Darben v Appleton [2010] QDC 231

DISTRICT COURT OF QUEENSLAND CITATION: Darben v Appleton [2010] QDC 231 PARTIES: BRENT JOHN DARBEN (Applicant) v BOE MICHAEL APPLETON (Respondent) FILE NO/S: 3790/09 PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 7 June 2010 DELIVERED AT: Brisbane HEARING DATE: 7 June 2010 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $30,000.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – where the respondent convicted of grievous bodily harm – where the applicant suffered physical and psychological injuries – assessment of compensation Criminal Offence Victims Act 1995(Qld), s 22, s 24, s 25 Criminal Offence Victims Regulation 1995(Qld), s 2 Public Trustee Act 1978(Qld) Victims of Crime Assistance Act 2009(Qld), s 149, s 155 R v Ward, ex-parte Dooley [2001] 2 Qd R 436; [2000] QCA 493 Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148 COUNSEL: Y Chekirova for the applicant No appearance by or for the respondent -- 1 of 7 -- 2 SOLICITORS: Campbell & White Lawyers for the applicant No appearance by or for the respondent Introduction [1] The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondent on 24 January 2008. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995. [2] On 4 December 2008 in the District Court at Brisbane the respondent pleaded guilty, inter alia, to one count of grievous bodily harm. He was sentenced to 3 years imprisonment with a parole release date fixed after 15 months, namely on 10 July 2009. The period of 237 days of pre-sentence custody served by the respondent commencing on 11 April 2008 was declared to be imprisonment already served under the sentence. 1 [3] The application and supporting affidavit material were served on the respondent at the Brisbane Correctional Centre on 21 May 2010.2 The applicant’s solicitors also took the step of serving the application and supporting affidavit material on the Public Trustee on 25 May 2010.3 The applicant’s solicitors have not received any indication that the Public Trustee wished to participate in the proceeding. Circumstances of the offence [4] The applicant had been celebrating his 30th birthday at home with friends. He then went to a local store at Zillmere to purchase cigarettes.4 The respondent entered the shop in the company of some friends, pushing a pram containing a young child. The applicant was waiting in line to be served when the respondent walked past him and engaged him in some hostile conversation. The applicant recalled the respondent saying “I will smash you.” 5 The respondent then left the shop, waiting outside the entry doors. As the applicant left the shop, the respondent struck him in the head with a closed fist as he walked past. The applicant was again struck to the head with a closed fist, after which he lost consciousness. The applicant was knocked to the ground by the blows, regaining consciousness while on the ground.6 Injuries and medical reports [5] When sentencing the respondent, I stated: 7 1 Exhibit D to the affidavit of Abigail Victoria Webb filed 24 December 2009. 2 Affidavit of Wayne Colin Heydt filed 3 June 2010. 3 Affidavit of Jacqui Margaret Lewis filed 3 June 2010. 4 Transcript of Sentencing Remarks, District Court Brisbane, 4 December 2008 at pages 2-3. 5 Affidavit of the applicant filed 13 January 2010 at page 2. 6 Affidavit of the applicant filed 13 January 2010 at pages 2-3. 7 Transcript of Sentencing Remarks, District Court Brisbane, 4 December 2008 at page 3. -- 2 of 7 -- 3 “The complainant sustained an injury to his back and fractures to his jaw and broken teeth. He required surgery and the insertion of titanium plates. He was hospitalised. The offence has had a fairly significant impact upon him as the victim impact statement indicates.” [6] In his affidavit, the applicant states: 8 “As a result of this incident I received fractures to my vertebrae in my neck and my jaw had been broken at the front and the rest of the left hand bottom of the jaw was smashed. I remained in emergency at the hospital that night. The following day I had surgery to repair my damaged jaw. I also recall having a neck brace fitted. I said (sic) at the Royal Brisbane Hospital for five days. I had to wear a neck brace for about 10 weeks.” [7] In his statement dated 8 May 2008,9 Dr Alistair Reid of the Royal Brisbane and Women’s Hospital states that the applicant’s injuries led to gross deformity of the face, gross malocclusion and pain. Dr Reid states that the applicant’s grossly displaced and compound left lower jaw fracture in particular was at high risk of causing serious infection and serious lifelong malocclusion causing disfigurement and impaired occlusal function. Operative repair of the applicant’s injuries was undertaken on 26 January 2008, involving the debridement of the applicant’s front jaw wound, reduction and fixation of the applicant’s compound left lower jaw fracture with titanium miniplates and the removal of multiple teeth. He was discharged from the Hospital on 28 January 2008. [8] The applicant required the use of a neck brace for approximately 2 months after his discharge from the Hospital. He makes use of a top denture. The applicant has only 6 teeth remaining in his lower jaw. In his victim impact statement, the applicant states that he would be getting a bottom denture. 10 [9] The applicant was examined by Peter Stoker, Clinical Psychologist, on 23 September 2009. In his report dated 5 October 2009,11 Mr Stoker notes that the applicant is avoidant of local shops at night without others for company and is more hypervigilant and suspicious of people. The applicant worries about suffering a further assault. Mr Stoker is of the opinion that the applicant suffers from a specific phobia, being fearful of going to local shops at night, and recommends he undertake cognitive behavioural therapy. Mr Stoker considers the applicant to suffer from a condition falling within the middle to upper level of the mild range for mental and nervous shock. 8 Affidavit of the applicant filed 13 January 2010 at paras 22, 23, 24 and 25. 9 Exhibit G to the affidavit of Abigail Victoria Webb filed 24 December 2009. 10 Exhibit F to the affidavit of Abigail Victoria Webb filed 24 December 2009 at page 2. 11 Exhibit PS-2 to the affidavit of Peter John Stoker filed 24 December 2009. -- 3 of 7 -- 4 The applicable principles [10] The assessment of compensation is governed by Part 3 Criminal Offence Victims Act 1995. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). [11] The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)). If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). [12] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex parte Dooley. 12 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:13 “But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34%. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.00.” 12 [2001] 2 QdR 436. 13 [2001] 2 QdR 436 at 438 para [5]. -- 4 of 7 -- 5 The applicant’s submissions [13] In her written submissions, Ms Chekirova for the applicant submits that the following injuries in the compensation table are applicable: Item Injury Percentage of Scheme Maximum Amount 1 Bruising/laceration etc. (minor/moderate) 3% $2,250.00 5 Loss or damage of teeth 8% $6,000.00 8 Facial fracture (severe) 25% $18,750.00 21 Neck/back/chest injury (minor) 5% $3,750.00 31 Mental or nervous shock (minor) 8% $6,000.00 [14] Ms Chekirova therefore sought an award of 49% of the scheme maximum, which is $36,750.00. Assessment [15] The applicant has demonstrated avoidant behaviour and become more hypervigilant and suspicious of people as a consequence of the assault. I accept Mr Stoker’s opinion that the applicant’s psychological condition falls within the middle to upper level of the mild range as contained in the compensation table. The range in item 31 is 2% to 10%. In accordance with Ms Chekirova’s submission, I would assess the applicant’s psychological condition under item 31 (Mental or nervous shock (minor)) in the compensation table at 8% of the scheme maximum, resulting in an award of $6,000.00. [16] Dr Reid states that the applicant suffered a partial dislocation of the cervical spine. 14 There is no additional medical evidence indicating further or continuing complications associated with this injury other than the applicant’s statement that he required the use of a neck brace for 10 weeks following the assault. I accept Ms Chekirova’s submission that the applicant’s neck injury should result in an assessment under item 21 (Neck/back/chest injury (minor)) in the compensation table of 5% of the scheme maximum, namely $3,750.00. [17] The photographs of the applicant exhibited to his affidavit filed 24 December 2009 show some of the lacerations he sustained in the assault. I accept that an award for compensation under item 1 (Bruising/laceration (minor/moderate)) in the compensation table is appropriate. However, I do not accept that the injuries documented in those photographs justify an award of 3% of the scheme maximum as submitted by Ms Chekirova. An award of 3% of the scheme maximum falls at the 14 Exhibit G to the affidavit of Abigail Victoria Webb filed 24 December 2009. -- 5 of 7 -- 6 top of the minor/moderate range, or at the bottom of the severe range for bruising/laceration as contained in item 2 in the compensation table. Taking into account the requirement to scale injuries according to their seriousness, I would assess an award of 1% of the scheme maximum, namely $750.00. [18] The applicant has suffered distinct facial injuries that in my view can be separately assessed under items 5 (Loss or damage of teeth) and 8 (Facial fracture (severe)) of the compensation table without leading to duplication of compensation. 15 [19] The applicant was left with multiple fractured and dislocated teeth by the assault. Several teeth were removed when the applicant underwent surgery on 26 January 2008, however Dr Reid’s statement makes clear that this was “… both due to extensive injury and previous decay.”16 No additional dental evidence has been provided to indicate the extent of the applicant’s previous decay and the contribution, if any, this had upon the removal of the applicant’s teeth. The applicant makes use of a top denture and has only 6 teeth remaining in his lower jaw. At the time of writing his victim impact statement, the applicant indicated that he would be getting a bottom denture in the future.17 I would assess an award under item 5 of the compensation table of 6% of the scheme maximum, namely $4,500.00. [20] The applicant’s multiple jaw fractures, inter alia, led Dr Reid to opine that he suffered a disability in the form of gross deformity of the face and gross malocclusion. The applicant required surgical repair of his injuries, including the insertion of titanium plates. As previously noted,18 the applicant’s grossly displaced and compound left lower jaw fracture in particular was at high risk of causing serious infection and serious lifelong malocclusion. However, the extent to which this risk materialised is not clear from the rather limited medical evidence. Dr Reid’s opinion as expressed in his statement dated 13 March 2008 appears premised upon the applicant’s injury being left untreated. That was not the case. Dr Reid was unable to provide any further comment upon the applicant’s injuries as the applicant failed to attend a scheduled review appointment. 19 I am of the view that this case falls within the severe range allowed for facial fracture in the compensation table. I would assess the applicant’s injuries under item 8 of the compensation table at 20% of the scheme maximum, resulting in an award of $15,000.00. 15 Wren v Gaulai [2008] 2 Qd R 383 at 388-389 paras [23]-[24] per Fraser JA. 16 Exhibit G to the affidavit of Abigail Victoria Webb filed 24 December 2009. 17 Exhibit F to the affidavit of Abigail Victoria Webb filed 24 December 2009 at page 2. 18 See para [7]. 19 Exhibit G to the affidavit of Abigail Victoria Webb filed 24 December 2009. -- 6 of 7 -- 7 [21] I assess compensation as follows: Item Injury Percentage of Scheme Maximum Amount 1 Bruising/laceration etc. (minor/moderate) 1% $750.00 5 Loss or damage of teeth 6% $4,500.00 8 Facial fracture (severe) 20% $15,000.00 21 Neck/back/chest injury (minor) 5% $3,750.00 31 Mental or nervous shock (minor) 8% $6,000.00 [22] Therefore the total assessment is $30,000.00. [23] There is no behaviour of the applicant that contributed directly or indirectly to his injuries. Order [24] I order that the respondent pay to the applicant the sum of $30,000.00 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008. -- 7 of 7 --