Brett v. Hung

[2007] QDC 272

[2007] QDC 272

DISTRICT COURT

CIVIL JURISDICTION

JUDGE O'SULLIVAN

No D307 of 2007

BENJAMIN ASHLEY BRETT	Applicant
and
SHANE STEPHEN HUNG	Respondent

BRISBANE

..DATE 15/05/2007

ORDER

HER HONOUR:  This is an application by Benjamin Ashley Brett for criminal compensation following the conviction of the respondent, Shane Stephen Hung, of assault occasioning bodily harm which occurred on the 30th of May 2003 at Bribie Island. 

Mr Hung was served and there is an affidavit of service to that effect and he has today been called three times and there is no appearance and I am proceeding in his absence. 

The circumstances of the offence are set out in my sentencing remarks.  The most important factor for this application is that, to use the words I used at the sentence, the respondent

"just literally turned on him (the applicant) and bashed him up in a fairly severe way totally without provocation.  His life has been quite seriously effected as has his family's". 

In addition to a victim impact statement and affidavit material from the application, I also have a victim impact statement from his mother, Debra Brett. 

The injuries to the applicant are set out in reports from a medical practitioner, dental practitioners, and Dr Maguire, psychiatrist.  So far as the physical injuries are concerned, the applicant sustained a chipped left upper medial incisor tooth, small abrasion to the inside upper lip, blood in the right nostril, swelling and bruising over the right jaw joint and under the right eye, bruising of the right upper eyelid, swelling over the right jaw, slight bruising over the right shoulder, bruising and swelling over the left upper forearm. 

So far as dental work is concerned, the applicant needed to see a number of dentists over a period of time and indeed the reports from Dr Rickman and Dr Scott indicate that further treatment will be required.  I also have a report from Dr Tomasiello, which I have just read, and an x-ray from Southern
X-Ray Clinics which shows that there were no actual fractures. 

The applicant was punched very hard in the face several times and sustained significant bruising and swelling and significant shock, and indeed vomited throughout that night and needed care from his parents. 

The report by Dr Scott refers to a six millimetre laceration adjacent to the tooth 11 which is the upper right central incisor.  He also notes that the bridge had been fractured by the trauma and a part of tooth 21 had also been fractured.  He noted in 2003 that tooth 21 is at risk and will need to be monitored.  He saw the applicant again in 2004 and said that tooth 21 was still unchanged but tooth 11 would need to be replaced by a crown. 

Dr Rickman in July 2006 stated that the applicant's best dental outcome would be to replace the missing upper right incisor with a dental implant and porcelain bonded to gold crown.  This would be done by a prosthodontic specialist. 

The report from Dr Maguire refers to the extreme fear felt by the applicant at the time and also to the applicant's loss of faith in the policing system because he was not treated appropriately by the police and was treated as a perpetrator rather than a victim.  He still continues to experience panic.  He has moved away from the area and Dr Maguire notes that he feels better as a result, but he is still liable to panic attacks and Dr Maguire opines that he suffers from post traumatic stress disorder to a moderate degree.  She notes the condition has become chronic but she estimates that over time, a period of years, his symptoms will attenuate. 

The applicant is clearly in need of further counselling.  The problems he experiences, as set out in his affidavit, include not only the physical pain which took about a week to subside, but also the need for continuing treatment to overcome his fear to resume his normal life.  His problems are exacerbated by the fact that the people he was with abandoned him to be assaulted, and this has effected his attitude and trust towards other people.  Certain things trigger his anxiety such as raised voices or anything that is similar to what occurred on this particular night.  He describes it (quite rightly) as an attack by a stranger. 

That the nature of the attack and the horror that must have been experienced by the applicant, and his adjustments for at least a week following the incident, is best described in the victim impact statement of his mother:- 

"His face was swollen and badly battered.  His eyes were black and there was blood all over his face, clothes and shoes.  He was missing teeth and he was staggered and disorientated". 

Legal Aid has provided me with helpful submissions.  The relevant items are item 1 - bruising and laceration to a minor/moderate degree.  The range is 1 to 3 per cent.  I agree with Legal Aid that 2 per cent, or $1,500, is appropriate in respect of that item. 

In respect of item 5 - loss or damage of teeth.  The range in the schedule is 1 to 12 per cent.  The submission is for 8 per cent and again I agree that that is the appropriate range and the appropriate figure is therefore $6,000. 

In respect of item 32 - mental or nervous shock, moderate, the range of 10 to 20 percent.  I agree that 15 per cent is appropriate, a figure of $11,250.  The total is therefore $18,750.  Legal Aid has asked for that sum, and I agree that is an entirely reasonable one, and I order the respondent to pay that sum to the applicant by way of compensation. 

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