Luzardo v. Popit

[2008] QDC 265

DISTRICT COURT OF QUEENSLAND

CITATION:

Luzardo v Popit [2008] QDC 265

PARTIES:

CESAR ARIEL LUZARDO  

(Applicant)

v

CHRISTOPHER ROSS POPIT                   

(Respondent)

FILE NO/S:

518/08

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court Southport

DELIVERED ON:

14 November 2008

DELIVERED AT:

Southport

HEARING DATE:

10 November 2008

JUDGE:

Kingham DCJ

ORDER:

I order Mr Popit pay Mr Luzardo the sum of $13,500 by way of compensation for injuries sustained by him as a result of the commission of the offence for which Mr Popit was convicted on 8 August 2007.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – assessment of compensation

PRACTICE AND PROCEDURE – SERVICE – sufficient notice of proceedings given to serve respondent

Criminal Offence Victims Act 1995 ss 24, 28(1)

COUNSEL:

C Bagley for the applicant

SOLICITORS:

Price & Roobottom Solicitors for the applicant

1. This is an application by Mr Luzardo pursuant to s24 of the Criminal Offence Victims Act 1995 for compensation for injuries he sustained in an assault by Mr Popit on 26 January 2006.  Mr Popit was convicted on his plea of guilty to serious assault of Mr Luzardo on 8 August 2007.  Mr Luzardo claims compensation for physical injuries and for mental or nervous shock.  I am satisfied Mr Popit’s offence is a personal offence and that the injuries Mr Luzardo sustained are compensable.

1. Mr Popit did not appear and was not served personally with the documents.  Extensive enquiries on Mr Luzardo’s behalf failed to locate Mr Popit but did reveal an address at which Mr Popit had apparently once resided.  The application was given to a person at that address who identified himself as the former partner of Mr Popit’s mother.  He confirmed Mr Popit had formerly resided there. Later, the supporting affidavit material was sent by express post to Mr Popit at the same address.  That address is the address nominated by Mr Popit on a bail application and is the last known address in records of the Registry of the Southport District Court.  On 1 November 2008 a public notice appeared in the Courier Mail which advised of this application, when and where it would be heard and how the documents and further information could be obtained.  In the circumstances, I am satisfied that all reasonable steps have been taken to draw this application to Mr Popit’s attention.  I am satisfied that the respondent has been given sufficient notice of the hearing of this application by those measures. (s28(1))

1. When he was assaulted by Mr Popit, Mr Luzardo was a constable of police with the Queensland Police Service.  On 26 January 2006 he and another officer responded to reports that Mr Popit was armed with a knife and threatening people. When the officers arrived, and while they were still in the police car, Mr Popit lunged at the other officer, Constable Dunlop, with his knife, but luckily did not make contact.  Both officers left the vehicle, drew their service pistols and pointed them at Mr Popit.  Mr Popit was instructed to drop the knife.  He was in an agitated state, refused to obey police instructions, moved towards Mr Luzardo, who backed away, and called on them to shoot him.  Mr Popit’s girlfriend intervened and he was disarmed but he continued to advance towards Mr Luzardo.  Mr Luzardo holstered his weapon, drew his capsicum spray and sprayed Mr Popit who became agitated, and punched the officer twice to the left side of his face and skull.  Constable Dunlop intervened and eventually Mr Popit was subdued. 

1. Mr Luzardo attended the Accident and Emergency section of Pindara Hospital.  He sustained a large abrasion and swelling to the temple and cheek area.  He experienced pain for a number of days and was prescribed some painkillers and anti-inflammatory drugs.  He was unable to eat solids for a number of weeks and developed migraines soon after the incident which continued for a number of weeks.  Mr Luzardo also experienced ringing in his ears and extreme pain in the nerve area of his teeth in the left side of the mouth which continued for some months.  He had difficulty exercising and maintaining his level of physical fitness.

1. At the time, Mr Luzardo believed that either he would be killed by or would need to kill Mr Popit.  In his own mind he shot and killed Mr Popit and was left with morbid preoccupying thoughts of death and guilt.  It appears that a significant contributor to the psychological condition he developed was the enormous responsibility he felt in a life threatening situation and his reaction to being placed in a position where it may have been necessary to take another person’s life.

1. The incident also triggered memories of his mother’s passing and associated unresolved grief.  He developed nightmares, flashbacks, mood variation, and anxiety and panic attacks attached to his patrol work and felt ineffectual as a police officer.  At home he became emotionally withdrawn, moody and irritable and his marriage failed under the pressure.  Mr Luzardo attributes the subsequent breakdown of his marriage and his decision to leave the police force to his response to the incident. 

1. Dr Dianah Cameron, clinical and neurological psychologist, examined Mr Luzardo on 19 October 2007.  She diagnosed him as having sustained Post Traumatic Stress Disorder which had by then, for the most past, ameliorated. Nevertheless, in the early stages of the disorder Mr Luzardo suffered severely.  He lost both his career with the police force and his marriage.  When he consulted Dr Cameron, he still suffered residual dysthymia, grief due to the marriage breakdown and difficulty adjusting to his new home and work in Canberra.

1. Mr Luzardo did not contribute to his injuries or to the incident in such a manner that would justify a reduction in his compensation award.

1. I award compensation of $12,000 calculated as follows:

(a)        Item 1 – Bruising/Laceration (minor/moderate) – 3% of the scheme maximum = $2,250; and

(b)        Item 32 – Mental or Nervous Shock (moderate) – 15% of the scheme maximum = $11,250.

1. I order Mr Popit pay Mr Luzardo the sum of $13,500 by way of compensation for injuries sustained by him as a result of the commission of the offence for which Mr Popit was convicted on 8 August 2007.