Gardiner v Atirai

[2009] QDC 421

DISTRICT COURT OF QUEENSLAND

CITATION:	Gardiner v Atirai [2009] QDC 421
PARTIES:	SEAN MICHAEL GARDINER
(Applicant) v
JAY WINAU ATIRAI
(Respondent)
FILE NO/S:	341/2006
DIVISION:	Civil
PROCEEDING:	Application for Criminal Compensation
ORIGINATING  COURT:	District Court, Southport
DELIVERED ON:	4 September 2009
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2008, 17 December 2008, 27 August 2009
JUDGE:	Dearden DCJ
ORDER:	The Respondent Jay Winau Atirai pay the applicant Sean Michael Gardiner the sum of $19,500
CATCHWORDS:	Application – criminal compensation – assault occasioning bodily harm while armed – extent of compensable injury – evidence of further injury that was not available at time of sentence – bruising/laceration – facial fracture – mental or nervous shock
LEGISLATION:	Criminal Offence Victims Act 1995 (Qld) ss 22, 24, 25, 26, 30
CASES:	R v Ward; ex parte Dooley [2001] 2 Qd R 436 Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 Wren v Gaulai [2008] QCA 148 Facer v Bennett & Anor [2001] QCA 395 Lewis v Williams [2005] QCA 314
COUNSEL:	Ms H Moran (Solicitor) and Ms S Scott-MacKenzie for the applicant No appearance for the respondent
SOLICITORS:	Slater & Gordon Solicitors for the applicant No appearance for the respondent
Introduction

[1]  The applicant, Sean Michael Gardiner seeks compensation in respect of injuries suffered by him in an incident which occurred on 1 June 2003 at the Logan Diggers Club. The respondent Jay Winau Atirai was sentenced by Judge Wall at the Beenleigh District Court on 25 November 2003 to a sentence of 12 months imprisonment, wholly suspended, with an operational period of two years.

Facts

[2]  The applicant and a co-worker, Ian Patrick Murray, were both employed as security guards at the Logan Diggers RSL Club, Woodridge as of 1 June 2003. On this date the respondent attempted to enter the club several times during the night. The respondent was wearing a security guard’s uniform at the time. The applicant and Mr Murray refused the respondent entry because he was carrying an extendable telescopic baton attached to his trousers and he appeared to be intoxicated. The respondent argued with the applicant and Mr Murray for some time resulting in them escorting him from the premises.

[3]  A short time later the respondent returned and was again refused entry. On this occasion the respondent drew the telescopic baton and waved it at the respondent and Mr Murray. The respondent and Mr Murray moved to restrain the respondent, and he struck the applicant on the face causing a cut to his top lip. Mr Murray was struck with the telescopic baton on the right forearm.

[4]  The respondent was then restrained by the applicant and

Mr Murray, police were contacted and the respondent

taken into custody.[1]

[1]            Sentencing Exhibit 2 (Schedule of Facts).

Injuries

[5]  The Schedule of Facts notes that the applicant suffered

a “cut to his top lip” as well as “swelling and bruising

to his top lip causing him pain and discomfort”[2]

[2]            Sentencing Exhibit 2 (Schedule of Facts).

[6]  The applicant’s Victim Impact Statement[3] states “during the assault that occurred on 1 June 2003 at Logan Diggers Club I Sean Michael Kennedy Gardiner received a fractured face around the cheek area, bruised head and back, and multiple lacerations to the mouth and face. As well there was the feeling of nausea and depression after the attack.”

[3]            Sentencing Exhibit 3.

The Law

[7] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.[4] Further,

“if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.[5] Ultimately the court should

ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.[6]

Compensation

[4]            Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25].

[5]            Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29].

[6]            Wren v Gaulai [2008] QCA 148 per Fraser JA at para [22].

Extent of Compensable Injury

[8]  In respect of the applicant’s physical injuries, in addition to the injury identified in the Schedule of Facts[7] tendered on the sentence (swelling, bruising and

a cut to the applicant’s top lip), the applicant also seeks compensation in respect of a facial fracture. The evidence in relation to facial fracture is contained in a second report from Dr Anthony Lynham, maxillo-facial surgeon, who, having reviewed an x-ray report of the applicant’s face states that “there is some evidence that there may be a fracture to the left zygomatic complex … (the left cheek bone)”, although Dr Lynham notes further that “the fractures reported are very small indeed and are very non-displaced”.[8] On balance,

it appears that the applicant has suffered a minor undisplaced fracture of the cheekbone as a result of the assault on him by the respondent, although that injury was not adverted to in the Schedule of Facts.

[7]            Sentencing Exhibit 2

[8]            Exhibit AJL1 p.1. Affidavit of Anthony Lynham sworn 17 June 2008.

[9]  Ms Scott-McKenzie, who appeared before me to argue this

Bennett & Anor [2001] QCA 395[9] and Lewis v Williams [2005] QCA 314[10]. Ultimately, I am persuaded (as in specific issue, relies on the decisions in Facer v

Lewis v Williams) that the evidence in respect of the minor undisplaced cheekbone fracture is “additional evidence of a sequela of the offensive assault occasioning bodily harm”[11] As Jerrard JA points out in

Lewis v Williams “what is required is proof to the satisfaction of the judge making the order, pursuant to the standard of proof described by s 30 of COVA, that the injury for which compensation is sought was suffered
because of the commission of the personal offence of
which the respondent had been convicted on indictment.”[12]

Accordingly, I conclude that the applicant is entitled to compensation for the fractured cheekbone as well as for bruising/laceration and mental or nervous shock.

[9]            Per Philippides J paras 18 and 19

[10]           Per Jerrard JA at paras 8 and 9 and Wilson J at paras 32 and 33

[11]           Lewis v Williams [2005] QCA 314 per Wilson J para 32.

[12]           Lewis v Williams [2005] QCA 314 per Jerrard JA at para 9.

Compensation

[10]  Compensation is sought on behalf of the applicant then as follows:

Item 1 - Bruising/laceration etc. (minor/moderate) 1%-
3%.

The applicant relies on the report of Dr Anthony Lynham dated 11 November 2005.[13] It is submitted that these

injuries should be compensated at 3% of the scheme maximum ($2,250). In my view that is an appropriate submission, given further that Dr Lynham notes that “there is a small scar on the upper left lip” which does not require “any further surgery”.[14] Accordingly, I award the applicant $2,250 pursuant to item 1.

Item 6 - Facial fracture (minor) – 8%-14%

It is submitted on behalf of the applicant that the facial fracture should be compensated at the upper end of item 6 (facial fracture minor). However, although I have accepted that the applicant can be compensated for the facial fracture, it is clear from Dr Lynham’s report that it is “very small indeed and … very non-displaced [and] as these injuries have been left untreated, demonstrates the very undisplaced nature of these fractures.”[15] It is clear that the assessment must fall

at the lowest end of the applicable scale (i.e. 8% of

[13]           Exhibit AJL1 p.1 Affidavit of Anthony Lynham sworn 16 November 2006 which identifies the “injuries reported” as including “a laceration to the upper left lip”, “a haematoma to the left side of the face”, and “bruising to the head and back”.

[14]           Exhibit AJL1 p.2 Affidavit of Anthony Lynham sworn 16 November 2006.

[15]           Exhibit AJL1 pp.1-2 Affidavit of Anthony Lynham sworn 17 June 2008.

the scheme maximum) being $6,000.

Item 32 – mental or nervous shock (moderate) 10%-20%.

Dr Julian Boulnois examined the applicant on 16 February 2006 and provided a report dated 23 February 2006.[16] Dr

Boulnois concludes that there is “substantive evidence that [the applicant] continues to suffer from the symptoms of a moderately generalised anxiety disorder … DSM IV … 300.02” for which there had been “no formal treatment bar the use of the occasional Diazepam”. Dr Boulnois indicated that the applicant’s GAF scale [Global Assessment of Functioning] “would reveal a level of functioning currently at a level of around 60”. Dr Boulnois considered that the applicant should “reconsider the possibility of undergoing formal cognitive behavioural therapy, ideally from a fully qualified clinical psychologist, in order to help him resolve the symptomology he is currently experiencing, admittedly not to the same extent as immediately after the events under question, but certainly that persist
and continue to trouble and disturb [the applicant’s]

day to day functioning.”[17]

[16]           Exhibit JB1 Affidavit of Julian Boulnois sworn 16 November 2006.

[17]           Exhibit JB1 p.2 Affidavit of Julian Boulnois sworn 16 November 2006.

[11]  In my view an appropriate award under item 32 in these circumstances would be towards the middle of the moderate range namely 15% of the scheme maximum ($11,250).

Contribution

[12]  I do not consider that the applicant has contributed

either directly or indirectly to his injuries in any

way.[18]

[18] COVA s 25(7).

Conclusion

[13]  I order that the respondent pay the applicant the sum of