Bishop v Phillips [2010] QDC 141

DISTRICT COURT OF QUEENSLAND CITATION: Bishop v Phillips [2010] QDC 141 PARTIES: LINDSAY JAMES BISHOP (Applicant) v DOUGLAS ALLEN PHILLIPS (Respondent) FILE NO/S: 140/10 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 13 April 2010 DELIVERED AT: Brisbane HEARING DATE: 13 April 2010 JUDGE: Rafter SC DCJ ORDER: The respondent pay to the applicant the sum of $75,000.00 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of attempted robbery in company while armed with an offensive instrument and grievous bodily harm, which led to the conviction of the respondent in the District Court at Brisbane on 1 December 2008 CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – where the respondent convicted of attempted robbery in company while armed with an offensive instrument and 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, s 26 Criminal Offence Victims Regulation 1995 (Qld), s 2 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 Youth Justice Act 1992 (Qld), s 256 R v Ward, ex-parte Dooley [2001] 2 Qd R 436; [2000] QCA 493 COUNSEL: L Menolotto for the applicant -- 1 of 6 -- 2 No appearance by or for the respondent SOLICITORS: Towns-Wilson 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 and others on 13 December 2007. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The originating application was filed on 18 January 2010. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined according to the Criminal Offence Victims Act 1995. [2] On 1 December 2008 in the District Court at Brisbane the respondent pleaded guilty, inter alia, to one count of attempted robbery with a circumstance of aggravation and one count of grievous bodily harm. On 2 December 2008 he was sentenced to five years imprisonment with a parole eligibility date after approximately two years, namely on 11 December 2009. It was declared that he had served 354 days in pre-sentence custody from 14 December 2007 to the date of sentence. [3] The respondent was served with the application and supporting affidavit material at the Woodford Correctional Centre on 8 April 2010.1 There was no appearance by or for the respondent. Circumstances of the offences [4] The applicant and another man were attacked by the respondent and a group of juveniles on 13 December 2007. [5] When sentencing the respondent on 2 December 2008 I said: “The two complainants were walking through the fields of the Deception Bay Sports Club on their way to a bottleshop. You and about eight juveniles were at a nearby skate park having been drinking to celebrate the birthday of one of the youths. You were the instigator of a sustained attack upon the complainant Mr Bishop. You attacked him with a fist sized rock. You continued to attack him after he was knocked to the ground. Meanwhile one of the juveniles knocked the other complainant, Mr Dennis to the ground. He was then struck with a bottle. You continued to strike the first complainant in the face with the rock. You also struck the other complainant. Many of the group kicked the complainants until one youth called out to stop. One youth struck the complainant Mr Dennis with a stick. You later burnt your shirt which was covered in blood. You threatened to hurt anyone who said anything about what had happened. 1 Affidavit of Barend Pieter Marais filed by leave on 13 April 2010. -- 2 of 6 -- 3 This is a serious example of alcohol fuelled violence. The attack upon these men was unprovoked, cowardly, sustained and vicious. The nature of the crime is so serious that deterrence is an important consideration. Mr Bishop suffered very serious injuries. He sustained broken upper and lower jaws resulting in a deranged bite and ongoing pain and difficulty chewing. He suffered a broken eye socket and ruptured right globe resulting in blindness in the right eye and there is a distinct possibility that the eye may have to be removed in the future. He also suffered bruising to the upper body, arms and legs. He continues to experience loss of memory, pain, loss of sensation in the chin, aggravated depressive disorder and post traumatic stress disorder. He has required counselling. He continues to experience difficulty in sleeping. The victim impact statement shows that your violent attack upon him has affected many aspects of his life including his ability to play with his 13 year old son.”2 Injuries and medical reports [6] As mentioned in my sentencing remarks the applicant suffered significant facial fractures. He was treated at the Royal Brisbane and Women’s Hospital. [7] In his affidavit the applicant states: “The respondent together with other offenders assaulted me. I sustained serious facial injuries and lost my right eye as a result of the assault.” 3 [8] The applicant was examined by Dr Kar, consultant psychiatrist on 10 September 2009. In his report dated 10 September 2009 Dr Kar states: “Mr Bishop said he had been in a coma for three days, and had remained in the hospital for a further three days out of the coma. Mr Bishop said he had discharged himself as he wanted to be home to look after his son. He was a single parent and he was worried about his son. Mr Bishop said after he came out of the coma he had several operations, with reconstruction of the right side of his face, and with treatment to the injuries to his head and face. Mr Bishop said his right eye could not be saved. Mr Bishop had bruises all over his body. He had a broken jaw and a broken cheek bone on the right side. Mr Bishop reported jaw and teeth pain. He had lost teeth in the assault. He said his cheek bone was still tender. 2 Transcript of Sentencing Remarks, District Court Brisbane, 2 December 2008 at pp 8-9. 3 Affidavit of the applicant filed 25 March 2010 at para 9. -- 3 of 6 -- 4 Mr Bishop has had about three operations to his jaw and two to his eye. Mr Bishop said doctors had to take his eye out after complications to the initial enucleation operation. After operation Mr Bishop said he still had infection to the eye. He was on strong antibiotics to treat it.”4 [9] Not surprisingly the applicant has experienced significant nightmares. Dr Kar is of the opinion that the applicant has suffered the psychiatric conditions of adjustment disorder with depressed mood and post traumatic stress disorder. He considers that these conditions are moderately severe.5 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)). 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. 6 The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained: “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.”7 4 Report of Dr Prabal Kar dated 10 September 2009, Exhibit C to the Affidavit of the applicant filed 25 March 2010. 5 Report of Dr Prabal Kar dated 10 September 2009 at p 7, Exhibit C to the Affidavit of the applicant filed 25 March 2010. 6 [2001] 2 QdR 436. 7 [2001] 2 QdR 436 at 438 para [5]. -- 4 of 6 -- 5 The applicant’s submissions [13] Mr Menolotto 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) 1% to 3% $750.00 - $2,250.00 5 Loss or damage of teeth 1% to 12% $750.00 - $9,000.00 8 Facial fracture (severe) 20% to 30% $15,000.00 - $22,500.00 27 Facial disfigurement or bodily scarring (minor/moderate) 2% to 10% $15,000.00 - $22,500.00 29 Loss of vision (one eye) 70% $52,500.00 33 Mental or nervous shock (severe) 20% to 34% $15,000.00 - $25,500.00 [14] Mr Menolotto therefore submits that the applicant should be awarded the maximum amount of compensation namely $75,000.00. Assessment [15] I accept the submissions of Mr Menolotto that the applicant’s injuries should be assessed in accordance with the items nominated by him. The applicant suffered significant facial fractures which in my view should result in an assessment of 20% of the scheme maximum namely $15,000.00. [16] The applicant’s loss of vision and the subsequent removal of his right eye should be assessed at 70% of the scheme maximum under item 29 in the compensation table. This results in an award of $52,500.00. [17] I would assess the applicant’s psychological condition under item 33 of the compensation table at 20% of the scheme maximum resulting in an award of $15,000.00. [18] The total of the percentages for facial fractures, loss of vision and mental or nervous shock is 110%. Section 25(3) provides that if the total exceeds the scheme maximum then only the scheme maximum may be ordered to be paid. This makes it unnecessary to make any assessment for the other injuries. [19] Therefore the total assessment is $75,000.00. -- 5 of 6 -- 6 [20] At the hearing I drew to Mr Menolotto’s attention that the report of the psychiatrist Dr Kar indicated that three juvenile offenders were sentenced in the Childrens Court of Queensland on 12 June 2009. The applicant did not commence proceedings for compensation against those juvenile offenders. He would have been entitled to do so because s 256 Youth Justice Act 1992 declares that the repealed Criminal Offence Victims Act 1995 applies to an offence committed by a child. However the time for bringing such an application has now expired: s 155(2) Victims of Crime Assistance Act 2009. Ordinarily applications for criminal compensation are made against all offenders. Sometimes it is necessary to make an order for compensation providing for separate liability of the offenders according to their direct and material contribution (s 26(6)(a)). [21] In this case the respondent was the instigator of the attack upon the applicant. It was the respondent who caused the serious injuries to the applicant. In the circumstances it is appropriate that the respondent be ordered to pay the entire assessment of compensation. Order [22] I order that the respondent pay to the applicant the sum of $75,000.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of attempted robbery in company while armed with an offensive instrument and grievous bodily harm, which led to the conviction of the respondent in the District Court at Brisbane on 1 December 2008. -- 6 of 6 --