Crutcher v Skewes [2010] QDC 382

DISTRICT COURT OF QUEENSLAND CITATION: Crutcher v Skewes [2010] QDC 382 PARTIES: CINDY KAY CRUTCHER (Applicant) v LEAHA TERESE SKEWES (Respondent) FILE NO/S: 20/2010 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 7 October, 2010 DELIVERED AT: Beenleigh HEARING DATE: 13 September, 2010 JUDGE: Dearden DCJ ORDER: The respondent Leaha Terese Skewes pay the applicant Cindy Kay Crutcher the sum of $19,500. CATCHWORDS: Application – criminal compensation – assault occasioning bodily harm – burglary with violence while armed – unlawful wounding – bruising/laceration – facial disfigurement or bodily scarring – fracture/loss of use of arm/wrist. LEGISLATION: Criminal Offence Victims Act (Qld) 1995 s. 24, s. 25(7), s. 40(1). Victims of Crime Assistance Act (Qld) 2009 s. 154. s. 155. CASES: Paterson v Chand & Chand [2008] QDC 214 COUNSEL: E Williams for the applicant No appearance for the respondents SOLICITORS: Colin Patino & Company Solicitors for the applicant No appearance for the respondent Introduction [1] The respondent, Leaha Terese Skewes, pleaded guilty before me in the Beenleigh District Court on 2 February 2007 to one count of assault occasioning bodily harm while armed, one count of burglary with violence while armed, and one count of unlawful wounding, all in respect of the applicant Cindy Kay Crutcher. -- 1 of 5 -- 2 [2] The respondent was sentenced to six months imprisonment in respect of the assault occasioning bodily harm count, two years imprisonment in respect of the burglary with violence while armed count, and two years imprisonment in respect of the unlawful wounding count. All sentences were concurrent and subject to a parole release date on the date of sentence (2 February 2007).1 Facts [3] The applicant, then 37, was a neighbour of the respondent. Prior to the offences, the applicant and the respondent had lived next door to each other for about 18 months and were initially on friendly terms, minding each other’s children and the respondent assisting the applicant with insulin injections. [4] In about September 2005, the friendship ended after an occasion when the applicant had friends over who stayed late into the night. The respondent became hostile towards the applicant and they stopped speaking. On 12 January 2006, the respondent came to the applicant’s front door and apologized to her and after this they began talking again and were on friendly terms, although not as friendly as previously. [5] At 4.30pm on 12 February 2006, the applicant was at the front of her unit sweeping leaves. The applicant was bending down behind some pot plants when she heard the respondent’s front door slam open and heard the respondent say “You want to laugh at me, I’ll give you something to laugh at, you fucking cunt.” The applicant then saw the respondent run along the fence between their units. The respondent ran into the applicant’s yard and screamed at her abusively, yelling “Are you laughing at me, cunt, are you laughing?” The applicant replied with words to the effect that she was not laughing at the respondent and that she was sweeping up leaves. The respondent then pushed the applicant off balance. The respondent then raised her hand with a pair of scissors. The applicant turned and ran towards her home and as she did so, she felt a prick in her right shoulder blade. This conduct constituted the offence of assault occasioning bodily harm whilst armed. [6] The applicant kept running and managed to get to the front door of her unit. The respondent was chasing her and screaming at her. As the applicant tried to push the front door shut, the respondent was standing just inside the doorway. The applicant pushed the respondent in the chest and screamed at her to get out. This conduct constituted the offence of burglary with violence while armed. [7] As the applicant pushed the respondent, the respondent continued to scream abuse. The applicant felt a pain near to her left elbow. This was the respondent stabbing the applicant with the scissors. The applicant, with the assistance of her 15 year old son, was then able to push the respondent out the door, shut the door and call the police. [8] When police arrived they located the respondent at her unit, arrested her and conducted a search, locating a pair of blood stained scissors underneath a sheet on a chair in the respondent’s lounge room.2 1 Exhibit CJP 3 (Sentencing Remarks) p.4, Affidavit of Colin Patino sworn 26 November 2009 2 Exhibit KB 2 (Sentencing Submissions) pp 1-3 – 1-4, Affidavit of Kirsty Boyles sworn 4 August 2010 -- 2 of 5 -- 3 Injuries [9] The applicant was taken by ambulance to the Logan Hospital. The injury to the applicant’s right shoulder blade was described medically as “a superficial abrasion”, a small cut which was slightly tender and uncomfortable3. The injury constituting the “unlawful wounding” was a deep laceration to the applicant’s left arm, closed with “paper” stitches. The applicant sustained nerve damage, lost the lateral motion to her wrist and lost all feeling in the two smaller fingers of her left hand.4 [10] The treating doctor at the time the applicant was examined in hospital found no lack of mobility due to the injury, and although it was accepted that there may be some nerve damage, the prosecution on sentence advised the court that the doctors were not prepared to state that the injury amounted to “grievous bodily harm”, as there was a possibility the nerves could regrow or repair themselves5. The law [11] The application in this matter was filed on 18 January, 2010. This was subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. However, the application was filed in accordance with the transitional provisions of VOCCA ss.154 and 155, and the applicant is entitled to proceed with an application for compensation pursuant to COVA s.24. The application was filed within the relevant time limit pursuant to COVA s.40(1). [12] I refer to and adopt my exposition of the relevant applicant law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214. Compensation [13] Mr Williams, who appears for the applicant, seeks compensation as follows:- (1) Item 1 – Bruising/Laceration etc (minor/moderate) – 1% - 3% The applicant on admission to the Emergency Department of the Logan Hospital was examined by Dr Syeb Taqvi. Dr Taqvi noted that the applicant “had a superficial abrasion to her right shoulder 5/6 mm long and a deep laceration wound to her left elbow 6/7 mm long”. Dr Taqvi noted further that “the left elbow was markedly tender and a haematoma of 2 x 3cm [was] noticed at the injured area of the left elbow.”6 The report of Dr Taqvi on these issues is congruent with the admission notes made by Dr Taqvi and contained in the applicant’s Logan Hospital records.7 3 Exhibit KB 2 (Sentencing Submissions) p.1-4, Affidavit of Kirsty Boyles sworn 4 August 2010 4 Exhibit KB 2 (Sentencing Submissions) p.1-4, Affidavit of Kirsty Boyles sworn 4 August 2010 5 Exhibit KB2 (Sentencing Submissions) p.1-5, Affidavit of Kirsty Boyles sworn 4 August 2010 was filed on 18 January 2010. 6 Exhibit CJP (Statement of Dr Syeb Taqvi) p.1, Affidavit of Colin Patino sworn 26 November 2009 7 Exhibit CKK 3 (Logan Hospital records) p.67 (Admission Notes) Affidavit of Cindy Crutcher sworn 27 November 2009 -- 3 of 5 -- 4 Mr Williams submitted that an assessment for bruising/laceration could be incorporated into an item 26 (stab wound severe) assessment, or alternatively, could be dissected out and dealt with separately. In my view, it is more appropriate to deal with it separately. The bruising/laceration to the applicant’s right shoulder blade and left arm would in my view be appropriately compensated by an award of 2% of the scheme maximum ($1,500). Accordingly I award $1,500 pursuant to item 1. (2) Item 27 – Facial disfigurement or bodily scarring (minor/moderate) – 2% - 10% The applicant was examined by Dr Noel Langley, orthopaedic surgeon on 1 May 2009. He provided a report dated 12 May 20098. Dr Langley noted on examination that the applicant had “a small scar on the left forearm and another on the back of the right sole.”9 Mr Williams submits that an award should be made at 6% of the scheme maximum in respect of the bodily scarring. With respect, the relatively minor scarring sustained by the applicant should more appropriately receive an award of 4% of the scheme maximum ($3,000). Accordingly I award $3,000 pursuant to item 27. (3) Item 15 – Fracture/Loss of use of arm/wrist (minor) The report of Dr Langley10 finds that the applicant “had some slight weakness in the left hand as far as the power of the interosseous muscles are concerned [which] would have been affected as a result of the nerve lesion”. Dr Langley noted that the applicant “had a normal range of movement in her left wrist of flexion and extension, radial deviation and ulna deviation.” Dr Langley considered that the stab wound to the applicant’s left arm had “produced some ongoing impairment to the left ulnar nerve.” The report of Dr Taqvi indicates that at the time of the applicant’s admission to the Emergency Department of the Logan Hospital, the applicant “had numbness at the 2 and ½ ulnar side fingers of left hand (little, ring and half of middle finger) but no motor deficits noticed.”11 Mr Williams submits that an award should be made at 8% of the scheme maximum for the nerve damage suffered by the applicant in her arm. However, in the light of Dr Langley’s report, it is, I consider, more appropriate to award 5% of the scheme maximum ($3,750) pursuant to item 15. Accordingly I award $3,750 pursuant to item 15. (4) Item 26 - Gunshot/Stab wound (severe) – 15%-40% Mr Williams submits that the applicant should receive an award of 22% of the scheme maximum in respect of the stab wounds to her shoulder and elbows. The stab wound to the shoulder caused only a superficial injury. The significant stab 8 NFL 1, Affidavit of Noel Langley sworn 2 December 2009. 9 Exhibit NFL 1 p.4, Affidavit of Noel Langley sworn 2 December 2009 10 Exhibit NFL 1 p.4, Affidavit of Noel Langley sworn 2 December 2009 11 Exhibit CJP 2 (Statement of Dr Syeb Taqvi) p.1, Affidavit of Colin Patino Sworn 26 November 2009 -- 4 of 5 -- 5 wound was that to the applicant’s left elbow. Although the stab wound appears to have had some reasonably significant ongoing physical effects, I consider it far more appropriate to assess the applicant’s injuries pursuant to item 5 – (gunshot/stab wounds (moderate)). Accordingly, I award 15% of the scheme maximum ($11,250) pursuant to item 26. Contribution [14] The applicant has not contributed in any way, direct or indirect, to her own injuries.12 Order [15] I order that the respondent Leaha Terese Skewes pay the applicant Cindy Kay Crutcher the sum of $19,500. 12 COVA s.25(7) -- 5 of 5 --