Bassos v Axford [2010] QDC 140

DISTRICT COURT OF QUEENSLAND CITATION: Bassos v Axford [2010] QDC 140 PARTIES: MATTHEW VICTOR BASSOS (Applicant) v REECE JAMES AXFORD (Respondent) FILE NO/S: 3476/09 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 $18,750.00 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of robbery in company with personal violence which led to the conviction of the respondent in the District Court at Brisbane on 17 April 2008. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – robbery in company with personal violence – physical injuries and mental or nervous shock 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 155 R v Ward, ex-parte Dooley [2001] 2 Qd R 436; [2000] QCA 493 Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148 COUNSEL: C K George for the applicant -- 1 of 6 -- 2 No appearance by or for the respondent SOLICITORS: Carter Capner Law 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 (“the Act”) for physical and emotional injuries caused by an attack by the respondent on 12 April 2007. The Act was repealed by the Victims of Crime Assistance Act 2009 which came into force on 1 December 2009. The originating application was filed on 23 November 2009. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined pursuant to the Act. [2] On 17 April 2008 in the District Court at Brisbane, the respondent pleaded guilty to robbery in company with personal violence and other offences. He was sentenced to 3 years imprisonment with a parole release date fixed at 23 May 2008.1 The period of 327 days of pre-sentence custody served by the respondent commencing on 26 May 2007 was declared to be imprisonment already served under the sentence. [3] The application and supporting affidavit material were served on the respondent on 30 December 2009.2 Circumstances of the offences [4] At the time of the offence, the applicant was a 19 year old student. The respondent was 18 years of age. [5] At approximately 10:30 pm on 12 April 2007, the applicant was walking to the Carindale Shopping Centre bus stop with five other persons. The respondent was a member of a group of persons walking towards the applicant and his group. The applicant was struck in the face by the respondent, knocking him to the ground. While on the ground, the applicant’s wallet was stolen. 3 [6] The applicant got up and ran to assist another member of his group who was being set upon by three persons including the respondent. The applicant was again knocked to the ground by a blow to the face. While on the ground, he was kicked in the head and abdomen area numerous times before losing consciousness.4 Injuries and medical reports [7] The applicant sustained very serious injuries as a result of the blows inflicted on him, including multiple facial contusions, a subconjuntival haemorrhage, 5 bruising6 and a chronic adjustment disorder with anxious mood. 7 1 Exhibit JCW3 to the affidavit of Joseph Charles Wheeler, filed 17 December 2009 (Transcript (Sentence) District Court Brisbane 17 April 2008 at page 5, lines 12-25). 2 Affidavit of Dean Andrew Sawyer, filed 7 January 2010. 3 Exhibit MVB1 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 2-3. 4 Exhibit MVB1 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 2-3. 5 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 10 (Discharge Summary of the Princess Alexandra Hospital – Hepato Pancreato Bilary Unit). -- 2 of 6 -- 3 [8] The applicant was transported by ambulance to the Emergency Department at the Princess Alexandra Hospital, having lost consciousness for an unknown period.8 CT scans of the applicant’s head and abdomen did not reveal any fractures of the skull or facial bone or evidence of a pancreatic injury, 9 however right-sided pre septal soft tissue swelling was present. 10 On the basis of a mildly elevated serum lipase level and complaints of epigastric pain which raised the possibility of a pancreatic injury, the applicant was admitted to the ward on 13 April 2007 for overnight observation. 11 He was discharged on 14 April 2007.12 [9] The applicant’s treating psychiatrist Dr Joseph Mathew provided a medical report dated 6 October 2008 in which he diagnosed the applicant as suffering from a chronic adjustment disorder with anxious mood, along with diagnoses of a generalised anxiety disorder and obsessive-compulsive personality traits that were longstanding in nature. 13 In his supplementary report dated 16 April 2009, Dr Mathew stated that he considered the applicant’s psychological injury to fall within the ‘moderate’ range as contained within the compensation table. 14 Dr Mathew had previously been the applicant’s treating psychiatrist; however he noted that the applicant stopped treatment in October 2006.15 [10] Dr Mathew noted that the applicant presented in an agitated, dysphoric and anxious manner at his initial post-robbery consultation on 17 April 2007.16 The applicant reported suffering from intrusive memories associated with feelings of terror, difficulties sleeping and a fear of being re-assaulted. 17 During the course of his initial 6 months of treatment, Dr Mathew states that the applicant had a worsening of his previous themes of anxiety. However, some improvement was seen with time and treatment. 18 [11] Following a 9 month absence, the applicant returned for further treatment in July 2008, suffering from ongoing generalised anxiety in addition to robbery-specific anxiety and avoidance. 19 Dr Mathew notes: 20 “He remains anxious when leaving the house, particularly at night and is fearful of being reassaulted. He has required ongoing medication with an antidepressant agent (Venlafaxine) as well as a sleeping tablet. His sleeping has been poor for many years. 6 Exhibit MVB2 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at pages 5-9. 7 Exhibit JM1 to the affidavit of Joseph Mathew, filed 27 January 2010 at page 4. 8 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 27 (Medical Statement of Dr Shinn Yeung, Princess Alexandra Hospital). 9 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 27 (Medical Statement of Dr Shinn Yeung, Princess Alexandra Hospital). 10 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 34. 11 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 27 (Medical Statement of Dr Shinn Yeung, Princess Alexandra Hospital). 12 Exhibit MVB3 to the affidavit of Matthew Victor Bassos, filed 2 December 2009 at page 27 (Medical Statement of Dr Shinn Yeung, Princess Alexandra Hospital). 13 Exhibit JM1 to the affidavit of Joseph Mathew, filed 27 January 2010 at page 3. 14 Exhibit JM2 to the affidavit of Joseph Mathew, filed 27 January 2010 at page 1. 15 Exhibit JM1 to the affidavit of Joseph Mathew, filed 27 January 2010 at page 2. 16 Exhibit JM1 to the affidavit of Joseph Mathew, filed on 27 January 2010 at page 3. 17 Exhibit JM1 to the affidavit of Joseph Mathew, filed 27 January 2010 at page 2. 18 Exhibit JM1 to the affidavit of Joseph Mathew, filed on 27 January 2010 at page 3. 19 Exhibit JM1 to the affidavit of Joseph Mathew, filed on 27 January 2010 at page 4. 20 Exhibit JM1 to the affidavit of Joseph Mathew, filed on 27 January 2010 at page 4. -- 3 of 6 -- 4 … Mr Bassos is likely to suffer ongoing fears of being reassaulted in a variety of settings which are likely to restrict his activity somewhat. Moreover, his assault has worsened his pre-existing anxiety resulting in a need for further psychiatric treatment.” [12] In his affidavit filed on 2 December 2009, the applicant states that his first thoughts when he awoke in hospital were of disorientation and immense pain. He states he was unable to swallow and required the use of a wheelchair to be moved around. The robbery led to the applicant having difficulties at university, finding it hard to concentrate and feeling dizzy and sick while studying. The applicant continues to have concerns being around large groups of people, especially when it is dark. He has difficulty using public transport. He states that his social life has been disturbed by the robbery, something that continues to date. 21 The applicable principles [13] The assessment of compensation is governed by Part 3 of the 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 (s22(3)). [14] The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. 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)). [15] If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).22 The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.23 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 per cent to 34 per cent 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 per cent. 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 21 Affidavit of Matthew Victor Bassos, filed 2 December 2009 at pages 2-5. 22 See Wren v Gaulai [2008] 2 Qd R 383. 23 [2001] 2 Qd R 436. -- 4 of 6 -- 5 psychological results of an assault could, on that account, get no more than $25,500.” 24 The applicant’s submissions [16] In his written submissions, Mr George for the applicant submitted that the following injuries in the compensation table were applicable: 2. Bruising/laceration (face) 5% 2. Bruising/laceration (ribs) 5% 2. Bruising/laceration (legs) 5% 2. Bruising/laceration (scalp) 2% 32. Mental or nervous shock (severe) 25% [17] Mr George therefore sought an award of 42% of the scheme maximum, which is $31,500.00. Assessment [18] Dr Mathew is of the view that the applicant’s psychological injury falls within the moderate range as contained within the compensation table. Item 32 (Mental or nervous shock (moderate)) provides for a range of 10%-20% of the scheme maximum. The applicant continues to suffer from anxiety and engages in avoidance behaviours that relate specifically to the robbery, such as being fearful of being re- assaulted, difficulties using public transport and concerns when around large groups of people. The Court is not compelled to accept the categorisation of the psychiatric injury expressed by Dr Mathew in his supplementary report dated 16 April 2009, but in this instance I see no reason to depart from it. Taking into account the requirement to scale injuries according to their seriousness, I accept the opinion of Dr Mathew that the applicant’s psychological injury falls within the moderate range. An award of 20% of the scheme maximum is appropriate. This leads to an award of $15,000.00 for mental or nervous shock. [19] Mr George’s submissions concerning the applicant’s various bruising cannot be accepted. Section 26 of the Act is directed towards ensuring that harm that should be treated as a single state of injury is treated as a single injury. As McMurdo P noted in Riddle v Coffey: 25 “The Act intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury.” [20] Item 2 in the compensation table (‘Bruising/laceration etc. (severe)’) provides for a range of 3%-5% of the scheme maximum. As noted by the Court of Appeal in R v Ward, ex parte Dooley: 26 24 R v Ward ex-parte Dooley [2001] 2 Qd R 436 at 438 at para [5]. 25 (2002) 133 A Crim R 220 at 224 para [18]. 26 [2001] 2 Qd R 436 at 438 para [9]. -- 5 of 6 -- 6 “To qualify for the 5% which is the top of the “severe” range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the “most serious cases”.” [21] While the applicant has sustained bruising to various parts of his body, I do not accept that the bruising is of such a nature as to constitute several distinct episodes of injury as submitted by Mr George. Furthermore, the award of 17% of the scheme maximum sought does not reflect the scheme established by the legislation, namely the scaling of an award of compensation for seriousness within the percentage range set out in the compensation table. 27 The approach I adopt is consistent with the judgement of Fraser JA in Wren v Gaulai. 28 The applicant sustained significant bruising in the course of the robbery, along with swelling to the facial region. In his affidavit filed 2 December 2009, the applicant states that:29 “The swelling in my head was immense and it felt as if my jaw had been broken. It was almost impossible for me to eat.” [22] The photographs of the applicant exhibited to his affidavit filed on 2 December 2009 show the severity of the injuries. I am of the view that an award of 5% of the scheme maximum is appropriate. This leads to an award of $3,750.00. [23] I assess compensation in accordance with the items in the compensation table as follows: 2. Bruising/laceration etc. (severe) 5% 32. Mental or nervous shock (moderate) 20% 25% [24] This leads to a total assessment of $18,750.00. [25] There is no behaviour of the applicant that contributed directly or indirectly to his injuries. Order [26] I order that the respondent pay to the applicant the sum of $18,750.00 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of robbery in company with personal violence which led to the conviction of the respondent in the District Court at Brisbane on 17 April 2008. 27 R v Ward, ex-parte Dooley [2001] 2 Qd R 436 at 438 para [7]. 28 [2008] 2 Qd R 383 at 392 paras [44]-[45]. 29 At page 3. -- 6 of 6 --