Camenzuli v Robertson

[2005] QSC 332

SUPREME COURT OF QUEENSLAND

CITATION:	Camenzuli v Robertson [2005] QSC 332
PARTIES:	MICHAEL ANTHONY CAMENZULI (applicant) v CAMDEN JAMES ROBERTSON (respondent)
FILE NO/S:	SC No 597 of 2005
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING  COURT:	Supreme Court at Townsville
DELIVERED ON:	10 November 2005
DELIVERED AT:	Townsville
HEARING DATE:	21 October 2005
JUDGE:	Cullinane J
ORDER:	Order the respondent to pay the applicant by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) as amended the sum of $43,500
CATCHWORDS:	CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSTAION – QUEENSLAND – where the respondent pleaded guilty to one count of unlawful wounding and was sentenced to imprisonment for four and a half years with a recommendation that he be eligible to be released on post prison community based release after 18 months – where the applicant sustained – where the applicant suffered stab wounds to the scalp, right side of the neck, left side of the neck and left arm and a wound to the thoracicolumbar region of the back – where the applicant suffers from a post traumatic stress disorder as a result of the attack – where the applicant seeks criminal compensation for injuries sustained Criminal Offences Victims Act 1995 (Qld), s 26, sch 1
COUNSEL:	C Thomson (sol) for the applicant No appearance for the respondent
SOLICITORS:	Legal Aid Queensland for the applicant No appearance for the respondent

1. The applicant seeks compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) as amended in respect of injuries sustained by him as a result of an attack upon him by the respondent with a knife on 13 November 2003 at Townsville.

2. The respondent did not appear on the hearing. The Public Trustee and the respondent both indicated that they did not intend to appear.

3. The applicant was born on 25 February 1983.

4. On 2 August 2004 the respondent came before the Supreme Court at Townsville where he pleaded guilty to one count of unlawful wounding the applicant and was sentenced to imprisonment for four and a half years with a recommendation that he be eligible to be released on post prison community based release after 18 months.

5. He was dealt with for an offence of unlawfully wounding another person at the same time and the same place.

6. The relevant events occurred at the home of the respondent at Vincent, Townsville. A party was being held there that night. A number of gate crashers, including the applicant and a female companion attended. When they first arrived the applicant and the respondent spoke and the applicant said that they would come back.

7. Sometime after they returned the applicant went looking for the female with whom he had arrived. He entered the house and when he saw her asked her to come outside. Another person present started to abuse him. The applicant left the house and walked down the stairs. He was at this time affected by alcohol. Events are somewhat confused. Fights broke out including a fight between the person who was abusing the applicant and another person. The female with whom the applicant had arrived came on the scene and engaged in an argument with one of the persons in the fight. She threw a punch at the applicant who fell over. When he got up he walked to his vehicle and when he reached it, turned around and saw the respondent standing in front of him. The respondent started throwing punches at him and the applicant took his guard and retaliated. The applicant was not aware that the respondent at this time was armed with a knife. What he thought were blows being landed upon him were in fact stab wounds being inflicted upon him. He says he can remember turning around and feeling a sharp pain in his back and when he put his hand there, saw blood all over it. He yelled out that he had been stabbed and he lay down on the road and then blacked out. There is no basis on the evidence to conclude that the applicant contributed to the attack upon him.

8. The applicant was admitted to hospital suffering from stab wounds to the head, neck and left arm. He had a Glasgow coma scale of 14 and a low systolic pressure. His injuries are described in a statement of Dr Westcott provided for the purposes of the criminal proceedings and a report of the Townsville Hospital under the hand of Dr Russell dated 25 January 2005.

9. More particularly there were stab wounds to the scalp, right side of the neck, left side of the neck and left arm and a wound to the thoracicolumbar region of the back. He underwent emergency surgery and the wounds were explored. The scalp laceration was a deep curved linear flap that had been raised off the top of the head and was bleeding profusely. It was sutured. The stab wound in the posterior triangle of the right side of the neck extended through the platysma, sternomastoid, retro vertebral muscles and severed the perivertebral venus A plexus, emerging on the other side of the neck. These wounds were closed and sutured. A four centimetre laceration to the posterior lumbar area extended through the quadratus lumborum and part of latissimus dorsi. There was a wound to the left deltoid area of about six to seven centimetres in length.

10. The report relates that the applicant had an uncomplicated stay in hospital and was discharged home on 3 December 2003.

11. There is a physiotherapy report from the hospital dated 18 October 2004. There is also a physiotherapy report by one Brett Cunningham dated 7 October 2005 and a report under the hand of Dr Panaretto of the Townsville Aboriginal and Islanders Health Services Limited. As well there is an affidavit of Robert Zemaitis, a psychologist to which is exhibited a report.

12. The applicant presented himself at the Townsville Aboriginal and Islanders Health Service on the 4, 6, 9, 16 and 18 December for further treatment of his injuries. He complained of abdominal pain on 4 December and paresthesia in the left hip and thigh. It was thought he had a urinary tract infection post catheterisation. He was treated for this. Subsequently the wounds were said to be improving and the sutures and staples were subsequently removed. He complained on 18 December of headaches following the stabbing with continuing pain around the left flank, neck and back. He has not been since 18 December 2004.

13. According to Mr Cunningham’s report the applicant complains of restriction of cervical rotation, cervical lateral side bending, thoracic rotation, some lumbar flexion and extension and some pain in the left shoulder on movement. The restrictions are said to be of a mild to moderate degree.

14. These restrictions are said to create difficulties in lifting and prevent him from returning to his previous employment which was as a labourer. Mr Cunningham thought that the applicant ought to be able to obtain further improvement in his movement by improving his fitness and muscular support around the trauma sites. He suggested gym sessions and physiotherapy.

15. He did not think however, that the applicant would ever make a complete recovery and be pain free.

16. There are photographs showing the scarring on the applicant’s neck, shoulder and scalp.

17. According to Mr Zemaitis, the applicant suffers from a post traumatic stress disorder which he describes as being at a severe level of intensity. This is the consequence of his exposure to a traumatic event in which he feared he would die or suffer serious injury. He experienced feelings of fear, helplessness and horror, particularly whilst lying on the ground having lost a good deal of blood. He re- experiences the traumatic event through recurrent and intrusive distressing recollections, recurrent and distressing recollections, recurrent and distressing dreams and suffers psychological distress at cues that symbolise or resemble an aspect of the traumatic event such as knives and anxious arousal on exposure to cues that symbolise or resemble an aspect of the traumatic event. He thought that the applicant would benefit from future psychological counselling.

18. The applicant himself has set out in an affidavit the ongoing problems from which he suffers. These include a sharp pain to the right side of his head behind his ear, soreness of his neck with pains and cramps in that area and pain in his lower back with stiffness. There is also a victim impact statement which was tendered at the time of sentencing. I accept what the applicant says in his statement.

19. It seems to me that the assessment of compensation in this case should be by reference to the items in the schedule concerned with stab wounds but bearing in mind the significant direct sequelae of the stab wounds in the form of scarring and impairment to the area of the body where the stab wounds occurred in the nature of the loss of movement or weakness.

20. In addition the applicant is entitled to be compensated for nervous shock. Again, I think this should be regarded as falling in the severe category, given the report of Mr Zemaitis.

21. The relevant items then are Items 26 and 33.

22. I would assess compensation in respect of the stab wounds (severe) towards the upper level of the range provided for under this item. I allow 33 per cent of the scheme maximum namely $24,750.

23. I would assess the compensation under the nervous shock item (Item 31) at 25 per cent of the scheme maximum. This is the sum of $18,750.

24. I therefore assess the applicant’s entitlement to compensation in the sum of $43,500.

25. I order the respondent to pay the applicant by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) as amended the sum of $43,500.