Jose v Cardwell
[2010] QDC 415
•4 November 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Jose v Cardwell [2010] QDC 415
PARTIES:
Gabriel Raymond James Jose
(applicant)
v
Kelvin Luke Cardwell
(respondent)FILE NO:
D706/09
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
4 November 2010
DELIVERED AT:
Southport
HEARING DATE:
6 September 2010
JUDGE:
Newton DCJ
ORDER:
The respondent is to pay the applicant criminal compensation in the amount of $75,000.
CATCHWORDS:
APPLICATION – CRIMINAL COMPENSATION –bruising and laceration – loss or damage of teeth – fractured skull –loss of use of finger – loss of use of leg – loss of vision – mental or nervous shock
Criminal Offence Victims Act 1995
Victims of Crime Assistance Act 2009
COUNSEL:
Mr A Kimmins for the applicant
SOLICITORS:
Buckland Criminal Lawyers for the applicant
No appearance by or on behalf of the respondent
This is an application for compensation pursuant to the Criminal Offence Victims Act 1995.[1] The applicant, Gabriel Raymond James Jose, was born on 18 March 1959. He is now aged 51 years and was 47 years of age at the time of the offences which form the basis of this application. Those offences occurred on 24 June 2006. On 10 December 2007 the respondent, Kelvin Luke Cardwell, was convicted on his own confession of one count of malicious act with intent. On 8 April 2008 the respondent was sentenced to seven years imprisonment with a serious violent offence declaration being made.
[1] Section 155 of the Victims of Crime Assistance Act 2009 provides for the application being heard and determined under the repealed legislation.
The respondent did not appear either in person or by legal representative at the hearing of this application. I am satisfied that the respondent was served on 19 August 2010 with the originating application and all relevant material.[2]
[2] Affidavit of Ian Quinn, filed 31 August 2010.
The facts relating to the count of malicious act with intent as disclosed by the prosecution are as follows:
“On the evening of the Saturday, the 24th of June 2006, Senior Constable Gabe Jose was performing patrol duties. The senior constable was a police officer of about 25 years experience or service. About 20 minutes to nine that evening he was performing duties in a marked police vehicle. About 20 minutes to 10 he was stationary in his vehicle on the entry ramp of Exit 49 for the southbound lanes of the Pacific Highway, or the M1 as it’s called. That’s at Pimpana.
His attention was drawn to a white-coloured Ford Falcon that had passed his vehicle coming down the on-ramp and entering the Pacific Highway. He conducted a computer check whilst in his vehicle, and noticed the vehicle was listed as registered at a Mount Coolum address. He waited until the vehicle had entered the motorway and proceeded to follow the vehicle. As he moved off he observed the vehicle suddenly move left and came to a stop with its headlights and tail lights being turned off. He activated his high beam on the headlights on his police vehicle, stopped about three to five metres behind the Ford, alighted from his vehicle, approached the driver’s side.
He observed a large male wearing a long-sleeve shirt, sitting in the rear of the passenger seat and a blonde female sitting in the driver’s seat. He spoke to the female person in the driver’s seat who identified herself as Jennifer Anderson. She told officer Jose she did not have a licence and that the vehicle had run out of petrol. He asked her to accompany him to the police vehicle.
At the police vehicle she informed him she was not, in fact, driving the vehicle; that the person who had been driving the vehicle had left the scene before Senior Constable Jose arrived. The officer advised her that he’d been watching the vehicle and he had high beam on the vehicle and he had not seen anyone leave the vehicle. He asked her, that’s Anderson, for proof of identity. She produced it.
Officer Jose then approached the Ford vehicle from the passenger side this time, and opened the rear passenger side door. He observed some property on the rear seat and observed the male, who turned out to be the prisoner before the Court, using a mobile phone, sitting in the rear passenger seat. Another female person with dark hair was seated on his right. That’s a person called Tatum Spann. She’s been dealt with for her involvement in this matter, your Honour.
Officer Jose spoke to Cardwell, who first denied and later admitted that he was the driver of the vehicle. He disclosed that he did not have a driver’s licence. He gave a false name, stating his name was someone else, and that he’d been previously in trouble with police. This caused Officer Jose to return to his police vehicle and contact the police station to have checks done on the information supplied. The response he got was that there was no listing on the information provided. He returned to the Ford vehicle and informed the prisoner that he was placing him under arrest. All this was occurring, your Honour, in the lane between the four-lane highway and the concrete barrier of the M1.
He told Cardwell he was placing him under arrest as he believed Cardwell supplied him with a false name and he will be taking him to the nearby Coomera Police Station to verify his particulars. This caused the prisoner to lean over from the middle of the rear seat, presenting both his hands in a fist shape to Senior Constable Jose, in a manner that would indicate he was complying with his hand being handcuffed.
Officer Jose placed one handcuf on his right wrist – and that’s the prisoner’s. The other – left the other one free to enable the prison to push himself over the property on the seat next to him. Mr Jose was holding a can of OC, or capsicum spray, in his left hand. As the prisoner exited the vehicle Officer Jose continued to hold his – that’s the prisoner’s – right hand. When the prisoner had completed exited the vehicle Officer Jose commenced turning the prisoner around to handcuff his hands behind his back when the prisoner suddenly turned, punched Officer Jose to the right side of the face with a clenched fist. He tried to pull away from Officer Jose who was maintaining a hold with his left first a number of times, also attempted to gouge out his eyes and a violent struggle ensued.
During that violent struggle Officer Jose ended up on his back on the ground with the prisoner standing over him, continuing to hit him. Officer Jose tried to pull away as he turned and he saw the capsicum spray or the OC spray he had been holding on the ground, not far from his reach. He also observed the Tatum Spann, the female who was present, standing near and looking directly at the capsicum spray and he saw her kick it from within his grasp with her foot.
At that point in time the prisoner grabbed Officer Jose by the head with his left arm and started biting at the top, right side of his head. Officer Jose recalls hearing the prisoner, he describes as growl as he bit into his head. The prisoner then bit into Officer Jose’s right arm and his right forearm.
Officer Jose observed the prisoner’s teeth in his forearm and saw his flesh between his teeth or jaws – something that particularly disturbed Constable Jose. The prisoner then started grabbing at Senior Constable Jose’s firearm which was in his holster on a belt and, it seems, however, because of the particular design of the holster he was unable to remove it. The prisoner then continued to punch Senior Constable Jose to the face with his fist.
During this violent struggle Senior Constable Jose kicked out with his right foot and it seems that it connected with the prisoner and it sent the prisoner backwards. That gave Officer Jose enough time to grab his baton which was on his utility belt on his person, on the left side. He took out the baton and hit the prisoner once on the head with the top part or the handle of the baton. It wasn’t a very effective strike and he reached back, standing – his left arm with the baton still in his arm – pretending to strike the prisoner again and it was at this time that Spann, Tatum Spann, who was standing behind Officer Jose, grabbed hold of the baton with both her hands. He told her to let it go. She replied, “No, you’ll hit him.” He – that is, Officer Jose – tried to hold onto the baton but Spann wrenched it from his hand.
The prisoner was still attacking Officer Jose and began calling out to Spann telling her to knock him out. That’s knock Constable Jose out, Senior Constable Jose out. Officer Jose was pleading with Spann not to knock him out and not to do anything. At the same time the two men were struggling violently. Officer Jose was having great difficulty trying to control and arrest the prisoner. The prisoner, in fact, broke free from Officer Jose. Whilst Officer Jose was on his hands and knees Officer Jose saw a handheld police radio on the ground, he grabbed the radio and called out his call sign and location and asked for urgent assistance.
As he rose, though, to his feet the prisoner grabbed a hold of him, pulled his leather jacket over his head and spun him around, began punching him with both fists to the head through the leather jacket. Officer Jose pulled the leather jacket off his head. As he did this he saw the prisoner with his back to him facing Spann. They were both standing near the left-hand side passenger door of the white Falcon. The prisoner spun around suddenly and Officer Jose felt a crushing or crashing blow to the right side of his face, felt a number of teeth becoming loose and fall out of his mouth.
It seems at this point in time that the prisoner was now holding the police baton and the blow had been, in fact, delivered by the police baton. Officer Jose next recalls seeing the prisoner standing in front of him and, fearing another blow, he drew his firearm, pointed it at the prisoner and fired a single shot. The prisoner fell straight to the ground face first and Officer Jose saw that Spann, who had been standing directly behind the prisoner, it seems she had been shot too. She, in fact, said, “You shot me,” and it’s clear – only became clear because of the positioning of the two prisoners – the bullet from the weapon had passed through his prisoner and entered Spann.
Officer Jose went to his police car and called for help over the police radio. He saw – he then went to give first aid to the prisoner and saw that he was moving slightly and he handcuffed him and saw that Spann was leaning up against the door of the vehicle and blood was streaming from the inside of her left leg and a bullet hole in her right thigh. Soon after, police vehicles arrived on the scene.”[3]
[3] Transcript of sentencing hearing, 8 April 2008, p26-29.
In my sentencing remarks I described the attack as a particularly savage and vicious attack in which the applicant was not only repeatedly and heavily punched to the head, but also had his eye gouged, his head bitten, and his arm bitten as well as being struck very heavily in the mouth, causing considerable damage. I made specific findings, firstly, that the respondent had not been sprayed by the applicant with capsicum spray prior to the attack and secondly that the attack by the respondent on the applicant included the use of the applicant’s baton by the respondent to strike the applicant in the mouth.
Dr Darren J Tite, a specialist oral maxillofacial and reconstructive surgeon has provided a report dated 3 January 2007 in relation to the applicant’s injuries. That report notes that the applicant was assessed on 27 June 2006 with regard to injuries sustained by him after an alleged assault on 26 June 2006. The applicant described difficulty eating, speaking and swallowing and right mid-facial numbness. Clinical and radiographic examinations displayed the following:
· right zygomatic (cheekbone) fracture;
· maxillary (top jaw) fracture (comminuted) apical to dentition (teeth – 21/11/12/13/14);
· reduced sensation (feeling) in the right infra-orbital nerve distribution;
· intra-oral compound wound (through gum to bone) over premaxilla involving dentition;
· right mid-facial oedema/ecchymosis (swelling/bruising);
· dental fractures (14/33);
· alteration to vision in the right eye – “halo” effect.
Treatment included open reduction with internal fixation of the fractures, wound debridement and local flap repair to the compound defect under general anaesthetic. No operative complications were discerned at the first review however a mucosal defect was present over the right maxillary central incisor (11). Both 11 and 12 were said to be slightly mobile. The bony segments appeared stable. At the three month review Dr Tite noted that the applicant showed good recovery and that the fractures were stable. However a soft tissue defect affecting the maxilliary teeth on the labial (outer) surface was persisting and the vitality of some of the teeth was said to be questionable. The injuries were said by Dr Tite to be consistent with their stated cause of blunt trauma (police baton) to the face.
In Dr Tite’s opinion, failure to attend medical intervention for treatment of the applicant’s injuries would have resulted in permanent alteration to oral function (eating, speaking and swallowing) and permanent alteration to feeling in the right mid-face. Failure to attend medical intervention of the injuries could have resulted in permanent alteration to visual function with reduced vision and double-vision.
A report by Ms Jacqueline Susan Yoxall, psychologist, dated 27 November 2009 notes that at the time of assessment the applicant described the following symptoms:
· disturbed mood;
· reduced appetite;
· disturbed sleep;
· reduced motivation and energy;
· rumination and worry;
· exaggerated startled response;
· hypervigilance;
· intrusive memories and occasional nightmares;
· avoidance of any reminders of trauma;
· significant distress and physiological activity when reminded of trauma;
· irritability;
· sense of personal vulnerability;
· episodes of acute physical anxiety; and
· intermittent dissociation.
Clinical assessment revealed significant unhappiness, moodiness and tension. The applicant’s self-esteem was said to be quite low and his responses indicated that he may view himself as ineffectual and powerless to change the direction of his life. The disruptions in his life, reported Ms Yoxall, have left the applicant uncertain about his goals, and tense and pessimistic about what the future may hold. The applicant manifested affective and physiological signs of depression. He admitted openly to feelings of sadness, a loss of interest in normal activities and a loss of sense of pleasure in things that were previously enjoyed. Ms Yoxall reported that the applicant 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. Primary manifestations of anxiety appear to be in the affective and physiological areas. Overt physical signs of tension and stress, such as sweaty palms, trembling hands and complaints of irregular heart beats and shortness of breath were also reported.
Ms Yoxall is of the opinion that the applicant has experienced substantial psychological impact as a result of the offence committed upon him by the respondent. Diagnoses of post-traumatic stress disorder and major depressive disorder, single episode, were made. Ms Yoxall is of the view that the psychological impact on the applicant of the respondent’s offending has been severe and has directly contributed to the development of post-traumatic stress disorder and major depressive disorder. Ms Yoxall considers that the applicant has suffered nervous shock to a severe degree. Ongoing psychological and psychiatric intervention was seen as fluctuating between weekly to monthly appointments. The applicant’s determination to return to work as a police officer was described by Ms Yoxall as admirable but this brings with it a level of risk of exacerbation of his condition. Ms Yoxall reports that the applicant will need to utilise the strong support base that he has formed in order to continue to perform his role effectively and to cope with the inherent risks that he faces in his professional life.
A victim impact statement under the hand of the applicant, dated 12 December 2007, describes the very significant impact of the assault in terms of physical and psychological health and social and financial consequences.
I accept the evidence of the applicant as to the impacts of the assault upon him and also the evidence of Dr Tite and Ms Yoxall. I am satisfied that the applicant suffered very serious physical and psychological harm as a result of the attack upon him by the respondent on 24 June 2006.
Any suggestion that the applicant was at all responsible for the injuries he sustained during the incident would not only be entirely misplaced but also highly offensive.
The injuries sustained by the applicant are graphically depicted in a series of photographs which are before the Court, exhibited to the affidavit of the applicant filed 22 December 2009. They depict, in particular, the facial injuries sustained by the applicant and also demonstrate injuries to the applicant’s hand and forearm.
The applicant’s bruising and lacerations may fairly be described as severe and as such fall for assessment under injury number two in the compensation table of the Criminal Offence Victims Act which permits an assessment at between 3% and 5% of the scheme maximum which remains at $75,000. In my view the assessment should be at the upper level of the permitted range, that is at 5% of the scheme maximum which yields an assessment of $3,750.
The very extensive injury to the applicant’s teeth fall for assessment under injury number five in the table which permits an assessment at between 1% to 12% of the scheme maximum. Again, having regard to the nature of the dental injuries suffered by the applicant it is appropriate to assess the dental damage at the upper level of the permitted range, that is at 12% of the scheme maximum which yields a further $9,000.
The facial fractures referred to by Dr Tite are to be assessed under injury number eight in the table. This relates to severe facial fractures and permit an assessment at between 20% and 30% of the scheme maximum. There is no question that the facial fractures are appropriately categorised as severe and in my view should be assessed at 25% of the scheme maximum which yields a further $18,750.
The injury to the finger falls for assessment under injury number 17 of the table and an assessment at between 2% and 8% of the scheme maximum is permitted. The injury to the applicant in this regard should again be assessed at the upper level of the permitted range, that is at 8% of the scheme maximum, which yields a further $6,000.
The leg injury sustained by the applicant falls for assessment under injury number 19 in the table which provides for an assessment at between 4% and 10% of the scheme maximum where the injury may be described as moderate. Again, an assessment of the upper level of the permitted range is appropriate in this case, that is at 10% of the scheme maximum which yields a further $7,500.
The eye injury sustained by the applicant is to be assessed under injury number 29 in the table and having regard to Dr Tite’s report I am of the view that an assessment of 15% of the scheme maximum in this regard is appropriate which yields a further $11,250.
Finally, in relation to the mental or nervous shock which I accept should be categorised as severe, an assessment under injury number 33 of the table is appropriate which would permit an award at between 20% and 34% of the scheme maximum. Having regard to the report of Ms Yoxall, I consider that an award at 30% of the scheme maximum should be awarded in this case which yields an additional sum in the amount of $22,500.
In the light of the fact that the combination of all of the above awards exceeds 100 per cent of the scheme maximum I am constrained to award compensation at the maximum permitted under the scheme which is $75,000.
I therefore order that the respondent, Kelvin Luke Cardwell, is to pay the applicant, Gabriel Raymond James Jose, criminal compensation in the amount of $75,000.
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