Calder v Buckley [2004] QSC 85

SUPREME COURT OF QUEENSLAND CITATION: Calder v Buckley [2004] QSC 085 PARTIES: RENEE LOUISE CALDER (applicant) v ADAM RICHARD BUCKLEY (respondent) FILE NO/S: BS 2526/04 DIVISION: Trial PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Supreme Court, Brisbane DELIVERED ON: 7 April 2004 DELIVERED AT: Brisbane HEARING DATE: 6 April 2004 JUDGE: Philippides J ORDER: The respondent pay the applicant the sum of $26,250 by way of compensation for the injury suffered by the applicant as a result of the commission of the offences against the applicant of which the respondent was convicted. CATCHWORDS: CRIMINAL LAW – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION – where respondent convicted of unlawfully assaulting the applicant and doing her bodily harm – where applicant suffered physical and psychological injuries Criminal Offence Victims Act 1995, s 20, s 21, s 24, s 25 Dooley v Ward [2000] QCA 493; [2001] 2 Qd R 436 COUNSEL: P B O’Neill for the applicant No appearance for the respondent SOLICITORS: A W Bale & Son for the applicant PHILIPPIDES J: The Application and Relevant Law [1] The applicant seeks compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”) for injuries sustained as a result of the offences of -- 1 of 6 -- 2 unlawful assault and doing bodily harm committed on 26 February 2002 for which the respondent was convicted on 25 July 2003. [2] The present application falls under the provisions of the Act, the offence being committed after the commencement date of that Act on 18 December 1995. Part 3 of that Act provides for compensation for injury caused by a “personal offence” committed against an applicant. [3] Section 24 of the Act provides: “ (1) This section applies if someone (the “convicted person”) – (a) is convicted on indictment of a personal offence; or (b) is convicted on indictment and a personal offence is taken into account on sentence. (2) The person against whom the personal offence is committed may apply to the court before which the person is convicted for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence. (3) The court may make an order (a “compensation order”) for an amount to be paid by the convicted person to the applicant because of the injury.” [4] By s 21 of the Act a “personal offence” is defined as an indictable offence committed against the person of someone. The offences of unlawful assault and bodily harm, of which the respondent has been convicted upon indictment, fall within that definition. Furthermore, the injuries sustained by the applicant fall within the definition of “injury” contained in s 20 of the Act. Accordingly, pursuant to s 24(2) of the Act the applicant may apply to the court for compensation and pursuant to s 24(3) the court may make an order for compensation. Background Facts [5] The applicant is a 27 year old woman and was 25 years of age at the time of the offences. She had been in a defacto relationship with the respondent for some 4½ years, but had separated from him in August 2001. [6] On 25 February 2002, the respondent had come over to the applicant’s place and asked if he could stay the night, which the applicant allowed him to do. The respondent slept on the lounge and left for work the following day but returned mid- morning claiming to be ill. The applicant had remained at home ill. She eventually permitted the respondent to enter the residence and stay for a few hours. At about 1.00 pm the respondent approached the applicant’s bedroom door asking whether she wanted to watch TV. The applicant said she just wanted to lie down. [7] The respondent then made remarks that he thought that a male who the applicant had met a couple of weeks earlier was there because there was a car outside. The applicant asked the respondent to leave, however, the respondent did not respond. The applicant picked up some of the respondent’s belongings from the spare room. -- 2 of 6 -- 3 The respondent then grabbed the applicant by the left arm and shoulder and threw her to the floor. He started throwing files and paper at the applicant whilst she was on the floor and hit her with a cricket shoe with spikes about five times on the legs. The applicant pushed him on the last occasion. The respondent then grasped the applicant’s throat with both hands and threatened that she would be like her friend. Her friend had tried to leave her partner about six years earlier and had been stabbed to death by him. [8] The respondent pushed the applicant down with both hands still around her neck. The applicant rolled and kicked the respondent and managed to break free. She put her hands around her face to stop the respondent choking her. However, the respondent was able to turn the applicant around and started choking her again. The respondent eased his grip, at which time the applicant told him he could still stay in her life. He let her go and stood back. [9] The applicant went to the toilet and was ill and then went to the patio to get air. The respondent came out and threatened to finish her off and told her that he had been planning it for months. The respondent had a blue bed sheet in his hands. The applicant went inside and locked the door behind her leaving the respondent locked outside. The respondent then stood on a table outside, yelling to the applicant that he had broken her phone so she could not call the police and told her that it did not matter because he would be dead. The respondent tied the sheet to a beam and then around his neck. [10] The applicant called the police from her mobile phone. The respondent in the meantime had untied himself, and had run around the side of the house and entered the house. The applicant then ran outside and to a neighbour’s house where she waited for the police to arrive. Upon the arrival of the police the respondent was taken into custody and charged. [11] The respondent was transported to hospital and the applicant sustained the following physical injures: 1. pain in the upper left arm; 2. pain in the left shoulder; 3. swelling to the lower jaw on the right side; 4. pain in the left knee; 5. tenderness over the anterior aspect of the neck and tender on either side of the neck, more right sided; 6. contusion over the left scapula measuring 6 x 4 centimetres; 7. two contusions to the posterior aspect of the left upper arm measuring 7.5 x 2 cm and 2 x 3 centimetres respectively; 8. contusion over the posterior margin of her left acromion measuring 3.5 x 1.5 centimetres; 9. contusion to the ulnar aspect of the proximal ⅓ of her right forearm measuring 2.5 x 1.5 centimetres; 10. an abrasion medial to the left patellar ligament measuring 3 x 2.5 centimetres; 11. contusion to the right calf posterolaterally and proximally, measuring 3 x 2.5 centimetres. -- 3 of 6 -- 4 The Applicant’s Claim [12] The applicant suffers ongoing physical difficulties related to a locking jaw, which is painful and restricts eating and chewing. [13] At the time of the incident, the applicant thought she was going to die. The incident has had ongoing consequences which the applicant has sought to address through group and individual counselling. She suffers the following ongoing psychological difficulties: 1. She continues to suffer nightmares and flashbacks; 2. She is more aware of her security and of her environment; 3. She suffers sleep disturbance; 4. She is hypervigilant when hearing any noise at night; 5. She is more irritable with her family; 6. She has poor concentration and has a tendency to drift off at work; 7. She is more depressed and resorts to increased alcohol consumption; 8. She suffered suicidal ideation; 9. She was fearful of being re-assaulted; 10. She is less outgoing and cannot cope with being in the company of others; 11. She is less able to show emotion. [14] Mr Peter Stoker, a psychologist, in his report opined that the applicant has symptoms consistent with the diagnosis of a severe post traumatic stress disorder, which is of a chronic and disabling nature and has caused a much more circumscribed lifestyle. Mr Stoker notes that the assault has disrupted her life in terms of pain, vocationally, relationally, sexually and socially. On a seven point scale Mr Stoker assessed the degree of psychological pain and suffering for the applicant to be around 5 to 6. He estimated that the applicant will require 35 to 40 sessions of cognitive behavioural therapy over the next two years to help desensitise her. Mr Stoker recommended that the applicant be referred to a psychiatrist for the prescription of anti-depressant medication because of her level of emotional decompensation and suicidal ideation. Mr Stoker’s opinion is that the applicant has suffered a severe degree of mental and nervous shock and will have a permanent psychological disability in the upper range of the severe scale, although he considered that with psychological counselling, medication and the passage of time, that the applicant’s psychological health would improve. The Assessment of Compensation [15] Compensation is assessed by reference to a maximum amount. Section 25 of the Act prescribes the method of assessing compensation as follows: (1) In making a compensation order, a court is limited to ordering the payment of an amount decided under this section. (2) A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the “scheme maximum”). (3) If more than 1 amount is payable under subsections (4) to (6), the amounts must be added together, and, if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. -- 4 of 6 -- 5 (4) In deciding the amount that should be ordered to be paid for an injury specified in the compensation table, the court is limited to making an order for – (a) If there is only 1 percentage listed opposite the injury – an amount up to the amount that is the listed percentage of the scheme maximum; or (b) If there is a range of percentages listed opposite the injury – an amount that is within the listed range of percentages of the scheme maximum. (5) In deciding the amount that should be ordered to be paid for any injury specified under a regulation, the court is limited to making an order for the prescribed amount. (6) In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by – (a) comparing the injury with injuries to which subsections (4) and (5) apply; and (b) having regard to the amounts that may be ordered to be paid for those injuries. (7) In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury. (8) A decision on the amount that should be ordered to be paid under a compensation order – (a) does not involve applying principles used to decide common law damages for personal injuries; and (b) is to be decided by applying the principles mentioned in section 22(3) and (4). [16] The method for the assessment of criminal compensation has been outlined by the Court of Appeal in Dooley v Ward [2001] 2 Qd R 436. For each injury claimed, the court first characterises the injury according to the categories listed in the compensation table. The compensation table sets out a range of percentages for each category of injury. The court then has regard to the relative seriousness of the injury to arrive at a percentage which is within the specified range. The amount of compensation is calculated by applying the appropriate percentage to the scheme maximum, which is $75,000.1 [17] On behalf of the applicant, it was submitted that the applicant’s bruising and lacerations comes within item 2 of the compensation table which concerns “bruising/lacerations (severe)” and provides for a range of 3% to 5% of the scheme maximum. It was submitted that an award of 3% of the scheme maximum would be appropriate for this injury, namely $2,250. I accept that submission. [18] As to the injury sustained by the applicant resulting in a locking jaw, it is submitted that it appropriately falls for consideration in item 9 of the compensation table which concerns “fractured skull/head injury”. I accept the submission that the injury, although not involving a fracture, nevertheless comes within the heading “head injury”. It is submitted that while at the bottom of the range, it is nevertheless 1 See Reg 2 of the Criminal Offence Victims Regulations 1995 -- 5 of 6 -- 6 a serious injury and should be apportioned at 5%. However, I consider that 3% is a more appropriate assessment and award $2,250 for this. [19] As to the applicant’s complaint of tenderness to the neck, this falls within item 21 “neck/back/chest injury (minor)” and a claim of 2% of the scheme amount is made, that is, for $1,500. I accept that is an appropriate assessment. [20] In relation to the applicant’s post-traumatic stress disorder, it was submitted that this constitutes “mental or nervous shock (severe)” within item 33 of the compensation table, which provides a range of 20% to 34% of the scheme amount. Counsel submitted that an award of 27% was appropriate for this injury. Given that the evidence indicates that the applicant suffers severe post traumatic stress disorder, of a chronic and disabling nature and at the upper end of the range, an award of 27% is appropriate for this injury. This results in an assessment of $20,250. Conclusion [21] In the circumstances, I assess the applicant’s entitlement to compensation as $26,250 comprised as follows: (a) Bruising/lacerations (item 2 at 3 %) $ 2,250 (b) Head injury (item 9 at 3%) $ 2,250 (c) Neck injury (item 21 at 2%) $ 1,500 (d) Mental or nervous shock (item 33 at 27%) $20,250 $26,250 [22] I order that the respondent pay to the applicant $26,250 by way of compensation for the injuries suffered by her as a result of the commission of the offences of which the respondent was convicted. -- 6 of 6 --