O'Neill v Downes

[2009] QDC 397

DISTRICT COURT OF QUEENSLAND

CITATION:

O’Neill v Downes [2009] QDC 397

PARTIES:

DARRYLL JAMES O’NEILL

(Applicant)

v

LUKE JUSTIN DOWNES

(Respondent)

FILE NO/S:

BD 3357/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

14 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2009

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $12,750 by way of compensation pursuant to s24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of wounding, which led to the conviction of the respondent in the District Court at Brisbane on 22 November 2007

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION ––wounding –physical injuries and mental or nervous shock

COUNSEL:

A Cappellano for the applicant.

No appearance by or for the respondent

SOLICITORS:

Campbell + White Lawyers for the applicant

No appearance by or for the respondent

Introduction

1. The applicant seeks compensation pursuant to s.24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the offence of wounding committed by the respondent on 19 March 2006.

1. On 22 November 2007 the respondent pleaded guilty to, inter alia, one count of wounding. On 23 November 2007 he was sentenced to 3 years imprisonment in relation to that count. A period of 5 years imprisonment was imposed in relation to an unrelated count of grievous bodily harm. A period of 307 days of pre-sentence custody was declared as imprisonment served under the sentence. A parole eligibility date was fixed at 18 July 2008.

1. As the Public Trustee is the manager of the respondent’s estate pursuant to Part 7 of the Public Trustee Act 1978, on 7 December 2009 the Public Trustee was served with a letter from the applicant’s solicitor notifying of the date of hearing.[1]

   [1]           Affidavit of Jacqui Margret Lewis filed 10 December 2009

1. The respondent was served with the originating application and supporting material on 8 December 2009.[2]

   [2]           Affidavit of David Francis Frost filed by leave on 14 December 2009

1. There was no appearance by or for the respondent at the hearing of the application.

Circumstances of the offence

1. On the evening of 19 March 2006 the applicant was at his house at Tara with friends. The respondent, described by the applicant as a welcome visitor was also there. [3] The group were drinking socially.

   [3]           Affidavit of Darryll James O’Neill filed 3 December 2009 at para [6]

1. The applicant went into his bedroom. The respondent followed him into the room and without provocation threw a knife at the applicant hitting him in the stomach. They began to fight when others in the house pulled them apart.  The respondent then ran away.

1. The respondent was sentenced on the basis that the attack on the applicant was unprovoked. The applicant stated that he did not provoke the respondent in any way and that there had been no prior disagreements with him. A witness to the attack stated she was unable to explain why the respondent threw…