Barney v Pascoe [2008] QDC 213

DISTRICT COURT OF QUEENSLAND CITATION: Barney v Pascoe [2008] QDC 213 PARTIES: JASON SCOTT BARNEY (Applicant) v CASSANDRA MARIETTA PASCOE (Respondent) FILE NO/S: 69/2008 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court Beenleigh DELIVERED ON: 29 August, 2008 DELIVERED AT: Beenleigh HEARING DATE: 6 August 2008 JUDGE: Dearden DCJ ORDER: The respondent Cassandra Marietta Pascoe pay the applicant Jason Scott Barney the sum of $21,000. CATCHWORDS: APPLICATION – CRIMINAL COMPENSATION – BRUISING/LACERATION – FRACTURED SKULL/HEAD INJURY – MENTAL OR NERVOUS SHOCK LEGISLATION: Criminal Offence Victims Act 1995 s 22, s 25, 26 Domestic Violence and Family Protection Act 1989 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 A Kimmins for the applicant No appearance for the respondent SOLICITORS: Campbell and White Lawyers as agent for Tony Bailey solicitor for the applicant No appearance for the respondent -- 1 of 5 -- 2 Introduction [1] The applicant Jason Scott Barney seeks compensation in respect of injuries suffered by him in respect of three incidents which occurred on 25 February, 10 March and 16 March 2005 at Normanton. Each of these incidents arose from the respondent assaulting the applicant and causing him bodily harm while armed with an offensive instrument. The respondent was sentenced to three months imprisonment (concurrent) in respect of each count, wholly suspended, for an operational period of 12 months. Facts Count 1 [2] The applicant was in a de facto relationship with the respondent at the time of each of the three offences. In respect of count 1, at about 6:00 pm on 25 February 2005 the applicant and the respondent were in the yard of an address in Normanton and became involved in an argument about the applicant’s ex-girlfriend. The applicant was drinking alcohol at the time. He subsequently went to sleep in his bedroom, the respondent having left the address. She returned some time later, assaulted the applicant with her fists and then used a curtain rod to hit him on the back and arms repeatedly. She then took up a piece of wood approximately one metre long and 20 centimetres wide and she continued to assault the applicant with this piece of wood. The respondent left and the applicant went back to sleep.1 Count 2 [3] After the events which occurred in respect of count 1, the applicant obtained a temporary protection order under the Domestic Violence and Family Protection Act. At about 6:20 pm on 10 March 2005 the applicant and the respondent were again arguing about the applicant’s ex-girlfriend. They were at the time at another address in Normanton. The respondent left the house and returned with a piece of metal taken from a large wind-chime which had been under a tree in the yard and she struck the applicant twice across the left shoulder with this piece of metal, she then struck the applicant on the face before hitting him on his left side and his arm as he attempted to defend himself and to get away from the respondent.2 Count 3 [4] On 16 March 2005 at about 5:00 pm, the applicant went to bed because he felt tired. The respondent arrived at the place that the applicant was sleeping, went into his bedroom, grabbed a piece of wood from nearby and commenced hitting the applicant about his left leg and his stomach as he was sleeping. The respondent was yelling and screaming profanities throughout the course of the assault. The applicant used his arm to cover his face in an attempt to protect himself but he was then struck on the arms. The applicant is uncertain as to how or when the assault ended, because he may have lost consciousness or he may have fallen back to sleep.3 1 Exhibit B (submissions on sentence) p. 3-4, affidavit of Allison Campbell sworn 14 November 2007. 2 Exhibit B (submissions on sentence) p. 4, affidavit of Allison Campbell sworn 14 November 2007. 3 Exhibit B (submissions on sentence) p. 5, affidavit of Allison Campbell sworn 14 November 2007. -- 2 of 5 -- 3 Injuries Count 1 [5] The applicant suffered considerable pain to his back and arm and noted in particular severe bruising and swelling to his back and arm. The applicant was taken to the Normanton Hospital and kept there overnight.4 The Normanton Hospital records indicate that the applicant attended at 3:30 pm on 26 February 2005, having been assaulted (the applicant stated) the previous evening by his girlfriend (the respondent). An examination by Dr Michele Jagga found the following injuries:- (1) a bruise on the front of the right upper leg measuring about 10 cm by 6 cm; (2) a bruise on the left side of the abdomen; (3) a bruise on the left deltoid region about 10 cm by 7 cm; (4) three bruises on the back. There were no fractures.5 Count 2 [6] The respondent’s initial striking of the applicant twice across the left shoulder caused welts, bruising, swelling and associated pain. The strike to the face of the applicant caused swelling, pain and some bruising as well as a small laceration on the applicant’s forehead which bled profusely. The applicant was again taken to hospital for treatment.6 Count 3 [7] The applicant received bruises and abrasions to his left arm and left leg, and bruising and abrasions to the left side of his stomach. The applicant was again taken to the Normanton Hospital where his injuries were treated.7 The Law [8] 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 4 Exhibit B (submissions on sentence) p. 3-4, affidavit of Allison Campbell sworn 14 November 2007. 5 Exhibit E (report of Dr Chris Gilford medical superintendent, Normanton Hospital) 22 April 2006, affidavit of Allison Campbell sworn 14 November 2007. 6 Exhibit B (submissions on sentence) p. 4, affidavit of Allison Campbell sworn 14 November 2007. 7 Exhibit B (submissions on sentence) p. 5, affidavit of Allison Campbell sworn 14 November 2007. -- 3 of 5 -- 4 course should be adopted”, unless it is impractical.8 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”.9 Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.10 Compensation [9] Mr Kimmins who appears on behalf of the applicant seeks compensation as follows:- (1) Item 2 – bruising/laceration etc (severe) 3%-5% [10] Mr Kimmins submits that in respect of counts 1 and 2, the bruising and laceration should in each case be compensated at the top end of the severe range (i.e. 5%). However, the only medical confirmation of any of the physical injuries suffered by the applicant is the report of Dr Chris Gilford, based on an inspection of the Normanton Hospital records, which refers to the injuries incurred in respect of count 1. That report11 is indicative in my view of moderate bruising only, and accordingly in respect of count 1 I award under Item 1 an amount of 3% of scheme maximum ($2,250). In respect of count 2, there is no medical evidence, although it appears that the applicant was taken to hospital by ambulance. The prosecutor’s submissions in respect of the injuries include “welts, bruising, swelling and associated pain” on the left shoulder, “swelling and pain and some bruising” on the face (including a small laceration) and hits on the applicant’s left side and arm as he sought to get away (consequences not specified).12 In those circumstances again I consider that the applicant should receive an award at the moderate level of Item 1, and I award 3% ($2,250) under this Item. (2) Item 9 – fractured skull/head injury (no brain damage) – 5%-15% [11] Mr Kimmins’ submissions in respect of this item (which relates to the assault on 16 march 2005 – count 3) were based on the prosecutor’s submissions indicating that the applicant was “uncertain how or when the assault ended because he may have lost consciousness or he may have fallen back asleep”.13 On the basis of those submissions from the prosecutor, completely unsupported by any medical evidence whatsoever, there is in my view no basis on which to make any award under Item 9 (fractured skull/head injury (no brain damage)). The prosecutor did indicate in respect of count 3 that the applicant received bruises and abrasions to his left arm and left leg and to the left side of his stomach. In my view, an appropriate award in these circumstances is an award of 2% pursuant to Item 1 (bruising/laceration - minor/moderate) and accordingly I order $1,500 pursuant to this item. 8 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25]. 9 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29]. 10 Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22]. 11 Exhibit E affidavit of Allison Campbell sworn 14 November 2007. 12 Exhibit B (submissions on sentence) p. 4, affidavit of Allison Campbell sworn 14 November 2007. 13 Exhibit B (submissions on sentence) p. 5, affidavit of Allison Campbell sworn 14 November 2007. -- 4 of 5 -- 5 (3) Item 32 – mental or nervous shock (moderate) – 10%-20% [12] The applicant was examined by Dr Christine Richardson, psychologist, who diagnosed him as suffering from post traumatic stress disorder (PTSD) in the moderate to severe range, and also diagnosed him as suffering from a major depressive disorder, moderate to severe, without psychotic features. In addition, Dr Richardson noted that the applicant had been diagnosed by his medical practitioner as suffering from schizophrenia for which he was at the time of her report14 being medicated.15 Dr Richardson considers, that the applicant may be suffering from frontal lobe syndrome rather than schizophrenia, but notes that “a full neurological workup might be required such that a differential diagnosis might be obtained”.16 [13] Mr Kimmins submits that I should make an award at the upper end of the range for Item 32, i.e. 20% of the scheme maximum. It does appear that the applicant has suffered significant mental or nervous shock as a result of these three assaults, which occurred in quick succession, and accordingly I award 20% ($15,000) in respect of Item 32. Contribution [14] In respect of each of the assaults, the applicant did nothing physically, and the fact that there may have been some exchange of words which prompted an angry physical attack on him by the respondent does not amount in my view to a “contribution” to his own injuries. I therefore hold that the applicant has not contributed to his own injuries in any way.17 Order [15] Accordingly I order that the respondent Cassandra Marietta Pascoe pay the applicant Jason Scott Barney the sum of $21,000. 14 16 May 2007. 15 Exhibit CR2 (report dated 16 May 2007) affidavit of Dr Christine Richardson sworn 3 April 2008. 16 Exhibit CR2 – p. 1, affidavit of Dr Christine Richardson sworn 3 April 2008. 17 COVA s 25(7). -- 5 of 5 --