Mayne v Sheedy - [2010] QDC 286

[2010] QDC 286

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 1 of 2010

TOBY WILLIAM MAYNE	Applicant
and
PAUL TREVOR SHEEDY	Respondent

BRISBANE

..DATE 25/06/2010

ORDER

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Queensland) (the Act) for the physical injuries caused by the attack of the respondent on 15 August 2007.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act), which commenced on 1 December 2009.

The transitional provision in section 155(1)(a) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 27 January 2010. This was before the end of two months after the commencement as required by section 155(2)(b) it being the earlier of the dates required in that subsection.

For completeness, I note that on 28 May 2010 I gave leave for this application to be amended so that it referred to the applicant's conviction for grievous bodily harm and not to assault occasioning bodily harm. I regard this as an amendment to remedy a technical slip to the framing of the application rather than as affecting the substance of the application. It would have been abundantly clear to the respondent that the reference to injuries sustained as a result of the offence which led to the respondent's conviction on 11 September 2009 related to his conviction for grievous bodily harm on that date, however that offence was described.

On 11 September 2009 the respondent pleaded guilty to one count of grievous bodily harm upon the applicant. He was sentenced on that date to two years' imprisonment with an immediate release on parole.

As established by the affidavit of Mr Phillips sworn on 28 April 2010 the originating application and the affidavits relied upon by the applicant were personally served on the respondent. Subsequently, in accordance with another order that I made on 28 May 2010, the applicant's solicitor has effected service of a letter on the respondent advising him of the amendment to the application and also that I had ordered the application to be transferred from the Dalby Registry, where it was originally to be heard, to the Brisbane District Court Registry. This is established by a further affidavit by Mr Phillips sworn on 4 June 2010.

The respondent did not appear in Dalby on 28 May 2010 and has not appeared today. Accordingly, I proceed to hear the application in his absence.

Circumstances of the Offence:

The offence occurred in the employer provided accommodation in Dalby where the applicant and respondent were living at the time. As Mr Bailey, counsel for the applicant, accurately put it they had been engaged in some serious drinking together at an hotel for most of the afternoon and continued this at the shared accommodation.

When I sentenced the respondent, I described them both as "heavily intoxicated." They were each sitting at a table and were jovial, happy…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mayne v Sheedy

Details

AGLC: Mayne v Sheedy [2010] QDC 286
Case: [2010] QDC 286
Decision Date: 25/06/2010

CaseChat Overview and Summary

The District Court of Queensland was asked to decide a claim for compensation under the Criminal Offence Victims Act 1995 (Qld) by Toby William Mayne against Paul Trevor Sheedy. Mayne sought compensation for injuries sustained from an attack by Sheedy on August 15, 2007, which led to Sheedy's conviction for grievous bodily harm on September 11, 2009. The court had to determine the appropriate amount of compensation for Mayne's injuries, considering the transitional provisions of the Victims of Crime Assistance Act 2009 (Qld) and the principles governing compensation awards under the 1995 Act.

The court assessed Mayne's injuries, which included swelling, a facial fracture, facial disfigurement, and an ongoing ringing in his right ear. The court rejected the claim for compensation related to the alleged hearing loss due to the lack of expert evidence. Mayne sought compensation for bruising/lacerations, facial fracture, facial disfigurement, and loss of hearing in one ear. The court considered the contribution of Mayne's verbal provocation to Sheedy's girlfriend in determining the compensation amount. The court found that Mayne's provocation contributed to the severity of the attack but decided not to reduce the compensation amount for the swelling, as the reduction would have been minimal. The court assessed the facial fracture and disfigurement as part and parcel of the same injury and awarded 25 per cent of the scheme maximum for this injury, amounting to $18,750. For the swelling, the court awarded two per cent of the scheme maximum, amounting to $1,500.

The court ordered Sheedy to pay Mayne the sum of $20,250 by way of compensation for the injuries sustained as a result of the grievous bodily harm offence. The court's decision considered the applicable principles, the evidence provided, and the relevant legislation in making the determination.

Orders