Jones v Australian Capital Territory
[2019] ACTMC 34
•27 November 2019
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jones v Australian Capital Territory |
Citation: | [2019] ACTMC 34 |
Hearing Date: | 18 September 2019 |
DecisionDate: | 27 November 2019 |
Before: | Special Magistrate McCarthy |
Decision: | The application for financial assistance is dismissed. |
Catchwords: | CIVIL LAW – application for special assistance under Victims of Crime (Financial Assistance) Act 1983 (ACT) – whether applicant was engaged in the commission of a serious crime or a minor crime at the time the injuries were sustained – whether applicant suffered “an extremely serious injury” – meaning of “extremely serious injury” – legislative test relates to the results of, not seriousness of, injury sustained – evidence does not prove on the balance of probabilities that impairment or disfigurement resulted in a great and permanent reduction in quality of applicant’s life or was otherwise extremely serious |
Legislation Cited: | Victims of Crime (Financial Assistance) Act 1983 (ACT) ss 4, 7, 10, 11, 12, 31, 37, 38 |
Cases Cited: | Australian Capital Territory v Kristaps Fridemanis [2017] ACTMC 13 Edwards v Police (1998) 71 SASR 493 In the matter of Bryce James Miller (Unreported, Magistrates Court of the Australian Capital Territory, Burns CM, 29 April 2011) In the matter of James Moudakis (Unreported, Magistrates Court of the Australian Capital Territory, Dingwall M, 6 May 2014) James Moudakis & Theodore Moudakis v Australian Capital Territory (Unreported, Magistrates Court of the Australian Capital Territory, Madden M, 31 May 2007) |
Texts Cited: | Explanatory Statement, Victims of Crime (Financial Assistance) (Amendment) Bill 1998 (ACT) Mirko Bagaric, Ross on Crime (Lawbook, 8th ed, 2018) |
Parties: | Stephen Michael Jones (Applicant) Australian Capital Territory (Respondent) |
Representation: | Counsel P Edmonds (Applicant) L Pierce (Respondent) |
| Solicitors Paul Edmonds & Associates (Applicant) ACT Government Solicitor (Respondent) | |
File Number: | CI 99 of 2015 |
SPECIAL MAGISTRATE McCARTHY:
By application dated 9 March 2016, following the grant of an extension of time to bring the application, the applicant – Stephen Jones – applied for financial assistance under the Victims of Crime (Financial Assistance) Act 1983 (ACT) (the Act) for injuries he sustained on 21 August 2014. The Act was repealed with effect from 1 July 2016, but there is no dispute that Mr Jones’ application remains to be decided under the Act in circumstances where it was filed prior to repeal.
As best as I can ascertain, the application languished for more than three years until Mr Jones’ solicitor, Mr Edmonds, sent an email to the Court requesting a hearing date. I heard the matter on 18 September 2019. Mr Edmonds appeared for Mr Jones. Ms Pierce appeared for the Territory.
Background
The application was made by reference to the following facts, none of which was disputed.
On 21 August 2014, Mr Jones took a friend who I will refer to in my reasons as Ms Smith[1] to a residential unit in Ainslie to see a mutual friend, Mr Price, who lived there. Mr Jones was at the unit for approximately 10 minutes before returning to his own home in Braddon.
[1] Ms Smith bears no resemblance to her real name. I have used a pseudonym to protect her privacy.
Approximately two hours later, Ms Smith rang Mr Jones and said that she was fearful of Mr Price. Mr Jones returned to Mr Price’s residential unit and confronted him about his behaviour. They had a heated argument in the lounge room. Mr Jones punched Mr Price in the face at least twice. Mr Jones accepted that he was affected by alcohol at the time.
Mr Jones had returned to the unit with a large hunting knife, which he stabbed into a wooden table. He said to Mr Price words to the effect “I’m going to cut your throat”. Mr Jones withdrew the knife from the table, but then put it aside. Mr Price offered Mr Jones a beer from the kitchen fridge to try and calm him down.
Mr Jones accepted the invitation. He went to the kitchen to get a beer. Whilst Mr Jones was in the kitchen, Mr Price picked up the knife and disposed of it outside the unit. When re-entering the unit, Mr Price picked up a baseball bat.
Mr Jones gave evidence, and I accept, that when he was returning from the kitchen to the lounge room, Mr Price struck him with a “blunt instrument” about 14 times. I presume this instrument was the baseball bat. Mr Jones said, and I accept, that Mr Price struck him “mainly to the left-hand side of my head and my jaw”.[2]
[2] Transcript of Proceedings, 18 September 2019, page 26, lines 35–36.
Mr Jones estimated that approximately 5 to 10 minutes passed between when Mr Price invited him to get a beer and when he was struck with the blunt instrument.
Mr Jones sustained serious injuries, especially to his jaw. He was taken to hospital by ambulance. He stayed in hospital overnight, but self-discharged the following day. Mr Jones was bleeding from his head, although the medical notes state “no fracture of the skull is demonstrated”.
On 23 August 2014, police officers came to Mr Jones’ house and asked him to return to hospital for important surgery. Mr Jones agreed. He underwent surgery to repair fractures to his jaw. Medical reports state that the fractures were “internally fixated with a plate and screws”. He remained in hospital until 26 August 2014.
At the hearing on 18 September 2019, Mr Jones showed me a scar on the left-hand side of his neck, which he said, and I accept, was caused by Mr Price’s assault. The scar ran from below his left ear under his jaw line towards his chin.
Mr Jones also stated that seven teeth “were chipped and loosened”.[3] He later said that these teeth were “extracted and dentures made up and fitted”.[4] Mr Jones said this occurred in 2017.
The claim
[3] Transcript of Proceedings, 18 September 2019, page 29, lines 22–23.
[4] Transcript of Proceedings, 18 September 2019, page 31, line 9.
Section 10(1) of the Act set out the different kinds of financial assistance that could be paid to a “primary victim”. Relevant parts of s 10(1) stated:
10 Financial assistance for primary victims and responsible people
(1)On an application by a primary victim who has sustained a criminal injury, the Magistrates Court may, by order, award financial assistance to the victim in an amount equal to the sum of the following amounts:
(a)the expense reasonably incurred by or on behalf of the victim as a consequence of the injury;
(b)the pecuniary loss suffered by the victim as a consequence of total or partial incapacity for work because of the injury;
(c)the expense incurred in making the application for financial assistance, other than by way of fees paid to a lawyer;
(d) unless paragraph (e) or (f) applies, special assistance in an amount of $30 000;
…
“Primary victim” was defined in s 9 of the Act and included a person who was injured as a direct result of a violent crime committed against him or her. The Territory (properly) accepted that Mr Jones is a primary victim for the purposes of s 10(1).[5]
[5] Transcript of Proceedings, 18 September 2019, page 96, line 22.
“Criminal injury” was defined in s 4 of the Act, which stated:
4 What is a criminal injury?
(1) A criminal injury is an injury—
(a)because of which the person who has sustained the injury is a primary victim; and
(b) sustained in the ACT; and
(c) sustained after 30 June 1983.
(2)For this Act, if a primary victim sustains 2 or more criminal injuries, they must be taken to be a single criminal injury if—
(a) the injuries were sustained at approximately the same time; or
(b)the injuries resulted from the criminal conduct of each of 2 or more people acting together; or
(c) the injuries otherwise arose out of the same circumstances.
The Territory (properly) accepted that Mr Jones sustained a criminal injury for the purposes of s 10(1).[6]
[6] Transcript of Proceedings, 18 September 2019, page 96, line 24.
Mr Jones made a claim only for “special assistance” under s 10(1)(d). That claim brought into play s 10(2) of the Act which stated:
(2)Special assistance for a primary victim may only be awarded by the Magistrates Court under subsection (1) (d) if—
(a) the criminal injury is an extremely serious injury; and
(b)the victim has obtained the assistance from the victims services scheme that is reasonably available, unless the person is physically incapable of benefiting from the scheme.
Referring to s 10(2)(a), the Territory disputed that Mr Jones’ criminal injury “is an extremely serious injury”, as defined in s 11 of the Act which stated:
11 What is an extremely serious injury?
(1)An extremely serious injury is a criminal injury that results in any of the following consequences:
(a)a permanent impairment of a bodily function that is extremely serious and will remain so permanently;
(b)a permanent loss of a bodily function that is extremely serious and will remain so permanently;
(c)a permanent disfigurement that is extremely serious and will remain so permanently;
(d)a permanent mental or behavioural disturbance or disorder that is extremely serious and will remain so permanently;
(e) the loss of a foetus.
(2)An impairment, loss, disfigurement, disturbance or disorder is only to be taken to be extremely serious if—
(a)it results in a great and permanent reduction in the injured person’s quality of life; and
(b) it is otherwise extremely serious.
(3)An impairment, loss, disfigurement, disturbance or disorder is not to be taken to be extremely serious, if the injured person were to undergo suitable medical or other treatment at any time—
(a)it would cease to be extremely serious because of an alleviation of the reduction in the injured person’s quality of life occasioned by the injury; or
(b) it would otherwise cease to be extremely serious.
Referring to s 10(2)(b), the Territory accepted that Mr Jones “obtained the assistance from the victims services scheme that [was] reasonably available”.[7]
[7] Transcript of Proceedings, 18 September 2019, page 96, line 30; see also Exhibit A6.
Mr Jones gave evidence about his injuries, and the effect they have had on him, including diminished relationships with people, especially women, and diminished enjoyment of life. He said that he is much more introverted that he was previously and that he does not go out very much anymore. He referred to his diminished self-confidence as a result of his scar. He said that he is no longer able to speak properly because of the injury to his jaw. He said that he “seem[ed] to speak out of the lower side of the left-hand side of my mouth these days, and that’s been pointed out to me by friends and family that know me quite well.”[8]
[8] Transcript of Proceedings, 18 September 2019, page 35, lines 2–4.
Mr Edmonds stated that for the purposes of determining whether Mr Jones had suffered an extremely serious injury, as defined, he relied on s 11(1)(a), referenced to the injury to Mr Jones’ jaw, and s 11(1)(c), referenced to the scar. He submitted that both should be treated as extremely serious injuries with the result that s 10(2)(a) is met.
Mr Edmonds also relied on s 7(2) of the Act, which provided that where a person (in this case, Mr Price) has been convicted of an offence (in this case assault on Mr Jones occasioning grievous bodily harm) the conviction “is taken to be conclusive evidence that the person [Mr Price] did every act … that constituted or was an element of the offence of which the person was convicted.” From there, Mr Edmonds submitted, and I accept, that it “cannot be in contest” that Mr Jones’ injuries amounted to grievous bodily harm. Mr Edmonds then relied on Ross on Crime, in which the author states that “grievous bodily harm means really serious bodily injury”.[9] Mr Edmonds then submitted that a “really serious bodily injury” has “almost a perfect equivalence” with an “extremely serious injury”. Mr Edmonds acknowledged that s 11 “goes on to extrapolate” on what is an “extremely serious injury”, but submitted that it is “not a large jump, by any means, … to go from really serious injury to extremely serious injury”.[10]
[9] Mirko Bagaric, Ross on Crime (Lawbook, 8th ed, 2018) 703 [7.1100].
[10] Transcript of Proceedings, 18 September 2019, page 84, lines 4–24.
If satisfied that Mr Jones is eligible for a payment by way of special assistance, Mr Edmonds accepted that when quantifying an award I must, pursuant to s 37 of the Act, have regard to Mr Jones’ intoxication at the time he was assaulted. Section 37 relevantly stated:
37 Set-offs—intoxication of primary victims
(1)On an application by a primary victim who is a primary victim solely because of having had a violent crime committed against him or her, if the victim was intoxicated at the time the criminal injury was sustained, the Magistrates Court must calculate the amount of financial assistance to be awarded to the victim by reference to the degree of injury the court considers that the victim would have sustained if he or she had not been intoxicated at that time.
(2)Subsection (1) does not apply to an application by a primary victim if the criminal injury resulted from criminal conduct in relation to a sexual crime committed against the primary victim.
(3) In this section:
intoxicated means intoxicated as a result of the voluntary consumption of alcohol or the voluntary administration of a controlled medicine, or prohibited substance, within the meaning of the Medicines, Poisons and Therapeutic Goods Act 2008.
Mr Edmonds submitted that, having regard to the whole of the facts, I should award Mr Jones $15,000 by way of special assistance,[11] being 50% of the amount that would ordinarily be payable. Mr Edmonds did not provide any reasoning for why the reduction should be 50%, stating only that it was a “pragmatic approach”.[12]
The response
[11] Transcript of Proceedings, 18 September 2019, page 70, line 16.
[12] Transcript of Proceedings, 18 September 2019, page 77, line 20.
Ms Pierce submitted, on two grounds, that I should dismiss the application.
First, Ms Pierce relied on s 12(2) of the Act which provided that the Court:
must not award financial assistance to a primary victim if, at the time the criminal injury was sustained, the primary victim was engaged in the commission of a serious crime.
Ms Pierce submitted that s 12(2) applies because Mr Jones sustained the criminal injuries the subject of his claim at the time he was himself assaulting Mr Price which was a “serious crime”.[13] Ms Pierce submitted that Mr Jones’ assault on Mr Price “continued as long as Mr Price had [an] apprehension and fear of force being used against him and harm being used against him, or to [Ms Smith]”.[14]
[13] "Serious crime" was defined in the Dictionary to the Act.
[14] Transcript of Proceedings, 18 September 2019, page 90, lines 40–42.
Ms Pierce relied on the explanatory memorandum to the Victims of Crime (Financial Assistance) (Amendment) Bill 1998 (ACT) which states:
The purpose of section 12(2) is to ensure that persons whose own illegal actions expose them to harm should not receive financial assistance.
Second, Ms Pierce submitted that, on the evidence, Mr Jones did not sustain an “extremely serious injury” as defined in s 11 of the Act.
Ms Pierce submitted, in the alternative to the first ground, that if I was not satisfied that Mr Jones was engaged in a serious crime at the time Mr Price assaulted him, he was “engaged in the commission of a minor crime” at that time, and that I should therefore, pursuant to s 38 of the Act, “calculate the amount of financial assistance to be awarded by reference to the degree of injury [that I consider Mr Jones] would have sustained if he had not been so engaged at that time”.
Ms Pierce submitted that if I was not persuaded that Mr Jones is ineligible for financial assistance pursuant to s 12(2), and I am satisfied that he sustained an extremely serious injury, as defined in s 11, I must have regard to s 31 of the Act, when deciding whether to award financial assistance and the amount to be awarded. Section 31 stated:
31 Relevant considerations
(1)On an application, the Magistrates Court must take into account the relevant considerations specified in subsection (2) in deciding—
(a) whether to award financial assistance; and
(b) the amount of financial assistance to be awarded.
(2) The relevant considerations in relation to an application are as follows:
(a)the behaviour, condition, attitude and disposition, before and at the time the criminal injury or eligible property damage was sustained, of—
(i)for an application to which division 2.2 applies—the primary victim and any person responsible for the maintenance of the victim; or
(ii) for an application by a related victim—the related victim; or
(iii)for an application by an eligible property owner—the eligible property owner;
(b) any other considerations the Magistrates Court considers relevant.
Ms Pierce submitted, and I accept, that the reference to “division 2.2” in s 31(2)(a)(i) is a typographic error. That division concerned compensation to a related victim, meaning a person who was related (in defined ways) to a primary victim at the time of the death of the primary victim. It is clear from reading s 31(2)(a)(i) as a whole, especially the reference to “the primary victim”, that the reference to “division 2.2” should have been a reference to “division 2.1” which referred to financial assistance for primary victims and responsible people. Were it otherwise, s 31(2)(a)(i) would have been purposeless.
Last, Ms Pierce submitted, as Mr Edmonds acknowledged, that if I am satisfied that I should award Mr Jones an amount of special assistance I should calculate the amount by reference to the degree of injury that I consider Mr Jones would have sustained if he had not been intoxicated at the time he sustained his injuries.
Consideration
I begin by stating that I found Mr Jones to be an honest and reliable witness. He did not embellish the events leading to his injuries, or under-state his actions leading to the assault on him. He did not exaggerate the injuries he suffered or their long-term consequences. He answered questions asked of him in cross examination, and by me, in a direct and honest manner. I commend him for it.
I must, nevertheless, determine his application for financial assistance according to law. I begin with the two grounds upon which Ms Pierce submitted I should dismiss the application.
Was Mr Jones engaged in the commission of either a serious crime or a minor crime?
Regarding s 12(2), I was not persuaded that Mr Jones “was engaged” in the commission of a serious crime, or a minor crime, “at the time” he sustained the criminal injury.
I note his Honour Magistrate Theakston’s decision in Australian Capital Territory v Kristaps Fridemanis,[15] where his Honour focused on the words “at the time” in s 12(2). These words, he said, require consideration of whether the criminal injury was sustained during or “at” a period of time when the primary victim was engaged in the commission of a serious crime. I respectfully agree.
[15] Australian Capital Territory v Kristaps Fridemanis [2017] ACTMC 13 at [19] – [20]
I note also the settled principles of what constitutes an assault where there is no actual physical contact. In Edwards v Police, Debelle J of the Supreme Court of South Australia noted that the actus reus for an assault of this kind “is an act of the defendant raising in the mind of the victim, the fear of immediate violence to him, that is to say, the fear of any unlawful physical contact”.[16] His Honour noted that the mens rea “is the defendant’s intention to produce that expectation in the victim’s mind.”[17]
[16] Edwards v Police (1998) 71 SASR 493, 495.
[17] Edwards v Police (1998) 71 SASR 493, 495; see also Mirko Bagaric, Ross on Crime (Lawbook, 8th ed, 2018) [1.6400].
Applying the law to the facts, regardless of the actual period of time that passed between Mr Jones punching Mr Price and Mr Price striking Mr Jones, in my view Mr Jones was not assaulting Mr Price in the manner submitted by Ms Pierce at the time Mr Price struck him.
It seems to me that after Mr Jones punched Mr Price tempers between the two men had calmed to the point where Mr Price thought it appropriate to invite Mr Jones to go to the kitchen and get a beer from the fridge. I do not think this was a ploy on Mr Price’s part to lessen an ongoing assault. The invitation is also inconsistent with Ms Pierce’s submission that Mr Price and Ms Smith were still fearful of Mr Jones, even though his ‘battery’ of Mr Price had ceased.
I accept that a person (in this case, Mr Price) might be in a restrained place (in this case, in the lounge room) fearful of what might follow, but I do not accept that a person in such a frame of mind would invite the apparent aggressor to get a beer.
I also take into account that Mr Jones accepted the offer. That too is inconsistent with an ongoing intention on Mr Jones’ part to raise fear in the minds of Mr Price or Ms Smith or that he was “reckless as to that outcome”.
In my view, Mr Jones’ assault on Mr Price ended prior to Mr Price striking him, with the result that s 12(2) does not apply. Ms Pierce properly agreed that if s 12(2) does not apply, neither does s 38.[18]
Did Mr Jones sustain an extremely serious injury?
[18] Transcript of Proceedings, 18 September 2019, page 103, line 19.
I turn to Ms Pierce’s second ground for why the application should be dismissed. In In the matter of Bryce James Miller, his Honour Chief Magistrate Burns (as his Honour then was) noted that s 11(1)(a) requires the result of the injury to be “a permanent impairment of the bodily function” and that the impairment “is extremely serious and will remain so permanently”.[19] His Honour noted that to be “extremely serious”, per s 11(2), it must result “in a great and permanent reduction in the injured person’s quality of life”. In addition, it must be “otherwise extremely serious”.
[19] In the matter of Bryce James Miller (Unreported, Magistrates Court of the Australian Capital Territory, Burns CM, 29 April 2011) [2].
Whilst describing the meaning of s 11(2)(b) to be “problematic”, his Honour made the following statement regarding s 11(2):
It appears to me that … the legislature intended that before special assistance can be awarded the injured person must demonstrate that their capacity to engage in activities or pursuits they engaged in before the injury, and to enjoy those activities or pursuits, has been significantly and permanently reduced. Section 11 (2) (b) requires that the injured person also demonstrate that the impairment is also, in some other way, extremely serious. It is difficult to understand how the seriousness of an impairment of an individual's bodily functioning is to be measured other than by reference to the effect it has upon the individual, so that it appears to me that section 11 (2) (b) refers to a need that the level of impairment to the bodily function, as opposed to its effect on the injured person's quality of life, be demonstrated to be so high as to warrant being described as extremely serious.[20]
[20] In the matter of Bryce James Miller (Unreported, Magistrates Court of the Australian Capital Territory, Burns CM, 29 April 2011) [6].
In In the matter of James Moudakis,[21] his Honour Magistrate Dingwall concluded that whilst he had “a great deal of sympathy” for what happened to Mr Moudakis, he could not be satisfied that his cognitive impairment was “extremely serious” because, in his Honour’s opinion, it had not resulted in a great and permanent reduction in Mr Moudakis’ quality of life and was not otherwise extremely serious.
[21] (Unreported, Magistrates Court of the Australian Capital Territory, Magistrate Dingwall, 6 May 2014). I was referred also to an earlier decision of Magistrate Madden in James Moudakis & Theodore Moudakis v Australian Capital Territory (Unreported, Magistrates Court of the Australian Capital Territory, 31 May 2007) in which his Honour awarded $30,000 to each of the applicants by way of special assistance. I was told that, on appeal, the Supreme Court set aside these decisions. I was not referred to any reasons for the Court's decision, and I was unable to find any reasons from my own research. It appears that Magistrate Dingwall's decision arose from a remittal of the matter to the Magistrates Court.
Section 11(2) stated additional criteria that must be met in order for an impairment or disfigurement to be an “extremely serious injury” for the purpose of s 11(1). That is clear from the words “only to be taken” in s 11(2).
I have taken into account s 4(2) of the Act, within the definition of a “criminal injury”, which states that if a primary victim (in this case, Mr Jones) sustains two or more criminal injuries at approximately the same time or arising out of the same circumstances, the injuries “must be taken” to be a single criminal injury. In my view, that did not cause any amalgamation of the different kinds of results stated in s 11. One or more criminal injuries (as defined in s 4), separately or together, might have caused a result of a kind described in s 11(1), but each result remained to be separately considered.
Reading s 10(2), 11(1) and 11(2) together, it becomes clear that the legislature set a very high threshold to be met before special assistance could be awarded. By reason of that high threshold, I was not satisfied that Mr Jones suffered “an extremely serious injury”.
Referring to the injury to Mr Jones’ jaw, I accept that it was “a really serious bodily injury” to pick up Mr Edmonds’ submission: Mr Jones’ jaw was fractured in seven places and repaired using a titanium plate and screws that will probably remain in place for the rest of his life. However, that circumstance does not respond to s 11(1)(a). Arguably, the injury is not permanent because the surgery corrected it. But even if it is a permanent injury, that is not the test. Section 11(1)(a) focuses upon the “results” of the injury. The question is not whether the person suffered a permanent injury or a ‘really serious bodily injury’, but whether it resulted in a permanent impairment of a bodily function of a kind described in s 11(1) and (2).
For this reason, I reject Mr Edmonds’ submission that there is an “almost perfect equivalence” between a “really serious injury” and an “extremely serious injury”. They are completely different tests. The former describes the seriousness of an injury suffered. The latter, by reference to the definition in s 11, describes the result of the injury.
I was not persuaded that the injury to Mr Jones’ jaw (permanent or otherwise) has resulted in a permanent impairment of a bodily function. Mr Jones stated, and I accept, that “in the winter and the colder months I get pain to the left-hand side of my jaw where the titanium plate is in place”,[22] but that does not establish an impairment of a bodily function. It may be that the pain occurs irrespective of whether he is using his jaw.
[22] Transcript of Proceedings, 18 September 2019, page 31, lines 36–47.
Also, even if I accepted that the pain is itself, or causes, an impairment of the functioning of Mr Jones’ jaw, there was no evidence upon which I could properly conclude that the impairment is “extremely serious”. Those words must be given meaning and effect. There was no evidence as to how often the pain occurs, or its severity, or about any medication Mr Jones takes (or could take) to alleviate the pain, or about any medical advice he has received regarding treatment he has received or could receive to alleviate or eliminate the pain. I recognise that in some cases evidence of this kind exists but is not produced but, when asked about production of “all relevant medical records”, Mr Jones said he had “submitted all that I can”.[23]
[23] Transcript of Proceedings, 18 September 2019, page 50, lines 31–32.
Mr Jones described a difficulty speaking, in the sense of speaking out of the left side of his mouth, but again I had no evidence to assess the seriousness of that difficulty. Also, with respect, I did not notice any difficulty of that kind when Mr Jones was giving evidence. I accept that the difficulty might exist, but I could not conclude that it is “extremely serious”.
Mr Jones said, and I accept, that he has “trouble eating some foods”,[24] but he attributed that difficulty to his dentures because they “sort of fall out”. Mr Jones also stated that he did not obtain dentures until 2017, three years after the assault, and has not seen a dentist since 2017. Mr Jones’ limited ability to access dental care is extremely regrettable, but I could not conclude that Mr Jones’ trouble eating can be characterised as a permanent impairment resulting from the criminal injury. Nor did I have evidence upon which to conclude that Mr Jones’ “trouble” eating foods is “extremely serious”.
[24] Transcript of Proceedings, 18 September 2019, page 31, line 45 – page 32, lines 1–36.
For these reasons, I was not satisfied that the fractures to Mr Jones’ jaw have resulted in a permanent impairment. Even if it were permanent, I was not satisfied (as I needed to be in order to conclude that the impairment is extremely serious) that the impairment has resulted in “a great and permanent” reduction in Mr Jones’ quality of life. There was simply no evidence to support that finding. It follows that s 11(1)(a) is not met, having regard to the additional mandatory criteria in s 11(2).
I turn to the scar below Mr Jones’ left jaw line.
In my view, the kinds of permanent consequences described in s 11(1) must be assessed by reference to the subjective circumstances of the person. That is apparent from s 11(3). I accept, for that reason, that the scar below Mr Jones’ left jaw line is a permanent disfigurement and that it will “remain so permanently”, having regard to his age, lifestyle and financial circumstances, even if other persons in other circumstances might be able to access remedial surgery to minimise (perhaps to a high degree) such a disfigurement.
However, applying the same reasoning, I was not satisfied that the disfigurement is “extremely serious”. It does not disfigure Mr Jones’ face and, as Mr Edmonds properly acknowledged, Mr Jones “is certainly not overly preoccupied with his appearance”.[25] A scar of this kind and length on a young person with an otherwise unblemished complexion might be regarded as “extremely serious”, but I could not draw the same conclusion in relation to Mr Jones who was 61 years old at the time of the hearing with a complexion consistent with his years.
[25] Transcript of Proceedings, 18 September 2019, page 87, line 39.
I accept Mr Jones’ evidence that he is aware of the scar and that it affects his confidence in socialising, but s 11(2)(a) required me to be satisfied that the disfigurement (that is, the scar) has resulted in “a great and permanent” reduction in Mr Jones’ quality of life. It follows that I could consider Mr Jones’ loss of confidence only to the extent that it could be attributed to the scar. I was not persuaded the scar is the cause, or the main cause, of Mr Jones’ loss of confidence. On his own case, it seems clear that several other factors including the emotional trauma of the assault have materially contributed to Mr Jones’ loss of confidence.
For these reasons, I was not satisfied that the scar is an extremely serious injury, as defined.
As I am not satisfied that either of the criminal injuries suffered by Mr Jones on which he relies is an “extremely serious injury”, the application must be dismissed. It is therefore unnecessary for me to decide the question of set-off under s 37 of Act. However, in deference to the argument that was put, I make some comment.
Views could reasonably differ about the degree of injury Mr Jones would have sustained had he not been intoxicated at the time Mr Price assaulted him. It seems clear that Mr Price assaulted Mr Jones in response to Mr Jones’ earlier assault on him, but I can only speculate on how Mr Jones would have behaved, but for his intoxication, upon returning to Mr Price’s residence in response to the call for help from Ms Smith. But for his intoxication, Mr Jones might have escorted Ms Smith from Mr Price’s residence without incident – meaning that, but for his intoxication, Mr Jones would not have suffered any injury at all.
Then there is the question of the “degree of injury” Mr Jones would have sustained, but for his intoxication. Again, I can only speculate. Arguably, but for Mr Jones’ intoxication and mindful of Mr Jones’ ability to respond, Mr Price might have elected not to assault Mr Jones. Also, but for his intoxication, Mr Jones might have been able to defend himself more effectively than he did and so sustain less injury.
Nevertheless, s 37 commanded that the Court “must calculate” the amount of financial assistance to award by reference to the degree of injury that it considers Mr Jones would have sustained had he not been intoxicated at the time. With little, if any, evidence to assess how events would have played out, but for Mr Jones’ intoxication, there was considerable good sense in Mr Edmonds’ submission that the deduction be 50% as a “pragmatic approach”.
Order
The application for financial assistance dated 9 March 2016 will be dismissed.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Special Magistrate McCarthy Associate: Angus Brown Date: 27 November 2019 |
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