Madden v. Merlo

[2009] QDC 118

DISTRICT COURT OF QUEENSLAND

CITATION:

Madden v Merlo [2009] QDC 118

PARTIES:

Derek Michael Madden

(applicant)

V

Mario Giovani Merlo

(respondent)

FILE NO/S:

625/2009

DIVISION:

Application

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

Ex tempore on 28 April 2009

DELIVERED AT:

Brisbane

HEARING DATE:

28 April 2009

JUDGE:

Kingham DCJ

ORDER:

1. Mario Giovani Merlo pay Derek Michael Madden the sum of $42,000 by way of compensation pursuant to s 24 of the Criminal Offence Victims' Act 1995 (Qld).

CATCHWORDS:

CRIMINAL COMPENSATION – grievous bodily harm – multiple head fractures – laceration - nervous shock minor – loss of teeth

Criminal Offence Victims' Act 1995 (Qld), s 21, s 24, s 25(7)

COUNSEL:

Maher for the applicant

No appearance for the respondent

SOLICITORS:

Trilby Misso Lawyers for the applicant

HER HONOUR:  This is an application by Mr Madden for an order that Mr Merlo pay compensation for the physical and psychological injuries he suffered at Mr Merlo's hands.

On the 8th of February 2007, Mr Merlo pleaded guilty to a number of offences including one offence to which this application relates and that is of the offence of grievous bodily harm.  He was sentenced to imprisonment for a period of five years with a parole eligibility date fixed at the 8th of February 2009.  This is a personal offence under the Criminal Offence Victims' Act,[1] s 21, and Mr Madden is entitled to an order for compensation pursuant to s 24(2).

[1] Criminal Offence Victims' Act 1995 (Qld).

Mr Merlo appears to be aware of the application having previously consented, requested and signed a consent to adjourn the hearing on a date earlier fixed for this application.  Whilst he has not appeared, I am satisfied that he is aware of the application and there is proof of service upon him.

This offence occurred when Mr Merlo punched Mr Madden repeatedly to the head and face at a tavern.  Mr Madden fell to the ground, either from the punches or the fall or both, he suffered multiple facial fractures resulting in no less than 16 titanium mini plates having to be inserted into his head.  His left orbital floor had to be reconstructed and he lost a number of teeth. 

At sentence, the learned sentencing Judge, His Honour Judge Forno noted the offence was committed upon a man who did not offer any violence to the respondent.  It was a vicious attack which resulted in multiple head fractures.  The slight, if any offered, was a tenuous explanation for the attack.  Whilst Mr Merlo pleaded guilty to the offence there was not much by way of a defence which appeared to arise on the facts.  He also expressed the view that Mr Merlo appeared to present a danger to the community.

Given the observations of his Honour at sentence and the lack of any evidence to the contrary, I am satisfied there is no evidence of factors relevant to the Court's exercise of discretion under…