Milosavljevic v Clark

[2009] QDC 144

DISTRICT COURT OF QUEENSLAND

CITATION:

Milosavljevic v Clark  [2009] QDC 144

PARTIES:

ZORAN MILOSAVLJEVIC

(Applicant)

v

SYDNEY JAMES CLARK

(Respondent)

FILE NO/S:

174/08

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court of Queensland, Beenleigh

DELIVERED ON:

6 May 2009

DELIVERED AT:

Beenleigh

HEARING DATE:

6 May 2009

JUDGE:

Dearden DCJ

ORDER:

Order that the Respondent, SYDNEY JAMES CLARK, pay the Applicant, ZORAN MILOSAVLJEVIC, the sum of $23,250.00.

CATCHWORDS:

APPLICATION FOR CRIMINAL COMPENSATION – Unlawful wounding – Moderate stab wounds – Acid burns – Mental or nervous shock – Pre-existing depressive condition

LEGISLATION:

Criminal Offence Victims Act (Qld) 1995 ss 22(4), 24, 25, 26

CASES:

R v Clark [2008] QCA 51

R v Ward; ex parte Dooley [2001] 2 Qd R 436

Riddle v Coffey (2002) 133 A Crim R 220

Wren v Gaulai [2008] QCA 148

COUNSEL:              Mr A Maher for the applicant

No appearance for the respondent

SOLICITORS:          Trilby Misso, solicitors for the applicant

No appearance for the respondent

[1] The applicant, Zoran Milosavljevic, seeks compensation in respect of injuries suffered by him arising from an incident which occurred on 31 October 2003 at Slacks Creek.

[2] The respondent, Sydney James Clark, was convicted after a five day trial before me of unlawfully wounding the applicant.  The respondent was sentenced to 18 months imprisonment, suspended after four months, with a two year operational period.  This sentence was upheld on appeal (R v Clark [2008] QCA 51).

THE FACTS

[3] The facts were conveniently summarised by McKenzie AJA in the respondent's Court of Appeal judgment as follows:-

"The [respondent] was 55 at the time of the offence.  The [applicant] was 31.  The [respondent] conducted a business in one of several industrial sheds at Slacks Creek.  The [applicant] was employed as a furniture removalist for a business that operated from a nearby shed.  There had been friction over parking issues in the area although not necessarily between [the applicant] and the [respondent] personally.

Shortly before the offence was committed the [applicant] had parked his van and gone to get instructions about his tasks for the day.  When he came back he found a utility parked so close to it that he was unable to drive it away so that he might go about his work.  He found out that the utility was the [respondent's] and went to his premises.  He asked the [respondent] to move the utility.  When the [respondent] said words to the effect that he did not intend to do so because he was tired of trucks parking where the [applicant] had parked, the [applicant] said he was going to move his truck and if it hit the [respondent's] vehicle it would be the [respondent's] fault.  The [applicant] then left the premises.

Findings of fact were made by the trial Judge prior to sentencing the [respondent].  In summary, what happened was that as the [applicant] walked off the [respondent] hurried after him.  The [applicant] heard him say something and turned around then the [respondent] punched [the applicant] on the bridge of the nose.

The two men then grappled with one another.  During the course of this wrestling the [respondent] was held around the neck in a martial arts hold as a result of which the [applicant] was exercising substantial control over him.  The hold was released for a brief period during which the [applicant] punched the [respondent] twice in the head and then renewed the hold.

At some point in the struggle the [applicant] was stabbed in the back of the thigh although he did not notice immediately.  A work mate of the [applicant] then proceeded to pull him away from [the respondent].  While that was occurring the [respondent] stabbed the [applicant] in the front of the thigh with a small knife.  The exact nature of the knife was never adequately identified.

The trial Judge also made a finding that the [respondent] had committed the initial assault unlawfully and had provoked any subsequent assault on him by the [applicant].  Accordingly, self-defence was not available to the [respondent] on the facts of the case.

The second wound penetrated the subcutaneous fat layer.  The other penetrated the underlying muscle to a depth of six centimetres.  The wounds were cleaned and sutured in hospital and the [applicant] was allowed to go home after six or seven hours.  However, he [the applicant] suffered depression for six to 12 months after the incident and also increased his cannabis use which he attributed to the incident."[1]

[1] R v Clark [2008] QCA 51, Per McKenzie AJA p p2-3

THE LAW

[4] This is an application under s 24 of the Criminal Offence Victims Act 1995 ("COVA"). COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence. R v Ward ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the "most serious" case in respect of each individual item in the Schedule 1. Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. However, "where it is practical to make separate assessments under each applicable item in the [compensation] table, whilst at the same time avoiding duplication, that course should be adopted" unless it is impractical.[2]

[2] Wren v Gaulai [2008] QCA 148 per Fraser JA at para [24]-[25]

[5] Further, "if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for difference betweens the reins or maxima for each item".[3]

[3] Wren v Gaulai [2008] QCA 148 per Fraser JA at para [29]

[6] Ultimately the Court should ensure that there is compliance with the "use of the methodology prescribed by [COVA] s25 [which] is mandatory".[4]

[4] Wren v Gaulai [2008] QCA 148 per Fraser JA at para 22

COMPENSATION

[7] Mr Maher, who appears on behalf of the applicant in these proceedings, seeks compensation as follows:

1. Item 25 - stab wounds (moderate) - 8% - 16%. 

[8] The applicant suffered two stab wounds to the left thigh, a 20mm deep wound on the anterior aspect of the left thigh and a 6mm deep wound on the back of the thigh.  The wounds were sutured, but became infected and discharged considerable pus.  The wounds have healed but have left permanent scarring and a permanent, albeit relatively small, disability to the applicant's left leg, equivalent of a three per cent whole person impairment.  The posterior wound to the thigh may have damaged nerve fibres but an operation to correct scarring and other problems from this wound has only a 50 per cent chance of success[5].

[5] Exhibit RB1 pp1-4, Affidavit of Russell Broadbent sworn 8 November 2008

[9] I consider that this injury should be assessed at the middle of the moderate range, namely 12% of the scheme maximum ($9,000).

2. Item 2 - bruising/laceration etc (severe) - 3% - 5%. 

[10] Dr Broadbent noted that the applicant suffered acid burns to both hands in the incident.  These burns to both hands and arms were superficial but the hands blistered (on the applicant's report to Dr Broadbent) for 3-4 weeks.[6] It is appropriate then as submitted (despite the lack of other medical material) in my view to make an award under this item at 4% of the scheme maximum ($3,000).

[6] Exhibit RB1,p.2, Affidavit of Russell Broadbent sworn 8 November 2008

3. Item 32 - mental or nervous shock (moderate) - 10% - 20%. 

[11] The applicant was diagnosed by Dr Barbara McGuire as suffering a moderate degree of post-traumatic stress disorder (PTSD) with symptoms likely to attenuate over a matter of years.  Dr McGuire considered that the offence of the subject of these proceedings exacerbated a pre-existing depressive condition.  Dr McGuire noted that the applicant was able to carry out employment, with lessened performance, and reconcile his matrimonial relationship which had suffered and broken down for a short period.  There had been some self medication with illicit substances (as referred to in the Court of Appeal reasons of McKenzie AJA p.3).  Despite these effects, Dr McGuire considered that the applicant's innate resilience had enabled him to compensate and function adequately[7].

[7] Exhibit BM1, pp4-5, Affidavit of Barbara McGuire sworn 5 November 2008

[12] In the circumstances, acknowledging the pre-existing condition and balancing that against the clear effects of the diagnosed PTSD, I consider an award at the middle of the moderate range to be appropriate.  Accordingly, I award 15% of the scheme maximum ($11,250) under this item.

CONTRIBUTION

[13] In the light of my pre-sentence findings of fact,[8] there is no issue that the applicant's actions have contributed in anyway to his own injuries despite his involvement in the physical altercation (COVA s25(7)).

[8] see R v Clark [2008] QCA 51, per McKenzie AJA p.3

CONCLUSION

[14] Accordingly, I order that the respondent, Sydney James Clark, pay the applicant, Zoran Milosavljevic, the sum of $23,250.00.