DISTRICT COURT OF QUEENSLAND
CITATION:
Burnett v Cowell [2010] QDC 481
PARTIES:
EDWARD MATTHEW BURNETT
(applicant)
v
BENJAMIN SCOTT COWELL
(respondent)
FILE NO:
2806/09
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court at Brisbane
DELIVERED ON:
10 December 2010
DELIVERED AT:
Brisbane
HEARING DATE:
11 November 2010
JUDGE:
Rafter SC DCJ
ORDER:
The respondent pay to the applicant the sum of $22,500 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 5 September 2008.
CATCHWORDS:
APPLICATION – CRIMINAL COMPENSATION – assault occasioning bodily harm – where the applicant suffered physical injuries and mental or nervous shock – assessment of compensation
Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25
Criminal Offence Victims Regulation 1995 (Qld), s 2
Victims of Crime Assistance Act 2009 (Qld), s 149, s 155
Lewis v Williams [2005] QCA 314
Lynch v Loli, District Court No 881/09, Botting DCJ, judgment delivered 30 September 2008
R v Bennett, ex parte Facer [2002] 2 Qd R 295; [2001] QCA 395
R v Ward, ex parte Dooley [2001] 2 Qd R 436; [2000] QCA 493
SAY v AZ [2007] 2 Qd R 363; [2006] QCA 462
The Queen v De Simoni (1981) 147 CLR 383
Wren v Gaulai [2008] 2 Qd R 383; [2008] QCA 148
COUNSEL:
F Muirhead, solicitor for the applicant
No appearance by or for the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
No appearance by or for the respondent
Introduction
The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the respondent on 15 May 2004. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The application was filed on 1 October 2009. Therefore, the transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.
On 5 September 2008 in the District Court of Queensland at Brisbane the respondent pleaded guilty to assault occasioning bodily harm. He was placed on probation for 6 months.[1]
[1]Exhibit A to the affidavit of Melissa Lo filed 19 August 2010.
I made an order for substituted service on 8 October 2010. Service was effected upon the respondent by means of an advertisement placed in The Courier Mail on 19 October 2010 and the posting of the originating application and supporting affidavit material to the respondent’s mother’s address on 13 October 2010. There was no appearance by or for the respondent at the hearing.
Circumstances of the offence
The offence occurred on 15 May 2004. The applicant was 31 years of age. The respondent was 19 years of age. When sentencing the respondent, I described the circumstances of the…
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- AGLC
- Burnett v Cowell [2010] QDC 481
- Case
- [2010] QDC 481
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether compensation for mental or nervous shock should be included in the assessment of the applicant’s damages. The court noted that the applicant had suffered physical injuries, including a broken nose, and had also experienced a significant degree of mental or nervous shock as a result of the assault. The court considered the relevant provisions of the Criminal Offence Victims Act 1995, which permit compensation for both physical and psychiatric injuries resulting from an offence. The court held that the applicant was entitled to compensation for both the physical injuries and the mental or nervous shock suffered as a result of the assault.
The court found that the appropriate amount of compensation was $22,500, taking into account the severity of the injuries sustained by the applicant and the impact of the assault on their mental health. The court ordered that the respondent pay this amount to the applicant as compensation for the injuries sustained as a result of the offence of assault occasioning bodily harm. The court held that this amount was sufficient to cover the applicant’s reasonable and necessary expenses incurred as a result of the assault, including medical expenses and lost income.
Orders
Orders of the court
The respondent pay to the applicant the sum of $22,500 pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm which led to the conviction of the respondent in the District Court at Brisbane on 5 September 2008.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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