Heke v. Morris
[2008] QDC 27
•29 February 2008
DISTRICT COURT OF QUEENSLAND
CITATION:
Heke v Morris [2008] QDC 27
PARTIES:
ALBERT DAVID JENNS HEKE
Applicant
V
ROBERT LESLIE MORRIS
Respondent
FILE NO/S:
508 of 2007
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court, Southport
DELIVERED ON:
29 February 2008
DELIVERED AT:
District Court, Southport
HEARING DATE:
22 February 2008
JUDGE:
Newton DCJ
ORDER:
Respondent is to pay criminal compensation to applicant in sum of $48,750.00
CATCHWORDS:
CRIMINAL COMPENSATION – Application pursuant to s24 of Criminal Offence Victims Act 1995 – whether prior dispute between applicant and respondent directly or indirectly caused or contributed to injuries – whether the evidence with regard to lumbar injury is sufficiently cogent to warrant award of compensation - applicant diagnosed with Post Traumatic Stress Disorder – major depressive disorder (single episode without psychotic features) – pain disorder associated with psychological depression and anxiety factors – suspected acquired brain injury – facial fractures (including fractures to the orbit and maxilla) – fractured skull – back injury – minor or moderate brain damage
COUNSEL:
Mr M.J. Campbell for the applicant
Mr L.A. Parker (solicitor) for the respondent
SOLICITORS:
Parker Simmonds for the applicant
ATSILS for the respondent
This is an application by Albert David Jenns Heke for criminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (“the Act”). The application arises out of an incident on 8 August 2005 when Mr Heke was violently assaulted by the respondent, Robert Leslie Morris, and as a result suffered significant injuries.
On 23 January 2007 Mr Morris pleaded guilty in the Southport District Court to, inter alia, one count of grievous bodily harm. He was sentenced to imprisonment for three years, with a parole release date fixed after nine months. In my sentencing remarks I stated as follows:
“These offences have to be looked at in the context of an ongoing dispute between yourself and the complainant as to your respective financial contributions to the home which you were purchasing. This Court is not in a position to make any detailed findings with respect to the particulars of that dispute. Nevertheless, the material satisfies me that such a dispute did exist between the two of you, and that it was of such serious nature that you had reason to be concerned that you and your family would lose your home.
Having consumed a quantity of alcohol, you obtained an axe which you placed in the boot of your motor vehicle, and drove to the [applicant’s] house. You entered the house and a struggle ensued between the two of you. Fortunately for both of you, the axe played no part in the struggle, it apparently having fallen out of your grasp at the commencement of the struggle and it was in the event, thrown over the balcony I think, by one of the eyewitnesses. The struggle was a violent one, and during that struggle you punched, kicked and stomped the [applicant] in his face and head region. He suffered significant injuries as a result. These are detailed in the schedule of facts. They include multiple facial fractures and a fracture to the base of his skull, and to the roof of his left orbit. Having been admitted to hospital on 8 August 2005, which is the date of the attack, he was observed to come out of post traumatic amnesia on 12 August. He was discharged from hospital on 15 August, but readmitted on 17 August to undergo a surgical procedure in relation to his closed head injury and multiple facial fractures. He was finally discharged on 19 August 2005. The medical opinion in this case is that if left untreated, those injuries would have caused or been likely to cause permanent injury to health.
The victim impact statement provided by the [applicant] attests to the very significant effects on his personal and business life. The Prosecutor has observed quite correctly, that no dispute of the nature [of that] involved in this case could in any way excuse the savage attack that you committed upon the [applicant].”
In a report dated 19 May 2007, Dr Francis Tomlinson confirms that Mr Heke suffered a closed head injury, facial fractures and injury to his lumbar spine as a result of the incident of 8 August 2005. The closed head injury was complicated by fractures of the skull base and a right temporal lobe contusion. On-going difficulties with memory and concentration were consistent with Mr Heke’s injury. Dr Tomlinson also confirms that the applicant sustained left sided facial injuries with fractures of the orbit and maxilla. This required open reduction and internal fixation. He notes that Mr Heke has persisting symptoms in relation to the entrapment of the inferior orbital nerve on the left. Dr Tomlinson is of the view that these symptoms will not improve. Using the American Medical Association Guides to the Evaluation of Permanent Impairment (Guides) 5th Edition, Dr Tomlinson estimates that Mr Heke has a 19% whole person impairment relating to his facial injuries.
In relation to the applicant’s injury to his lumbar spine, Dr Tomlinson describes this as being consistent with a chronic soft tissue injury resulting in a 5% whole person impairment.
Dr Norman Barling, a clinical psychologist, has prepared a report dated 20 July 2007 relating to his psychological assessment of the applicant. Dr Barling’s diagnosis is that Mr Heke has experienced psychological injuries as a result of the assault upon him by Mr Morris. In particular, it is Dr Barling’s opinion that Mr Heke meets the criteria for:
1) Post Traumatic Stress Disorder;
2) Major depressive disorder, single episode, severe, without psychotic features;
3) Pain disorder associated with both psychological (depression and anxiety) factors and a general medical condition (suspected acquired brain injury);
4) Possible acquired brain injury.
In relation to Mr Heke’s current functional status and disability, Dr Barling describes his psychological problems as chronic and pervasive. Mr Heke’s current functioning in terms of his psychological, social and occupational performance is assessed at approximately 60% of pre-incident functioning. The applicant, reports Dr Barling, has been traumatised by the assault on him and continues to experience pain, loss of self-confidence and depression. Furthermore, Mr Heke’s slow functioning, disorganisation, lack of concentration, poor memory and distorted thinking tend to support a diagnosis that the applicant could be suffering from an acquired brain injury. A full neurological evaluation is required to determine the extent of this injury. Therapeutic interventions may take between 20 to 30 consultations on a fortnightly basis in order to improve Mr Heke’s condition, and to process or resolve past emotional trauma. However, psychological intervention will not reverse an acquired brain injury (if this is diagnosed). The current recommended rate for a one-hour consultation by the Australian Psychological Society is $192.00.
The respondent was represented at the hearing of this application by Mr Parker, solicitor, who confined his submissions to two matters, viz:
1) the indirect contribution by the applicant to the injuries sustained by him in the assault; and
2) whether the evidence with regard to the lumbar injury is sufficiently cogent to warrant an award of compensation.
No material contradicting anything contained in the reports of Dr Tomlinson or Dr Barling was adduced by the respondent, nor was either expert required for the purposes of cross-examination. In the circumstances I accept the findings and diagnoses of Dr Tomlinson and Dr Barling as detailed in their respective reports. It follows then, that the injuries falling for assessment in this application are as follows:
· facial fractures;
· fractured skull;
· psychological injury; and
· back injury.
The facial fractures sustained by the applicant to the left side of his face included fractures of the orbit and maxilla. Treatment was by way of open reduction and internal fixation. Notwithstanding the surgical treatment, Mr Heke continues to experience symptoms relating to entrapment of the inferior orbital nerve on the left. These symptoms are likely to be permanent. Management by a pain specialist is recommended by Dr Tomlinson. The facial fractures are to be assessed, then, in terms of injury no.8 in the compensation table contained within the schedule 1 of the Act. This injury refers to severe facial fracture and permits an assessment at between 20% to 30% of the scheme maximum which remains at $75,000.00. Having regard to the medical evidence placed before me, I am of the view that an assessment of this injury should be made at 25% of the scheme maximum which yields the sum of $18,750.00.
The closed head injury sustained by Mr Heke was complicated by fractures of the skull base and a right temporal lobe contusion. Reported ongoing difficulties with his memory and concentration were seen by Dr Tomlinson as being consistent with the injury he sustained. The injury, in my view, should be assessed in terms of injury no.10 in the compensation table which refers to a fractured skull with minor or moderate brain damage. An award of between 10% to 25% of the scheme maximum may be made. In this instance I accept that an award at 20% of the scheme maximum is appropriate, which yields a sum of $15,000.00.
In relation to the psychological injuries sustained by Mr Heke, it should be noted that Dr Barling reports that his thought processes are likely to be marked by confusion, indecision, distractibility and difficulty concentrating. He may experience his thoughts as being somehow blocked or disrupted. Significant suspiciousness and hostility in his relations with others are also indicated. Mr Heke is said to be likely to be a hyper-vigilant individual who often questions and mistrusts the motives of those around him. Although he does not appear to feel hopeless and his self-esteem seems largely intact, he does manifest affective and physiological signs of depression. Dr Barling reports that the applicant experiences feelings of sadness, a loss of interest in normal activities and a loss of sense of pleasure in things that were previously enjoyed. Dr Barling stated that Mr Heke is likely to show a disturbance in sleep pattern, a decrease in level of energy and sexual interest and a loss of appetite and/or weight. Psychomotor slowing might also be expected.
The psychological injuries in this instance are, in my view, to be assessed in terms of injury no.32 in the compensation table. This refers to mental or nervous shock categorised as moderate, which permits an award at between 10% and 20% of the scheme maximum. Having regard, in particular, to Dr Barling’s evidence that the psychological problems experienced by Mr Heke are chronic and pervasive, I accept that an award of 18% of the scheme maximum is appropriate. This yields an amount of $13,500.00.
The remaining injury to be assessed in this case is that to Mr Heke’s lumbar spine. In his report Dr Tomlinson is quite unequivocal in recording that “Mr Heke sustained an injury to his lumbar spine”. The doctor goes on to observe that clinically there is no evidence of fracture or dislocation, and concludes that Mr Heke’s symptoms would be consistent with a chronic soft tissue injury to his lumbar spine, resulting in a 5% whole person impairment. This injury should be assessed as a minor back injury in terms of injury no.21 in the compensation table. An award of between 2% and 7% of the scheme maximum may be made for such injury. In my view an award in the lower end of the permitted range should be made which yields an amount of $1,500.00.
The total amount assessed in respect of the applicant’s injuries is therefore $48,750.00.
What remains for determination is whether any behaviour on the part of Mr Heke may be said to have indirectly contributed to the injuries sustained by him. Section 25(7) of the Act provides that:
“in deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”
At the sentencing proceedings before me on 23 January 2007 Mr Reilly, counsel for the respondent, made the following submissions:
“I’m going to come to this house thing now because that’s really why it all arose. The [applicant] in his statement purported to say that he had purchased the house, that he had himself committed his own funds to it. Now, none of that was true.
…
What occurred with my client’s house was because of his intermittent employment history he and his wife found it very difficult to obtain the necessary finance to purchase a home. So what Mrs Evelyn Heke did, the [applicant’s] wife and my client’s wife’s mother, was purchase the house in her name. It was her credit history that was used for the purchase…
…
…The house was in Evelyn Heke’s name and hers alone. My client and his wife took full responsibility for all the mortgage payments, but Evelyn Heke or her husband paid nothing. So it was essentially as if it was my client and his wife’s own mortgage. They were fully responsible for the house. When they purchased it it was about $180,000. They then had the benefit of the surge in the Gold Coast residential market that drove the house price market value up to about $380,000.
Now, following the growth in the equity in the house, which wasn’t just through my client and his wife repaying the mortgage payments, but he had undertaken extensive work to the house, landscaping it and renovating it. The [applicant] then approaches my client and his wife wanting them to refinance the house because he had a trucking business that was in trouble, financially in trouble and he wanted a substantial amount of money in order to pay some of the debts of that business and purchase another truck.
Knowing the sort of person he was my client was reluctant to enter into such agreement, but after persistent approaches he eventually agreed to do so and the house was refinanced and virtually all the moneys obtained by the refinance were then passed on – not all of them but most of them – to the [applicant], it was about $100,000.
Now, the consequence of that was that my client’s mortgage repayments were considerably then in excess of what they used to be. In order to meet their monthly repayments the [applicant] had to provide his share of the moneys that had been given to him and what ultimately transpired in that the [applicant] was constantly not paying on time and the finance company commenced sending letters.
Eventually the point was reached where it was indicated if there was any further default the house would be sold and then the [applicant was] late again and then there’s the phone call from my client on that morning, he’s turned back to the drink, worried about it all night, gets on the phone to try and get the money paid. There’s then an argument between the two about the finance and he just snapped. He snapped, went over there and committed the offence.”
If this account of the background to the commission of the offence is correct, it casts significant doubts on the propriety and ethics of the applicant. The account of Mr Heke as to the background to the incident is briefly set out in his statement to the police. It alleges that:
“Robert attacked me that day because he has this ongoing thing with me about me supposedly owing him money. My wife Evelyn and I are no longer together, but we were together at the time of us purchasing the house that [the respondent] and Amber reside in at 94 Mattocks Road, Varsity Lakes. We purchased the house about 4 years ago in my wife’s name for $225,000 and had a mortgage on it for $180,000 after putting in $45,000 of my own money. We did it to help Robert and Amber, because I knew they wouldn’t get a loan for it. I made an arrangement for them to pay rent to me to cover the mortgage repayments, and said to them that the house would be theirs one day. I meant that it would be willed to them, but they took it as I was going to sign it over to them straight away. Robert had the house valued at $360,000 or $380,000. That would have been about 2 years ago. My wife left and she wanted the loan cleared. I wanted some money out of it then, because the value of it had gone up. They finally got a loan through St George to pay out Evelyn, and leant me $94,000 which they had in equity for my transport business. I was to pay it back to them in 12 months. I admit I was struggling at the time and needed the money. I mean I bought the house and already had put in $45,000.
I haven’t paid the money back to them yet and that’s where the whole problem is between Robert and I. I just haven’t been in a position to pay them back.”
As I understand the submissions of Mr Parker, it is not suggested that the conduct of the applicant with respect to the financial arrangements between the parties amounts to provocation in any legal sense. Mr Parker does, however, point to paragraph 5 of the affidavit of his client filed on 22 February 2008. At that paragraph Mr Morris states that the applicant was repeatedly spoken to by him and his wife (Amber) about their concerns that his commitments with respect to the mortgage were not being met. Mr Morris states that the prospects of them losing the house after paying the mortgage from 2002 became too much to cope with. Mr Morris (in paragraph 6 of his affidavit) says that he is deeply sorry for his actions of 8 August 2005 but that he believes [the applicant] was partly responsible for what occurred.
Mr Parker’s submission is that his client’s affidavit seeks merely to demonstrate the long-standing nature of the financial relationship between the parties. To that extent I accept that a dispute most certainly does exist between Mr Heke and Mr Morris in relation to the financial arrangements put in place with respect to the property at Mattocks Road, Varsity Lakes. However, I am unable to accept that this dispute (even indirectly) caused or contributed to the injuries sustained by the applicant. The applicant’s conduct may well have been a cause of considerable financial distress to the respondent and his family, but the dispute itself was in no sense responsible for the assault upon Mr Heke. The injuries inflicted on him by Mr Morris were brought about by an inappropriate decision by the respondent to settle the dispute by violent means rather that non-violent means. The pre-meditated assault was undoubtedly committed in something of a drunken rage. The existence of the dispute cannot be said to have even indirectly contributed to the injuries sustained by the applicant. It provides the background of a fractured family relationship against which the regrettable violence may be assessed.
In the result, then, I order that the respondent Robert Leslie Morris pay criminal compensation to the applicant Albert David Jenns Heke in the amount of $48,750.00.
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