Larry v Clumpoint

[2006] QDC 169

DISTRICT COURT OF QUEENSLAND

CITATION:	Larry –v– Clumpoint [2006] QDC 169
PARTIES:	LARRY, Gaylen Jean

Applicant

Against

CLUMPOINT, Thomas Andrew

Respondent

FILE NO:	95/06
PROCEEDINGS:	Application for criminal compensation.
DELIVERED ON:	7 June 2006
DELIVERED AT:	Townsville
HEARING DATE:	5 June 2006
JUDGE:	C.F Wall Q.C
ORDER:	Respondent pay compensation to the applicant of $10,500.00
CATCHWORDS:	CRIMINAL LAW – COMPENSATION– Assessment and amount– application for criminal compensation involving the appct being separately injured by the resp on 2 occasions for which the resp was convicted of unlawful wounding and assault occasioning bodily harm – appct and resp in de facto relationship involving other non-compensable occasions of violence by the resp to the appct – appct suffering post traumatic stress disorder – compensation for physical injuries assessed separately – compensation for post traumatic stress disorder considered a single state of injury caused by the 2 compensable offences and other non-compensable violent and aggressive behaviour by the resp – discounted by 60% due to contribution from non- compensable violent behaviour
Legislation Referred to: Criminal Offence Victims Act
COUNSEL:	Ms A Le Roux (Solicitor) for the Applicant No appearance by the Respondent
SOLICITORS:	Legal Aid Queensland for the Applicant No appearance by the Respondent

HIS HONOUR: This is an application for compensation under the Criminal Offence

Victims Act.

The applicant was born on the 6th of January 1973. She was separately injured by the respondent on two occasions. They were living together in a de facto relationship.

On the 6th of November 2002 she suffered a laceration to her left inner forearm near the elbow caused by a pair of scissors. She got the scissors off the respondent and then thought that he was going to get a knife from the kitchen and stab or kill her, so she ran away. She says he had previously (in about March) stabbed her in the left ribs with a knife. Two weeks before she was cut with the scissors the respondent and the applicant were arguing. The applicant ended up on the ground with the respondent on top of her digging a thumb nail into her eyes. He had on many previous occasions threatened to dig her eyes out.

On the 24th of April 2003 during an argument the respondent knocked the applicant to the ground and hit her four or five times on the head with a rock, causing a laceration.

In my view no behaviour by the applicant directly or indirectly contributed to her injuries on either occasion.

It is clear that the applicant and the respondent lived in a volatile, violent and alcoholic relationship on Palm Island.

In the District Court at Townsville on the 6th of May 2004 the respondent was centimetres long and 1.5 centimetres wide at its widest point. Dr Duffy described it as an old wound on the 15th of November 2002.

convicted of unlawfully wounding the applicant on the 6th of November 2002 and
assault occasioning bodily harm to the applicant on the 24th of April 2003.

On the 24th of April 2003 the applicant suffered the following injuries:

"5 centimetre laceration of the scalp to the skull.

Multiple abrasions and bruising to the throat, shoulders, her right thigh and her left hip.

A scratch to her left chest and right thigh.
A ripped left ear lobe.

A scratch and abrasion to the left or her forehead.

These injuries required the following treatment:

Suture to the scalp laceration.
Wounds and abrasions cleaned and dressed.
Analgesia."

The scalp and ear injuries are shown in the two photographs exhibited to the affidavit of Cheryl Thomson.

In a victim impact statement dated the 6th of May 2004 the applicant described the respondent as her "ex-de facto". She said she kept in contact with him, but they were no longer living together. She also said that after the offence on the 24th of April 2003 she could not go to work and ended up losing her job. She did not say what her job was. She said she was unemployed as at the 6th of May 2004. In her affidavit filed on the application she deposes as follows:

"9.	The respondent continues to abuse verbally abuse me as he goes past my house. The respondent has also been to my school where he would stand outside and yell verbal abuse. This has caused me to lose my job.
10.	The respondent makes me feel uncomfortable.
11.	Because of the way the respondent has treated me in the past I find it difficult to speak with anyone and I do not know if I have any friends."

She again does not say what her job was, but it may have been at a school. The circumstances under which she lost her job appear different to what she said in her victim impact statement. In her police statements dated the 7th of November 2002 and 24th of April 2003 and her earlier victim impact statement dated the 17th of March 2003 she is described as unemployed. These all suggest she was unemployed as early as the 7th of November 2002 and certainly prior to the 24th of April 2003. In the victim impact statement dated the 17th of March 2003 she says that as a result of an offence dealt with in that statement (presumably the first offence before me, but it is not clear) she "lost a good job, but I'm looking for work". It is difficult to reconcile what she says in her police statements with a person in employment and these matters raise some concern about her credibility.

The applicant was assessed by Mr Robert Zemaitis, a psychologist, on the 13th of

October 2004. In his report dated the 14th of October 2004 he says:

"BIOGRAPHICAL DATA - INFORMATION PROVIDED BY GAYLEN
LARRY

Gaylen currently presents as a 31 year old person who is living in Townsville with her uncle and aunty. She stated she was hopeful of obtaining her own accommodation in Townsville through the Community Rental Scheme. She states her younger sister has just had a baby and they plan to live together and she stated she will help her younger sister in caring for the baby.

In terms of her educational history she stated she completed year 10 at the her mother left Palm Island when she was 2 years old.

After leaving school she travelled to South Australia to visit her father who school and has worked in the following areas:-

she had not seen for many years. She subsequently moved back to North
Queensland and then to Palm Island as her mother had shifted back to Palm
Island to care for her sick father.

1.          Shop assistant at the Palm Island retail store.

2.          Shop assistant at the Palm Island bakery.

3.          Teacher aid at St Michael's school.

4.          Childcare assistant at the day-care centre. She stated that she was in this position for approximately five years and she described herself as being approximately halfway through obtaining a Diploma in Childcare.

She stated that she is currently on a New Start Allowance and she blames her ex-partner, Thomas Clumpoint, for causing problems at her workplace and for her losing her position as a teacher aid at St Michael's school. She stated he would come to the workplace and shout and argue with her and create a 'bad scene'. She also described him as being verbally aggressive towards the other staff.

In terms of her relationship with Thomas Clumpoint, Gaylen stated that they had been together for approximately two and a half years. She stated that they were living together but that at times he would become very violent and aggressive towards her. She felt that this was typically when he was under the influence of alcohol, combined with marijuana.

In terms of her relationship with Thomas Clumpoint she stated she had left Clumpoint back and stated that she felt 'tricked' by him. She continued that he would apologise for his behaviour and would then behave himself for a time before returning to drinking and smoking marijuana.

She stated that generally they got on quite well when he was not drinking. She gave the example where they left Palm Island and stayed in Townsville for several weeks. She described things as being quite good while they were in Townsville due to the absence of alcohol. However, on their return to Palm Island she felt the atmosphere was different and this was when the violence would occur.

She stated that Thomas Clumpoint had been in and out of jail due to other domestic violence offences with other women.

She stated she had been beaten around the head by Thomas Clumpoint and sometimes she worries about her memory as sometimes she feels it is not as good as it used to be. She also stated that she tends to get headaches more regularly now than she did prior to suffering the various assaults to her head."

The job as a child-care assistant would not appear to have been her last job. The
teacher's aid job seems to have been the last.
Mr Zemaitis continued:

"CLINICAL IMPRESSIONS

Gaylen became quite distressed during my interview with her. She became quite teary and in my view she was genuinely quite emotionally distressed when discussing the past traumatic incidents. She stated that talking about the incidents brought back bad memories of them and the pain and suffering that she endured as a result. She stated that she has regular flashbacks to both incidents involving firstly the scissors which occurred on or about 6 November 2002 and secondly the incident which occurred on 24 April 2003 where she was bashed with a rock.

DESCRIPTION OF INCIDENTS ON 6 NOVEMBER 2002 AND 24
APRIL 2003

From reading Gaylen's statement of 7 November 2002 in relation to the unlawful wounding on 6 November 2002, there is little doubt that she was exposed to a traumatic event where she experienced, witnessed and was confronted with a scenario that involved actual or threatened death or serious injury and certainly a threat to her physical integrity.

In her statement dated 24 April 2003 she describes Thomas Clumpoint picking up a small rock and throwing it at her and missing her. He then found a bigger rock and she described him as running at her and with full force knocking her

to the ground. He then started hitting her on the top of the head with the rock.

She stated he hit her approximately four or five times.

She stated that she couldn't do anything and tried to call out to Gregory

Watson and Michael Seaton but they didn't help her.

PSYCHOLOGICAL ASSESSMENT

To gain further insight into her psychological functioning, Gaylen was administered the Trauma Symptom Inventory (TSI).

Gaylen's test results indicate she answered the TSI in a valid manner. Further she obtained clinically significant scores on the following clinical scales:-

1.          Anxious Arousal.

2.          Depression.

3.          Intrusive Experiences.

4.          Defensive Avoidance.

5.          Dissociation.

DISCUSSION

Gaylen Larry presents as a 31 year old person who suffered quite significant physical and psychological injuries as a result of two traumatic incidents that occurred on or about 6 November 2002 and 24 April 2003.

Various documents provided indicate that Thomas Clumpoint was convicted of:-

1.          Unlawful wounding on or about 6 November 2002.

2.          Assault occasioning bodily harm whilst armed on 24 April 2003.

My clinical impression of Gaylen during my interview with her was that she
was a genuine person who is suffering from a DSM-IV diagnosis of Post-
Traumatic Stress Disorder that is both chronic and severe.

There is little doubt that both incidents involving firstly the scissors and secondly the rock were quite serious and traumatic events where she certainly witnessed and was confronted with a scenario of events that involved actual or threatened death or serious injury and certainly a threat to her physical integrity. There is little doubt that her response at the time involved intense fear, helplessness and horror at what was happening to her.

In summary, it is my view that she is certainly suffering from a DSM-IV diagnosis of Post-Traumatic Stress Disorder that is directly related to the two incidents where she was unlawfully wounded on or about 6 November 2002 and where she was assaulted on 24 April 2003."

I accept what Mr Zemaitis says except that I am not satisfied that her post-traumatic stress disorder is due only to the two subject offences, as opposed to a combination of them and other incidents of violence exhibited by the respondent towards the applicant during their relationship on Palm Island.

Post-traumatic stress disorder clearly amounts to mental or nervous shock for compensation purposes.

It is clear from the police statement dated the 7th of November 2002 and what she said to Mr Zemaitis that there were probably quite a few more occasions when the respondent was violent towards the applicant than those the subject of the present offences, for example:

- Stabbing her in the ribs with a knife in about March 2002. The respondent was not convicted of any offence arising out of this incident.

- Gouging her eyes in October 2002. The respondent again was not
convicted of any offence arising out of this incident.

- Many previous threats to gouge her eyes out.

- Generally violent and aggressive behaviour, described also as past
traumatic incidents by Mr Zemaitis, at times during their two and a-
half year relationship.

In my view her post-traumatic stress disorder could not be said to be due entirely to the present two offences, but is most likely due to the generally violent and aggressive nature of the relationship including the present two offences. In my view Mr Zemaitis has overlooked the extent to which the other incidents are also contributing to her post-traumatic stress disorder.

The applicant is entitled to have compensation for her physical injuries assessed separately because the injuries suffered by her on each occasion are different and the occasions are separated by some five and a-half months. But I consider her post- traumatic stress disorder to be a substantially single state of injury caused by the present two compensable offences (being a series of incidents of personal offences within section 26(3) of the Criminal Offence Victims Act) and other non- compensable violent and aggressive behaviour by the respondent.

In my view the applicant is entitled to compensation for her physical injuries assessed as follows by reference to the compensation table in schedule 1 of the Act;

Item 1	Minor laceration suffered in
the first offence 1%
Item 2	Severe bruising and lacerations
suffered in the second offence 5%

Her post-traumatic stress disorder is in my view within item 32 and amounts to moderate mental or nervous shock and before discounting would attract compensation assessed at 20 per cent of the scheme maximum. All of that is not attributable to the present offences. Those offences contribute in my view to the extent of 40 per cent. The applicant is therefore entitled to compensation for mental or nervous shock under item 32 of 40 per cent of 20 per cent of the scheme maximum, namely eight per cent.

The total percentage compensation amounts to 14 per cent. The scheme maximum is

$75,000. Fourteen per cent of that is $10,500.

I order that the respondent pay compensation to the applicant of $10,500.

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