Knibb v Salee

[2008] QDC 293

DISTRICT COURT OF QUEENSLAND

CITATION:

Knibb v Salee [2008] QDC 293

PARTIES:

PAUL JOHN KNIBB by his Litigation Guardian, JENNIFER MARGARET KNIBB
(Applicant)
v
McINTOSH SALEE
 (Respondent)

FILE NO/S:

224 of 2007

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Cairns

DELIVERED ON:

12 December 2008

DELIVERED AT:

Cairns

HEARING DATE:

28 November 2008

JUDGE:

Everson DCJ

ORDER:

That the respondent pay the applicant as litigation guardian for the victim the sum of $5,250 by way of compensation.

That any amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be sufficient discharge.

That after paying the reasonable costs and outlays of the applicant’s solicitors of and incidental to this application, the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the said sum on behalf of the victim in accordance with the powers and duties defined in the Public Trustee Act 1978.

CATCHWORDS:

Criminal compensation – Psychological injuries – physical injuries.

Criminal Offence Victims Act 1995
Criminal Offence Victims Regulation 1995

R v Jones ex parte Zaicov [2002] 2 QdR 303 at 310
R v Atwell ex part Julie [2002] 2 QdR 367 at 373
Vlug v Carrasco [2006] QCA 561 at [11]

COUNSEL:

Ms T Price (solicitor) for the applicant
Respondent appeared in person

SOLICITORS:

Legal Aid Queensland for the applicant

1. This is an application for a compensation order pursuant to section 24 of the Criminal Offence Victims Act 1995 (“COVA”). The applicant is the litigation guardian for the victim who has an intellectual impairment.

1. The injuries giving rise to the application were suffered as a result of a personal offence for which the respondent was convicted on indictment on 10 May 2006 at Cairns, namely assault occasioning bodily harm (“the incident”).

Facts

1. On 29 February 2004 the respondent assaulted the victim in the company of others as the applicant walked through a park in the early hours of the morning.  He was kicked and punched before falling to the ground whereupon he was kicked again.

Injuries

1. The victim suffered various soft tissue injuries, the most serious being to his right shoulder which apparently remained symptomatic for several months after the attack.  His mother notes that following the incident the victim became significantly less independent and “withdrew into his shell”.  Dr McGuire, psychiatrist, saw him twice following the incident and was adamant he was not suffering from a post traumatic stress disorder (“PTSD”).  She noted that he was much less trusting and more wary following the incident.  Dr Richardson, psychologist only saw him on one occasion, 26 September 2007.  Notwithstanding the time which had passed since the incident and the limitations his intellectual impairment presented in attempting a diagnosis, she nonetheless boldly concluded that the victim was suffering from a PTSD “in the mild to moderate range”.

The relevant law

1. COVA establishes a scheme for the payment of compensation to the victims of certain indictable offences including those who suffer “injury” as defined in section 20, being “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table as prescribed under a regulation.”

1. Pursuant to section 25 of COVA, a compensation order may only be made up to the scheme maximum of $75,000 specified in section 2 of the Criminal Offence Victims Regulation 1995 (“COVR”) using the percentages listed for an injury specified in the Compensation Table in SCHEDULE 1 of COVA. In R v Jones ex parte Zaicov[1] Homes J described the process in the following terms:

“Thus, my examination of the section convinces me that a two or three stage process is entailed. Where there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second is to add those amounts together, and the third, to arrive at the compensation order.”         

[1][2002] 2 QdR 303 at 310

1. Relevantly the Compensation Table prescribes:

·     Item 1: Bruising/laceration etc (mild/moderate) 1%-3%

·     Item 31: Mental or nervous shock (minor)      2%-10%

The Assessment

1. I note the observation of Thomas JA in R v Kazakoff; Ex parte Ferguson[2] that to limit compensation pursuant to COVA “to cases where a diagnosable mental disorder or psychiatric illness results, would give the term “mental or nervous shock” too limited a meaning”. Accordingly, it is not necessary for me to determine whether or not the victim is actually suffering from a PTSD as a consequence of the incident for the purposes of this assessment.

   [2][2001] 2 QdR 320 at 325

1. The victim did not behave in a way which contributed to the injuries suffered by him.

1. Having regard to the evidence before me and in particular to the matters set out above, I assess compensation pursuant to COVA and the Compensation Table as follows:

Item 1:  2%  $1,500.00

Item 31:  5%  $3,750.00

$5,250.00

Order

1. I order that the respondent pay the applicant as litigation guardian for the victim, the sum of $5,250.

1. I order that the amount paid to the victim pursuant to this order be paid to the Public Trustee of Queensland whose receipt for such sum shall be a sufficient discharge.

1. I order that after paying the reasonable costs and outlays of the applicant’s solicitors of and incidental to this application, the Public Trustee of Queensland be appointed manager of and take possession of and control and manage the sum on behalf of the victim in accordance with the powers and duties defined in the Public Trustee Act 1978.