Coleman v Brand

[2008] QDC 90

DISTRICT COURT OF QUEENSLAND

CITATION:

Coleman v Brand [2008] QDC 90

PARTIES:

SHANNON LEE COLEMAN

Applicant

AND

MARIE OLIVE BRAND

Respondent

FILE NO/S:

BD3067/07

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

28 April 2008

DELIVERED AT:

Brisbane

HEARING DATE:

7 March 2008

JUDGE:

Nase DCJ

ORDER:

That Marie Olive Brand pay to Shannon Lee Coleman the sum of $18,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995

CATCHWORDS:

CRIMINAL LAW – COMPENSATION FOR VICTIM – assessment of compensation under Criminal Offence Victims Act 1995 for  - whether assessment should be reduced to reflect the Applicant’s contribution

Criminal Offence Victims Act 1995, ss 20, 21, 22, 24

COUNSEL:

Ms F Muirhead for the applicant

No appearance by or on behalf of the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

The respondent was not represented

1. On 11 April 2005 Marie Olive Brand pleaded guilty in the District Court at Mount Isa to a charge of unlawfully wounding Shannon Lee Coleman.  On the following day Brand was sentenced to a term of three years imprisonment suspended after six months.

1. Coleman is the applicant for a compensation order pursuant to the Criminal Offence Victims Act 1995. Brand is the respondent. Brand chose not to appear or to be represented at the hearing of the application. As a consequence it proceeded in her absence and solely on the materials placed before the court by the applicant.

1. Coleman at the time had moved into a hotel with her six‑year‑old child after leaving her partner.  Both the applicant and the respondent were part of or on the fringes of the drug subculture in Mackay.  The respondent turned up at the motel wanting drugs.  Coleman in fact had no drugs in her possession at that time.  The two women argued briefly before the respondent took out a knife and attacked the applicant with it.  During the attack the respondent attempted to stab the applicant repeatedly.  The assault ended when another person present helped disarm the respondent.

1. The applicant’s injuries were described in my sentencing remarks as follows:

“The complainant suffered a number of cuts and wounds as a result of the assault.  Those are set out in a medical report following an examination of the complainant.  On examination she was found to have four face and neck wounds, a small cut to the left of her left eye, a small cut to the left of the upper lip, a one centimetre long wound under the left jaw, a one centimetre long wound in the right neck just below the angle of the jaw.  The first two wounds were relatively superficial and were stitched.  The third mentioned wound was one centimetre in depth.  This also was stitched.  The wound to the right neck was at least four centimetres deep and because of its closeness to major vessels in the neck a surgeon was consulted.  There was some concern at the time that the deep wound to the neck could have damaged vital blood vessels.”

1. Under the legislative scheme introduced by the Criminal Offence Victims Act 1995, on conviction of a personal offence an application may be made to a court for a compensation order (s 24). An application can only be brought by “the person against whom the offence was committed” (s 24(2)), and the order can only be made in respect of “the injury suffered by the applicant because of the offence” (s 24(2)).

1. By s 20 of the Act an injury is defined to mean:“(a) … bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or described under a regulation.”

1. The method of assessment under the legislative scheme introduced by the Act involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act.  The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

1. The wounds fall to be assessed under the item “gunshot/stab wounds” in the compensation table.  I agree with the written submissions prepared by Ms Muirhead, on behalf of the applicant, that the appropriate item is Item 24 of the compensation table, which is for “gunshot/stab wounds (minor)”.  The range provided is 6%-10% of the scheme maximum.  In all the circumstances, subject to any adjustment of the award under s 25(7) of the Act, I agree that 10% of the scheme maximum represents an appropriate allowance for the wounds.

1. In support of the claim for mental or nervous shock, reports from a psychiatrist (Dr Reid) were placed before the court.  From his reports a reasonably clear picture of the applicant emerges.  At the time of the wounding she was 31 years of age. She had a history of drug use (amphetamines and cannabis).  In 2000, at the time she moved to Mackay from Tasmania, she was using cannabis regularly.  While in Queensland her use decreased because of a difficulty in obtaining supplies of the drug.  Since her return to Tasmania after the wounding offence she has recommenced using cannabis on a daily basis.  She has also used amphetamines, although in Queensland her use of the drug was irregular.

1. The other relevant external fact is that the relationship with her partner (at the time of the wounding) was affected by episodes of domestic violence, although she claims the level of violence was limited and she did not fear for her life.

1. Dr Reid’s main conclusions are set out in the following passage:

“Mental state examination revealed a pleasant and cooperative woman.  She had scars on her face and neck from the previous attack.  She became distressed during the interview when recounting her story and was tearful.

There was no formal thought disorder, suicidal ideation or perceptual disturbance.  Ms Coleman gave a history of intrusive memories, hyperarousal and avoidance following a knife attack.  Her cognition was grossly intact and her insight and rapport were fair.

Enclosed documentation outlines the life‑threatening nature of the attack and subsequent presentation to the Mackay Base Hospital.

The reports by Dr Chandra Secka of Spencer Clinic outlines two admissions in may 2003 and September 2005.  The first admission was precipitated by suicidal threats in the context of being 7 months pregnant with her partner being imprisoned.  There was a history of being stabbed by no detail of any psychological sequelae.  The second admission came in the context of domestic violence and a diagnosis of situational crisis/abusive relationship/alcohol and substance abuse was made.

Ms Coleman appears to have had personality disturbance and substance abuse prior to being stabbed.  She was outgoing, gregarious and impulsive.  She had several relationships that were unstable and characterised by drama and drug abuse.  Ms Coleman had made the decision to return to Tasmania even before the assault.

The effect of the assault has given rise to symptoms consistent with Posttraumatic Stress Disorder.  At the time of the assault Ms Coleman was horrified and feared for her life.  She seriously contemplated that she would be killed.  Since that time she has had persistent recollections of the assault and has slowly withdrawn.  Her mood is now low, she is avoidant and has largely cut herself off from her friends.  Her life was initially in turmoil on return to Tasmania s she was pregnant and her partner was in jail.  Now that she is no longer in a relationship her lifestyle is less dramatic but she finds herself withdrawn and isolated.  She is generally anxious and cannot see any change in the near future.  She is likely to remain in Queenstown but is hopeful in the future of perhaps running a small business from her home town.

I consider her condition to be of moderate severity.  Unfortunately it is likely to be persistent.  Ongoing symptoms past two years of a traumatic event is associated with a poor prognosis as is the ongoing use of illicit drugs.

Her pre‑morbid dramatic personality style and substance abuse have led to significant vulnerability to develop Posttraumatic Stress Disorder.  Through this sort of lifestyle she has experienced domestic violence but never feared specifically for her life and did not become persistently anxious.  The stabbing has led to specific intrusive recollections, depression and anxiety that are unlikely to have occurred without the violence perpetrated by Maria.

Ms Coleman has symptoms of the severity that would warrant pharmacological treatment in the form of an antidepressant.  Posttraumatic Stress Disorder is usually helped by the use of Selective Serotonin Reuptake Inhibitor (SSRI).  Unfortunately her ongoing cannabis abuse is likely to diminish any benefit from such treatment.

Cognitive behavioural therapy is also usually recommended to diminish fear responses and enable patients to become more socially interactive.  Such therapy is usually conducted over a 12 month period.  The cost of an antidepressant would be $35 per month and counselling $300 per month.  It is likely someone would receive around 24 sessions in a 12 month period.”

1. The conclusion I draw from Dr Reid’s report is that the applicant has a number of symptoms consistent with a post traumatic stress disorder which can be related to the wounding offence.  Despite a pre‑existing personality disturbance and a longstanding substance abuse, Dr Reid was able to identify a collection of post traumatic type symptoms which he believed could be related causally to the wounding offence.

1. Mental or nervous shock is dealt with in Items 31 (mental or nervous shock – minor), 32 (mental or nervous shock – moderate), and 33 (mental or nervous shock – severe) of the compensation table, where the ranges prescribes are 2%‑10%, 10%‑20%, and 20%‑34% respectively of the prescribed maximum.

1. Ms Muirhead argued, in her written submissions, for an allowance at the top of the moderate range or bottom of the severe range (20%).  I think the nature of the symptoms experienced by the applicant, together with the probability her condition will persist into the future, support the claim advanced.  The total claim therefore amounts to 30% of the scheme maximum, subject, again, to any reduction under s 25(7) of the Act.

1. There seems to me to be two factors relevant to whether the award should be reduced pursuant to s 25(7).  The first arises from the relationship between the applicant and her attacker (Brand).  Both were part of the drug subculture in Mackay, and the applicant had supplied Brand with amphetamines in the past.  She was sought out by Brand on this occasion because Brand believed, wrongly, that she had drugs in her possession. The applicant at the time of the offence was not engaged in any illegal activity and I think, on balance, her past association with Brand should not lead to a reduction in the award to which she is entitled under the Act.  

1. The other factor is that the applicant’s ongoing use of cannabis has compromised both treatment of her condition and her overall prognosis.  In gauging the amount of any reduction the court necessarily has to fall back on a “broad brush” approach, as it is not possible to adopt any more precise method.  In the circumstances the overall allowance (30%) will be reduced by 5% of the scheme maximum, leaving an entitlement to 25% of the scheme maximum. In reaching the figure of 5% I have in effect reduced the allowance for mental or nervous shock to 15% of the scheme maximum.

1. In all the circumstances it is ordered that Marie Olive Brand pay to Shannon Lee Coleman the sum of $18,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.