Birch v Tevita & Janz [2008] QSC 96

1 [2008] QSC 96 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION ATKINSON J No S3629 of 2008 APPLICATION FOR CRIMINAL COMPENSATION BY MICHAEL JAMES BIRCH Applicant and SIFA TEVITA and LUKE BENJAMIN JANZ First Respondent Second Respondent BRISBANE ..DATE 15/05/2008 JUDGMENT -- 1 of 11 -- 2 JUDGMENT HER HONOUR: This is an application for criminal compensation by Michael James Birch who was the victim of a crime of terrible personal violence committed on him by two people. The first respondent is Sifa Tevita. On the 16th of December 2005, Tevita pleaded guilty in this Court to one count of attempted murder and one count of grievous bodily harm. He was sentenced on 19 December 2005 by Justice Fryberg to imprisonment for a period of 18 years in respect of the count of attempted murder and five years' imprisonment in respect of the count of grievous bodily harm. The count of attempted murder was declared to be a serious violent offence. The sentences were to be served concurrently. His application for leave to appeal against sentence was dismissed by the Court of Appeal. On 19 October 2006, the second respondent, Luke Benjamin Janz pleaded guilty in this Court to one count of malicious act with intent. He was sentenced by me on 19 October 2005 to imprisonment for a period of 10 years and six months. The offence was declared to be a serious violent offence. 850 days spent in presentence custody were deemed to be time already served under the sentence. His application for an extension of time within which to appeal against sentence was refused, with extensive reasons given by the Court of Appeal. -- 2 of 11 -- 3 JUDGMENT The circumstances of the offence were set out in full by me in the sentencing remarks when I imposed the sentence on Mr Janz. Mr Birch, the applicant, was, and is a person with cerebral palsy who had a significant degree of impairment prior to the crime that was committed on him. He has always used a wheelchair and has been unable to walk, with very restricted movements of both his arms and hands. Even prior to the offence, he had a carer who came every day to assist him with bathing and dressing and other personal matters. All of those matters, of course, made him extremely physically vulnerable to an able-bodied person attacking him. The second respondent, Mr Janz, also had a less severe degree of cerebral palsy, and moved into Mr Birch's unit, staying in the second bedroom in that unit. After a minor disagreement about Mr Janz not paying his rent, Mr Janz arranged for terrible violence to be inflicted upon Mr Birch. Mr Janz knew another young man from school, Mr Tevita who was only 17. He was a young, fit, strong man, and under the influence of Mr Janz. For the prospect of being well paid, it was arranged that he would go to Mr Birch's unit in order to kill Mr Birch. Fortunately, he was not successful in that but he did inflict horrific injuries on Mr Birch. He used a knife to cut his throat effectively from ear to ear, and then having left him in his wheelchair bleeding profusely, he came back and stabbed him three times in the back. -- 3 of 11 -- 4 JUDGMENT The injuries were also referred to by me in my sentencing remarks. He had a 15 centimetre cut across his throat which cut not only through the skin but also the subcutaneous tissue, including muscle and cartilage, and the trachea. The right external jugular vein had been divided. Fortunately the carotid artery was not severed, which was the only reason why he did not die. Because, however, of the cutting of the jugular vein he suffered major blood loss. He went to hospital, underwent immediate surgery, had tubes inserted to assist him to breathe and consume food. But the result of all of that was another terrible injury to him which was a paralysed right vocal cord which has significantly impaired his ability to speak. Prior to this crime he had no impairment in that capacity. He can now only speak in a very low voice, and his voice tends to come and go. As well as the three stab wounds to his back there was a minor single stab wound to the left cheek. The wounds to his back were quite severe. One wound was about 2 centimetres in width and proceeded in a slightly downward trajectory for about 5 to 6 centimetres. Another wound was longer. The wound to the left scapula, which was also about 2 centimetres in width, penetrated 8 or 9 centimetres to the bone of the left shoulder blade. The third wound penetrated between the shoulder blade and the spine, following an upward trajectory, passing between the ribs and the thoracic cavity where the heart and lungs are situated and this caused a pneumothorax. He was initially in -- 4 of 11 -- 5 JUDGMENT intensive care and remained in hospital for almost a month. A report by Dr Benjamin Wallwork sets out the devastating nature of the injuries when Mr Birch first went into hospital after the crime that had been committed on him, and the actions taken by the surgeon and his assistants to repair the injuries and stabilise his condition. He also talks about the various steps taken by medical personnel, including a speech pathologist, occupational therapist and physiotherapists, as well as a psychiatric team and social worker to deal with all the problems that arose as a result of his injuries. There is also a report by Dr James Taylor, a senior medical officer at the Royal Brisbane Hospital, setting out the precise nature of the injuries suffered by the applicant, and the surgical and medical treatment undertaken in the hospital, his discharge to outpatients' clinics, and the involvement of the Cerebral Palsy League in supplying a care package on his discharge with domiciliary nurses to care for his tracheostomy site. I have also been provided with a report from a speech pathologist who, of course, had no contact with the applicant prior to his injury because no speech pathology was needed. Before his injuries, he was articulate and able to Communicate effectively with those around him. -- 5 of 11 -- 6 JUDGMENT As a result of his strong voice he was able to engage, in particular, in two activities which were particularly important to him. He worked as a volunteer radio announcer at the Royal Brisbane Hospital, and he was able to undertake flying lessons. The voice, of course, is important to a pilot because that is how he communicates with air traffic control. Without that capacity to communicate there was no prospect of his being able to continue either as a volunteer radio announcer, or to continue undertaking the flying lessons. The speech therapist dealt also with his difficulty in swallowing, and the use of a speech generating device and voice amplifier. There has been little anatomical improvement in the movement of his damaged vocal cord. As well as the matters to which I've referred, the incapacity now suffered in his voice has affected the applicant's quality of life in all environments, even within his immediate family. But, more particularly, in noisy environments or with unfamiliar people, and communicating over the telephone. There is also a report from Dr Bartels who is the applicant's general practitioner who reported on the degree of independence that the applicant enjoyed prior to the crime being committed on him, and that he was able to live independently with carers visiting and his mother visiting. As a result of the assault on him, he lost much of the -- 6 of 11 -- 7 JUDGMENT independence he had enjoyed prior to it. After a troubled period living back with his mother which is, of course, unacceptable for a grown man who had been used to living independently, he now lives in a unit with his mother in an adjacent unit. His reduced independence, together with the fear induced by this attack, has contributed to ongoing psychological trauma. The effects of crime on someone who already was suffering some degree of impairment, of course, are exacerbated. This would have been a terrible injury to have been suffered by anyone, but for someone who was already vulnerable to attack, it has been particularly devastating. I have also been provided with a report of an occupational therapist, a physiotherapist and a social worker from the Cerebral Palsy League which is very detailed in its explanation of the ways in which this attack has affected his life, and the increased anxiety and trauma from which he has suffered. In particular, they report on the effect of him not being able to go back to his voluntary work at Radio Rainbow, and not being able to go back to flying which he loved, and the many other terrible affects of this crime upon him. In a sense, their worst fears have been realised because the applicant was quite recently the victim of an attack on him -- 7 of 11 -- 8 JUDGMENT when he was out in public. He carries with him a laptop which he needs so that he can communicate, and that was stolen from him when he was in a wheelchair outside the cafe at the Queenslanders with Disability Network offices. Publicity given to that attack meant that he has been the recipient of generous support and concern from the media and the community, but it serves to underline how much more vulnerable this terrible attack has made him. There is also a report by a plastic and reconstructive surgeon, Dr Trevor Harris. He reports on his scarring. He reports that the impairment of the whole person due to the scarring is 12 per cent. There is also a report by a clinical psychologist about the trauma that has been suffered by the applicant, and by a psychiatrist who says that he is suffering from post-traumatic stress disorder to a severe degree, characterised by nightmares, flashbacks, avoidant behaviour, exaggerated reflex, and high arousal. I must immediately compliment the Legal Aid office and, in particular, Ms Muirhead who has collected all this material and provided me with very thorough submissions. It is a tribute to her and that office that this application has been prepared as thoroughly and as well as it has been. There is no doubt that the applicant is entitled to compensation under the Criminal Offence (Victims) Act 1995 -- 8 of 11 -- 9 JUDGMENT section 24. The scheme maximum is $75,000. Of course, the compensation cannot reflect the amount of compensation the applicant would be entitled to under the common law. It is possible where each of more than one convicted person directly and materially contributed to an injury, for the Court to make a compensation order against each of the convicted persons: see section 26(7). However, under section 26(8) where the order for compensation is made against more than one convicted person, the total amount payable under all the orders must not be more than the scheme maximum. There is in my mind no doubt that the applicant was living a happy, fulfilling, and independent life, making a contribution to society prior to his injury, and it is the crime which has completely changed his life and been responsible for, and the cause of, many injuries, including ongoing injuries suffered by him. The applicant submits, and I accept, that the relevant items in the schedule, are item 26, gunshot/stab wound (severe), of which 15 to 40 per cent of the scheme maximum can be awarded; item 22, neck/back/chest injury (severe) of which 8 to 40 per cent of the scheme maximum can be awarded; item 28, facial disfigurement or bodily scarring (severe) of which 10 to 30 per cent of the scheme maximum can be awarded; and item 33, mental or nervous shock (severe) of which 20 to 34 per cent of the scheme maximum can be awarded. -- 9 of 11 -- 10 JUDGMENT Full details of the injuries suffered under each of these heads are set out in the submissions and have been adverted to by me in these reasons. I am satisfied that these stab wounds were at the very high end of the severe range, and that the amount of 37 per cent of the scheme maximum advocated for by the applicant is appropriate. That is the amount of $27,750. I agree with the submission that the neck/back/chest injury suffered is severe, and that 20 per cent of the scheme maximum is appropriate in an amount of $15,000. I also agree that he suffers from severe facial disfigurement or bodily scarring, and that the submitted amount of 23 per cent of the scheme maximum, or $17,250, is appropriate. I also agree that he suffers from severe mental or nervous shock as set out in the psychiatric report of Dr McGuire, and that he is entitled to 30 per cent of the scheme maximum, or $22,500. As is submitted, the addition of all of these amounts would mean that he is entitled to an award of 110 per cent of the scheme maximum. Of course, that is not possible. So it is appropriate that the scheme maximum be ordered to be paid as compensation for the terrible injuries suffered by the applicant. -- 10 of 11 -- 11 JUDGMENT I award $75,000 compensation to the applicant. Since the offenders were jointly responsible for these injuries upon him, I hold that they are jointly liable for the award for compensation. MS MUIRHEAD: I do have a draft order, your Honour. HER HONOUR: Thank you. I'll make the order as per draft which I'll initial and place with the file. ------ -- 11 of 11 --