Hetherington v C and Howe

[2004] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:	Hetherington v. C & Howe [2004] QDC 158
PARTIES:	DENISE MARY HETHERINGTON (Applicant) v. C (First Respondent) And MANDY LOUISE HOWE (Second Respondent)
FILE NO/S:	29/2003
DIVISION:	Civil
PROCEEDING:	Criminal Compensation Application
ORIGINATING
COURT:	District Court Ipswich
DELIVERED ON:	26/5/04
DELIVERED AT:	Ipswich
HEARING DATE:	2/2/04
JUDGE:	Richards DCJ
ORDER:	The respondents are ordered to pay the applicant the sum $12,750 for compensation under the Act. The respondents are ordered to contribute equally to the total sum of compensation
CATCHWORDS:	Compensation – nervous shock
COUNSEL:	Andrew Stobie for the Applicant No appearance for the Respondent
SOLICITORS:	K M Splatt and associates for the Applicant

1. This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 [“the Act”] arising out of an assault which occurred on 3 December 1998. On 31 July 2000 both respondents pleaded guilty in the Ipswich District Court to one count of assault occasioning bodily harm whilst armed in company.

2. The two respondents were friends of the applicant’s ex de facto. On the day in question the ex de facto had been at the applicant’s place and had become violent towards her, hitting her a number of times around the face and head, pushing her into a wall and punching her to the left breast. He then left the applicant’s house and went around to his mother’s house where he spoke to the two respondents. The two respondents decided to visit the applicant.

3. When the respondent’s arrived at the house the respondent was on the telephone talking to her mother and complaining about her boyfriend. She saw the respondent Howe get out of the car with a baseball bat. At that stage did not see the respondent C, who was at the time was 16 years of age. Howe entered the house and C followed her in. Howe proceeded to attack the applicant with the baseball bat, swinging it at her head. She was then hit three times, once on the left shin, once across the front aspect of the left leg and once across the area of the left buttock. Eventually the applicant managed get hold of the baseball bat and would not let go. C then appeared from the kitchen holding a black steak knife saying “I am going to kill you”. She came towards the applicant holding the knife high. By this time her children were running and screaming around the house until they were pushed into the bedroom with the door shut. Threats were made to her whilst the children were locked in the bedroom.

4. Howe continued to wrestle with the applicant with the baseball bat. She then kicked the applicant a couple of times in the vaginal area and C came over and hit her in the back of the head twice with the vacuum cleaner hose. The complainant then fled the house to the next door neighbour’s where a complaint was made to police.

5. The applicant suffered heavy bruising and lacerations to her legs, back and arm, as well as other injuries which were not caused by these respondents. She has also suffered psychological injuries.

6. She was seen by Mr Peter Stoker, a clinical psychologist, who indicated that her behaviour after the home invasion is consistent with chronic post-traumatic stress disorder. The Applicant states that since the incident she continues to suffer three to four nightmares a week, including visions of people cutting her with knives and hitting her. She experiences weekly flashbacks and panic attacks, insomnia and she has been on anti-depressant medication. She says she has become depressed since the incident and has poor concentration and memory.

7. Although not covered by Mr Stoker’s report, it is conceded by counsel, and it is clear, that the assault on this occasion was not the only causal link to her condition. She was also assaulted by another party, namely her boyfriend, on that day and had experienced previous domestic violence from him. In fact, he was the catalyst for the assault on that day. Nonetheless, the applicant is entitled to compensation for these injuries. She did not in any way contribute to the injuries caused by the two respondents on the day in question. Nor is it suggested that she contributed to the earlier injuries caused by her boyfriend.

8. In my view, she is entitled to compensation as follows:

(a)	in relation to bruising and lacerations she is entitled to the sum of $1,500, namely 2% of the Scheme maximum;
(b)	in relation to mental or nervous shock, taking into account the other factors that may well have played a part in her current mental state, she should be awarded a moderate amount for mental or nervous shock, namely 15% of the Scheme maximum which is a sum of $11,250;

ORDER

1. I order the respondents to pay to the applicant the sum of $12,750 by way of compensation under the Act. The respondents are ordered to pay equal amounts of the total sum of compensation