against more than 1 convicted person under subsection (7) – (a) the total amount payable under all the orders must not be more than the scheme maximum; and (b) the orders – (i) must provide for separate liability for each of the convicted persons for an amount scaled according to the convicted person’s contribution to the injury; And (ii) may also provide for joint liability of more than 1 convicted person for an amount for which a convicted person is separately liable. [18] The major injury suffered by the applicant was that incurred as a result of the blow delivered by Pember. Ryan was not dealt with as a party to the offence committed by Pember. I have not been provided with a transcript of the submissions made at sentence. But on the material before me there is no evidence of any physical injury suffered by the applicant which can be directly attributable to Ryan. However, given the comment made by the sentencing judge that Ryan was “part of a group that was looking for trouble”, it is not unreasonable to hold that he made a “direct and material” contribution to the mental and nervous shock suffered by the applicant because of the offences. Ryan’s involvement was more than simply being present during the incident. He took an active part (both verbally and physically) in the incident. [19] In the circumstances of this case, whilst it was the respondent, Pember, who delivered the blow to the applicant it seems clear from the remarks made by the sentencing judge that both respondents approached the applicant with the intent of doing him some violence, and in the circumstances, the respondents should be jointly and separately liable for the compensation for the mental and nervous shock suffered by the applicant. It is not possible, and neither would it be reasonable to attempt to apportion the mental and nervous shock suffered by the applicant between the two respondents. Accordingly, I order that the respondent Pember pay to the applicant the sum of $16,500 and the respondents Pember and Ryan be jointly and separately liable to pay the applicant the sum of $5250 by way of criminal compensation. -- 5 of 5 --