De Almeida v Junyapisuit & Anor [2009] QDC 399

DISTRICT COURT OF QUEENSLAND CITATION: De Almeida v Junyapisuit & Anor [2009] QDC 399 PARTIES: LUCIANO CAMARGO DE ALMEIDA (applicant) V NAT JUNYAPISUIT (first respondent) And TANOMPONG POTA (second respondent) FILE NO/S: 3195/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 16 December 2009 DELIVERED AT: Brisbane HEARING DATE: 16 December 2009 JUDGE: Rafter SC, DCJ ORDERS: 1. The first respondent pay to the applicant the sum of $7,350 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the first respondent in the District Court at Brisbane on 16 November 2007. 2. The second respondent pay to the applicant the sum of $29,400 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding with intent to cause grievous bodily harm which led to the conviction of the second respondent in the District Court at Brisbane on 16 November 2007 CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – unlawful wounding – wounding with intent to do grievous bodily harm – physical injuries and mental or nervous shock – separate liability of respondents -- 1 of 6 -- 2 COUNSEL: S A Lynch for the applicant No appearance by or for the respondents SOLICITORS: Creevey Russell Lawyers for the applicant No appearance by or for the respondents 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 respondents on 12 August 2006. The application was filed before the commencement of the Victims of Crime Assistance Act 2009 on 1 December 2009, which repealed the Criminal Offence Victims Act 1995. (See s.149) [2] On 16 November 2007 in the District Court at Brisbane the first respondent pleaded guilty to unlawful wounding (Count 2). He was sentenced to two years imprisonment suspended after six months for an operational period of two years. The second respondent pleaded guilty to unlawful wounding with intent to do grievous bodily harm (Count 1). He was sentenced to five years imprisonment suspended after two years for an operational period of five years. [3] The first respondent was served with the application and supporting affidavits on 11 November 2009. On 16 November 2009 the first respondent wrote to the solicitors for the applicant stating that he had no assets and did not wish to attend the hearing of the application.1 [4] The second respondent has not been served personally. On 27 November 2009 an order for substituted service was made. Pursuant to that order an advertisement has appeared in the Public Notices Section of the Courier Mail notifying the second respondent of the date of hearing. [5] There has been no appearance by or for the respondents. Circumstances of the offence [6] The applicant was attacked by the respondents after he left a bar in the city on 12 August 2006. [7] The second respondent approached him from behind and slashed his throat with a razor blade. [8] The first respondent punched him in the stomach. [9] The applicant pursued the first respondent and was slashed across the shoulder and chest. 1 Exhibit TWR – 01 to the affidavit of Thomas William Rynders filed by leave 27 November 2009 -- 2 of 6 -- 3 Injuries and medical reports [10] The applicant was seen at the Royal Brisbane Hospital Emergency Department. He was found to have suffered lacerations to his mid neck and right shoulder.2 The wound to the neck was a 12 centimetre laceration across the anterior neck extending to the left. It had breached through skin and the deep fascia and caused notching of the thyroid cartilage. The injury to the right shoulder was an eight centimetre laceration which went into the dermis. The applicant was treated and the wounds were sutured. He was observed for 24 hours and discharged on oral antibiotics. He was reviewed at the Outpatient Clinic the following week and the wounds were found to be healing well. The sutures were removed. The injuries would have caused significant moderate to severe pain and discomfort. [11] The applicant was examined by Dr Gary Larder, psychiatrist on 25 February 2009. In his report dated 28 April 2009 Dr Larder said that the applicant presented with a number of features which possibly evidenced a psychiatric disorder arising from the attack. He referred to the applicant’s neck symptoms, a dislike of talking about the incident, a sense of good fortune that he was alive, sensitivity about his appearance, avoidant behaviour, chronic pain and other anxiety symptoms.3 Dr Larder said: “A major element of (the applicant’s) mental trauma was the fear he experienced for his safety and well being [he could have been more seriously injured or killed in the incident]. This experience fulfils the A1 and A2 criteria for POST TRAUMATIC STRESS DISORDER [4] however the full features of that condition are not evident now. In particular the level of anxiety and so called B criteria [intrusive recollections notably] are absent, the diagnosis in this case could therefore have been an ANXIETY DISORDER [4] [not otherwise specified] triggered by the stressors [outlined above] (the applicant) experienced in the index incident.”4 [12] The applicant said that after the removal of the sutures the scar tissue on his neck and shoulder remained sensitive to touch. He had to be particularly careful when shaving around his neck scar because he was afraid he might cut the scar tissue.5 He experienced a few nightmares and flashbacks in the weeks afterwards.6 The scar tissue on his neck and shoulder remains sensitive to touch.7 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 (s 22(3)). 2 Report of Dr N Slee dated 30 October 2006, Exhibit TWR-03 to the affidavit of Thomas William Rynders filed 10 November 2009 3 Report of Dr Gary Larder dated 28 April 2009 at pages 4-5 4 Report of Dr Gary Larder dated 28 April 2009 at page 5 5 Affidavit of the applicant filed 10 November 2009 at paragraph 30 6 Affidavit of the applicant filed 10 November 2009 at paragraph 31 7 Affidavit of the applicant filed 10 November 2009 at paragraph 33 -- 3 of 6 -- 4 [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 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)).8 [16] The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.9 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.”10 The applicant’s submissions [17] Mr S A Lynch for the applicant submitted that the following injuries in the compensation table were applicable: ITEM INJURY PERCENTAGE OF SCHEME MAXIMUM Item 1 Bruising/Laceration (Minor/Moderate) 2% Item 26 Stab wound (severe) 25% Item 28 Facial disfigurement or bodily scarring (severe) 15% Item 32 Mental or nervous shock (severe) 15% 8 See Wren v Gaulai [2008] QCA 148 9 [2001] 2 Qd R 436 10 R v Ward ex-parte Dooley [2001] 2 Qd R 436 at 438 at para [5] -- 4 of 6 -- 5 [18] The total of the percentages sought by the applicant is 57% of the scheme maximum which would lead to an award of $42,750. Assessment [19] The applicant seeks an award of 2% of the Scheme maximum ($1,500) under Item 1 in the Compensation table for the bruising and small laceration to his stomach. There is no mention of this injury in the report from the Royal Brisbane and Women’s Hospital. That is not surprising having regard to the severity of the applicant’s other injuries. The applicant said in his affidavit that he sustained bruising and a small laceration to the stomach.11 He may have sustained that injury when he was punched by the first respondent. The applicant said in his statement to the police that the second respondent slashed at his stomach and he jumped out of the way.12 [20] It is possible that the applicant suffered a minor laceration from that. In any event the injury is very minor and should be assessed under Item 1 in the compensation table at 1 % of the scheme maximum. This leads to an award of $750. [21] The applicant seeks 25% of the scheme maximum for the stab wounds. The injuries were serious. The wounds were sutured and the applicant made a good recovery. In my view the stab wounds should be assessed under Item 26 in the compensation table, Stab Wound (Severe) at 20% of the scheme maximum. This leads to an award of $15,000 for those injuries. [22] The applicant seeks 15% of the scheme maximum ($11,250) for scarring. The applicant says that the scarring has reached its maximum level of improvement.13 He is embarrassed by the scarring and it serves as a constant reminder of the event.14 There are photographs of the applicant’s neck and shoulder depicting the scarring as at the date of swearing of his affidavit (10 July 2009).15 Bearing in mind the requirement to scale the injury according to seriousness the scarring should be assessed under Item 28 of the compensation table which provides a range of 10% to 30% for facial disfigurement or bodily scarring (severe). In my view the appropriate assessment is 13% of the scheme maximum which results in an assessment of $9,750. [23] The applicant seeks an award of 15% of the scheme maximum ($11,250) for mental or nervous shock. The applicant was subjected to a very frightening attack. Fortunately he has made a good recovery. In his report dated 28 April 2009 Dr Larder stated that there is now no impact of a psychiatric disorder upon the applicant’s employment capacity.16 Dr Larder also states that the applicant does not require ongoing medical treatment and/or medication as a result of a psychiatric disorder. Item 32 in the compensation table, mental or nervous shock (moderate) provides a range of 10% to 20% of the scheme maximum. In the circumstances the amount sought by the applicant, namely 15% is reasonable. I assess the applicant’s 11 Affidavit of the applicant filed 10 November 2009 at paragraph 17(c) 12 Exhibit LD-01 to the affidavit of the applicant filed 10 November 2009 13 Affidavit of the applicant filed 10 November 2009 at paragraph 40 14 Affidavit of the applicant filed 10 November 2009 at paragraph 41 15 Exhibit LD-02 to the affidavit of the applicant filed 10 November 2009 16 Report of Dr Gary Larder dated 28 April 2009 at page 7 -- 5 of 6 -- 6 mental or nervous shock under Item 32 at 15% of the scheme maximum which results in an award of $11,250. [24] The total assessment is $36,750. [25] There was no behaviour of the applicant that directly or indirectly contributed to his injuries: s 25(7). Apportionment between the respondents [26] Where there is more than one convicted person s 26(8) enables the court to make separate orders against each of them for an amount scaled according to that person’s contribution to the injuries of the applicant. In this case Mr Lynch submitted that the participation of each of the respondents should be reflected in a division requiring the first respondent to pay 20% of the assessment and the second respondent to pay 80%. In the circumstances that approach is appropriate. Orders [27] Having regard to the apportionment of liability between the respondents I would make the following orders: 1. The first respondent pay to the applicant the sum of $7,350 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the first respondent in the District Court at Brisbane on 16 November 2007. 2. The second respondent pay to the applicant the sum of $29,400 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of wounding with intent to do grievous bodily harm which led to the conviction of the second respondent in the District Court at Brisbane on 16 November 2007. -- 6 of 6 --