Garraway v Cedric
[2008] QDC 101
•28 February 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Garraway v Cedric [2008] QDC 101
PARTIES:
ROSS MATTHEW GARRAWAY
(Applicant)
v
ANDREW HENRY TROY CEDRIC
(Respondent)FILE NO/S:
282 of 2007
DIVISION:
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
DELIVERED ON:
28 February 2008
DELIVERED AT:
Cairns
HEARING DATE:
23 January 2008
JUDGE:
Bradley DCJ
ORDER:
That the respondent pay to the applicant the sum of $37,500 by way of criminal compensation.
CATCHWORDS:
COUNSEL:
No appearance for either party (Written submissions received on behalf of the applicant)
SOLICITORS:
Astley Associates Solicitors for the applicant
On 17 March 2006 in the District Court sitting at Yarrabah the respondent was convicted of unlawfully doing the applicant grievous bodily harm. The offence was committed on 10 October 2004 at Cairns.
The applicant who was born on 8 August 1986, now seeks an order for compensation for the injuries suffered by him because of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”)
The respondent is currently serving a term of imprisonment and service of the application and the supporting material has been effected on him at the Lotus Glen Correctional Centre. There was no appearance for or on behalf of the respondent at the hearing of the application.
At about 3.30 am on 10 October 2004 the applicant was travelling in a vehicle with three friends. The vehicle was driven by a female friend who had previously been informed by her mother that noise was occurring out the front of her mother’s house on Mulgrave Road, Cairns. The applicant and the others in the vehicle were travelling to the mother’s house in response to that call.
Upon arrival at the residence two females were standing in the front yard and a recycling bin had been knocked over and contents strewn along the street. One of the applicant’s friends, a male, walked over to the two females and asked them who had knocked the bin over. The two females denied responsibility and an argument ensued with the applicant’s friend. A male friend of the two females was called over and that person called out to the respondent who was a short distance away and who was apparently his cousin. The respondent came over and challenged the applicant’s friend for being racist. By this time the applicant and his female friends had joined the others. The respondent became aggressive towards the applicant and the applicant told him to calm down. The respondent then punched the applicant first on his jaw and secondly on his mouth.
The applicant immediately began to bleed from his mouth and ran to a shopping centre for assistance. The respondent chased after the applicant, caught up with him and grabbed hold of his shirt. The respondent, whilst holding the applicant, pressed his forehead against that of the applicant and asked him if he was being racist. The applicant responded that he wasn’t being racist and he just wanted to go home. The respondent replied that the applicant should go back and talk to his cousin and he told the applicant that he had a knife and that if the applicant didn’t go back he would kill him. Ultimately a security guard pulled up in his vehicle and defused the situation and police were called.
The applicant was taken to the Cairns Base Hospital where he was admitted and he underwent an operation on his jaw on 13 October 2004. His jaw was wired shut from 15 to 28 October during which time he was only able to take food via a straw. The applicant was discharged from hospital on 16 October. Hospital records indicate that the applicant had bilateral mandibular fractures.
In his Victim Impact Statement which was tendered at the sentencing proceedings the applicant states that he lost a tooth and was in such severe pain at the hospital that he blacked out whilst being taken for an x-ray. The applicant states that he had to have two operations over a three day period. The applicant was finishing Grade 12 at the time of the assault and was unable to return to school to complete his exams. He believes that his poor OP score was contributed to by his inability to complete Year 12. The applicant describes the extensive physical effects of the injury, the operation and the wiring of his jaw upon him. His jaw was still sore and tender for about 8 or 9 weeks after the wiring was removed. When the applicant came home from hospital he had trouble sleeping, had lost a great deal of weight and was very weak. The applicant has been left with a lump on the side of his face.
In an affidavit sworn on 19 November 2007 and filed in support of his application the applicant states that his lower jaw still does not function normally and he suffers occasional pain. The applicant states that he has lost confidence in social settings and avoids going out as much as he used to. Although he has commenced an apprenticeship he finds his work continues to be “seriously adversely affected”.
On 12 November 2007 the applicant was interviewed and assessed by Dr Chris Richardson, a psychologist, and in her report of 15 November 2007 Dr Richardson lists the extensive initial and ongoing problems arising from the assault reported to her by the applicant. It is Dr Richardson’s opinion that the applicant is reporting moderate symptomatology associated with Post Traumatic Stress Disorder and moderate Depression. Dr Richardson concludes:-
“It is apparent that the events in October 2004 have had a profound effect on Mr Garraway and he should attend counselling to assist him gain some control over his distress. Given his symptoms, it is expected that 32 sessions with an appropriately qualified therapist, would assist him gain some control over his distress and help him maintain equilibrium in his daily activities.”
The attack by the respondent on the applicant was completely unprovoked and there was clearly no behaviour whatsoever on the part of the applicant which contributed to his injuries.
I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:-
Facial fracture (severe) 25% $18,750.00
Loss of tooth 2% $ 1,500,00
Facial disfigurement 3% $ 2,250.00
Mental or nervous shock (moderate) 20% $15,000.00
$37,500.00
A claim has been made on behalf of the applicant for compensation to cover the cost of the therapy recommended by Dr Richardson and also for the costs and outlays incurred in relation to this application. Unfortunately, the Act does not allow orders to be made in relation to these items. I order that the respondent pay to the applicant the sum of $37,500 by way of criminal compensation.
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