Buckby v Roberts

[2008] QDC 212

DISTRICT COURT OF QUEENSLAND

CITATION:

Buckby v Roberts [2008] QDC 212

PARTIES:

ADAM JOHN BUCKBY

(Applicant)

v

SHANE MARK ROBERTS

(Respondent)

FILE NO/S:

94/2007

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

29 August, 2008

DELIVERED AT:

Beenleigh

HEARING DATE:

21 August 2008

JUDGE:

Dearden DCJ

ORDER:

The respondent Shane Mark Roberts pay the applicant Adam John Buckby the sum of $9,750.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – SERIOUS ASSAULT – SPITTING – MENTAL OR NERVOUS SHOCK

COUNSEL:

Mr R Frigo for the applicant

No appearance for the respondent

LEGISLATION:

Criminal Offence Victims Act 1995 ss 22(4), 24, 25, 25(7).

CASES:

R v Ward; ex parte Dooley [2001] 2 Qd R 436

Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337

Wren v Gaulai [2008] QCA 148

SOLICITORS:

McCowans, solicitors for the applicant

No appearance for the respondent

Introduction

1. The applicant Adam John Buckby (a serving police officer) seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 25 June 2005 at Ipswich, resulting in the respondent, Shane Mark Roberts pleading guilty before me in the District Court at Ipswich on 25 November 2005 to one count of dangerous operation of a motor vehicle while adversely affected by an intoxicating substance and one count of serious assault.  The respondent was sentenced to six months imprisonment wholly suspended with an operational period of three years for the serious assault.  The respondent received a twelve month wholly suspended sentence, also with an operation period of three years for the dangerous operation charge.

Facts

1. On the evening of 25 June 2005 the respondent became involved in a police chase, which after a period of erratic and high speed driving resulted in the respondent stopping his car and engaging (initially at least) in a conversation with a police officer, which then ended up in a struggle (resulting in a summary offence of obstructing a police officer being laid).  The respondent was then placed in a divvy van and taken to hospital, but he was refused treatment because of his aggressive behaviour.  Breath and blood tests were unable to be taken by police because of the respondent’s aggressive behaviour.  As the respondent was being placed back in the divvy van because the hospital doctor had refused to treat him, the respondent spat at the applicant, and the spittle, which had small droplets of blood on it, landed on the applicant’s eyes, nose and mouth.  It appears that the trigger for the respondent’s behaviour was that he had gone to recover some money from another person, had been bashed and suffered a significant injury in the process, and believed that he was being chased when police then followed him because of his driving behaviour. [1]

   [1]Exhibit RHM1 (sentencing remarks) pp. 2-3.

Injuries

1. The applicant suffered no physical injuries.  After he was spat on, he went into the Ipswich Hospital and washed his face with an anti-bacterial agent, then on 26 June 2005 and 10 September 2005 attended the Ipswich Hospital where he provided blood for serological testing for hepatitis B, C and HIV.  Those tests returned negative results.[2]

   [2]Affidavit of Adam John Buckby sworn 6 August 2007, paras 15, 16 and affidavit exhibit AJB 2.

The Law

1. 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 injury 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 its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.[3]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.[4] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.[5]

   [3]Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25].

   [4]Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29].

   [5]Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22].

Compensation

1. Mr Frigo, counsel for the applicant seeks compensation under one item as follows:

(1)        Item 32 – Mental or nervous shock (moderate) – 10% - 20%

Mr Frigo submits that the diagnosis by Dr Alan Freed, psychiatrist, of a mild adjustment disorder that lasted six to eight months, with a Global Assessment of Functioning (GAF) score of 61-70 during that six to eight months, should be recompensed by an order 18% of the scheme maximum ($13,500).  In that respect, Mr Frigo relies on a range of single judge decisions of this court and of the Supreme Court in respect of reasonably similar factual scenarios and similar or analogue diagnoses. 

1. In my view, taking into account the diagnosis of “mild adjustment disorder” (as opposed to a more serious diagnosis of post traumatic stress disorder), and taking into account the applicant’s resilient response and complete recovery, it is in my view appropriate to make an award towards the lower end of the range of Item 32.  Accordingly I award 13% ($9,750.00) pursuant to item 32.

Contribution

1. The applicant was merely carrying out his statutory duties as a police officer at the time.  As I indicated in my sentencing remarks.[6]  This was “utterly despicable behaviour” which no-one “police officer otherwise … should ever have to deal with.”[7] It follows that the applicant did not contribute in any way whatsoever to his own injuries.[8]

   [6]Exhibit RHM1, p. 6 Affidavit of Ranald McCowan sworn 7 August 2007.

   [7]Exhibit RHM1 (sentencing remarks) p. 3 Affidavit of Ranald McCowan sworn 7 August 2007.

   [8]See COVA s 25(7).

Conclusion

1. I order that the respondent Shane Mark Roberts pay the applicant Adam John Buckby the sum of $9,750.