Otto v Bush - [2010] QDC 306

DISTRICT COURT OF QUEENSLAND

CITATION:

Otto v Bush [2010] QDC 306

PARTIES:

DARIO IDRIS OTTO

(Applicant)

v

SHANNON LEE BUSH

(Respondent)

FILE NO/S:

3282/09

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court at Brisbane

DELIVERED ON:

16 August 2010

DELIVERED AT:

Brisbane

HEARING DATE:

16 August 2010

JUDGE:

Rafter SC DCJ

ORDER:

The respondent pay to the applicant the sum of $19,500.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm while armed which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008.

CATCHWORDS:

APPLICATION – CRIMINAL COMPENSATION – where the respondent convicted of assault occasioning bodily harm while armed – where the applicant suffered physical and psychological injuries – assessment of compensation

Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25

Criminal Offence Victims Regulation 1995 (Qld), s 2

Victims of Crime Assistance Act 2009 (Qld), s 149, s 155

DAS v NAB [2010] QSC 234

R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493

Wren v Gulai [2008] 2 Qd R 383; [2008] QCA 148

COUNSEL:

R Christopherson, solicitor, for the applicant

No appearance by or for the respondent

SOLICITORS:

Nathan Lawyers for the applicant

No appearance by or for the respondent

Introduction

The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the respondent on 27 January 2007. The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. The transitional provision in s 155 Victims of Crime Assistance Act 2009 requires the application to be determined in accordance with the Criminal Offence Victims Act 1995.

On 4 December 2008 in the District Court at Brisbane the respondent pleaded guilty to, inter alia, one count of assault occasioning bodily harm while armed. He was sentenced to 3 years imprisonment suspended after serving a period of 409 days for an operational period of 3 years. The period of 409 days of pre-sentence custody served by the respondent was declared to be imprisonment already served under the sentence.[1]
[1]Exhibit DIO-12 to the affidavit of the applicant filed 12 March 2010.

The application and supporting affidavit material were served on the Public Trustee on 9 April 2010,[2] on the basis of searches that revealed that the respondent was in custody.[3] The Official Solicitor to the Public Trustee subsequently advised the applicant’s solicitors that the respondent was on remand only and that the Public Trustee was therefore not the manager of his estate.[4] Personal service was effected on the respondent at the Arthur Gorrie Correctional Centre on 21 July 2010.[5] There was no appearance by or for the respondent at the hearing.
[2]Affidavit of Jacqui Margaret Lewis filed 14 April 2010.
[3]Exhibit RAC-1 to the affidavit of Rebecca Ann Christopherson filed 13 July…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Otto v Bush

Details

AGLC: Otto v Bush [2010] QDC 306
Case: [2010] QDC 306
Decision Date: 16 August 2010

CaseChat Overview and Summary

Otto applied for compensation under the Criminal Offence Victims Act 1995 for physical and psychological injuries sustained as a result of an assault occasioning bodily harm while armed, committed by Bush, who was subsequently convicted of the offence in the District Court at Brisbane on 4 December 2008. The application was heard by the Supreme Court of Queensland.

The primary legal issue for the court was to determine the appropriate amount of compensation to award under the Act. This involved assessing the extent of the injuries and the impact on Otto's life. The court had to consider both the physical injuries and the psychological harm suffered by the applicant.

The court held that Otto's injuries were significant and warranted compensation. The court took into account the physical injuries, which required medical treatment, as well as the psychological impact, which included ongoing anxiety and depression. The court assessed the overall impact on Otto's quality of life and determined that the appropriate compensation was $19,500.00.

The court ordered that Bush pay Otto the sum of $19,500.00 by way of compensation for the injuries sustained as a result of the assault occasioning bodily harm while armed.

Orders

Orders of the court

The respondent pay to the applicant the sum of $19,500.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm while armed which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Otto v Bush [2010] QDC 306
PARTIES:	DARIO IDRIS OTTO (Applicant) v SHANNON LEE BUSH (Respondent)
FILE NO/S:	3282/09
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court at Brisbane
DELIVERED ON:	16 August 2010
DELIVERED AT:	Brisbane
HEARING DATE:	16 August 2010
JUDGE:	Rafter SC DCJ
ORDER:	The respondent pay to the applicant the sum of $19,500.00 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of assault occasioning bodily harm while armed which led to the conviction of the respondent in the District Court at Brisbane on 4 December 2008.
CATCHWORDS:	APPLICATION – CRIMINAL COMPENSATION – where the respondent convicted of assault occasioning bodily harm while armed – where the applicant suffered physical and psychological injuries – assessment of compensation Criminal Offence Victims Act 1995 (Qld), s 22, s 24, s 25 Criminal Offence Victims Regulation 1995 (Qld), s 2 Victims of Crime Assistance Act 2009 (Qld), s 149, s 155 DAS v NAB [2010] QSC 234 R v Ward, ex-parte Dooley[2001] 2 Qd R 436; [2000] QCA 493 Wren v Gulai [2008] 2 Qd R 383; [2008] QCA 148
COUNSEL:	R Christopherson, solicitor, for the applicant No appearance by or for the respondent
SOLICITORS:	Nathan Lawyers for the applicant No appearance by or for the respondent