Barnes v Tumbers [2005] QDC 284

1 DISTRICT COURT OF QUEENSLAND CITATION: Barnes v Tumbers [2005] QDC 284 PARTIES: DEREK ROYCE BARNES Applicant v SCOTT JAMES TUMBERS Respondent FILE NO/S: 382/2005 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 Scott James Tumbers pay the applicant Derek Royce Barnes the sum of $21,750.00. CATCHWORDS: Criminal compensation – assault occasioning bodily harm whilst in company – bruising over eye and right brow - dental injuries - adjustment disorder - mixed anxiety – depressed mood – psychological impairment- mental or nervous shock. Criminal Offence Victims Act 1995 s 24, s 25 (7) Cases cited: R v Ward ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 COUNSEL: Mr C F Bagley for the applicant No appearance for the respondent SOLICITORS: McLaughlins Solicitors for the applicant No appearance for the respondent -- 1 of 6 -- 2 [1] The applicant, Derek Barnes, seeks compensation in respect of injuries suffered by him arising from an incident which occurred on 24 February 2003 at his residence at 55 Balfour Crescent, Nerang. The respondent, Scott Tumbers, pleaded guilty before Senior Judge Trafford-Walker in the District Court at Southport on 23 March 2005 to one count of assault occasioning bodily harm whilst in company. In respect of that count (the respondent pleaded guilty at the same time to other counts not involving the applicant) the respondent was sentenced to six months’ imprisonment, to be served concurrently with varying terms of imprisonment in respect of the other counts to which he had pleaded guilty. FACTS [2] The facts on which the respondent was sentenced are set out in a schedule which was admitted as Exhibit 2 in the sentence proceedings before Senior Judge Trafford-Walker 1 . The relevant facts (extracted from the Schedule of Facts) in respect of this matter are as follows: “On 24 January 2003, the complainant in this matter was holding a house party for his sister-in-law. Approximately 20-30 people were invited, however by 10pm around 50 people had turned up. At approximately 10.30-11pm, the complainant’s sister-in-law was out the front of the house talking to the accused whom she knew. She states that the conversation degenerated into an argument. A car has then pulled up and about three males and one female have stepped out and introduced themselves to her. About 20 minutes later, she was seated on the brick wall at the front of her house speaking to one of the males when she head screaming and yelling. She saw a group of males, including the accused, run from the front of the house, into the driveway. The complainant was yelling at them, ‘This is my house’. She then saw the complainant crouch onto the ground with his hands over his head protecting himself from being struck. She states that she recognised the persons hitting the complainant as including the accused. She attempted to intervene and was pushed away and then left to get help. 1 A copy of the Schedule of Facts is Exhibit E to the affidavit of Angus Walker, sworn 14 July 2005 and filed in these proceedings -- 2 of 6 -- 3 The complainant has subsequently gone into the house while his wife had come to the front after hearing that [the] accused was being bashed. The complainant’s wife was then abused and had bottles thrown at her by the same group of males. The complainant has then arrived holding a baseball bat. As he approached the group, the baseball bat was taken from him and he was struck with it a number of times as well as having small eskies swung at him. At approximately 1.50am later that night, the accused was seen by police seated on a bench in a park near the complainant’s house. He was spoken to by police and charged.” INJURIES [3] The applicant sustained the following injuries in the altercation: 1. (a) bruising over the left eyelid; (b) bruising over the right brow region; (c) 1.5cm laceration in the left lateral chest wall (which was sutured). (d) dental injuries: (i) enamel fractures to the distal and buccal of [tooth] number 37; (ii) enamel fracture to the buccal of [tooth] number 36; (iii) suspected left condylar fracture; (iv) incisal fractures to tooth numbers 41 and 42. THE LAW [4] 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 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, -- 3 of 6 -- 4 read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. COMPENSATION [5] Mr Bagley, counsel for the applicant, seeks compensation under three items as follows: (1) Item 2 - Bruising/laceration etc. (severe) The report dated 4 July 2003 from the Emergency Department of the Gold Coast Hospital, under the hand of Dr David Spain (who, it is noted, was not the treating doctor2 ) notes that the applicant presented at the Emergency Department of the Gold Coast Hospital at 2.03 am on 25 January 2003 alleging “that he had been kicked multiple times whilst on the ground and possibly stabbed with some glass”, with examination showing “some bruising over the left eyelid and the right brow region” and a “1.5cm laceration” on the “left lateral chest wall” which was sutured. I accept Mr Bagley’s submissions that an appropriate assessment of this combination of injuries (bruising and lacerations) is to assess the injuries pursuant to item 2 of schedule 1 and accordingly I award 5% ($3,750) in respect of these injuries. (2) Item 5 – Loss or damage of teeth The dental injuries suffered by the applicant are described (briefly) in a report from Dr Stephen Coulson from Riverside Dental Practice, in a report dated 31 January 20033 and those injuries are relevantly: ƒ enamel fractures to the distal and buccal of [tooth number] 37; ƒ enamel fracture to the buccal of [tooth number] 36; ƒ suspected left condylar fracture; ƒ incisal fractures to tooth numbers 41 and 42. [6] In the absence of any further evidence in respect of the applicant’s dental injuries it is difficult to make an assessment in respect of this item. However, 2 Exhibit C to the affidavit of Angus Walker sworn 14 July 2005 3 Exhibit D to the affidavit of Angus Walker sworn 14 July 2005 -- 4 of 6 -- 5 I note that the relevant range in respect of item 5 is 1%-12%. The applicant, himself, at p 4 of his police statement dated 27 February 20034 , describes the dental injuries as being a “back left-hand tooth … broken in half, and that top is chipped and the front tooth is broken or chipped.” Doing the best I can with the information available, I consider the appropriate assessment under this item is an award of 4% of the scheme maximum ($3,000). [7] (3) Item 32 – mental or nervous shock (moderate) Paul Elliott, psychologist, provided a report dated 25 June 20055 . Mr Elliott diagnoses the applicant as suffering from Adjustment Disorder with Mixed Anxiety and Depressed Mood – Chronic – of moderate severity and assesses his global assessment of functioning (GAF) scale at 70 (based on a pre-morbid GAF level of 100). Mr Elliott assessed the probability of “some permanent psychological impairment” at 25%. Mr Elliott notes that the applicant reports “that his social life is now virtually non-existent because of his current inability to continue his formerly-enjoyed activities at night, and his hypervigilance.” The applicant reported to Mr Elliott that the incident had “cost him many friends” and that his “only social life currently experienced is associated with children’s activities.” Mr Elliott also noted that the applicant’s relationship with his wife had “deteriorated because of their shared heightened anxiety and the stresses involved with their desire to move [which was dependent on the completion of house renovations needed to make their house saleable] and their inability to do so [at least until the completion of the renovations].” [8] Mr Elliott considered that Mr Barnes required 6-7 one-hour sessions of cognitive-behaviour and exposure therapy to address post-traumatic issues, anxiety and irrational fears, at an Australian Psychological Society recommended fee of $181 per hour. 4 Exhibit A to the affidavit of Derek Barnes sworn 18 July 2005 5 Exhibit A to the affidavit of Paul Elliott sworn 11 July 2005 -- 5 of 6 -- 6 [9] Mr Elliott concluded that although “some of the symptoms [of the applicant’s Adjustment Disorder with Mixed Anxiety and Depressed Mood had] remitted significantly, his quality of life and his relationship with his family [were] still suffering the adverse effects of this disorder, and treatment [was] needed if further recovery [was] to be achieved.” [10] Mr Bagley submits that the assessment under this item should take into account the GAF of 70, the 25% probability of some permanent psychological impairment, the chronic and moderate severity of the applicant’s condition (having existed to date for some 2½ years) justifying an award at the top end of item 32 (i.e. 20% of the scheme maximum). In all the circumstances I consider that to be an appropriate submission and accordingly I award an amount of 20% ($15,000) under this item. CONTRIBUTION [11] It appears from the Schedule of Facts6 that at one stage in the proceedings, after an initial attack, the applicant went into his house and returned to confront his assailants with a baseball bat. This baseball bat was subsequently taken from him and used as a weapon against him. In my view, however, the applicant was, by this stage, perfectly justified in seeking to have the respondent (and others) leave his residence and his actions in obtaining a baseball bat did not contribute to his injury7 . CONCLUSION [12] Accordingly, I order that the respondent, Scott James Tumbers, pay the applicant, Derek Royce Barnes, the sum of $21,750. - - - - - 6 Exhibit E to the affidavit of Angus Walker sworn 14 July 2005 7 See COVA s 25(7) -- 6 of 6 --