Griffin v Yeap; McCartney v Yeap

[2011] QDC 369

DISTRICT COURT OF QUEENSLAND

CITATION:

Griffin v Yeap & Ors; McCartney v Yeap & Ors [2011] QDC 369

PARTIES:

PHILLIP PAUL GRIFFIN
(Applicant)

v

VINCENT YEAP
(First Respondent)

DAVID DUONG
(Second Respondent)

DENNY ENG
(Third Respondent)

THINH DO
(Fourth Respondent)

PHILLIP DUONG
(Fifth Respondent)

CLINTON GEE
(Sixth Respondent)

SHAUN JOSEPH MCCARTNEY
(Applicant)

v

VINCENT YEAP
(First Respondent)

DAVID DUONG
(Second Respondent)

DENNY ENG
(Third Respondent)

THINH DO
(Fourth Respondent)

PHILLIP DUONG
(Fifth Respondent)

CLINTON GEE
(Sixth Respondent)

FILE NO/S:

153/2009

152/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

21 December, 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

25 November, 2011

JUDGE:

Dearden DCJ

ORDER:

The first respondent Vincent Yeap, the second respondent David Duong, the third respondent Denny Eng, the fourth respondent Thinh Do, the fifth respondent Phillip Duong and the sixth respondent Clinton Gee pay the applicant Phillip Paul Griffin the sum of $50,250.       

The first respondent Vincent Yeap, the second respondent David Duong, the third respondent Denny Eng, the fourth respondent Thinh Do, the fifth respondent Phillip Duong and the sixth respondent Clinton Gee pay the applicant Shaun Joseph McCartney the sum of $75,000.

CATCHWORDS:

APPLICATION – Criminal Compensation – malicious act with intent – bruising/laceration – fractured skull/brain damage – neck/back/chest injury – mental or nervous shock – facial disfigurement or bodily scarring

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7), 26 and 40(1)

Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155

CASES:

Laning v C-K [2010] QDC 425

Paterson v Chand & Chand [2008] QDC 214

COUNSEL:

Mr L. Brazel for the applicant Phillip Paul Griffin

Mr L. Brazel for the applicant Shaun Joseph McCartney

No appearance for the respondents

SOLICITORS:

Gouldson Legal, solicitors for the applicant Phillip Paul Griffin

Gouldson Legal, solicitors for the applicant Shaun Joseph McCartney

The respondents were not represented

Introduction

1. Each of the respondents, Vincent Yeap (first respondent), David Duong (second respondent), Denny Eng (third respondent), Thinh Do (fourth respondent), Phillip Duong (fifth respondent) and Clinton Gee (sixth respondent), pleaded guilty on various dates in 2007 and 2008 to one count of malicious act with intent in respect to the applicant Phillip Paul Griffin, and one count of malicious act with intent in respect to the applicant Shaun Joseph McCartney.

1. The first respondent, Vincent Yeap, and the third respondent, Denny Eng, were both sentenced by me as juveniles at the Beenleigh Childrens Court on 29 August 2007.  Each was sentenced to two years’ detention in respect of the counts involving the applicant Phillip Griffin and the applicant Shaun McCartney.[1]

   [1] Exhibit FJT-9 affidavit of Fabian Tauchmann sworn 25 November 2009.

1. The second respondent, David Duong, was sentenced by me in the Childrens Court of Queensland at Beenleigh on 19 October 2007, relevantly, in respect of counts relating to each of the applicants Phillip Griffin and Shaun McCartney. In respect of each of those counts Phillip Duong was ordered to serve a period of two years’ detention.[2]

   [2] Exhibit FJT-13 affidavit of Fabian Tauchmann sworn 25 November 2009.

1. The fourth respondent, Thinh Do, was sentenced by me at the Beenleigh District Court on 24 October 2007, as an adult, and was relevantly sentenced to eight years’ imprisonment in respect of the counts involving each of the applicants Phillip Griffin and Shaun McCartney.[3]

   [3] Exhibit FJT-11 affidavit of Fabian Tauchmann sworn 25 November 2009.

1. The fifth respondent, Phillip Duong, was sentenced by me in the District Court of Queensland at Beenleigh on 13 September 2007, relevantly, in respect of counts relating to each of the applicants Phillip Griffin and Shaun McCartney. In respect of each of those counts Phillip Duong was ordered to serve a period of 7 years imprisonment.[4]

   [4] Exhibit FJT-10 affidavit of Fabian Tauchmann sworn 25 November 2009.

1. The sixth respondent, Clinton Gee, was sentenced by me at the Beenleigh District Court on 6 March 2008, as an adult, and in respect of each of the counts in relation to the applicants Phillip Griffin and Shaun McCartney, he was sentenced to seven and a half years’ imprisonment.[5]

   [5] Exhibit FJT-12 affidavit of Fabian Tauchmann sworn 25 November 2009.

1. Each of the six respondents was sentenced to concurrent sentences in respect of other offences committed by them at the same time as the counts relevant to the applicants Phillip Griffin and Shaun McCartney.

Facts

1. The facts leading up to the offences committed against the applicants Phillip Griffin and Shaun McCartney are chilling and deeply disturbing.

1. On the evening of 11 May 2006, the applicants Phillip Griffin (then aged 17) and Shaun McCartney (then aged 21) had been together with a third complainant, Daniel Forbes, two young women, and two other young men at Regents Park (also known as “Hyde Park”).  The group of young people had been drinking and socialising at the park.

1. The respondents were all members of a group which had gone to Regents Park because they had received information that two male persons were present at the park, one of whom had previously been involved in altercations between a co‑offender (not a respondent to these applications) and that male person.

1. The group including the six respondents gathered weapons and drove in two carloads to the park.

1. When the respondents and the other members of the group arrived, they were carrying their weapons out of view.  The applicants Phillip Griffin and Shaun McCartney, and the other two young males and two young females, were all sitting under a shelter. At some point a baseball bat was produced by one of the male persons in the respondent’s group wearing a ski mask, at which stage all the young men in the group at the park (five in total, including the two applicants) began to run.

1. The applicant Phillip Griffin only managed to take a couple of steps before he was dragged to the ground.  The only memory he has of the incident is seeing lots of legs around him, being on the ground with his arms and hands covering his head, saying, “Help me, God”, and then waking up in hospital.  The applicant Phillip Griffin was hit twice with a baseball bat by Thinh Do, once to the pelvis area and once to the neck or shoulder area.  The respondent Thinh Do also punched the applicant Phillip Griffin in the facial area about four times.  The respondent Denny Eng kicked the applicant Phillip Griffin.  As these assaults were occurring, the two young women who were present with the group at the park were yelling, “Get off him, fuck off, stop it, stop.”

1. As the applicant Shaun McCartney was running from the group, he fell to the ground and called out, “Please don’t, I’m sorry”, and was then repeatedly hit in the head with a baseball bat.  The applicant Shaun McCartney has no recollection of the incident as a result of the injuries he sustained in the assault.

1. The respondent Denny Eng caught the applicant Shaun McCartney after he had managed to run some distance from the shelter where he and the other young persons had been.  The applicant Shaun McCartney was hit by Denny Eng with punches from both fists in the side of the ribs.  The respondent Phillip Duong kicked the applicant Shaun McCartney hard while he was on the ground and hit him in the back with a chain. The respondent Clinton Gee kicked the applicant Shaun McCartney in the back of his leg and bottom.  The respondent Thinh Do hit the applicant Shaun McCartney numerous times in the head with a baseball bat.  The respondent David Duong pulled the respondent Phillip Duong (his brother) away, then the respondents David Duong and Phillip Duong, as well as the respondent Clinton Gee, held Thinh Do back to stop him further assaulting the applicant Shaun McCartney, who was on the ground unconscious.  After the respondent Thinh Do dropped the baseball bat and was not being held back, he kicked the applicant Shaun McCartney twice to the head area.  The respondents Vincent Yeap and David Duong also kicked the applicant Phillip Griffin, who lost consciousness during the attack, but was heard screaming by people in the park and residents in nearby houses.

1. The respondents and other persons with them ran away after they were challenged by local residents.  One local resident followed the group in his car and obtained a vehicle registration number.  In due course, search warrants were executed and each of the respondents (as well as others) were apprehended and took part in records of interview.[6]

[6] Exhibit FJT-6 (Schedule of Facts) pp 1-5, affidavit of Fabian Tauchmann sworn 25 November 2009.

Injuries

1. The Schedule of Facts reveals the following injuries suffered by the applicant Phillip Griffin:

·    paralysis (temporary) transferred to ICU (two days) – requiring intubation and ventilation

·    petechial haemorrhaging

·    bruising to left temporal lobe

·    post traumatic amnesia (six days)

·    non-displaced fracture of ethmoid bone with fluid in sinuses

·    severe brain injury (GCS 6).[7]

[7] Exhibit FJT-6 (Schedule of Facts) p 5, affidavit of Fabian Tauchmann sworn 25 November 2009.

1. The Schedule of Facts indicates the following injuries suffered by the applicant Shaun McCartney:

·    multiple haemorrhagic contusions to both frontal lobes

·    cerebral oedema

·    acute subdural haematoma

·    fracture to base of skull and to occipital bone extending to right petrus temporal bone apex

·    GSC 12/15; intubation and ventilation required in ICU (two days)

·    post traumatic amnesia (18 days).

1. The applicant Phillip Griffin was in intensive care at the Princess Alexandra Hospital for two days, and was released from hospital on 18 May 2006, one week after the assault, receiving follow-up treatment from the Royal Childrens Hospital.[8]

   [8] Affidavit of Phillip Griffin sworn 20 October 2009 paragraphs 5 and 6.

1. As a consequence of the injuries, the applicant Phillip Griffin missed a significant proportion of the schooling year and his return to schooling was gradual.  The applicant Phillip Griffin’s school results suffered as a result of the time away and because learning became more difficult because of his head injury.[9]  The speed with which the applicant Phillip Griffin was able to complete his school work was delayed.[10]  The applicant Phillip Griffin suffered severe headaches daily for approximately 12 months, reducing to two to three times per week for the next 12 months.[11]  The applicant Phillip Griffin continued to have difficulties with loud noises.[12]

   [9] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 11.

   [10] Exhibit FJT-2 affidavit of Fabian Tauchmann sworn 1 December 2009.

   [11] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 12.

   [12] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 12.

1. The applicant Phillip Griffin suffered a mild traumatic brain injury, and had symptoms including persistent problems with short term memory and concentration,[13] changes in mood;[14] mild gait unsteadiness;[15] slight hearing impairment in the left ear;[16] intermittent neck pain;[17] inability to participate in contact sports;[18] slurred and slowed speech;[19] fatigue;[20] difficulty getting to sleep;[21] impulsivity and disinhibition causing mild difficulties with planning, organisation, problem solving, judgment and self-control;[22] persistent word finding difficulties;[23] cervical spine injury (chronic musculo-ligamentus strain) causing intermittent neck pain and muscle spasm;[24] and adjustment disorder with anxiety.[25]

   [13] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 3 September 2009.

   [14] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 3 September 2009.

   [15] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 3 September 2009.

   [16] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 3 September 2009.

   [17] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 3 September 2009.

   [18] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 14.

   [19] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 10.

   [20] Exhibit FJT-1, p 3 affidavit of Fabian Tauchmann sworn 1 December 2009.

   [21] Exhibit FJT-1, p 3 affidavit of Fabian Tauchmann sworn 1 December 2009.

   [22] Exhibit FJT-2, p 152, affidavit of Fabian Tauchmann sworn 1 December 2009.

   [23] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 13.

   [24] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 3 September 2009.

   [25] Exhibit SM-1 affidavit of Steve Morgan sworn 27 August 2009.

1. The applicant Shaun McCartney spent two days in intensive care, suffered post traumatic amnesia for a period of 18 days, and was in a general hospital ward until 9 June 2006, when he was transferred to the brain injury rehabilitation unit, and discharged to the care of his family on 21 July 2006.[26]

   [26] Exhibit FJT-7 affidavit of Fabian Tauchmann sworn 1 December 2009.

1. As a consequence of the injuries, the applicant Shaun McCartney was required to move to Indonesia to be cared for by his parents for an extended period following the assault;[27] was unable to drive for almost three years following the assault;[28] was unable to complete the physical requirements required to join the army;[29] and suffered traumatic brain injury resulting in poor concentration;[30] short term memory problems;[31] prominent mood swings;[32] headaches and some difficulty with balance;[33] frequent nightmares and intrusive visualisations;[34] restricted social network and difficulty in coping with social situations;[35] was unable to participate in contact sport;[36] has fear of the dark;[37] fear of medication;[38] and suffered post traumatic stress disorder and adjustment disorder with depressed mood.[39]

   [27] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 7.

   [28] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 24.

   [29] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 9.

   [30] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 8.

   [31] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 14 July 2009.

   [32] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 14 July 2009; Exhibit SM-1, para 21 affidavit of Steve Morgan sworn 15 July 2009.

   [33] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 14 July 2009; affidavit of Shaun McCartney sworn 15 December 2009 paragraph 10.

   [34] Exhibit SM-1 paragraphs 13 and 14, affidavit of Steve Morgan sworn 15 July 2009.

   [35] Exhibit SM-1 paragraph 23, affidavit of Steve Morgan sworn 15 July 2009; affidavit of Shaun McCartney sworn 15 December 2009 paragraphs 14, 22, 23.

   [36] Affidavit of Shaun McCartney sworn 15 December 2009 paragraphs 19 and 20.

   [37] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 17.

   [38] Affidavit of Shaun McCartney sworn 15 December 2009 paragraph 29.

   [39] Exhibit Sm-1 paragraph 69, affidavit of Steve Morgan sworn 15 July 2009.

The law

1. The applications in these proceeding pursuant to s 24 of the Criminal Offence Victims Act 1995 (COVA) were filed on 7 December 2009, subsequent to the repeal of COVA by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. However, each application satisfies the relevant transitional provisions of VOCAA ss 154 and 155. Accordingly, the applications proceed pursuant to COVA s 24, and the applications were filed within the relevant time limits pursuant to COVA s 40(1).

1. I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Jurisdiction

1. The convictions in respect of the first, second and third respondents proceeded in the Childrens Court, Beenleigh, whereas the fourth, fifth and sixth respondents were dealt with in the District Court, Beenleigh.  I accept the submission that, in accordance with the decision of Martin SC DCJ in Laning v C-K [2010] QDC 425, there is no impediment to these applications proceeding pursuant to COVA s 24(2), in the District Court, Beenleigh.

Compensation – Phillip Griffin

1. Mr Brazel, who appears on behalf of the applicant Phillip Griffin, submits as follows:

(1)         Item 2 – bruising/laceration etc (severe) – 3%-5%

It is submitted that the applicant suffered a laceration to his skull which required stitches[40] and the Queensland Ambulance Service file notes bruising/haematoma to the entire right side of his face.[41]

[40] Affidavit of Phillip Griffin sworn 20 October 2009 paragraph 7.

[41] Exhibit FJT-1, p 5 affidavit of Fabian Tauchmann sworn 1 December 2009.

It is submitted that the applicant Phillip Griffin should be compensated at 5% of the scheme maximum (i.e. at the top of the range for Item 2).  Although I accept that the applicant Phillip Griffin suffered substantial bruising/laceration, I do not consider it to be the worst example of such injuries, and accordingly I award 4% of the scheme maximum ($3,000) pursuant to Item 2.

(2)         Item 11 – fractured skull/brain damage (severe) – 25%-100%

The original CT scan of 11 May 2006 and the subsequent MRI scan reported by Dr Todman[42] clearly reveal brain damage, confirmed by neuro-psychological testing undertaken by Mr Lloyd (neuro-psychologist), confirming a severe traumatic brain injury.[43]  A range of the consequences of the brain damage are set out above in paragraph. [44]

[42] Exhibit DT-2 affidavit of Don Toddman sworn 3 September 2009.

[43] Exhibit SM-1 pp 8-9 affidavit of Steve Morgan sworn 27 August 2009.

[44] Exhibit FJT-1, p 3 affidavit of Fabian Tauchmann sworn 1 December 2009.

In all the circumstances, given the opinion of Dr Don Todman that the applicant’s “memory and cognitive impairment will affect his capacity to undergo further technical or other studies which may be necessary to complete his apprenticeship or for job advancement”,[45] I accept the submission that an award should be made under Item 11 at 40% of the scheme maximum ($30,000).

[45] Exhibit DT-1, p 5 affidavit of Don Toddman sworn 3 September 2009.

(3)         Item 22 – neck/back/chest injury (moderate) – 5%-10%

The applicant sustained injury to his cervical spine, and experiences neck pain two to three times per week.[46]  This injury is described by Dr Todman as “a chronic musculo-ligamentus strain.”[47] Dr Todman also attributes the applicant Phillip Griffin’s muscle tension headaches to this cervical spine injury for which he recommends treatment of up to three months’ physiotherapy.[48]

[46] Exhibit DT-1, p 2 affidavit of Don Toddman sworn 3 September 2009.

[47] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 3 September 2009.

[48] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 3 September 2009.

It is submitted that an award should be made at the middle of the moderate range, namely 8% of the scheme maximum.  I accept the submission and award 8% ($6,000) pursuant to Item 22.

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

The applicant was diagnosed with adjustment disorder, with anxiety.[49]  Dr Morgan considers that the applicant’s distress as at the date of his report (29 July 2009) was mild, but the applicant had previously suffered distress in the moderate-severe range, and had an impairment within the moderate range.[50]

In these circumstances the submission is that an award should be made in the mid range of Item 32.  I accept that submission and award 15% ($11,250) pursuant to Item 32.

[49] Exhibit SM-1, paragraph 62, affidavit of Steve Morgan sworn 29 July 2009.

[50] Exhibit SM-1, paragraph 65, affidavit of Steve Morgan sworn 29 July 2009.

Compensation – Applicant Shaun McCartney

1. In respect of the applicant Shaun McCartney, Mr Brazel submits as follows:

(1)         Item 2 – bruising/laceration etc (severe) – 3%-5%

The applicant Shaun McCartney sustained a large laceration and severe bruising to his head and abrasions and bruising to his leg as a result of the assault.[51]

[51] Exhibits FJT-7 and FJT-14 affidavit of Fabian Tauchmann sworn 1 December 2009.

The submission is that an award should be made at 5% of the scheme maximum.  I accept the submission and accordingly award 5% ($3,750) pursuant to Item 2.

(2)         Item 11 – fractured skull (brain damage – severe) – 25%-100%

The extent of the brain damage suffered by the applicant is set out above at paragraphs [18] and [23].  The injury suffered was a severe traumatic brain injury which has limited the applicant’s future employment prospects.[52]

[52] Exhibit DT-1, p 4 affidavit of Don Toddman sworn 14 July 2009.

In the circumstances it is submitted that an award should be made at 70% of the scheme maximum.  I accept the submission and accordingly award 70% ($52,500) pursuant to Item 11.

(3)         Item 27 – facial disfigurement or bodily scarring (minor/moderate) – 2%-10%

The applicant has sustained a scar which runs through his hair which is still visible, becomes itchy and which the applicant attempts to cover by growing his hair and wearing a hat or beanie.[53]

[53] Affidavit of Shaun McCartney sworn 15 December 2009 para 31.

In the circumstances I accept a submission that an award of 2% of the scheme maximum ($1,500) should be made pursuant to Item 27.

(4)         Item 33 – mental or nervous shock (severe) – 20%-34%

The applicant was diagnosed with post traumatic stress disorder and adjustment disorder with depressed mood.[54]  Dr Morgan considered that the applicant’s psychological distress as at the dates of interview (30 March 2009 and 30 April 2009[55]), was severe, with a moderate impairment, and a risk of a major depressive disorder.[56]  Dr Morgan considers that the applicant would benefit from an extended period of treatment, recommended at 12 months’ duration.[57]  The applicant has numerous ongoing psychological problems which have affected his relationships with his family and friends.[58]

It is submitted that an award should be made at 29% of the scheme maximum.  In the circumstances, I consider that submission a little high, but I consider that an award of 25% of the scheme maximum ($18,750) to be appropriate.

[54] Exhibit SM-1 paragraph 69 affidavit of Steve Morgan sworn 15 July 2009.

[55] Affidavit of Steve Morgan sworn 15 July 2009 para 2.

[56] Exhibit SM-1 paragraphs 80 and 79 affidavit of Steve Morgan sworn 15 July 2009.

[57] Exhibit SM-1 paragraph 74 affidavit of Steve Morgan sworn 15 July 2009.

[58] Exhibit SM-1 paragraph 23 affidavit of Steve Morgan sworn 15 July 2009.

Contribution

1. I do not consider that either of the applicants has contributed in any way to their own injuries.[59]

   [59] COVA s 25(7).

Liability of the respondents

1. I see no reason to attempt to apportion liability between the six respondents.  In my view, each of the respondents should be jointly and severally liable for all of the injuries suffered by each of the applicants.[60]

   [60] COVA s 26.

Conclusion

1. In respect of the applicant Phillip Paul Griffin, I order that the first respondent Vincent Yeap, the second respondent David Duong, the third respondent Denny Eng, the fourth respondent Thinh Do, the fifth respondent Phillip Duong and the sixth respondent Clinton Gee pay the applicant Phillip Griffin the sum of $50,250.      

1. In respect of the applicant, Shaun McCartney, a compensation order may only order the payment to the applicant of a total amount of not more than a prescribed amount ($75,000).  Accordingly, I order that the first respondent Vincent Yeap, the second respondent David Duong, the third respondent Denny Eng, the fourth respondent Thinh Do, the fifth respondent Phillip Duong and the sixth respondent Clinton Gee pay the applicant Shaun McCartney the sum of $75,000.