Pavey-Hutchinson v McPhail

DISTRICT COURT OF QUEENSLAND

CITATION:

Pavey-Hutchinson v McPhail [2011] QDC 9

PARTIES:

LEE ANN PAVEY-HUTCHINSON
applicant

v

TROY McPHAIL
respondent

FILE NO/S:

48/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

18 February 2011

DELIVERED AT:

Beenleigh

HEARING DATE:

20 December 2010

JUDGE:

Dearden DCJ

ORDER:

The respondent Troy McPhail pay the applicant Lee Ann Pavey-Hutchinson the sum of $19,500

CATCHWORDS:

LEGISLATION:

CASES:

APPLICATION – CRIMINAL COMPENSATION – common assault – minor bruising/laceration – where a “broad brush approach” to causation of mental or nervous shock was adopted – where “broad brush approach” encompassed the common assault, the respondent’s prior and subsequent controlling and aggressive behaviour and the respondent committing arson upon the applicant’s house 

Criminal Offence Victims Act1995 ss. 24 and 40(1).

Victims of Crime Assistance Act 2009 ss.154 and 155.

Paterson v Chand & Chand [2008] QDC 214.

SAY v AZ [2007] 2 Qd R 363.

Sanderson v Kajewski [2000] QSC 270.

Stannard v Lane [2000] QSC 86.

COUNSEL:

E J Williams for the applicant
No appearance for the respondent

SOLICITORS:

Colin Patino and Company for the applicant
No appearance for the respondent

Introduction

1. The respondent, Troy McPhail pleaded guilty on 8 October 2008 in Beenleigh District Court to a single count of common assault of the applicant Lee Pavey-Hutchinson (the respondent’s sister). The respondent also pleaded guilty to the arson of the applicant’s house, the serious assault of a third person, and another count in respect of the use of a carriage service to make a threat to kill a person from the Housing Commission.

1. The applicant was sentenced to five years imprisonment in respect of the arson count, and relevantly (in respect of this application), three months imprisonment in relation to the common assault on the applicant. 

Facts

1. The applicant arrived home at about 11 a.m. on 17 January 2007 and was approached by the respondent in the dining room of her home in Rochedale South.  The applicant said to the respondent “all is good” (a reference to her appointment having gone well). The respondent replied “all is not good”, and started rambling about something which the applicant could not understand. 

1. The respondent then started yelling at the applicant about an argument they had had the previous evening.  The respondent became very aggressive and made threats to kill family members.  The respondent then approached the applicant up close, raised a fist beside his face and proceeded to punch the applicant once in the mouth.  This caused the applicant immediate pain and she could taste blood. The applicant quickly moved to the other side of the dining table and the respondent chased her and punched her again, twice in the back of the head.

1. At 11.30 am on 17 January 2007 the applicant attended a police station and made a formal complaint against the respondent.  Police did not observe any injuries to the applicant at this time.  The respondent was arrested by police at 11.50 am on 17 January…