Dust v Hafemeister [2009] QDC 6

DISTRICT COURT OF QUEENSLAND CITATION: Dust v Hafemeister [2009] QDC 6 PARTIES: JASON DAVID DUST Applicant v CLINTON TOBY HAFEMEISTER Respondent FILE NO: 5 of 2007 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court at Kingaroy DELIVERED ON: 21 January 2009 DELIVERED AT: Kingaroy HEARING DATE: 24 November 2008 JUDGE: K S Dodds, DCJ ORDER: I order the respondent, Clinton Toby Hafemeister pay compensation in the sum of $7,650 to Jason David Dust for injury done to him by reason of the offence of assault occasioning bodily harm whilst armed of which the respondent was convicted on 3 June 2004. COUNSEL: S Lynch for the applicant No appearance by the respondent SOLICITORS: Kelly & Down Solicitors for the applicant No appearance by the respondent -- 1 of 4 -- 2 [1] This is an application for criminal compensation. On 3 June 2004 the respondent was convicted of assaulting the applicant whilst armed and causing him bodily harm. The offence occurred on 1 January 2003. [2] I have an affidavit by the applicant sworn on 23 February 2007. It deposes: That the contents of the statement by him to the police on 4 June 2003 are true and correct; That what he told psychologist, Ms Lucille Douglas on 18 September 2006 was true; That he suffers daily headaches, blurred vision, difficulty in reading, mood swings, temper outbursts, is very forgetful, has pain in his back and neck for which he takes analgesics, has lost interest in activities he once enjoyed, has become distrustful of people and anti-social, can’t lift heavy objects or stand in one spot for long, his sense of taste and smell have deteriorated, he suffers from sleep disturbance and nightmares about the respondent, he’s lethargic and withdrawn, he’s lost interest in keeping his home tidy, that he’s depressed. [3] I have referred to the sentencing remarks when the respondent was sentenced. His Honour commented that no serious injury was done to the applicant in the sense that permanent injury was not caused to him by the blow to his head. [4] I have an affidavit and report from Dr Lucile Douglas, a psychologist. [5] I have an affidavit of a solicitor, Mr Murdoch, to which is exhibited a report of Dr Arnold, psychiatrist. [6] I have an affidavit of a solicitor, Mr Kelly, to which is exhibited the applicant’s victim impact statement tendered at the respondent’s sentencing proceedings, a short statement by the medical superintendent of the Kingaroy Hospital, dated 4 March 2003 and a medical report from South Burnett Health Service District dated 24 October 2005. [7] I have written submissions by counsel for the applicant. [8] I have read all the above material. [9] Following the assault, the applicant presented at the emergency department at the Kingaroy Hospital at 4.20am on 1 January 2003. He was observed to have a star- shaped laceration to his occiput, an 8 centimetre left frontal laceration, a one centimetre superficial flap on the right thenar eminence, abrasions and ecchymoses across his chest. He complained of blurred vision, dizziness consistent with concussion, a sore neck and tenderness consistent with muscle spasm. No bony injury was identified on X-Ray. The wounds were sutured. [10] It is necessary to set out a brief description of the circumstances surrounding the offence by the respondent which are put into context by offences by the applicant on the same occasion. -- 2 of 4 -- 3 [11] On 4 February 2004 the applicant was convicted of an offence of assault occasioning bodily harm and an offence of assault committed on 1 January 2003 against the parents of the respondent. [12] There had been a New Years Eve party at the property of the respondent’s parents. The applicant had been invited and arrived about 1.30am to 2am, driving in a reckless manner down the driveway. He was intoxicated. His vehicle blocked other vehicles in. Eventually he was told that the party was over for him and he was asked to move his car. He did so and he was asked by one of the parents of the respondent not to drive out in the manner he had driven in. The respondent’s mother then went inside the house to go to bed. The applicant drove away, then around the block, blowing his horn, returning some short time later to call abuse and offer to fight the respondent’s father. He threw some punches and the respondent got up to help his father. His mother came out of the house. As she was attempting to phone, she was punched by the applicant above her left eye. The respondent and his father and the applicant then wrestled to the ground where the applicant got on top of the respondent’s father with his hand around his throat. It was then that the respondent took up an aluminium baseball bat his mother had brought out of the house and struck the applicant across the head with it. [13] Dr Douglas saw the applicant on 7 July 2006. She administered a number of formal psychological tests. They revealed: A full-scale IQ of 77, 6 th percentile – borderline; Performance on the cognitive assessment within expected limits for a man with his low level of educational achievement and occupational history; Two areas delayed verbal memory ability and mental flexibility skills were substantially weaker. She considered these could be associated with the presence of increased emotional distress, pain or medication effects (Zyprexa, which he had been prescribed and cannabis, which he used). She thought it unlikely they were due to some acquired cognitive pathology due to head injury/concussion from the assault. [14] Dr Arnold saw the applicant on 10 August 2007. Amongst other material she had Dr Douglas’ psychological assessment. A number of investigations were carried out. She assessed his cognitive functioning as: limited short-term memory loss, intelligence globally impaired, loss of memory was the major disorder with no evidence of frontal lobe disorder. He had limited insight into most of his behaviour and disabilities and severely limited judgment in all areas of his life. Her DSM (iv) diagnosis was: Axis (i) – a post-traumatic stress disorder sub-clinical, post concussion syndrome, psychosis secondary to substance abuse, substance abuse disorder; Axis (ii) – anti-social personality disorder, global intellectual disability; Axis (iii) – head injury with concussion, psoriasis treated with methotrexate and p rednisone; Axis (iv) – relatively stable family background, an intellectual impairment, behaviour disorder and poor level of education, abuse of alcohol and multiple -- 3 of 4 -- 4 drugs, an unstable work and relationship history, dependant on his parents for support, family are all unable to work due to medical problems. [15] Dr Arnold concluded that the applicant’s current incapacities are mostly pre-injury related. His psychosis and processing problems are for the most part due to his substance abuse. While there may be a component of slow processing speed related to head injury, there was little evidence of a brain injury. There were some mild symptoms of post-concussion syndrome and sub-syndromal post-traumatic stress disorder. There was most likely a pre-existing psychosis that was schizophrenia or drug-related schizophrenia. He had a pre-existing substance abuse disorder, global intellectual disability and anti-social personality disorder. [16] Taking all matters into account I consider that the behaviour of the applicant contributed to the injury he suffered to the extent of 40%. [17] I assess compensation as follows: For injuries per the compensation table in the Schedule to the Act Bruising/laceration – 3% Head injury, no brain damage – 10% Neck, back, chest injury – 2% Facial disfigurement, bodily scarring – 2% I make no assessment for mental or nervous shock. The evidence does not support it. [18] The total assessment amounts to 17% of the scheme maximum reduced by 40%. [19] I order the respondent, Clinton Toby Hafemeister pay compensation in the sum of $7,650 to Jason David Dust for injury done to him by reason of the offence of assault occasioning bodily harm whilst armed of which the respondent was convicted on 3 June 2004. -- 4 of 4 --