Ellis v Mitchell [2008] QDC 103

DISTRICT COURT OF QUEENSLAND CITATION: Ellis v Mitchell [2008] QDC 103 PARTIES: LEESA MAREE ELLIS (Applicant) v ALLAN ROBERT MITCHELL (Respondent) FILE NO/S: 242 of 2007 DIVISION: PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: DELIVERED ON: 28 February 2008 DELIVERED AT: Cairns HEARING DATE: 8 February 2008 JUDGE: Bradley DCJ ORDER: That the respondent pay to the applicant the sum of $60,750 by way of criminal compensation. CATCHWORDS: COUNSEL: N. Jayasinghe Solicitor for the applicant No appearance for the respondent SOLICITORS: Wettenhall Silva Solicitors for the applicant [1] On 17 October 2006 in the District Court at Rockhampton the respondent was convicted of unlawfully doing grievous bodily harm to the applicant. The offence was committed in Rockhampton on 8 September 2005. [2] The applicant now seeks an order for compensation for the injuries suffered by her because of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”). [3] As it was not possible to locate the respondent and serve him personally with the application and the supporting material, an order for substituted service was made on 30 November 2007 and in accordance with that order, service has been effected upon the respondent by way of an advertisement in the Public Notices of the Rockhampton Morning Bulletin newspaper. There was no appearance for or on behalf of the respondent at the hearing of this application. [4] I was not the sentencing judge when the respondent was convicted however the transcript of the sentencing proceedings reveals the facts of the case. The applicant -- 1 of 5 -- 2 and the respondent had been living together in a de facto relationship. In the course of the relationship the respondent committed a number of acts of violence against the applicant as well as damaging property. Some of these incidents had resulted in the respondent being convicted of criminal offences. As at 8 September 2005 a Domestic Violence Protection order was in place naming the applicant as aggrieved. [5] On the evening prior to the commission of the offence the applicant and the respondent had been at the respondent’s sister’s home where they stayed the night. The following morning the respondent told the applicant that he was going to go and find some friends and continue drinking. The applicant returned to her unit with her young son. Some time before lunch the respondent called her and told her he was coming around for something to eat and to sleep. The applicant told the respondent not to come back and indeed it appears that the Domestic Violence Protection Order included a condition that the respondent not attend her residence. However, about an hour later the respondent arrived but did not gain entry and left without incident. The applicant called the police. [6] That afternoon the applicant went to the police and made a statement about a previous incident involving the respondent. When she returned to her unit she was concerned about her safety as the respondent had warned her not to make any statements to the police. [7] About 15 minutes after the applicant had returned to her unit she heard a noise near the end of the carport. When she investigated she found the respondent climbing over a latticed area which gave him access to the carport and the unit. The applicant ran into the unit, closed the door behind her and pushed the lounge chair against the door. She called 000 and was put through to the police. The applicant saw the respondent looking at her through the door and he forced entry by smashing the door. As this happened she ran into her bedroom and shut the door and lent against it. However, the respondent forced his way into the bedroom and in doing so knocked her to the floor. [8] When he entered the room the respondent punched and kicked the applicant a number of times to the face and head. He grabbed her hair and slammed her face into the door some five or six times. While the respondent was on the floor restraining her, the respondent bit the applicant on her neck. He told her that he was going to choke her and put his hands around her neck and squeezed until she could not breathe. The applicant let her body go limp so that he would release his hold which he did. As the applicant was gasping for breath the respondent again put his hands around her neck and squeezed until she could no longer breathe. He said to the applicant, “I’m going to choke you. I’m going to kill you.” The respondent then picked up a clock radio and swung it forcefully at the applicant’s face which blow knocked her to the ground. At one point while she was standing the respondent kicked her in the ribs and punched her so that she again fell to the ground. He repeatedly picked her up and punched her again. The respondent told the applicant that he was going to break her spine and said, “I know the police are coming. I’m going to have fun with you until they do.” The incident took some 10 minutes and only came to an end when a female police officer entered the premises. [9] There is nothing in any of the material before me to suggest any behaviour on the part of the applicant which contributed to her injuries. -- 2 of 5 -- 3 [10] The applicant was taken to the Rockhampton Hospital where upon examination the following injuries were noted:- 1. Obvious facial oedema and bruising. 2. Haematomas of peri orbital region bilaterally. 3. Epistaxis. 4. Tenderness over left lower ribs posteriorally. 5. Tenderness over thoracic spine. 6. Laceration to right upper eyelid and lip. X-rays revealed a fracture of the 11th left rib, a wedge fracture of the T8 vertebra, a left zygoma fracture, a fracture of the nasal bone, and a fracture of the left zygoma. [11] The applicant was flown to Brisbane and was treated at the Royal Brisbane & Women’s Hospital and a statement from Dr Paul Garrett Meara dated 18 October 2005 indicates that her injuries- “included fractures to the left rib cage and fractures to the facial skeleton which included a blow-out fracture of the right orbital floor, a fracture to the left zygomatic arch and a fracture to the nasal bones. She also manifested multiple soft tissue injuries around the face and upper body. The neurological injuries sustained included partial weakness to the frontal branch of her 7 th cranial nerve on the right side and left infra- orbital nerve par aesthesia causing hypo-aesthesia to the skin on her face and also her maxillary teeth. This was also manifested in the right infra-orbital nerve. She underwent treatment for her injuries on 19 September at the Royal Brisbane Hospital where she had manipulation under anaesthetic of her nose, a reduction of the left zygomatic arch fracture and repair of her right orbital floor.” [12] Dr Meara states that the applicant – “Has been left with ongoing double vision, decreased sensation in her lower face and possible cosmetic disruption to the left side of her face.” [13] A report by Dr Khursandi, a consultant orthopaedic surgeon, who assessed the applicant on 26 June 2007 states that the applicant – “Sustained fractures of the left 10th and 11 th ribs which have healed, as confirmed by the chest and rib x-rays of 26 June 2007. She has some residual pain over the left lower rib cage, which may remain permanent. The assault also resulted in Ms Ellis sustaining a stable wedge fracture of the 8 th thoracic vertebral body and soft tissue injuries of her lumbar spine. The deformity of the 8th thoracic vertebral body and the residual pain and stiffness of her thoracic spine will remain permanent and constitute an impairment.” [14] It is Dr Khursandi’s opinion that the applicant’s back symptoms will prevent her from carrying out activities which involve bending, lifting or maintaining the spine -- 3 of 5 -- 4 in certain postures. The disability will adversely affect her capacity to work in situations which involve heavy physical activities and also her domestic, social and recreational activities. [15] The applicant has also been seen by Dr Maria Moon, an ophthalmic surgeon, and in her report of 20 June 2007 (after seeing the applicant on 19 June) Dr Moon refers to the applicant’s facial injuries and states;- “Since these injuries she has suffered double vision, especially when she looks to the right and downwards. She is unable to ride her bike and cannot watch television particularly when she is lying down. When she is tired this vision becomes even worse and she notices diplopia more. She has decreased sensation over the right side of her cheek under the orbit on the right and involving four teeth on that side.” [16] Dr Moon refers to the applicant’s scar to her right forehead and a surgery scar on her right lower lid. There is evidence of infra-orbital damage being lack of sensation to the right side of her face, middle section and including side of nose and four teeth. The applicant’s ocular motility shows evidence of muscle damage secondary to the fractures of the orbit which has resulted in double vision. It is Dr Moon’s opinion that the applicant is unlikely to recover from the symptoms she currently experiences. [17] Finally, the applicant has been interviewed and assessed on 4 April 2007 by Dr Chris Richardson, a psychologist. In her report of 30 April 2007 Dr Richardson lists the extensive initial and ongoing problems the applicant reports following the assaults and concludes that the applicant is reporting moderate symptomatology associated with Post Traumatic Stress Disorder. Dr Richardson concludes:- “It is apparent that the events in September 2005 have had a profound effect on Ms Ellis and she should attend counselling to assist her gain some control over her distress. Given her symptoms, it is expected that 24 sessions with an appropriately qualified therapist would assist her gain some control over her distress and help her maintain equilibrium in her daily activities.” [18] In an affidavit sworn on 13 August 2007 and filed in support of her application the applicant refers to her receipt of a letter from the respondent whilst he was in prison which was abusive and threatening. This has made her feel very anxious about the possibility that the respondent might assault her upon his release from custody. The applicant notes that her right eye tends to droop when she is tired or when she drinks alcohol and she is self conscious about this. [19] Finally, I have been provided with a series of photographs of the applicant’s face taken on 26 August 2007 which do illustrate the scarring now experienced by the applicant. [20] I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:- Item 2: Bruising/laceration (severe) 4% $ 3,000.00 Item 4: Fractured nose 10% $ 7,500.00 -- 4 of 5 -- 5 Item 8: Facial fracture (severe) 25% $18,750.00 Item 23: Back chest injury (severe) 15% $11,250.00 Item 27: Facial disfigurement 2% $ 1,500.00 Item 30: Loss of vision 10% $ 7,500.00 Item 32: Mental or nervous shock (moderate) 15% $11,250.00 $60,750.00 [21] I order that the respondent pay to the applicant the sum of $60,750 by way of criminal compensation. -- 5 of 5 --