Donohue v Walters [2010] QDC 234

DISTRICT COURT OF QUEENSLAND CITATION: Donohue v Walters [2010] QDC 234 PARTIES: JUSTIN JAMES DONOHUE (Applicant) AND PHILLIP WAYNE WATERS (Respondent) FILE NO/S: DIVISION: PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 21 May 2010 DELIVERED AT: Toowoomba HEARING DATE: 17 May 2010 JUDGE: Reid DCJ ORDER: 1. The applicant be entitled to a sum of $15,000 being 20 per cent of the scheme maximum from the respondent. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR CRIMINAL COMPENSATION - where applicant victim of a grievous bodily harm – where applicant suffered facial fracture Criminal Offence Victims Act 1995, s 20, s 25, Criminal Offence Victims Regulation 1995, r 1A COUNSEL: J. Bailey for the applicant No Appearance for the respondent SOLICITORS: Shannon Donaldson for applicant No Appearance for the respondent -- 1 of 5 -- [1] This is an application for compensation pursuant to the provisions of the Criminal Offence Victims Act ("the Act"). [2] Service has been effected as required by the Act but the respondent appears to have shown no interest in the proceedings. [3] The applicant was born on the 7th of July 1987 and was injured on the 3rd of May 2007 when attacked by the respondent in the car park of a hotel in Toowoomba. The applicant, the respondent and others had been playing in a pool competition at the Newtown Hotel. During the night there was a dispute involving friends of the applicant and the respondent, but it does not appear that the applicant was actively involved in the dispute. Rather, it seems he may have been somewhat of a peace-keeper. Later when the applicant was leaving the premises he was attacked, initially by Nathan Hooper, and then, more aggressively, by the respondent. The respondent struck him four to five times in the face. A cracking sound came from his face when this occurred. His mouth was bleeding. [4] The applicant was taken by friends to their home and an ambulance was called. He was then taken to Toowoomba Base Hospital where he underwent surgery for a bi-lateral mandibular fracture with some mild displacement of the right angle of the jaw and facial swelling. He remained in hospital for four days. He underwent surgery on the 4th of May - an open reduction and external fixation of his mandible. He also required post-operative elastic inter-maxillary fixation therapy. -- 2 of 5 -- [5] In his victim impact statement of the 24th of September 2007, some four and a- half months post-injury, he said he had: (i) fractured his jaw; (ii) mal-alignment of his teeth with consequent difficulty biting; (iii) four weeks off work and then in fact terminated his employment as he felt it was unfair to his employer to have to hold his job open to him - it was apparently a small but busy business; (iv) developed an uncomfortable feeling about going to any pubs or clubs or into dark areas and had become somewhat reclusive; (v) lost confidence and felt stressed. [6] The applicant has sworn an affidavit of the 21st of January 2010. He was then working full-time with Williams Engineering in Toowoomba, but it was not clear when he had in fact resumed employment after the attack in May 2007. He says nothing about his recovery since the time of the victim impact statement of the 24th of September, and there are no current medical reports dealing with his injuries. In the circumstances, I know little about the injuries other than the circumstance of their occurrence, the need for hospitalisation and consequent surgery and the effect it had on him up to September 2007. I infer that he's made a reasonably good recovery, as would be usual with such an injury. -- 3 of 5 -- [7] The scheme of the legislation is that an applicant with an injury such as Mr Donohoue is to be assessed under Schedule I of the Act which sets out a table of injuries and ascribes a range of percentages of the scheme maximum which apply to such injuries. The current scheme maximum is $75,000.00 [8] The applicant's injuries might be considered under items 6, 7 or 8 of the schedule which provide as follows: “6) Facial fracture (minor) eight to 14 per cent of the scheme maximum; 7) Facial fracture (moderate) 14 to 20 per cent of the scheme maximum; 8) Facial fracture (severe) 20 to 30 per cent of the scheme maximum.” [9] The applicant was also bleeding from his mouth and had facial swelling so I believe he might also be entitled to a small amount under item 1 which covers bruising/laceration, et cetera (minor-moderate) and has a range of 1 to 3 per cent of the scheme maximum. [10] Although Mr Bailey, counsel for the applicant, urged upon me that the applicant's fracture should be assessed under item 8 as being severe, in my view, and having regard to the state of the material concerning his injuries since September 2007, it is more appropriately assessed under item 7. I so conclude because after the initial surgery and hospitalisation it does not appear he has required any further medical treatment as might be usual in the case of a severe fracture. [11] Within item 7 I assess his injuries at the mid-point of 17 per cent of the scheme maximum. I allow an additional 3 per cent under item 1. -- 4 of 5 -- [12] The assault was entirely unprovoked and there is nothing which might result in a reduction of the award I should make having regard to section 25(7) of the Act. [13] In all, therefore, I assess the applicant's injuries as amounting to 20 per cent of the scheme maximum and give judgment for $15,000. [14] The order is that the respondent, Phillip Wayne Waters, pay to the applicant, Justin James Donohue, the sum of $15,000 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries suffered by reason of the offence for which the respondent was convicted upon indictment on the 1st of May 2008. -- 5 of 5 --