Nelliman v Gugliemino

[1996] QCA 426

[1996] QCA 426

COURT OF APPEAL

DAVIES JA
DERRINGTON J
AMBROSE J

CA No 384 of 1994

MOSES McNEIL NELLIMAN  

v.

ISADORIO GUGLIELMINO  Applicant

BRISBANE

..DATE 23/10/96

JUDGMENT

DAVIES JA:  The applicant was convicted after a trial in the Magistrates Court on 31 July 1996 of assault occasioning bodily harm on 4 August 1995.

The sentence imposed was a fine of $1,000 and in addition the applicant was ordered to pay $3,000 compensation in default six months imprisonment.  No conviction was recorded.

The applicant seeks leave to appeal against the sentence; in substance that is the compensation order.  The applicant operated a take-away pizza shop in Townsville.  Before the night in question there had been arguments between the complainant and the applicant in respect of the quality of one of the applicant's pizzas. 

On the night in question the complainant was near the applicant's shop picking up some fish and chips from another shop.  There was a further exchange of verbal abuse between the complainant and the applicant during which the applicant kicked the door of the complainant's motor car causing some damage.  The complainant then got out of his car to inspect the damage and said something like, "I've got you now.  I'm going to ring the police," and went to a nearby newsagency for that purpose.

The complainant's daughter who was in the car became quite distressed and the applicant lent into the car, he said and the Magistrate accepted him, to comfort her.  The complainant apparently misinterpreting the applicant's action ran back towards the car whereupon the applicant punched him in the face causing him to stop suddenly, spin around and fall.
Whilst he was on the ground the applicant screamed at him, pointed at him and kicked him in the head. The complainant had no recollection of events after getting out of his vehicle to look at the damage.  His injuries included a black eye, bruising to his ribs and his right arm and a swelling to the back of his head behind his right ear.  He told the Court that he was unable to work for a period of time after that and that he had been unable since to follow his normal occupation of a painter.

He was off work for a considerable period of time and at the time of the trial was employed in a mowing business.  The complainant's wife confirmed these injuries, said he had blood coming from his nose and, she thought, from his ear.  He was disoriented and he was vomiting some blood.

On examination by a doctor he was also found to have a fracture of a bone just above the cheek bone.  He had constant headaches for a time.

Although the complainant may have to some extent provoked the applicant by his abuse he did not attempt to fight and there can be no doubt that the applicant's kicking of the complainant when he was on the ground was far in excess of any provocation which may have been offered.  It was a serious assault which could have caused the complainant much more serious injury than it did.

Nevertheless, the Magistrate did not record a conviction because the applicant had no previous criminal history and the Magistrate may have thought that he was unlikely to re-offend.

It was contended however that the compensation order was excessive.  In the written outline the basis was that there was no evidence upon which that award could be substantiated.  That contention was not pursued by Ms Richards who appeared for the applicant this morning and in any event is plainly not correct.  The complainant said that he lost about three months' wages which came to about $7,500 and that he had got about $1,100 from social security.

He thought that he was something like $15,000 out of pocket in total.  The Magistrate thought that $7,500 sounded reasonable for someone engaged in painting but eventually fixed on a sum slightly less than that.  He decided to make a global award.

The contention made this morning by Ms Richards was that there was something akin to contributory negligence on the part of the complainant presumably engaging in verbal abuse with the applicant and perhaps also in running back to his car but it was not suggested that in running back he acted in any aggressive manner or that he gave any indication that he intended to fight the applicant.

There is no doubt and it was not contended to the contrary that in determining compensation the complainant's economic loss may be taken into account and in my view having regard to the complainant's estimate of loss of income the Magistrate's estimate of something less than that and an award - a total award of $3,000 compensation cannot be said to be excessive having regard as well to the pain and suffering which the complainant must have had in consequence of his injuries.

Moreover, in my view, there is nothing in the contention that the complainant by his conduct contributed to his injuries.  It could not be suggested for a moment, as I said, he indicated any willingness to fight and as I have also mentioned the kicking on the ground was far in excess of anything that could have been anticipated as a result of some verbal exchanges.

In my view the application should be refused.

DERRINGTON J:  I agree.

AMBROSE J:  I agree.

DAVIES JA:  The application is refused.

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