CAC v SAD [2009] QDC 395

DISTRICT COURT OF QUEENSLAND CITATION: CAC v SAD [2009] QDC 395 PARTIES: CAD (Applicant) v SAD (Respondent) FILE NO/S: 1639/07 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Brisbane DELIVERED ON: 4 December 2009 DELIVERED AT: Brisbane HEARING DATE: 27 November 2009 JUDGE: Rafter SC DCJ ORDERS: 1. Leave granted to the applicant to continue the proceeding pursuant to rule 389(2) Uniform Civil Procedure Rules 1999 2. The respondent pay to the applicant the sum of $24,750 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of assault occasioning bodily harm, grievous bodily harm and unlawful stalking with violence contravening a court order which led to the conviction of the respondent in the District Court at Brisbane on 24 September 2004 APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm – grievous bodily harm –– unlawful stalking with violence contravening a court order – physical injuries and mental or nervous shock COUNSEL: F Muirhead, solicitor for the applicant No appearance by or for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance by or for the respondent -- 1 of 8 -- 2 Introduction [1] The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by assaults by the respondent between February 2002 and December 2003. [2] On 24 September 2004 in the District Court at Brisbane, the respondent pleaded guilty to, inter alia, 5 counts of assault occasioning bodily harm, one count of grievous bodily harm and one count of unlawful stalking with violence contravening a Court order. [3] He was sentenced to 5 years imprisonment for the offence of unlawful stalking with violence contravening a Court order, and 3 years imprisonment for each of the offences of assault occasioning bodily harm and the offence of grievous bodily harm. [4] The respondent had served 277 days in pre-sentence custody which was declared as imprisonment already served under the sentence. [5] The respondent has not been served with the application and supporting material personally. The respondent has been released from custody. On 3 September 2009 an order for substituted service was made. Pursuant to that order a letter notifying the respondent of the date of hearing and enclosing the application and supporting material was sent to the respondent, care of the Director-General of the Department of Community Safety, Probation and Parole on 18 September 2009. The Department has sent the documents to him at his last known address. [6] There has been no appearance by or for the respondent. Circumstances of the offence [7] The offences were committed in the period February 2002 to December 2003. The applicant and respondent were in a relationship for a short period of time and were living with the respondent’s mother in February 2002. [8] The offences were of a violent nature with a high level of intimidation. They included grabbing the applicant’s throat and squeezing with some force, biting the applicant’s ear drawing blood, punching to the face, slamming her head into the floor and a window, punches to her face and punching to her stomach. [9] A Domestic Violence Order was made on 7 October 2002. [10] The respondent continued to stalk and assault the applicant after the relationship had broken down. This included intimidation of the applicant and her children until Christmas of 2003. [11] The most serious assault committed upon the applicant was on 14 December 2003, which was the subject of the grievous bodily harm charge. The applicant found the respondent asleep at the back of her house. She woke him and asked him to leave. He became violent. He struck her to the right side of the face. -- 2 of 8 -- 3 Injuries and medical reports [12] In relation to the first assault in February 2002, the respondent states in her affidavit1: “I had spilt a glass of juice and the respondent became extremely angry, threw me on the bed and he grabbed me around the neck with both his hands so tightly I had trouble breathing. He then bit my ear causing it to bleed. As a result of this offence I also suffered bruising around my neck.” [13] In relation to the second offence committed while living with the respondent’s mother, the applicant states: “We were at the time sitting on the couch in the lounge room. No one else was home. All of a sudden I felt great force hit my face. I felt terrible pain. The respondent had hit me causing blood to come from my mouth and nose. My face was swollen and my nose appeared flattened. I was in so much agony I had to lie down. I said to the respondent I needed to see a doctor but he would not let me out of the bedroom as he did not want his mother to see my face. I was very badly bruised around both eyes and over the bridge of my nose.”2 [14] The applicant states that she was again assaulted by the respondent between 5 August 2002 and 7 October 2002 at her friend’s house. He grabbed her around the neck and smashed her head into the floor. As a result she states she suffered bruising to her neck and had difficulty breathing.3 [15] The applicant was taken by Ambulance to the Royal Brisbane Hospital on 14 December 2003 following the most serious attack. In a report dated 22 August 2005 Dr J R Taylor, Senior Medical Officer, states:4 “She stated she had been struck once on the right side of the face in the malar/zygomatic area. Examination showed a clinical fracture of the zygomatic complex. There was no diplopia. Her external ocular movement was normal. The presence/absence of bruising is not recorded at this consultation. …. CT of the area showed a depressed right zygomatic complex fracture with orbital floor involvement. On 22 December 2003, an open reduction and internal fixation of the zygomatic complex fracture was performed, and the orbital floor was repaired. 1 Affidavit of the applicant filed 29 June 2009 at para [9] 2 Affidavit of the applicant filed 29 June 2009 at para [12] 3 Affidavit of the applicant filed 29 June 2009 at para [15] 4 Exhibit D to the affidavit of Mellissa Lo filed 29 June 2009 -- 3 of 8 -- 4 At review on 29 December 2003, the medial end of the infraorbital wound was red. Otherwise, things were healing well, and a course of oral Augmentin syrup was prescribed. The next review was undertaken on 5 January 2004, where it is noted that some swelling was persisting, and that the wound had healed well. Her next and last visit to the Maxillofacial Clinic was on 18 January 2005 at (the applicant’s) request because of criminal proceedings. She stated she had hypoaesthesia in the area of the infraorbital nerve, and slight disturbance of vision. Examination revealed no facial asymmetry. The malar projection was equal and normal on both sides. No obvious focal scarring was seen. (The applicant) was wearing makeup. Visual acuity was 6/6 in each eye, and there was no enophthalmos or diplopia. Hypoaesthesia of the left infraorbital nerve is recorded, and the fixation plates were palpable at the infraorbital margins. Teeth occlusion was satisfactory.” [16] The applicant was examined by Dr Benjamin Erzetic, Oral and Maxillo Facial Surgeon, on 23 December 2008. In his report dated 8 January 2009 Dr Erzetic states that the applicant has made a full recovery. Dr Erzetic states that there is no asymmetry or disfigurement as a result of the injury however there is some change to sensory function. Mental and Nervous Shock [17] The applicant was examined by Dr Barbara McGuire on 19 January 2009. In her report dated 23 January 20095 Dr McGuire states that the applicant suffers from posttraumatic stress disorder to a moderate degree. She states that the applicant exhibits hypervigilance, exaggerated startle reflex, flashbacks and nightmares. Dr McGuire states that due to the applicant’s fear of the respondent upon his release from prison, it is probable that her condition will be exacerbated and continue indefinitely. The applicable principles [18] 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)). [19] 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 (s25(2)). The award for a particular injury cannot exceed a percentage greater 5 Exhibit A to the affidavit of Dr Barbara McGuire filed 29 June 2009 -- 4 of 8 -- 5 than that contained in Schedule 1; the compensation table (s25(4)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s25(8)). [20] If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s25(3)).6 The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex- parte Dooley.7 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 psychological results of an assault could, on that account, get no more than $25,500.”8 Assessment [21] It is submitted on behalf of the applicant that the following injuries in the compensation table are applicable: ITEM 1 Bruising/ Laceration (minor/ moderate) 1% Count 1 Between 11.2.02 and 25/3/2002 In the Schedule of Facts tendered at sentence the applicant’s injuries are recorded as: “…..a cut to her ear, caused by the defendant biting her. She also noted bruising to her neck, caused by the defendant squeezing her neck.” In her affidavit the applicant states that she suffered “9. ……………….He then bit my ear causing it to bleed. As a result of this offence I also suffered bruising around my neck.” $750 ITEM 1 Bruising/ Laceration (minor/ moderate) Count 2 Between 11/2/02 and 1/4/02 In the Schedule of Facts tendered at sentence the applicant’s injuries are recorded as pain and swelling to her face and nose and blood coming from nose and mouth. $750 6 See Wren v Gaulai [2008] QCA 148 7 [2001] 2 Qd R 436 8 R v Ward ex-parte Dooley [2000] QCA 493; [2001] 2 Qd R 436 at 438 at para [5] -- 5 of 8 -- 6 1% In her affidavit the applicant states that she suffered “12. ……………My face was swollen and my nose appeared flattened. I was in so much agony I had to lie down. I said to the respondent I needed to see a doctor but he would not let me out of the bedroom as he did not want his mother to see my face. I was very badly bruised around both eyes and over the bridge of my nose……” ITEM 1 Bruising/ Laceration (minor/ moderate) 1% Count 4 Between 5/8/02 and 7/10/02 In her affidavit the applicant states that she suffered “13. …………… As a result of this offence I suffered bruising around my neck and had difficulty breathing.” $750 ITEM 7 Facial Fracture (moderate) 14% to 20% 18% Counts 8 & 9 on 14 December 2003 The applicant suffered the following: ● Right periorbital ecchymosis. ● Right subconjunctival haematoma, ● Depressed right cheek, ● Decreased opening of mouth, ● Depressed fracture of right complex zygomaticomaxillary and right orbital floor. The above underwent an open reduction and internal fixation of the right zygomaticomaxillary complex and right orbital floor repair using plates and screws. Dr Erzetic states that the applicant has made full recovery apart from some minor changes in sensory function. Dr Erzetic notes that the applicant has essentially a normal masticatory function and normal visual acuity and there is no demonstrative facial asymmetry or disfigurement as a result of the injury. Dr Erzetic considers that there is no indication for any further procedures to be indicated. Although difficult to quantify there may be some restriction in terms of chronic pain and the psychological affect from the injury sustained. $13,500 ITEM 33 Mental and Nervous and Shock Dr McGuire states that the applicant is suffering from posttraumatic stress disorder to a moderate degree. Dr McGuire states that the applicant exhibits hypervigilance, exaggerated startle reflex, flashbacks, $18,750 -- 6 of 8 -- 7 (severe) 20% to 34% 25% nightmares etc. Because of her intense fear of the respondent it is probable that on his release from prison her condition will be exacerbated and it will continue indefinitely. This condition has persisted since the offence and has been present in excess of five years. [22] Ms Muirhead submitted the total appropriate award in this case is 46% of the scheme maximum. ($34,500.) [23] In relation to the bruising/laceration suffered by the applicant in the incident which involved the biting of her ear, I accept that the appropriate award is 1% of the scheme maximum. ($750) [24] In relation to the bruising/laceration suffered by the applicant in the incident between 11 February 2002 and 1 April 2002 in which there was bruising and swelling to the her nose, I am of the view that the appropriate award is 1% of the scheme maximum. ($750) [25] In relation to the bruising/laceration suffered by the applicant due to incident which occurred between 5 August 2002 and 7 October 2002, I would allow 1% of the scheme maximum. ($750) [26] In relation to the offence of grievous bodily harm which resulted in the applicant suffering a serious facial fracture, Ms Muirhead submitted that the appropriate award is 18% of the scheme maximum. The range for a moderate facial fracture in item 7 is 14% - 20%. Having regard to the requirement to scale the injury according to seriousness, I would assess the facial fracture at 15% of the scheme maximum. ($11,250) [27] Ms Muirhead submitted that the mental or nervous shock suffered by the applicant be assessed under item 33 (severe). Dr McGuire stated in her report that the applicant suffers posttraumatic stress disorder to a moderate degree. However Ms Muirhead submitted that the disorder has been present for in excess of 5 years and the disorder is chronic. [28] In my view, the appropriate assessment of mental or nervous shock is made under item 32 Mental or nervous shock (moderate – 10%-20%). In my view the appropriate assessment is 15% of the scheme maximum. ($11,250) [29] The total assessment is therefore $24,750. [30] There is no behaviour of the applicant that directly or indirectly contributed to her injuries (s.25(7)). Continuation of proceeding after delay. [31] After the hearing on 27 November 2009 Ms Muirhead quite properly raised the fact that leave was required to continue the application pursuant to Rule 389 -- 7 of 8 -- 8 Uniform Civil Procedure Rules 1999 as no step had been taken for more than 2 years. [32] Rule 389 provides: (1) If no step has been taken in a proceeding for 1 year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed. (2) If no step has been taken in a proceeding for 2 years from the time the last step was taken, a new step may not be taken without the order of the court, which may be made either with or without notice. (3) For this rule, an application in which no order has been made is not taken to be a step. [33] The application was filed on 12 June 2007. The supporting affidavit material was filed on 29 June 2009. [34] In written submissions delivered after the hearing Ms Muirhead referred to the decision of the Court of Appeal in Tyler v Custom Credit Corp Ltd & Ors9 which outlined the factors to be taken into account when considering whether to grant leave to continue. [35] Ms Muirhead submitted that a substantial portion of the delay was attributable to the applicant being in prison, which created difficulties in obtaining medical reports. There was no attempt to serve the respondent until July 2009. By this stage he had been released from custody. Although the delay is not satisfactorily explained I am unable to see that the respondent will suffer any prejudice. I therefore consider that leave should be granted. Orders [36] I therefore make the following orders: 1. Leave granted to the applicant to continue the proceeding pursuant to rule 389(2) Uniform Civil Procedure Rules 1999 2. I order that the respondent pay to the applicant the sum of $24,750 by way of compensation pursuant to s.24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offences of assault occasioning bodily harm, grievous bodily harm and unlawful stalking with violence contravening a Court order which led to the conviction of the respondent in the District Court at Brisbane on 24 September 2004 9 [2000] QCA 178 -- 8 of 8 --