Burns v Boeve

[2011] QDC 20

DISTRICT COURT OF QUEENSLAND

CITATION:

Burns v Boeve [2011] QDC 20

PARTIES:

DARREN MARK BURNS
Applicant

v

LUKE EDWARD BOEVE
Respondent

FILE NO/S:

39/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

4 March, 2011

DELIVERED AT:

Brisbane

HEARING DATE:

23 December 2010

JUDGE:

Dearden DCJ

ORDER:

The respondent Luke Edward Boeve pay the applicant Darren Mark Burns the sum of $21,750.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – grievous bodily harm – bruising/laceration – loss or damage of teeth – severe facial fracture

LEGISLATION:

Criminal Offence Victims Act 1995 s. 24

Victims of Crime Assistance Act 2009 ss. 154 and 155

CASES:

Kennedy v Faafeu [2010] QDC 21

Paterson v Chand & Chand [2008] QDC 214

COUNSEL:

C Williams (solicitor) for the applicant
No appearance for the respondent

SOLICITORS:

Muir Lawyers for the applicant
No appearance for the respondent

Introduction

1. The respondent, Luke Edward Boeve, pleaded guilty in the Beenleigh District Court on 22 September 2009 to one count of grievous bodily harm in respect of the applicant Darren Mark Burns.  The respondent was sentenced to 18 months imprisonment, with an immediate parole release date on the date of sentence (22 September 2009).[1]

   [1] Exhibit EAM1 (Sentencing remarks) pp 1-7, 1-9, affidavit of Eric Muir sworn 20 January 2010

Facts

1. The respondent attended at a pre-Christmas party on the evening of 23 December 2007.  There were a number of uninvited guests at the party, although the respondent was an invited guest.  The applicant was assisting the party organisers, and asked the respondent to leave.  It was, at this stage, somewhere between 1.20 and 2 am on 24 December 2007.  The respondent had consumed a significant amount of alcohol and was quite drunk.  When asked to leave, the respondent punched the applicant with a closed fist to the left side of his face.[2]

   [2] Exhibit EAM1 pp 1-2 – 1-3, affidavit of Eric Muir sworn 20 January 2010

Injuries

1. The applicant suffered the following injuries:-

(1)       Bruising, swelling and numbness left mid face;

(2)       Fractured left zygoma (cheekbone) with displacement;

(3)       Minor minimal displaced fracture left orbital floor[3].

The applicant also had two front lower teeth broken as a result of the offence[4].

[3] Exhibit DB 3 (Schedule of Facts) Affidavit of Darren Burns sworn 1 July 2010

[4] Exhibit EAM1, p.1-4 Affidavit of Eric Muir sworn 20 January 2010

1. The applicant required surgery, involving a dual opening operation approached both intra-orally (inside the mouth) and externally through the scalp in the temporal (pre-auricular) regions. Following reduction and re-alignment of the multifocal fractures, the zygoma was fixed with two titanium mini-bone plates.  The large intraorbital sensory nerve branch in the left mid face was decompressed by the fracture re-alignments and demonstrated early significant recovery of functions, with feeling returning to the left midface over the period of post-surgical review as an outpatient while the applicant remained in Brisbane over a period of two weeks.[5]

   [5] Exhibit DB3 (Schedule of facts) p.2 affidavit of Darren Burns sworn 1 July 2010

The law

1. The application in these proceedings was filed on 28 January 2010, subsequent to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The applicant’s right to proceed with an application for compensation pursuant to COVA s.24 is preserved pursuant to the provisions of VOCAA ss.154 and 155.[6]

   [6] See Kennedy v Faafeu [2010] QDC 21 para [6]

1. I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of Paterson v Chand & Chand [2008] QDC 214.

Compensation

1. Ms Williams, who appears for the applicant, seeks compensation as follows:-

(1) Item 1 – Bruising/Laceration etc (minor/moderate) – 1% - 3%       

It is submitted that the bruising, swelling and numbness to the left midface region and the left eye of the applicant[7] should be compensated at 2% of the scheme maximum. I consider this is appropriate and award 2% of the scheme maximum ($1500) pursuant to Item 1. 

[7] Exhibit DB 9, (affidavit of Darren Burns sworn 1 July 2010)

(2)        Item 5 – Loss or Damage of Teeth – 1% - 12%

The applicant had two front lower teeth chipped as a result of the assault by the respondent[8].  It is submitted that the assessment under this item should be 2% of the scheme maximum.  I consider this to be an appropriate award, given the relatively minor nature of the injuries to the applicant’s teeth and accordingly I award 2% ($1500) pursuant to Item 5.

(3)        Item 8 – Facial Fracture (Severe) – 20% - 30%

The applicant suffered a fractured left cheekbone and a minor minimal fracture under his left eye resulting in nerve damage, painful surgery, the insertion of two titanium plates and a month off work. 

It is submitted by Ms Williams that the facial injuries should receive an assessment at 25% of the scheme maximum (in the mid range of Item 8).  Given the serious nature of the injuries, I consider this to be an appropriate submission. Accordingly I award 25% of the scheme maximum ($18,750) pursuant to Item 8.

[8] Exhibit EAM 1 (sentencing remarks) p.1-4, Affidavit of Eric Anthon y Muir; Exhibit EAM 1 (sentencing submissions) p.1-3, affidavit of Eric Anthony Muir sworn 20 January 2010; Exhibit DB 9, Affidavit of Darren Burns sworn 1 July 2010

Contribution

1. I do not consider that the applicant has contributed to his own injuries in any way, either direct or indirect[9].

   [9]COVA s.25(7)

Conclusion

1. I order that the respondent Luke Edward Boeve pay the applicant Darren Mark Burns the sum of $21,750.