Mullins v. Foleti and Kongaika

[2008] QDC 175

[2008] QDC 175

DISTRICT COURT

CIVIL JURISDICTION

JUDGE RYRIE

No 2957 of 2007

JOELENE ANITA MULLINS	Applicant
and
MAAFU LELE FOLETI and CEDRIC KONGAIKA	Respondent

BRISBANE

..DATE 17/04/2008

ORDER

HER HONOUR:  This is an application for criminal compensation pursuant to section 24 of the Criminal Offences Victims' Act of 1995 for the actual injuries sustained by the applicant as a result of an indictable offence that led to the conviction of the respondents in this matter, Ms Foleti and Mr Kongaika on the 4th of August 2006 before the District Court of Brisbane.

Both of those young men pleaded guilty to robbery in company with personal violence for an offence that occurred on the 21st day of December 2005.  As a consequence of pleading guilty, both the respondents received a period of imprisonment to be served consequent upon which they were to remain out of trouble for a subsequent period under a suspended sentence, a term of imprisonment ordered by his Honour, Judge Dearden.

Both of the respondents have appeared today to be heard in respect of the application.  Neither had legal representation.  However, Mr McMahon, who appeared on behalf of the applicant, has provided to both of the respondents the material relied on to support the application and helpfully gave both of the respondents a copy of the schedule in so far as it's relevant for the assessment of any compensation ordered with respect to items contained in the relevant Act as well as an outline of his submissions.

Mr McMahon then helpfully went over the material in detail with reference to the respective reports in order that both respondents might understand the process better in light of the fact that they were unrepresented today.

Submissions were heard from Ms Foleti on behalf of both of the respondents, with the permission of his brother, to be heard on several of the points raised by Mr McMahon, one of which he raised a concern that the applicant may not have been entirely truthful when she said she wasn't a smoker or was using illicit drugs.

It does appear there was a misunderstanding from Ms Foleti, interpreting, quite understandably, a medical record written by the emergency department under the written hand of a doctor who had transcribed there that she may have, indeed, used the drugs and smoked.

That is not how I would interpret the actual reference in the document but rather, it was the opposite, but as I have said, it is an understandable mistake in light of the fact that doctors' writing, at best times, is difficult to understand, particularly with reference to their shorthand that they adopt sometimes when making notes.

Ms Foleti also raised a query about when she first consulted her GP after the assault had occurred on the 21st of December 2005.  Medical records annexed to the affidavit of Mr McMahon, sworn on the 12th of October 2007, in particular, COM1, it refers to her attendance, not only up on the Emergency Department on the night in question of the assault when it took place and subsequently, from her own GP, on the 28th of December 2005, and then subsequent attendances upon the doctor in respect of her psychological state and physical state as a direct result of the assault for which she told the doctor, her GP, were causing her difficulties, namely headaches, anxiety, stress, unable to sleep, etc.

The facts can be stated in short compass, on the 21st of December 2005.  Both of the respondents committed a robbery, as it were, on the applicant who was a female taxi driver in the night-time. 

Judge Dearden, who was the sentencing Judge, remarked he considered both of the respondents to be clearly and jointly, as he put it, and utterly responsible for the effects and impacts of the violent robbery having had upon her.

He had received some submissions during the sentencing process which caused him to place that in the sentencing remarks.  I have read the sentencing remarks of Judge Dearden.

Nothing in those sentencing remarks, however, suggest that one of them was more culpable than the other and as such, I consider it appropriate to assess compensation on that basis.

The affidavit under the hand of Ms Mullins, herself, sets out the effects that it immediately had upon her in so far as the assault that occurred on the 21st of December 2005.

She also sets out the ongoing effects of the injuries, the effects it had on her employment, medical assistance that she has gathered, what she had told Dr Morgan, Dr Pentis, psychologist and orthopaedic surgeon respectively when she attended upon them and her current effects at the time she swore her affidavit which was the 5th of December 2007.

It must be said that her affidavit supports the basis upon which the medical reports have been based, that is, on the premise upon which Dr Morgan and Dr Pentis have formed their opinions.

There is no, what I call, nominally sufficient enough to cause me concern that she has said one thing in her affidavit and subsequently told the specialist another.  Nothing of that nature arises.  Therefore, the opinions of both Doctors Morgan and Pentis should be accepted in the circumstances.

Dealing, first of all, with the physical aspect of the injury that has resulted, the report under the hand of Dr Pentis, 24th of March 2007, sets out the current presentation when Dr Pentis saw her on the 6th of March 2007, consistent with her having had previous headaches before, however, suffering much more severe headaches since the assault.

She complained to Dr Pentis she still had an aching pain in her neck, had some difficulty sitting, driving, and was still uncomfortable, might wake on occasions and in the odd positions had pain.

He noted she was 27 years of age, overweight but fit and that she was able and had been able to work in taxis for two and a half years and had subsequently worked, as he noted, since she gave away taxi driving as a result of the attack, odd anxiety she suffered after the incident involving the respondents had occurred.

She had worked at Coles, stacking and parcelling and she was currently working at the time Dr Pentis saw her with a bus company, sitting on a bus, watching children but would hope to eventually drive.

We also know that the examination that there was a reasonable range of movement in her cervical and thoracic spine and that there was no gross tenderness at all that he could find.  In other words, he found nothing remarkable.

As best as Dr Pentis could without having any x-rays to review or any other examination of revelation determined to him, other than unremarkable as he said, he was satisfied that she had suffered the soft tissue injury, however, to the cervical spine that caused her pain and that it was still persisting.

He noted that a deal of time had passed and that he thought that a management of it would just simply involve commonsense.  He was willing to assess her of a residual incapacity impairment in the order of 5 to 7.5 loss of efficient loss of her spine as a whole but noted that 5 to 8 per cent impairment of the whole person was appropriate.

It may well be that that assessment has been assessed as far and as best as I can determine that Dr Pentis took into account the other difficulty that she had stated, not only related to the spine but also in relation to the mandibular joint as well.

She had complained to him that she had been having pain in the neck, headaches, pain in the face, in the relevant joint area mentioned and also pain in her shoulders.

The report of Dr Morgan, again, confirms the history as given by Ms Mullins, of the effects, not only immediately but ongoing it had upon her, for completeness the physical injuries she had sustained, which included the neck stiffness and the persistent headaches.

She also, to some degree, confirmed the physical injury treatment she'd been seeking such as masseuse as well as other treatments she had been trying to seek to address the headaches she had been attending for that purpose.

We also noted that she was taking Zoloft, an antidepressant medication that had been prescribed by her general practitioner approximately two months prior to the interview which took place on the 22nd of November 2006.

We noted that she stopped taking them for a while and that she had forgotten to take it but that she had commenced phone counselling with a counsellor.  She had face to face contact with a counsellor.

It had helped her in a positive way to cope and that, indeed, she was not wanting to continue after the counsellor she had had face to face with, he had given positive results again because she did not want to start with someone new.

The report that Dr Morgan sets out there, a series of effects and impacts adversely upon Ms Mullins.  She remained distressed at interview and she reported anxiety and proximity to people.

She felt nervous in large social groups.  She was anxious under social conditions.  She reported her confidences dropping, sensed her emotions being less in control.  She felt a sense of detachment.  She had denied intrusive visualisations referable to the assault but it had effect on her relationships both socially and intimate, that she felt she had fallen apart because she did not have much parental support.

She still enjoyed driving, did try to avoid driving at night and the cause to her sleep was reduced and she did have some bad dreams.  Other than that, she described her sleep, she described to the doctor, as mostly okay.

The effect on her occupation was relevant for the purpose of my determination as to the impact this ultimately had upon her and its continuing nature.

Dr Morgan was of the view that she had suffered, not only a post-traumatic stress disorder but in addition, she had also experienced an independent adjustment disorder with depressed mood which had arisen both directly related to the assault.

Those two conditions, collectively, were problematic in her social occupational and indeed general functioning.  Dr Morgan went on to say that initially she appeared to have suffered in the severe range, in so far as the diagnoses made but also severe range in terms of functional impairment.

Subsequently, he noted her periods of distress and experiences were in the moderate range in terms of severity but were still remaining severe in terms of functional impairment, primarily, as he noted, upon her occupational function, and therefore economical ability.

Thus it becomes relevant to look at the effect on her occupational employment.  She was working as a taxi driver at the time of the incident.  She returned but she was too frightened to cope because she was working at night.

She went on till the daylight hours but still was unable to continue.  She experienced anxiety when she would transport men on even daylight hours.  She finally gave her job away after having done it for a period of time, approximately two years or so.

She found a job then at Coles as a night packer.  It was the economic impact upon her that caused her to give that job away, it appears.  She then found alternate work as a bus supervisor which was probably maybe around the same time
Dr Pentis saw her.

That, again, was low paid work and she suffered financially.  She then found work as a traffic controller and at the time she swore her affidavit in December 2007, she was still doing that work.

She found that it is not highly paid but that she enjoyed it.  It was, again, less than what she could have earned as a taxi driver.  As a result of her reduction in income, she struggled financially.  She has had to borrow money from friends and family and her need to borrow money embarrassed her and caused her to lose confidence in her ability to care for herself.

It must be said then that Ms Mullins, to her credit, has managed to cope better than normally one the Court sees in these matters where one has a diagnosis to the degree as stated by Dr Morgan.

Her occupational persistence within the workforce, even after suffering financial hardship demonstrates that she is a woman of some stoic make-up in that she not only has suffered two very serious little disorders, diagnosable under the recognized, DSM4, manual used by clinical psychologists but more so a psychiatrist and diagnosis, but she has, as I have said, managed to continue working and has sought self help and that is to her credit.

It must be said, however, that the report of Dr Morgan must be read in connection with her own affidavit where, even when she has managed to make those inroads into getting on with her life, she does say that she continues to suffer from headaches, neck pain and stiffness and the psychological impacts have continued to have a greater impact upon her.

She states at paragraph 40 of her affidavit that she still is fearful, she is not fearful in her own home but still uncomfortable in the presence of men, still has some trouble sleeping, staying asleep, still feels depressed, cannot see an end which may be attributable to her financial position, but also that she thinks the incident has changed her life and may never return to normal.  That supports the impact it has had upon her.

Now, the Act itself provides a scheme for payment of compensation for injury caused by an indictable offence committed against the person of the applicant.  Injury is defined in section 20.

I am satisfied that the applicant in this case has suffered both physical and psychological injuries.  Compensation, it must be remembered under this Act, is intended to assist the application not to reflect the compensation which might otherwise be entitled under the common law or otherwise.

The Court may not award a total of more than the scheme maximum which is currently set at 75,000.  Various categories of injuries are set out in the compensation together with the percentage of the scheme maximum which may be awarded to each injury as assessed.

I consider on the material before me the relevant categories applicable in this case appear to be item 1, bruising, item 23, neck, item 33, mental or nervous shock severe.

Item 1 relates to bruising.  I consider that the bruising that Ms Mullins suffered as a result of the direct assault was she was taken around the neck and throat and pulled on her left forearm as left her with bruising and as a consequence, I consider an appropriate amount to be awarded under item 1 in respect of all bruising in relation to those injuries, should be in the order of 3 per cent.

Item 23 relates to neck, back, chest injuries severe.  I consider, based on the report of Dr Pentis who has confirmed that she continues to have headaches, more persistent than what she had which have a direct impact upon her socially and particularly occupationally, that she should receive some recognition of the difficulties and ongoing effects it will have upon her future employment.

She has suffered, in his opinion, the soft tissue injury whilst no gross abnormality.  He has stated that, as a whole she has suffered in the order of 3 to 8 per cent impairment of the whole of the spine.

As I have indicated, she has continued pain in around her facial region of which Dr Pentis, I suspect, included as part and parcel of the pain and difficulty is related to her neck, shoulder, headaches as well as jaw area.

Taking all of those factors into account, I am satisfied to put them under the same category to include, as I have said, the pain that is currently being present in the tempo mandible joint as well as the other issues relating to her spine as a  whole.  I order that an appropriate amount should be assessed at 15 per cent to cover those matters under item 23.

Item 33 relates to mental and nervous shock.  It must be said that the categories, to some degree, and items 32 and 33 overlap from moderate to severe.

In my view, taking into account the matters I have already stated in relation to
Ms Mullins and the efforts that she has made inroads into getting back to work and getting back into the community, taking into account the continuing effects upon her and most importantly, accepting that she has suffered and continues to suffer from psychological impacts, that I am of the view that she has suffered a serious mental and nervous shock and that that should be assessed in the order of 20 per cent.

It does appear that she will need psychological intervention.  She may need six months approximately treatment.  She currently is operating with some severe functional impairment.  However, taking that fact into account and doing the best I can against the evidence given by Ms Mullins herself, that the impact, severe as it has been, is not to the great degree that one would normally see in this Court.

That is not to say that Ms Mullins should be, in any way, discounted for her own fine efforts, on the contrary.  The Court is obliged, however, to make an assessment based on the evidence it has before it in determining what percentage would be appropriate.

Under item 33, mental and nervous shock is classified as severe and I recognise it as such.  However, I am not persuaded that the amount of 30 per cent should be awarded in this case for the reasons that I have stated.

That gives a total percentage of 38 per cent, 3 per cent for item schedule 1, item 23, 15 per cent, item 43, 20 per cent.  That is 38 per cent of the scheme maximum which quotes to 28,500.

In light of the fact that both of these gentlemen were no more culpable in the offence itself than each other, I am of the view that a division of joint liability should be attributed. 

That is, that they both should share in the responsibility of paying the total amount of 28,500 in the order of 14,250 each.  As opposed to an order that the Court could make which is that both of them would be liable for the total amount, I am not so persuaded in a case such as this.

I am of the view that each respondent should therefore pay to the applicant by way of compensation an amount of $14,250 each.  Okay, that shall be my assessment.

MR McMAHON:  Thank you, your Honour.  My draft will look different, so, if I can submit a fresh one up to you.

HER HONOUR:  Thank you. I don't really need it, Mr McMahon.
MR McMAHON:  Okay, thank you, your Honour.

HER HONOUR:  I will make the order as I said.  I will order that each of the respondents pay to the applicant the amount of $14,250 by way of compensation for injuries suffered by her because of the offence committed by them of which they were convicted in the District Court of Brisbane on the 4th of August 2006.

MR McMAHON:  Yes.

HIS HONOUR:  That order will be transcribed.

MR McMAHON:  Thank you, your Honour.

HER HONOUR:  You will receive a copy of that in the mail, okay.  All right and that includes, just excuse me, if you wish to challenge my decision, I should tell you just to fill it in and then Mr Kongaika, you will have to go back to probably Ms Campbell or another lawyer and ask her if it is worth your while appealing what I have just ordered, okay?

You have rights to appeal but I would advise you to get legal advice before you do so.  You run the risk that if you appeal it and you go to the Court and you lose, costs can be ordered against you personally, okay?

So, you have got to make sure.  I am just giving you some advice there.  That is not to say you cannot appeal.  You have got appeal rights as everyone has against any decision given by a District Court Judge, okay.

So, we have sent a copy of the order and the decision.  Have you got an address?  We will make sure that you get a copy of the actual decision that has just been handed down by me ex tempore.  Can you just tell me your address?  Do you have contact with each other regularly?

MR KONGAIKA:  Just through the trade.

HER HONOUR:  Through the trade.

MR McMAHON:  4169.

HER HONOUR:  4169 and that's your address, is it?  And do you have an address of your own Mr Foleti or will that be‑‑‑‑‑

MR FOLETI:  Yes.

HER HONOUR:  Yes, so, both addresses.  I will get my associate.  Normally it is something that you have to get yourself but I will get my associate because you are acting for yourselves.  We will make sure you get a copy sent to that address, okay?

MR FOLETI:  Okay.

HER HONOUR:  So, if you wish to challenge what I have just given, do not forget, like I said, to go and get independent legal advice on that point.  All right.  You might need to take the decision with you obviously but you will get it in the post, all right?

MR McMAHON:  Thank you, your Honour.

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