Edwards v Tevita [2005] QSC 21

SUPREME COURT OF QUEENSLAND CITATION: Edwards v Tevita [2005] QSC 021 PARTIES: DAMIEN JUSTIN EDWARDS (applicant) v ROBERT TEVITA (respondent) FILE NO: BS 788/05 DIVISION: Trial PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 23 February 2005 DELIVERED AT: Brisbane HEARING DATE: 22 February 2005 JUDGE: Chesterman J ORDER: The respondent is to pay the applicant compensation pursuant to the Criminal Offence Victims Act (Qld) 1995 in the sum of $19,607.50. CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the applicant was stabbed in the course of a fight with the respondent – whether the applicant is entitled to an award of criminal compensation under the Criminal Offence Victims Act (Qld) 1995 – whether the award should be reduced considering the applicant initiated the fight Criminal Offence Victims Act (Qld) 1995 Johnson v Bancroft [2004] QCA 253, 30 July 2004, followed SOLICITORS: Woods Prince Lawyers for the applicant No appearance by the respondent [1] On 13 May 2004 the respondent pleaded guilty to a charge of unlawfully causing grievous bodily harm to the applicant with intent to cause that harm. He was sent to -- 1 of 8 -- 2 prison for eight years. The applicant now applies for an award of compensation pursuant to the Criminal Offence Victims Act 1995 (‘the Act’) for the injuries which were inflicted on him by the respondent. [2] The offence was committed just before 1:00 am on 15 December 2002. The applicant and some friends had been drinking at a number of suburban hotels. At about midnight he left the Regatta Hotel in Toowong to go home to Oxley by train. He changed his plans and alighted at Indooroopilly where he knew a 7/11 store would be open. He knew it served food and he was hungry. The applicant had consumed a substantial amount of beer during the evening. It is a fair inference that he was affected by alcohol. He does not appear to have been drunk. [3] The applicant met some acquaintances at the shop and spoke to them briefly. He left to find a lavatory. He walked down a driveway adjacent to the shop which led to a car park. On his way back he was confronted by the respondent, a young Melanesian man who demanded that the applicant give him his watch. The applicant refused. The respondent reacted by punching the applicant to the nose with his right fist. To prevent a further blow the applicant grappled with the respondent and managed to hold him by a headlock with his left arm so that the respondent’s head was under his left armpit. The respondent bit him on the left breast and the applicant let him go and ran away. [4] The applicant hid between some cars. He realised he was not being chased. He became angry as he remembered the attempted robbery and he decided to go in search of the respondent and confront him. He took off his watch and removed his wallet from his pocket and hid them both. He then walked back towards the shops -- 2 of 8 -- 3 in search of the respondent whom he found quite quickly. He was with another man who also appeared to be Melanesian. The applicant approached the men intent on inflicting some physical punishment on the respondent who realised at once that the applicant intended to engage him physically. Each of them threw punches at the other, some of which connected. They came together in a grapple and began wrestling. The applicant suddenly felt sharp pain in his left lower chest and stomach. He immediately disengaged from the combat and ran into the street. He then realised that he was bleeding profusely. He ran to a nearby hotel where a security guard gave some elementary first aid and called an ambulance. The applicant was taken to the Wesley Hospital. [5] The applicant underwent emergency surgery. He had sustained three stab wounds to the lower left chest. Each was about two centimetres in length and appeared to have been inflicted by a short-bladed knife. One of the wounds penetrated into and through the left lobe of the liver. Another had passed through the diaphragm but had not caused any injury to the lung. That evening he was transferred to the Princess Alexandra Hospital from which he was discharged on 21 December 2002. At the time he had a fever consistent with localised chest infection which was treated with antibiotics and physiotherapy. [6] The applicant recovered well from his injuries. When seen on 13 January 2003 he had made a full recovery except for some intermittent sharp pain in the left upper quadrant of the abdomen. It occurred about three times a day and lasted on each occasion for a few minutes. -- 3 of 8 -- 4 [7] Dr Davis, a general surgeon, reported on 18 November 2004 that the applicant had not suffered any permanent injury to his liver or any other organ and does not require any future treatment. [8] The applicant deposed that he experienced extreme pain during his hospitalisation. He continues to suffer occasional sharp pains at the site of the major wound. [9] At the time of the offence the applicant was employed as a tree lopper. Because he was incapacitated for about two months he lost his employment. He was not fit enough to return to work until 24 February 2003. He then began to work casually. On 6 May 2003 he became apprenticed to a painter and he remains in that employment. He is now 21. The applicant incurred ambulance and medical costs in the sum of $4,642.90. He lost $4,292.86 in wages. [10] In addition to his physical injuries, the applicant suffered some psychological damage. In the months following the attack he was fearful for his safety and would not go out alone at night. He is mistrustful of strangers and apprehensive of violence. Dr Whiteford, psychiatrist, who examined the applicant, reported on 12 October 2004 that the applicant: ‘1. … Has symptoms of post-traumatic stress disorder. … (His) symptoms … are sufficient to meet the … diagnostic criteria for this condition. 2. … His long term employability has not been adversely affected. He has a more curtailed social network but could not be considered socially isolated. 3. … He … requires treatment for his … disorder and adequate treatment would entail 20 one hour sessions with a psychiatrist or psychologist providing cognitive behaviour therapy and 12 months of … therapy. The cost … would (be) $820.’ -- 4 of 8 -- 5 The cost for the course of psychotherapy would be $5,500. [11] Dr Whiteford noted that the applicant was hypervigilant with an exaggerated startle response. He had occasional nightmares and became distressed when discussing the assault. He became extremely anxious to any cue which made him recollect the assault. His self esteem and self confidence had fallen. He had mild generalised anxiety. [12] The appellant is left with a large scar on his stomach and three smaller scars. He finds them unsightly and they are a cause of embarrassment. [13] The applicant’s injuries are very similar to those discussed by the Court of Appeal in Johnson v Bancroft [2004] QCA 253. It is appropriate therefore to regard the award in that case as a yardstick. Johnson also received stab wounds (two in his case) which were life threatening. He required emergency surgery and remained in hospital for a week. The course of his recovery was complicated by ongoing infection which required two further periods of hospitalisation, each of a few days duration. He had to undergo surgical draining of infection that had developed in the site of the wounds. He did not begin to recover fully from his injuries until about nine months had elapsed. To that extent the wounds were more serious and productive of more pain and discomfort. Johnson too developed symptoms of post traumatic stress disorder. He had become distressed. His injuries prevented him from pursuing his former leisure activities. There were more serious disruptions to his employment than the applicant has suffered. [14] The applicant asks for an award of compensation with respect to three items in the table in schedule 1 to the Act. They are: -- 5 of 8 -- 6 Item 26 Stab wound (severe) Item 27 Bodily scarring (minor/moderate) Item 32 Mental or nervous shock (moderate) The maximum amount allowed by the Act for compensation is $75,000. The applicant seeks between 25 and 30 per cent. of that maximum for Item 26; five per cent. for Item 27 and between 15 and 20 per cent. for Item 32. [15] In Johnson the court awarded 20 per cent. of the scheme maximum for the injuries constituted by the stab wounds. As I mentioned his wounds produced more serious consequences than the applicant’s who has been fortunate enough to make a full and quick recovery. Taking Johnson as the appropriate point of reference I think 15 per cent. of the scheme maximum is the appropriate award to Item 26. There is no reason not to accept the submission that five per cent. is the appropriate figure for scarring. The figure allowed in Johnson for mental and nervous shock was 15 per cent. The facts of that aspect of the case appear indistinguishable from the applicant’s. The appropriate components are therefore: Item 26 $11,250 Item 27 $3,750 Item 32 $11,250 Total $26,250 [16] Section 25(7) of the Act requires the court when deciding what amount should be ordered by way of compensation to have regard to ‘any behaviour of the applicant that directly or indirectly contributed to the injury.’ The applicant was stabbed in the course of a fight which he started. He had gone looking for the respondent to ‘square up’ to him because of their earlier encounter. The applicant had made good his escape from that encounter. He could then have returned to the shop or the -- 6 of 8 -- 7 station and caught a train home. Clearly the applicant’s conduct contributed to his injury. He went looking for trouble as a matter of deliberate choice. [17] Again there are parallels with Johnson. In that case the applicant had gone to a party on a doubtful invitation. He was made unwelcome and chased away. Some slight degree of violence was offered to him and he turned to face his attacker with his fists. The dispute then escalated when Bancroft produced a knife and stabbed him. The court thought his compensation should be reduced by 15 per cent. The factors mentioned were: • Johnson did not commit any criminal offence which led to the attack upon him. • He attended an open invitation party and left after aggression was offered to him. • He threw a punch in the course of escaping and was one of a number of people involved in a melee. • He was unarmed. • He was viciously stabbed when trying to escape the man who started the fight. [18] By contrast the applicant’s conduct is more blameworthy. He initiated the fight in which he was stabbed. His assault upon the respondent was unlawful - he was not acting in self defence and he was not provoked. The earlier incident in which the respondent had demanded his watch had come to an end. Whatever the respondent had done or said in that incident did not excuse the applicant’s attempt to inflict summary punishment upon the respondent. [19] The applicant’s transgression is much less serious than the respondent’s wrongdoing. The applicant was unarmed. He approached the respondent man to man to seek redress for an earlier insult. The respondent produced a lethal weapon and stabbed the application without mercy and without warning. It is lucky for both -- 7 of 8 -- 8 men that the applicant did not die. The respondent’s reaction was out of all proportion to the applicant’s approach. [20] The appropriate reduction in the award is 25 per cent. [21] I therefore order the respondent to pay the applicant compensation pursuant to the Criminal Offence Victims Act in the sum of $19,607.50. -- 8 of 8 --