Moonie v Wakefield

[2004] QDC 282

DISTRICT COURT OF QUEENSLAND

CITATION:

Moonie v Wakefield [2004] QDC 282

PARTIES:

Shane MOONIE

v.

Allan Gregory WAKEFIELD

FILE NO/S:

BD1866/04

DIVISION:

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

8 September 2004

DELIVERED AT:

Brisbane

HEARING DATE:

JUDGE:

B.C. Hoath DCJ

ORDER:

I order the respondent pay the applicant the sum of $20,250.00 as compensation for the injuries he received as a result of the offence of assault occasioning bodily harm of which the respondent was convicted on 2 October 2003.

CATCHWORDS:

CRIMINAL COMPENSATION – CONTRIBUTION – where respondent and another went to the applicant’s residence aware of a possibility of violence – where on arrival, the applicant broke two windows of the car the respondent and another were travelling in with a broken billiard cue – where respondent then assaulted applicant with a piece of wood – whether the applicant contributed to his injuries.

Legislation

Criminal Offence Victims Act 1995, s 25(7)

COUNSEL:

Mr P Rashleigh for Applicant.

No appearance for the respondent.

SOLICITORS:

Nicol Robinson Halletts for Applicant.

No appearance for the respondent.

1. Shane Mooney brings this application pursuant to the Criminal Offence Victims Act 1995 to obtain compensation for injuries he suffered as a result of an assault on him by the respondent Allan Wakefield at Agnes Waters on 16 August 2002.

2. When sentencing the respondent on 2 October 2003 following his conviction of the offence of assault occasioning bodily harm I did so on the basis that prior to the commission of that offence the applicant and a person by the name of Corey Owen had a history of animosity.  The respondent did not know the applicant but on 16 August 2002 he went with Owen in Owen’s car to the applicant’s residence to “sort the applicant out.”  On their arrival at the applicant’s residence the applicant immediately came up to Owen’s vehicle and smashed two windows of the vehicle with a broken billiard cue. 

3. Owen then got out of the vehicle and chased the applicant into his residence.  The respondent followed them and whilst the respondent restrained the applicant Owen engaged in a sustained assault on the applicant which included striking him numerous times with a piece of wood.

4. Following the assault the applicant was taken by ambulance to Bundaberg Base Hospital.  On examination he was found to have suffered:

a)Multiple tender abrasions and bruising to his face;

b)Tenderness and bruising to both sides of the chest wall.  Chest and rib X-rays demonstrated fractures of the 9^th, 10^th and 11^th ribs.

c)Multiple tender abrasions and bruising to the back part of the left forearm.

d)Linear tender bruising to the front of the abdomen.

e)Multiple tender abrasions and bruising to both shins.

f)Multiple tender abrasions and bruising to the right mid back.

5. Treatment consisted of initial pain relief, medical imaging of the abdomen to exclude internal organ damage, wound cleansing and admission for analgesia and observation.  The applicant was discharged from hospital on 18 August.  Since his discharge he has apparently not required any further medical treatment for his injuries.

6. As a result of his injuries the applicant suffered extreme headaches for the first three weeks after the assault and bad headaches for some three months.  Although not as frequently or as serious the applicant continues to suffer from headaches and has back pain.  He had sore ribs for several months after the assault, was in great discomfort and was not particularly mobile as a result of chest pain.

7. Apart from the physical injuries the applicant suffered symptoms of anxiety, nervousness, fear and apprehension, recurring intrusive thoughts, hyper-vigilance and interrupted sleep.  He became depressed and withdrawn for several months following the assault.  He became fearful and mistrusting of people.  He felt unsafe in being in his residence alone and feared the assailants would return and further harm him.  He became fearful of living on his own and moved to Brisbane to live with his stepbrother.  Subsequently he moved to Murwillumbah where he now lives with an aunt.

8. On 7 October 2003 the applicant was seen by Dr Dianah Cameron a clinical and neuropsychologist.  In a report of 24 January 2004 Dr Cameron concludes that as a result of the assault the applicant suffered mental and nervous shock (moderate) and a psychiatric condition namely a posttraumatic stress disorder.  Dr Cameron believes that the applicant would benefit from psychological treatment for trauma symptoms.  The anticipated outcome of that treatment is amelioration of his shock and mental trauma symptoms and greater ease and enjoyment going about his daily life.

9. In addition to the injuries I have previously referred to Dr Cameron is of the opinion that the applicant suffered a mild to moderate head injury evidenced by the bruising and contusions to his frontal and nasal facial regions and the severe headaches he subsequently suffered.

10. In assessing compensation under the Criminal Offence Victims Act it must be borne in mind that compensation is provided to help the applicant, is not intended to reflect damages to which the applicant would be entitled in a civil claim for damages and compensation is limited to an amount within the range set out against an injury in the compensation table in Schedule 1 of the Act with the maximum being reserved for the most serious cases and other cases then scaled accordingly to their seriousness.

11. In this case the applicant’s claim falls to be assessed on the basis of bruising and lacerations, a chest injury constituted by the broken ribs, a minor head injury and mental and nervous shock.  All those injuries are specifically referred to in the compensation table.

12. Having regard to the percentage range for each of those injuries referred to in the compensation table I am of the view that a reasonable assessment of the applicant’s injuries is:

a)As to the bruising and lacerations                  $2,250.00

b)As to the chest injury  $5,250.00

c)As to the head injury  $3,750.00

d)As to the mental and nervous shock              $11,250.00

That gives a total of $22,500.00.

13. Section 25(7) of the Criminal Offence Victims Act provides that:
14. “In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”

15. In this case although I am satisfied that the respondent went with Owen to the applicant’s residence with the intention of Owen “sorting out” the animosity that existed between himself and the applicant and that that could have resulted in violence, it is not possible to be satisfied as to what form that violence, if it occurred, would take.

16. Immediately Owen and the respondent arrived, the applicant broke two windows of the car they were travelling in with a broken billiard cue.  That clearly inflamed the situation.  Although there was a piece of wood in the car Owen may not have used that but for the applicant introducing a weapon into the incident.  As a result of the applicant’s action I am satisfied that he did contribute to at least the severity of the assault on him and the respondent’s involvement in it.  On that basis I am of the view that it would be appropriate to discount the applicant’s entitlement by 10 per cent on account of his own contribution to his injuries.

17. Accordingly I order the respondent pay the applicant the sum of $20,250.00 as compensation for the injuries he received as a result of the offence of assault occasioning bodily harm of which the respondent was convicted on 2 October 2003.