Hobby v Pain

[2010] QDC 233

DISTRICT COURT OF QUEENSLAND

CITATION:

Hobby v Pain [2010] QDC 233

PARTIES:

TOBY STANLEY HOBBY

(Applicant)

AND

LUCAS JAMES PAIN

(Respondent)

FILE NO/S:

DIVISION:

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

21 May 2010

DELIVERED AT:

Toowoomba

HEARING DATE:

17 May 2010

JUDGE:

Reid DCJ

ORDER:

1.   The applicant be entitled to a sum of $18,750 being 25 per cent of the scheme maximum from the respondent.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT –ORDERS FOR CRIMINAL COMPENSATION - where applicant victim of a grievous bodily harm – where applicant already received compensation from respondent

Criminal Offence Victims Act 1995, s 20, s 24, s 25,

Criminal Offence Victims Regulation 1995, r 1A

COUNSEL:

J. Bailey for the applicant

No Appearance for the respondent

SOLICITORS:

Shannon Donaldson  for applicant

No Appearance for the respondent

1. The applicant seeks compensation pursuant to the provisions of the Criminal Offence Victims Act ("the Act") following the respondent's conviction of the offence of doing him grievous bodily harm on the 10th of June 2007.

1. Service of the application and supporting affidavit was effected on the respondent but he has not shown any interest in the proceedings.

1. The applicant was born on the 6th of December 1986.  He is an electrical fitter by trade.  On the 10th of June 2007 he had gone to a Toowoomba nightclub, Rumours, where he saw the respondent.  He knew the respondent from when they used to catch the same school bus some years earlier.  When he said hello to the respondent and mentioned this fact, the respondent inexplicably assaulted him. 

1. Initially the respondent punched the applicant in the left side of his face.  When the applicant retreated, the respondent pressed forward and punched him on the right side of the face causing him to initially drop to the ground. 

1. The applicant found his way to St Vincent's Hospital where it was ascertained he had significant injuries.

1. The report of Dr Robin Houston, maxillo-facial surgeon, of the 27th of June 2007 says that the applicant suffered a fractured right zygoma, fractured orbital rim and comminuted orbital floor.  He initially also suffered diplopia but this resolved within two days. 

1. He underwent surgical reduction of his right zygoma and exploration of his orbital floor.  During surgery considerable comminution of the anterior maxillo sinus was noted.  A titanium plate was inserted to stabilise the fractured zygoma.  The comminuted bones of his orbital floor were aligned. 

1. The surgeon says he was optimistic of a very good outcome. 

1. The applicant's victim impact statement of the 21st of January 2008, seven months post-assault, says that he felt blood on his face when punched the second time, indicating a laceration.  His eye was very swollen and bruised.  He was naturally apprehensive about his injuries, fearful of the surgery and scared he might again meet his assailant.  He said his sinus gave him difficulty and he had an unsightly dark line under his eye which gave the appearance of a permanent black eye.  He at that stage had not returned to playing rugby league which he says he had intended to do. 

1. He incurred significant medical bills.  He was seen by Dr Houston on about four occasions.  To pay for his medical expenses he borrowed money from his parents.  He said he'd become somewhat reclusive being fearful of going out.  He said blowing his nose caused pain such that he desisted from doing so.  He took three weeks off from his work which exhausted all of his sick pay and he took in fact one day's holiday pay.  He said he felt depressed and scared. 

1. Dr John McIntyre, a psychiatrist, saw the applicant on the 7th of May 2009 and has provided a report of that date.  In the report he said the applicant reported no ongoing visual problems.  He reported sleeping poorly for some weeks after the assault and of nightmares about the incident.  He remained reluctant to visit the Central Business District of Toowoomba especially at night.  For some time he lost interest in hobbies and was more irritable than usual.  He had a prior history of epilepsy which was, however, well controlled, but he feared that sleep deprivation might trigger a fit.  Fortunately, it does not seem this occurred. 

At the time of presentation to Dr McIntyre he was considerably improved.  There was an area of anaesthesia below his right eye.  He said at that stage blowing his nose vigorously caused him sharp pain, indicating some improvement.  He said he still wakens every night but he's able to get back to sleep and that every second or third night he has disturbing dreams of the incident.  He had resumed football in 2009 and was working full-time.  He appears to have returned to normal social activities but was still more irritable than in the past and avoided the city centre especially at night, as he had done since the incident.  Dr McIntyre said he had some symptoms of anxiety, including heightened arousal, occipital headaches, racing heart and a hand tremor which work mates had noticed.  On one occasion when he saw the respondent in public he had a panic attack.  Dr McIntyre said he had no signs of any current psychiatric illness but had symptoms of heightened anxiety and avoidant behaviours.  He said he appeared to have some sub-threshold symptoms of PTSD.  He diagnosed the applicant as suffering from residual symptoms of an adjustment disorder with anxiety.  He had some mild impairment of his usual function.  Dr McIntyre said he felt consultation with a clinical psychologist would be of help in managing the applicant's anxiety but that the applicant did not wish for such treatment. 

1. The scheme of the Act is such that the applicant's injuries are to be assessed under Schedule I thereto. The schedule sets out a table of injuries and ascribes to each a range of percentage of the scheme maximum which is currently $75,000 in respect of this incident.

1. In my view, the applicant has suffered injuries consistent with the following items: 

Item 1 - bruising/laceration, et cetera (minor-moderate) having a range of 1 to 3 per cent of the scheme maximum;

Item 7 - facial fracture (severe) having a range of 20 to 30 per cent;

Item 27 - facial disfigurement (minor-moderate) having a range of 2 to 10 per cent;

Item 31 - mental or nervous shock (minor) 2 to 10 per cent.

1. I would assess the bleeding of his mouth and facial swelling at 2 per cent of the scheme maximum.  The facial fracture, though in my opinion severe, is at the lower end and I assess it at 20 per cent of the scheme maximum.  I would allow 5 per cent under item 31 and a further 2 per cent under 27 for the unsightly black mark below his eye. 

1. In all, I assess his injuries at 29 per cent of the scheme maximum. 

1. When sentencing the respondent, the trial Judge ordered he pay to the applicant $5,000 by way of compensation.  Mr Bailey, counsel for the applicant, submitted that the underlying intention of the Judge in ordering that compensation was, at least to some degree, to compensate him for medical expenses and loss of income. 

1. At page 8 of his sentencing remarks his Honour, Judge Robin, said:  "The victim impact statement...and other material in the case indicates the serious consequences, including financial loss, to (the applicant).  Payment of compensation can be seen as the imposition of a substantial cost to you for your repellent attack on him." 

1. In this case there is no specific evidence of the actual cost of medical and related treatment.  There is evidence he had to borrow money from his parents to meet these expenses.  The act does not specifically compensate for financial loss but for the injuries themselves. 

1. Having regard to these matters and to the provisions of section 25(7) of the Act, I've concluded that because of the respondent's payment of $5,000 in compensation, which sum is equivalent to some 6.7 per cent of the scheme maximum and having regard to the fact that at least some of the compensation was clearly intended by the Judge to relate to reimbursement of expenses, in circumstances where there was no evidence of actual expenses and these expenses are not covered by the Act, I reduce the claimant's entitlement having regard to section 25(7) by four per cent. In the circumstances, I determine that the applicant is entitled to 25 per cent of the scheme maximum, amounting to $18,750.

1. I order the respondent, Lucas James Pain, pay to the applicant, Troy Stanley Hobby, the sum of $18,750 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for injuries suffered by reason of the offence for which the respondent was convicted upon indictment on 1 May 2008.