Barnier v Donoghue [2005] QDC 285

1 DISTRICT COURT OF QUEENSLAND CITATION: Barnier v Donoghue [2005] QDC 285 PARTIES: MICHELLE BARNIER Applicant v SHAUN VINCENT DONOGHUE Respondent FILE NO: 394/2005 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Southport DELIVERED ON: 30 September 2005 DELIVERED AT: Southport HEARING DATE: 26 September 2005 JUDGE: Dearden DCJ ORDER: The respondent, Shaun Vincent Donoghue, pay the applicant, Michelle Barnier, the sum of $17,250.00. CATCHWORDS: CRIMINAL COMPENSATION – DE FACTO RELATIONSHIP - COMMON ASSAULT - BODILY HARM – MENTAL OR NERVOUS SHOCK – ANXIETY DISORDER – DEPRESSION - BRUISING AND SWELLING TO EYE- GRAZING TO BACK. Criminal Offence Victims Act 1995 ss 24, 25, 26 Cases cited: R v Ward ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220 COUNSEL: Mr M Campbell for the applicant No appearance for the respondent SOLICITORS: McLaughlins for the applicant -- 1 of 8 -- 2 [1] The applicant, Michelle Barnier, seeks compensation in respect of injuries suffered by her arising out of two separate incidents. The first of these incidents occurred on 23 March 2001 (resulting in a charge of common assault), and the second of these incidents occurred on 23 June 2002 (resulting in a charge of assault occasioning bodily harm). Both counts were dealt with before Senior Judge Trafford-Walker by way of pleas of guilty at the Southport District Court on 18 August 2004. The respondent was sentenced to a term of 3 months’ imprisonment (suspended forthwith) in respect of the count arising on 23 March 2001, and 6 months’ imprisonment (suspended forthwith) in respect of the count arising on 23 June 2002. Both suspended sentences, which were concurrent, were subject to an operational period of 12 months. FACTS Count 1: Common Assault – 23 March 2001 [2] The applicant and the respondent commenced a de facto relationship approximately 12 months prior to the first offence which occurred on 23 March 2001. On the afternoon of that date, the applicant was walking down Albert Avenue, Broadbeach when she heard the respondent call to her from a balcony of the unit above. She went into the unit and met the respondent and two of his friends. They all stayed at the unit until around 6.30pm when there was a minor argument between the applicant and the respondent, and the respondent then left the unit. The applicant remained for a short time before walking home herself. [3] When the applicant returned home, the respondent was watching television. The respondent asked for a kiss, the applicant declined (saying that she wasn’t feeling -- 2 of 8 -- 3 very affectionate), at which point the respondent came over to the applicant, put his right hand around her throat, said words to the effect of “Where the fuck were you?” and then pushed the applicant who fell to the ground. While the applicant was on the ground “in a ball” she felt a strike to the left-hand side of her face. She used a bath towel to wipe blood from a small cut inside her mouth. The respondent grabbed the towel, screamed at her, and when he stopped, the applicant asked to go to the bathroom where she attempted to pack her belongings into a bag. The respondent stopped her by throwing the bag, and when he then left the room she repacked her bag and left the unit. The applicant subsequently obtained a domestic violence order and the relationship between the applicant and the respondent broke up1 . Count 2: Assault Occasioning Bodily Harm – 23 June 2002 [4] The applicant went to the respondent’s address at approximately 6pm on 23 June 2002 to discuss an issue in respect of property. The respondent was not at home but the applicant let herself into the unit which was unlocked. The respondent arrived home at around 7pm, intoxicated. The applicant decided to leave when she saw that the respondent was intoxicated but when she stood to leave, the respondent pushed her in the chest, causing her to fall back into her chair. The respondent said words to the effect of “No, you won’t go fucking anywhere. I’ll make you something to eat” and walked into the kitchen. The applicant then attempted to leave, walking out of the unit through the front gates of the unit complex. The respondent then said, “Where the fuck do you think you’re going?” before grabbing the applicant by her right shoulder, causing her to turn around. 1 The facts as outlined in respect of counts 1 & 2 are taken from the transcript of submissions on sentence before Senior Judge Trafford-Walker which is Exhibit B to the affidavit of Angus Walker sworn 26 July 2005 -- 3 of 8 -- 4 The respondent then grabbed the applicant by the upper arms, said “You’re not going anywhere. Now get back inside”, but when the applicant refused, the respondent grabbed her jaw and her upper right arm and the applicant was taken back into the unit and pushed onto the respondent’s bed in his bedroom and told “Sit there and don’t move.” The respondent went into the bathroom, returned to the bedroom and went to bed. The applicant left the apartment when the respondent was asleep. As a result of the incident on 23 June 2002, the applicant sustained bruising to her upper arms, grazing to her back and tenderness to the head and jaw. INJURIES Count 1: 23 March 2001 [5] The applicant states2 that as a result of the assault on 23 March 2001 she suffered the following injuries: 1. Bruising and swelling to her left eye; 2. Lumps and bruising to her scalp and head; 3. Bruise to her left elbow; 4. Sore ribs and abdomen (from being hit and kicked); 5. Stiffness to her jaw; 6. Disfigurement to her right breast (due to a breast implant being displaced); 7. Injury to her right shoulder. 2 Statement dated 24 March 2001 and addendum statement 22 July 2002 – Exhibit A to affidavit of Michelle Barnier sworn 26 July 2005 -- 4 of 8 -- 5 Count 2: 23 June 2002 [6] The applicant sustained the following injuries in this altercation on 23 June 2002: 1. Bruising to her upper arms; 2. Grazing to her back; 3. Tenderness to her head and jaw. Medical evidence [7] The report of Dr Vincent Ngo dated 4 September 20023 notes the applicant’s injuries as at 24 March 2001 (in respect of count 1) as being: “Bruising and swelling left upper eyelid, mild tenderness around orbit [the area of the face which contains the eyeball], generalised scalp tenderness, tenderness left elbow.” [8] Dr Ngo’s report notes further that the injuries in respect of count 2 were: “One small bruise left upper arm, one small bruise right upper arm, pain in right shoulder, right breast implant had shifted.” It should be noted that the applicant attributes the shifting of the right breast impact to the assault on 23 March 2001.4 It does not appear necessary to resolve this inconsistency, given the submissions in respect of compensation sought by the applicant. [9] The report of Dr David Spain, emergency physician, Gold Coast Hospital Emergency Department, dated 26 July 20025 , notes that the applicant was examined on 2 April 2001, after being referred from her general practitioner because of ongoing headaches, but the examination revealed no neurological 3 Exhibit C to the affidavit of Angus Walker sworn 26 July 2005 4 See addendum statement 22 July 2002 – Exhibit A to affidavit of Michelle Barnier sworn 26 July 2005 5 Exhibit C to the affidavit of Angus Walker sworn 26 July 2005 -- 5 of 8 -- 6 abnormality and a CT scan showed no evidence of intracranial pathology, no skull fractures and no fracture in the region of her left orbit [the area of the face which contains the eyeball]. Dr Spain’s diagnosis was “post-concussional injury” which he considered to be consistent with the applicant’s history of alleged assault. [10] Given that there were two separate and unrelated assaults which are now the subject of this (single) application for criminal compensation, I consider that the appropriate way to deal with the compensation assessment is (pursuant to the Criminal Offence Victims Act 1995 [“COVA”] s 26) to make a single order for compensation, taking into account the separate physical injuries which occurred (relevantly) on 23 March 2001 and 23 June 2002, whilst assessing the mental or nervous shock component which is more appropriately dealt with as a single state of injury arising out of the two separate events. THE LAW [11] This is an application under s 24 of the COVA which commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries 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 -- 6 of 8 -- 7 its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. COMPENSATION [12] In respect of count 1 (23 March 2001) I consider the physical injuries suffered in this encounter can be adequately compensated under item 1 (bruising/laceration etc [minor/moderate]) and on a range of 1%-3% I award the applicant 2% ($1,500). [13] In respect of count 2 (23 June 2002) I consider that these injuries can also adequately be dealt with under item 1 (bruising/laceration etc [minor/moderate]) and in respect of the relevant injuries I assess compensation at 1% ($750). [14] The applicant was examined by Paul Elliott, psychologist, who provided a report dated 30 March 20056 . Mr Elliott diagnosed the applicant as suffering from generalised anxiety disorder – severe (DSM-IV) and major depressive disorder, moderate and chronic (DSM-IV). On a Global Assessment of Functioning (GAF) scale, based on a pre-morbid GAF score of 100, Mr Elliott assessed the applicant’s current level of functioning (GAF) at 51, with a probability of permanent psychological impairment of 40%. [15] Mr Elliott formed the view that the applicant required psychological counselling at least once a month for at least 12 months at an estimated cost in excess of $2,500. Mr Elliott noted that the applicant was “overwhelmed by her fear and depression, sleep-deprived, sleep-disordered, experiencing bouts of severe 6 Exhibit A to the affidavit of Paul Elliott sworn 26 April 2005 -- 7 of 8 -- 8 depression, ongoing pain from her shoulder injury and headaches, frequent nightmares, obsessive security behaviours and difficulties in her relationship with her daughter because of the applicant’s disordered moods.” In particular, Mr Elliott did not consider that the applicant would be “fit for full-time employment without considerable therapeutic intervention.” [16] Mr Campbell submits that an assessment for mental or nervous shock should be calculated under item 33 (with an applicable range of 20-34% of the scheme maximum) at a figure of 27%. Although I accept that the applicant has suffered significantly as a result of these assaults, the appropriate assessment, in my view, is at the bottom of the range for item 33 (mental or nervous shock – severe) and I award 20% ($15,000) under this item7 . CONTRIBUTION [17] The applicant did not, in my view, contribute in any way to her own injuries8 . CONCLUSION [18] Accordingly, I order that the respondent, Shaun Vincent Donoghue, pay the applicant, Michelle Barnier, the sum of $17,250. - - - - - 7 See R v Ward ex parte Dooley [2001] 2 Qd R 436 8 See COVA s 25(7) -- 8 of 8 --