Butler v Fleming

[2007] QDC 369

[2007] QDC 369

DISTRICT COURT
CIVIL JURISDICTION

JUDGE ROBIN QC

No 124 of 2007
BRIAN JOHN BUTLER Applicant
and

GRAEME JOHN FLEMING Respondent

TOWNSVILLE

..DATE 14/05/2007

JUDGMENT
HIS HONOUR: This is an application by Brian John Butler under

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the Criminal Offence Victims Act 1995. He seeks compensation
under the Act against Graeme John Fleming who pleaded guilty
in the course of a trial in which he faced a charge of

grievous bodily harm on the 24th of November 2003.

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Sentencing by the trial Judge, Judge Hoath, did not occur
until the 26th of August 2004. The offence happened on the
11th of March 2000. It can been seen that there is an
undesirable amount of delay attending this matter. Part of

that is attributable to the respondent not having been picked	20
up by police until the 7th of September 2002.
It seems that he was the only one of the defendants to suffer
conviction although he was not the only one charged. He
pleaded guilty to assault occasioning bodily harm. He was a	30
young man and not, it seems, one of the party of three or so young Aboriginals who were observed by Mr Butler on the night of the 11th of March 2000 attacking a young boy on a bike.
The boy was pulled off his bike and subjected to a cowardly	40
attack of three against one. Mr Butler, who is now 50, was staying with his sister overnight in anticipation of recreational activity in the bush the next day.
Somehow or other his attention was attracted to what was going	50
on and in a commendable but ill-fated gesture he intervened to try to protect the boy. It was made known to him by the boy's assailants that his intervention was unwelcome, that the

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affair was nothing to do with him, but he persisted, only to

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be struck unexpectedly from behind by a brick or a piece of
concrete or something similar. The respondent is another
young Aboriginal person, not among the original group, who
came along and took it upon himself to intervene by the

reprehensible act of kicking Mr Butler in the head while he	10
was down on the ground. There were other injuries including bruising in the back. It seems accepted there was some soft tissue injury to say the least. Mr Butler complained about
that in his police statement given very close to the time and
in his victim impact statement of 2003 he complained about it	20
again. Otherwise there might be room for concerns to be held about the claims in respect of the back injury.
He has a claim for the laceration which required cleaning and
suturing under local anaesthetic. The most significant of the	30
physical injuries was a fractured skull which caused troubling
headaches to Mr Butler for some time but those fortunately
resolved. He was kept in hospital after his principal wound had been attended to for four days. It appeared at the time of the sentence that he had made a good recovery but there	40
were lurking psychological consequences which have been very sad for Mr Butler.
Although it seems he was physically capable of continuing his
longstanding employment he became psychologically incapable of	50

doing so.
A couple of years ago in that period his relationship with his 3 JUDGMENT 60

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partner, which was not enormously longstanding but which was

very important to him, fell apart.

Although only 50, Mr Butler sees himself as a broken down man.

It is the advice of those he has seen for medico/legal	10
purposes, being Mr Walkley, a psychologist, and Professor to deal with those matters which might help him.
Dr James has recommended an increase in the drug regime which	20
had been prescribed already when he saw Mr Butler last month.
Things appear to have gone downhill in the psychological realm
given Mr Walkley's conclusion in March 2006 that Mr Butler
does not appear to have any of the salient characteristics of
post-traumatic stress disorder. Notwithstanding that, Mr	30
Walkley found he would conform to the diagnosis of a major depressive disorder and a generalised anxiety disorder and could reasonably be described as a person:

"with a shattered sense of self confidence and self	40
esteem and with a great deal of anger and animosity towards his assailants whom he believes have escaped unpunished."

Even the respondent, it seems, because of his youth, escaped actual custody.

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Professor James, when he saw Mr Butler for a couple of hours last month, reached the opinion that Mr Butler does suffer from post-traumatic stress disorder and major depressive disorder. He wrote a special letter to Mr Butler urging him 4 JUDGMENT 60

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to seek treatment which he hopes may alleviate the situation.

Among the other consequences for Mr Butler are a revision of
his previous understanding or favourable attitudes towards

Aboriginal people.	10
...
HIS HONOUR: I am grateful to Mr Greggery for that
clarification. It is incumbent on the Court to avoid double
compensation. The pertinent items in the schedule in the
circumstances are items: 1, 9, 22, and 33. The major	20
laceration is related to the fractured skull, but there were others, along with bruising in some areas. Without assigning percentages I will award the following amounts under them:

Item 1: $1,500;	30
Item 9, fractured skull: $9,000; Item 22, the back injury: $4,000;
Item 33, the psychological injury: $22,000

The total is $36,500. The respondent will be ordered to pay	40
that amount to the applicant under the Act. It is not
necessary to separate the respondent's contribution; although
last on the scene, he adopted what the other assailants had
done and became responsible for all of the harm.
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