Collins v O'Leary [2009] QDC 420

DISTRICT COURT OF QUEENSLAND CITATION: Collins v O’Leary [2009] QDC 420 PARTIES: ANTHONY JOHN COLLINS (Applicant) AND GLEN O’LEARY (Respondent) FILE NO/S: 34/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 4 September 2009 DELIVERED AT: Brisbane HEARING DATE: 20 July 2009 JUDGE: Dearden DCJ ORDER: The respondent Glen O'Leary pay the applicant Anthony John Collins the sum of $ 7, 500 CATCHWORDS: APPLICATION – Criminal Compensation – assault occasioning bodily harm whilst armed with an offensive weapon – bruising/laceration – mental or nervous shock LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss 22, 24, 25, 26 CASES: R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] QCA 148 COUNSEL: Mr E Muir (solicitor) for the applicant The respondent in person SOLICITORS: Eric Muir & Associates solicitors for the applicant The respondent in person -- 1 of 4 -- 2 Introduction [1] The applicant Anthony John Collins seeks compensation in respect of injuries suffered by him in an incident which occurred on 17 October 2006 at Wongawallen. This incident resulted in the respondent Glen O’Leary pleading guilty in the Beenleigh District Court on 21 July 2008 to one count of assault occasioning bodily harm whilst armed with an offensive weapon for which he was sentenced to 18 months imprisonment, wholly suspended, with an operational period of two years. Facts [2] The Schedule of Facts tendered on the sentence 1 indicates:- “On 17 October 2006 the [applicant] and his fiancée Julia attended a friends wedding and reception at the Eagle Heights Tavern, Wongawallen. [The respondent] was also invited to the wedding ceremony and was one of approximately 50 guests. The wedding began at around 2.30 pm and despite a history of bad blood between the [respondent] and the [applicant], both were in close proximity to each other without issue until around 9.00 pm. It was at this time that the [respondent] took issue with the manner in which another guest was pouring beer, the [applicant] at the time had offered assistance to this other guest. The [respondent] then said words to the effect of “I should take you outside and kick your fucking head in again”, the [applicant] respondent saying “you would like that wouldn’t you, I’m not going to take your bait I’m having a good time tonight.” The [applicant’s] fiancée then told the [applicant] to walk away from the [respondent] which he agreed to and did. Once having turned away [the applicant] was hit from behind on the head causing him to stumble. The [applicant] turned to see the [respondent] also knocked his fiancée over. At this time the [respondent] was restrained. While the [respondent] was restrained the [applicant] in retaliation then punched the [respondent] in the head. The [applicant’s] fiancée before she was knocked saw the [respondent] hit the [applicant] in the back of the head with a glass. Witness to the incident, Paul Rigven saw the [respondent] punching and kicking at the [applicant] as well as hearing the sound of glass shattering. The photographer at the wedding, Annette Dallimore, saw the [respondent] attack the [applicant] with a glass, stating that the [respondent] “rammed this glass across the back of the [applicant’s] head.” 1 Sentencing Exhibit 2. -- 2 of 4 -- 3 Injuries [3] The applicant felt behind his neck after the attack “to find a bleeding gash.”2 The applicant was examined by a Dr Wenan Qi who noted “three lacerations behind the [applicant’s] ear one being 4 cm long, the second 3 cm long, and the last 2.5 cm long. The [applicant] received a total of 11 stitches to the wounds located behind his left ear on the neck.”3 The Law [4] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.4 Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”. 5 Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.6 Compensation [5] Mr Muir who appears on behalf of the applicant seeks compensation as follows: Item 2 – bruising/laceration (severe) – 3% - 5%. Given the nature of the injuries, which was a blow to the back of the head by the respondent with a broken beer bottle at his hand which caused three lacerations, one 4 cm requiring seven stitches, one 2.5 cm requiring four stitches, and a further superficial laceration for which no stitches were needed, 7 it appears to me entirely appropriate to award 5% of the scheme maximum ($3,750) pursuant to item 2. Item 32 - Mental or nervous shock (minor) - 2% - 10%. 2 Sentencing Exhibit 2. 3 Sentencing Exhibit 2. 4 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25]. 5 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29]. 6 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22]. 7 Exhibits D, G and C Affidavit of Anthony John Collins sworn 5 February 2009. -- 3 of 4 -- 4 The applicant was diagnosed by Mr Kim Uldriks as suffering from an “acute stress disorder”, complicated by having previously been assaulted in his own home (unrelated to these proceedings). Mr Uldriks considered that it had been “a relatively brief period of stress disorder”, that the applicant’s prognosis was favourable and the psychological issues arising from the assault the subject of this application appeared to have largely resolved.8 In the circumstances, I consider that an assessment for mental or nervous shock at the middle of the minor range is appropriate and accordingly I award 5% of the scheme maximum ($3,750) pursuant to item 31. Contribution [6] I do not consider that the applicant has in any way, either directly or indirectly, contributed to his own injury.9 Conclusion [7] Accordingly I order that the respondent Glen O’Leary pay the applicant Anthony John Collins the sum of $7,500. 8 Exhibit F p.1-2 Affidavit of Anthony John Collins sworn 5 February 2009. 9 COVA s 25(7). -- 4 of 4 --