LFW v MGW

[2012] QDC 273

DISTRICT COURT OF QUEENSLAND

CITATION:

LFW v MGW & Ors [2012] QDC 273

PARTIES:

LFW
(Applicant)

v

MGW
(First Respondent)

And

PLH
(Second Respondent)

And

GGG
(Third Respondent)

FILE NO/S:

955/09, 958/09 and 959/09

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

DELIVERED ON:

21 August 2012

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2012

JUDGE:

Samios DCJ

ORDER:

1.    Respondents to pay the Applicant $5,250.

CATCHWORDS:

CRIMINAL LAW - Compensation

Criminal Offence Victims Act (1995), s24.

COUNSEL:

SOLICITORS:

Howden Saggers Lawyers for the Applicant.

1. I direct that these three applications, number 955 of 2009 and 958 of 2009 and 959 of 2009, be heard together.

2. These are applications by which the applicant seeks compensation to be assessed pursuant to section 24 of the Criminal Offence Victims Act (1995) for personal injuries he suffered by reason of a personal offence committed upon him by the respondents.

3. The respondents have been given notice of the application, and I can therefore proceed to assess the compensation for the applicant.

4. The applicant was born on the 25th of May, 1973.  He, together with the respondents, were inmates of the Sir David Long Correctional Centre, when on the 13th of March, 2005, the respondents committed the personal offence of assault occasioning bodily harm in company whilst armed upon the applicant.

5. The respondents pleaded guilty to committing that offence upon the applicant before his Honour Judge Trafford-Walker on the 19th of June, 2006.  Each of the respondents were sentenced to a term of imprisonment for the offence.

6. Basically, the facts behind the offending are that the applicant and the respondents were in the protected area in the prison.  The applicant was walking through a gate where there were several inmates sitting on the stairs.  As he walked past, he was grabbed by the shirt by one of the respondents, who then tried to knee him.  The other respondents joined in, and a crude weapon was being used upon the applicant by some of the respondents.  This weapon was a sock in which there was a jam tin inside.  The complainant was struck several time by this weapon.  He was kicked and punched several times.  The assault was terminated when prison officers intervened.

7. On sentencing, it was accepted that the applicant suffered numerous abrasions and contusions, and he had lacerations to the inside of his lips, and contusions and/or abrasions to his wrist back area, and to his face and his knees and left thigh, and to his forehead and temple and chest area.

8. Otherwise, the evidence indicates that he made a complete recovery from his physical injuries.

9. The applicant was a person who prior to the assault had a long standing history of serious mental illness.  He had been diagnosed with manic depression, and then paranoid schizophrenia.  He was serving a substantial term of imprisonment for a number of offences, including rape, and attempted murder on a prison guard.

10. He had been admitted on numerous occasions for psychiatric help.  He was seen often by psychiatrists.

11. However, there is a report in support of the application before me from Mr Hatzipetrou, a psychologist.  Mr Hatzipetrou noted that the applicant continued to ruminate about the attack and the effects on his mental state despite his previous history.

12. Mr Hatzipetrou refers in his report to the applicant having a range of psychological sequelae of the trauma, such of feelings of insecurity, paranoia and intrusive thoughts.  That is, in the main, the applicant was very concerned that he would be assaulted again.

13. He had attempted to avoid thoughts and negative feelings associated with the incident, although he acknowledged psychological distress following the onset of those symptoms.

14. Mr Hatzipetrou thought that the applicant had suffered on-going symptoms from the assault of a mental and nervous shock kind for a period of at least 12 months following the assault. 

15. However, Mr Hatzipetrou thought these symptoms were of a mild degree.  Mr Hatzipetrou thought the applicant suffered an acute stress disorder following the incident, which impacted on the applicant's pre-existing mental health disorders.  He considers the applicant requires some psycho-therapy.  This is in the context of his previous condition, before the incident.  Mr Hatzipetrou considered the applicant did not, because of the incident, suffer a post traumatic stress disorder.

16. I am therefore satisfied that the applicant has suffered mental or nervous shock to a mild degree, because of the incident.  I am satisfied he did not contribute directly or indirectly to his injuries.

17. I consider, in all the circumstances, he should be compensated under Item 1 for bruising laceration, minor/moderate at 2 per cent, which is a sum of $1500.  I also consider he should be compensated under Item 31 for mental or nervous shock minor at 5 per cent, which is a sum of $3750.  Now, the total therefore is $5250.

18. I should say the application was filed on the 7th of April, 2009.  This pre-dates the repeal of the Criminal Offence Victims Act (1995) by the Victims of Crime Assistance Act (2009).  The effect of the latter Act is that I am to proceed and continue with the application and determine it under the former legislation.

19. I therefore order the respondents to pay the applicant the sum of $5250.00.