McDonald v Appoo

[2006] QSC 111

SUPREME COURT OF QUEENSLAND

CITATION:

McDonald v Appoo [2006] QSC 111

PARTIES:

ALOIS WILDER JOYCE MCDONALD

(applicant)

v

ASHLEY JOHN APPOO

(respondent)

FILE NO/S:

BS 1050/06

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 May 2006

DELIVERED AT:

Brisbane

HEARING DATE:

14 March 2006

JUDGE:

Atkinson J

ORDER:

Applicant awarded $75, 000 by way of compensation against the respondent pursuant to the Criminal Offence Victims Act 1995.

CATCHWORDS:

CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where the respondent pleaded guilty to offences of manslaughter and grievous bodily harm – where applicant suffered multiple injuries to her head, face, chest and legs – where applicant seeks criminal compensation for injuries sustained

CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where the applicant’s husband was killed as a result of manslaughter – where applicant seeks criminal compensation as a dependant – where the applicant must apply to the relevant Minister

Criminal Offence Victims Act 1995 (Qld) s 5, 19, 20, 25, 36, 36, Sch 1, 3

COUNSEL:

R Morgan for the applicant

No appearance for the respondent

SOLICITORS:

Baker Johnson Lawyers for the applicant

No appearance for the respondent

1. Ashley John Appoo pleaded guilty to one count of manslaughter and one count of grievous bodily harm on 11 October 2004.  On the date set for sentencing he also pleaded guilty to a summary count of possession of a dangerous drug.  He was sentenced to 18 years imprisonment for the offence of manslaughter and a declaration was made that he had been convicted of a serious violent offence.  With regard to the offence of grievous bodily harm (recorded in the certificate of conviction as one count of malicious act with intent), a sentence of 10 years imprisonment was imposed to be served concurrently.  A declaration that he had been convicted of a serious violent offence was also made with respect to that count.  On the count of possession of a dangerous drug a sentence of seven days to be served concurrently with the other sentences was imposed. 

1. Alois Wilder Joyce McDonald made an application for compensation under the Criminal Offence Victims Act 1995 (COVA) for injuries sustained as a result of the offences which lead to the conviction of Mr Appoo for those offences against herself and against her late husband, John McDonald.

The offences

1. The circumstances of the offences were recorded in my sentencing remarks.  At the time the offences occurred Mrs McDonald was a 50 year old woman who lived with her 56 year old husband on 40 acres of land near Woodford.  She and her husband had moved there in 1982 with their three sons.  By November 2001, when the offences occurred, Mr and Mrs McDonald were living there alone together. 

1. At about lunchtime on Saturday 17 November 2001 Mrs McDonald was driving her utility along the D’Aguilar Highway home from Woodford.  As she approached the Beerwah turn-off she saw someone walking along the left hand side of the road with a dog.  She thought it was a friend of both herself and her husband whom she picked up occasionally when he was walking along the road.  After she stopped, she realised it was not the person she knew but offered him a lift to the next turn-off because it was a hot day. 

1. Mr Appoo got into the car and they exchanged pleasantries.  He told her that he was making his way to Goondiwindi to do cotton picking.  She invited him back to her home for lunch and said that they would drive him back to the highway when it cooled down.  When they arrived home, Mrs McDonald introduced Mr Appoo to her husband and they spent the afternoon talking, drinking beer and smoking cigarettes.  Mr Appoo drank less than Mr and Mrs McDonald, both of whom were alcoholics. 

1. Mr Appoo asked them if they knew anybody with some “dope”.  Mrs McDonald said she did not but she knew there was some marijuana that had been left by someone which she gave to him.  He smoked that marijuana.  Mr Appoo had with him a Bible of which he was proud.  Mrs McDonald told him that they were not religious people but they listened to his conversation about the Bible.  During the afternoon they drove into Woodford and then returned to the McDonalds’ house.  At around six that evening they invited him to stay the night.  Mrs McDonald said she knew she had had too much to drink to drive him back to the highway. 

1. Mrs McDonald’s next memory is of the following morning when she woke up on the two seater lounge.  Mr Appoo and her husband John were already sitting at the dining room table.  Mr Appoo was drinking tea and Mr McDonald was drinking wine from a four litre cask that she had bought the previous day in Woodford. 

1. They let Mr Appoo take the car to see if he could find some marijuana.  He offered to buy another cask of wine.  Mr and Mrs McDonald sat around talking to each other and drinking wine.  After lunch Mr Appoo came back and put the car under the back porch where it was kept.  The keys were left in the car as they usually were.  Mr Appoo brought a four litre cask of white wine and, according to his version, some food, back with him.  After he returned to the house, Mrs McDonald and Mr Appoo started drinking the cask wine together.  She said he seemed to get inebriated quickly and started getting irate about some things so she changed the subject to keep him happy.  She went and sat next to her husband on the lounge and switched on the television.  Later on she was conversing with Mr Appoo and told him that she was an atheist and what that meant.  That upset him so she went back in and watched television, sitting beside her husband. 

1. Mr Appoo appeared at the door of the lounge room, yelling at them in racially abusive terms.  She told him to settle down, that she was not a racist otherwise she would not have invited him into her home.  Mr Appoo then walked over to her and hit her very hard across the face with his open hand several times.  When she tried to get up, he punched her back down.  She yelled at him to take the car and to leave them alone. 

1. Mr McDonald stood up to help her and Mr Appoo pushed him back into the chair with his hands.  Mrs McDonald continued to tell Mr Appoo to take the car and when he went out of the room she assumed he went out to get the car.  However he came back carrying an axe which was kept in a wood heap beside where the car was parked.  He stood in front of Mrs McDonald with the axe at his waist height with the head pointing towards her, threatening to chop her into pieces.  Mr McDonald told him to put the axe down and take the car and go.  He continued to threaten Mrs McDonald so Mr McDonald stood up and tried to get between them.  Mr Appoo then punched Mr McDonald to the ground and started kicking him. 

1. Mrs McDonald ran into the kitchen and dialled 000 on the phone.  She then went back to where Mr McDonald was on the floor.  Mr Appoo then started smashing up the house with the axe.  He put the axe through the screen of the television and broke the kitchen table.  He used the table top to break up the furniture in the kitchen and the dining room.  The police then arrived.  He was subdued with some difficulty. 

1. Mrs McDonald was evacuated to the Caboolture Hospital where radiology revealed an undisplaced fracture of her right clavicle, compound fractures to her mandible, fractures to the lateral wall of her left orbit and an undisplaced fracture to the  medial malleolus of her right ankle.  In addition she had a number of lacerations to her scalp, above her left eye, and on her right hand, upper lip and her right leg.  In addition she had multiple bruising to her left eye and right and left mandibular region.  There were multiple bruises and abrasions of her right shoulder and anterior chest.  There is no doubt that her injuries could have caused permanent injury if left untreated and that therefore she sustained grievous bodily harm. 

1. She was treated with intravenous analgesia, intravenous antibiotics, and tetanus prophylaxis, her scalp laceration was sutured and dressings applied to her legs, and her fractured ankle was placed in a plaster backslab.  She was transferred to the Royal Brisbane Hospital for further care of her fractured jaw.  At the Royal Brisbane Hospital she underwent surgery and had titanium plates and screws placed in her broken jaw.  She has been left with scars and diminished jaw function.  Her injuries were consistent with several blows using moderate to severe force with a blunt object. 

1. Mr McDonald died as a result of the attack on him by Mr Appoo.  The cause of death was blunt trauma to the chest and abdomen.  The trauma was delivered by kicks, punches and stomping on the abdomen.  A rectangular lesion on the front of his abdomen was consistent with being caused by the blunt edge of an axe.  There were wounds to the right eye region, arms and legs which could have been caused by the corner of an axe blade or part of the sharper edge.  There were lacerations on the back of the forearms and the left leg which were defence wounds. 

1. His internal injuries including tearing of the splenic hilum, left lung haemorrhage and fractured ribs and a mesenteric lesion which was characteristic of stomping.  There was bruising of both lungs and tearing of the left lung with fracturing of the ribs on the left hand side of the chest.  In the abdomen there was a large amount of blood due to tearing and bruising of the mesentery.  There was some three litres of blood in the abdominal cavity on post mortem.  Mr McDonald was heavily intoxicated at the time of death.

Criminal Offence Victims Act

1. Mrs McDonald is a “victim” for the purposes of COVA because she falls within two of the definitions of that term as defined in s 5.  She is a person who has suffered harm from a violation of Queensland’s criminal laws not only because a crime of personal violence was committed on her, but also because she was a member of the immediate family of, or was a dependant of, a person who had a crime of personal violence committed on him.

1. A “dependant” is defined in Schedule 3 of COVA as follows:

“dependant”, of someone, is a person who is completely or partly financially dependent on the income of the other person.”

Mrs McDonald falls within this definition.  In her affidavit filed on 13 March 2006 she deposed that she was now in serious financial difficulties because of the loss of Mr McDonald’s income.

1. Part 3 of COVA sets up a scheme for the compensation of victims of such crimes. Section 19(1) relevantly provides:-

“19Scheme for compensation for injury, death and expenses from indictable offence

(1)This part establishes a scheme for the payment of compensation to a person (the applicant) -

(a)for injury suffered by the applicant caused by a personal offence committed against the applicant; or

(b)for the death of someone on whom the applicant was dependent, caused in circumstances constituting murder or manslaughter;”

1. The method of compensation of victims of crimes varies depending on whether or not they have suffered an injury as a result of a crime of murder or manslaughter against a person on whom they are dependent or as a result of a crime of personal violence against themselves.

1. If a person dies as a result of murder or manslaughter, a dependant of that person may make an application pursuant to ss 35 and 36 of COVA to the relevant Minister for payment from the State:-

(1)          up to $30,000; [1]

(2)          up to $4,000 for the expenses of the deceased’s funeral; [2]

(3)          up to $2,000 for other expenses for damage caused in the course of the relevant crime’s commission.[3]

[1] COVA s 35(2)(a); Criminal Offence Victims Regulation 1995 (“Regulation”) s 3

[2] COVA s 35(2)(b), (3)(a); Regulation s 4

[3] COVA s 35(2)(c), (3)(b), Regulation s 5.

1. A victim of a crime of violence against the victim personally must make an application to a court for an order that the convicted person pay compensation to the victim for the injury suffered by the victim because of the offence.  If the court determines that the applicant is entitled to a compensation order then that person may make an application to the relevant Minister for the State to pay all or part of the compensation order to the applicant.

1. This application therefore concerns only the compensation order that should be made in respect of the injuries suffered by the applicant in respect of the offence against her person.

1. Injury is defined in s 20 of COVA to include not only physical injury but also mental or nervous shock. The maximum amount of compensation payable is $75,000 which is reserved for the most serious cases. It can be seen from the circumstances described and the seriousness of the injuries suffered by Mrs McDonald that this is such a case. The amount of compensation is determined by Schedule 1 of COVA (the “Schedule”) which sets out the amounts recoverable (up to the scheme maximum) for each type of injury the applicant has suffered.

1. I am required pursuant to s 25(7) of COVA in deciding whether an amount, or what amount, should be ordered to be paid for an injury to have regard to everything relevant, including any behaviour of the applicant that directly or indirectly contributed to the injury. There was no such behaviour in this case. Mrs McDonald acted out of kindness when she picked up Mr Appoo and brought him to her home. His violence was, in large part, a result of his extreme over-reaction to the stimuli in the McDonalds’ house. That extreme over-reaction was not caused by the McDonald’s behaviour, but by a head injury the respondent suffered when he was the victim of an earlier unrelated crime. The injury to his brain left him prone to irrational, intense and impulsive anger. It was this intense, unpredictable anger which led the respondent to attack Mr and Mrs McDonald and to the extreme violence of that attack. The amount of compensation which should be ordered is unaffected by the applicant’s behaviour. Nothing she did directly or indirectly contributed to the horrific injuries she received.

1. Mrs McDonald suffered a number of fractures in her facial area, which, considered together, were severe. She suffered severe bruising and lacerations, a fractured collar bone, a severe fracture of her ankle, minor chest injuries and minor scarring. Her physical injuries fall under various items found in the compensation table in the Schedule as follows:-

   
   
   

2.          Bruising/laceration (severe)  5%

8.          Facial fracture (severe)  30%

12.        Fractured collarbone  15%

20.        Fracture to ankle (severe)  25%

21.        Neck/chest injuries (minor)  7%

27.        Facial disfigurement or bodily scarring (minor)         2%

1. The compensation table does not allow for further sub-division of injuries beyond those itemised. A number of bruises or lacerations does not give rise to claims for each one under item 2; neither does a number of facial fractures give rise to several claims under item 8.

1. These itemised bodily injuries account for 84% of the scheme maximum.  In addition she has suffered moderate nervous shock as a direct result of the attack on her. This is detailed in Mrs McDonald’s affidavit and the report of the psychologist, Peter Stoker, in which he concludes that as a result of the incident, Mrs McDonald suffered heightened emotionality, insomnia and flashbacks and has periods of depression. She also developed a clinically significant post-traumatic stress disorder.  I would place her nervous shock at about 20% of the scheme maximum.

1. It can be seen, therefore, that she is entitled to an amount which would be in excess of $75,000 were it not for the fact that $75,000 is the maximum compensation order that can be made.

1. I make a compensation order of $75,000 in favour of the applicant, Mrs McDonald, against the respondent, Mr Appoo, in respect of his conviction on one count of malicious act with intent.