Kennedy v Faafeu

[2010] QDC 21

DISTRICT COURT OF QUEENSLAND

CITATION:

Kennedy v Faafeu [2010] QDC 21  

PARTIES:

ROY STANLEY KENNEDY

(Applicant)

v

SAULO AMINATAPU FAAFEU

FILE NO/S:

141/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

5 February, 2010

DELIVERED AT:

Beenleigh

HEARING DATE:

18 December 2009

JUDGE:

Dearden DCJ

ORDER:

The respondent Saulo Aminatapu Faafeu pay the applicant Roy Stanley Kennedy the sum of $28,500

CATCHWORDS:

APPLICATION – criminal compensation – grievous bodily harm – facial fracture – bruising/laceration – mental or nervous shock – pre-existing injury.

LEGISLATION:

Criminal Offence Victims Act 1995 (Qld)

Victims of Crime Assistance Act 2009 (Qld)

CASES:

Paterson v Chand & Chand [2008] QDC 214.

COUNSEL:

S Seth (solicitor) for the applicant

No appearance for the respondent

SOLICITORS:

Seth Solicitors for the applicant

No appearance for the respondent

Introduction

[1]                  The respondent, Saulo Aminatapu Faafeu pleaded guilty in the Beenleigh District Court on 22 April 2008 to one count of grievous bodily harm in respect of the applicant Roy Stanley Kennedy.  The respondent was sentenced by me to two years imprisonment with a parole release date effective on the date of sentence.[1]

[1]Exhibit C (Sentencing Remarks) pp. 7 & 9, Affidavit of Samit Seth sworn 11 November, 2009.

Facts

[2]                  The offence occurred on 2 August 2003 at Kingston when the respondent was a taxi driver then aged 42.  The applicant was driving a woman and her young son home to a unit complex from a nearby shopping centre.  The respondent, who was then in receipt of a disability pension, was delivering pamphlets to supplement that pension.  While the applicant was putting a pamphlet in the letterbox, the respondent drove his cab up to him. The applicant was nudged by the respondent’s vehicle and the horn went off.  The applicant touched the vehicle and received a static electricity shock.  The respondent thought the applicant was going to hit him and shifted his position inside the cab.  The respondent was not actually hit nor was there any intention to hit the respondent, but the respondent appears to have interpreted the applicant’s actions as a movement to hit him.

[3]                  The respondent then got out of his cab, went over to the applicant and struck him in the face while yelling at him.  The respondent got the applicant by the throat up against a picket fence and punched him.  The applicant was trying to defend himself and recalls poking the respondent either in the eyes or nose and distracting him enough that the applicant was then able to push the respondent away with his foot.  Prior to the applicant calling out for police, the respondent stopped the assault but not before delivering a further punch, after which the applicant escaped down the street to his partner who was in a vehicle assisting with deliveries.  The applicant’s partner then contacted police, the applicant having been unsuccessful prior to that in contacting police through the office of the manager of the unit complex where the respondent’s passenger was…