Budby v Jerry [2009] QDC 335

DISTRICT COURT OF QUEENSLAND CITATION: Budby v Jerry [2009] QDC 335 PARTIES: JODY ALANA BUDBY (Applicant) v ALFRED RONALD JERRY (Respondent) FILE NO/S: 149 of 2009 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Cairns DELIVERED ON: 6 November 2009 DELIVERED AT: Cairns HEARING DATE: 23 October 2009 JUDGE: Everson DCJ ORDER: That the respondent pay the applicant $1,500.00 by way of compensation. CATCHWORDS: Criminal compensation – Psychological injuries – physical injuries. Criminal Offence Victims Act 1995 Criminal Offence Victims Regulation 1995 R v Jones ex parte Zaicov [2002] 2 Qd R 303 at 310 COUNSEL: SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). [2] The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 10 March 2008, namely assault occasioning bodily harm whilst armed. -- 1 of 4 -- 2 Facts [3] On 8 September 2006, the applicant was drinking heavily with the respondent, her de facto partner. Both became intoxicated. In a jealous rage the respondent punched the applicant in the face and struck her on the head with a chair and hit her on the left shoulder blade with a blunt axe (“the incident”). Injuries [4] The applicant alleges that she suffered the following injuries as a consequence of the incident: • Superficial lacerations and bruising; • Psychological sequelae. The relevant law [5] COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.” [6] Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov1 Holmes J described the process in the following terms: “Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.” 1 [2002] 2 QdR 303 at 310 -- 2 of 4 -- 3 [7] Relevantly the Compensation Table prescribes: • Item 1 Bruising/laceration etc (minor/moderate) 1% - 3% • Item 32 Mental or nervous shock (moderate) 10% - 20% [8] Section 25 of COVA also states that the court, in determining the amount that should be paid for an injury, “should have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.” Furthermore the process of assessing compensation pursuant to COVA does not involve applying principles used to decide common law damages for personal injuries and the maximum amount of compensation provided for is reserved for the most serious cases, with the amounts provided in other cases intended to be scaled accordingly.2 If an injury is not specifically listed in the Compensation Table the court must decide the amount of compensation by comparing the injury or injuries under injuries listed in the Compensation Table and having regard to the amounts that may be ordered to be paid for these injuries.3 The Assessment [9] The applicant’s physical injuries are documented in a report of Dr Purcell of the Cape York Health Service District dated 7 March 2007. They appear to have been predominantly in the region of her scapula, however which scapula is not specified. The applicant’s alleged psychological injuries are contentious. In the victim impact statement dated 27 February 2008, she does not record any symptomatology consistent with the applicant having suffered mental or nervous shock. For example, she asserts that she does not have bad dreams about the incident and has “forgotten all about” the incident. This is completely inconsistent with the conclusion of Dr Richardson, psychologist, set out in her report dated 14 February 2009 that the applicant is suffering from a Post Traumatic Stress Disorder “in the moderate range”. This report was prepared on the basis of an interview and assessment conducted “by video link” only. It makes no reference to the fact that at the time the respondent was sentenced on 10 March 2008, the applicant and 2 s 25 (8) referring to s 22 (4) 3 s 25 (6) -- 3 of 4 -- 4 respondent had reconciled. It was submitted in the course of the sentencing hearing by the respondent’s counsel that in November 2006 the applicant told police that she did not want the prosecution of the respondent to proceed. It was further submitted that she was about to travel to Brisbane to support the respondent as he undertook heart by-pass surgery and that she would be caring for him in his convalescence. The court accepted that she did not want him to go to gaol and specific reference was made to this and their reconciliation in the sentencing remarks. [10] In Appendix A of the her report Dr Richardson asserts that prior to compiling her report she perused both the applicant’s victim impact statement and the transcript of the sentencing hearing however no attempt is made to reconcile the discrepancies referred to above with the findings set out in her report. In all of the circumstances I am not persuaded that the applicant has suffered mental or nervous shock as a consequence of the incident. [11] I am satisfied that the applicant did not contribute to the injury. [12] Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows: • Item 1 - 2% - $1,500.00 Order [13] I order that the respondent pay the applicant the sum of $1,500.00. -- 4 of 4 --