Pereira v Peterson - [2005] QDC 30

DISTRICT COURT OF QUEENSLAND

CITATION: Pereira v Peterson [2005] QDC 030

PARTIES:
DANIEL PEREIRA

Applicant

and

BRENDAN ANDREW PETERSON

Respondent

ZOE PEREIRA

Applicant

and

BRENDAN ANDREW PETERSON

Respondent

HUMBERTO PEREIRA

Applicant

and

BRENDAN ANDREW PETERSON

Respondent

FILE NOs: 734/04, 735/04 & 736/04

PROCEEDING: Application

ORIGINATING COURT:
District Court Southport

DELIVERED ON: 25 February 2005

DELIVERED AT: Southport

HEARING DATE: 7, 15 February 2005

JUDGE: Robin QC DCJ

ORDER: Respondent ordered to pay $5,750 in 734/04, $5,000 in 735/04 and $7,250 in 736/04

CATCHWORDS:
APPLICATIONS FOR CRIMINAL COMPENSATION BY FAMILY MEMBERS who were assaulted by the intoxicated respondent when they tried to remove him from their yard – minor physical injuries but extreme mental and nervous shock – whether applicants directly or indirectly contributed to these injuries – credit allowed to respondent for sums paid pursuant to compensation orders made on his sentence

Criminal Offence Victims Act 1995 s 22, s 24, s 25(7)
Penalties and Sentences Act 1992 s 35

Cases cited:

Grahame v Dean [2001] QSC 420
Hockley v Sowden [2000] QCA 9
Hohn v King [2004] QCA 254

COUNSEL:
Mr C Bagley   – applicant

Mr A J Kimmins – respondent

SOLICITORS: McLaughlins Solicitors – applicant
Price & Roobottom – respondent

Mr Daniel Pereira, his mother Zoe, and his father, Humberto have made separate applications for compensation under s 24 of the Criminal Offence Victims Act 1995 (“the Act”) against Brendan Andrew Peterson, who pleaded guilty on 17 February 2004 to personal offences against each of them, committed on a single occasion in the early hours of the morning (some time before 3.45am when police apprehended) him on 17 August 2001. Whether any defence in the nature of self-defence or otherwise might have been available to the respondent is irrelevant, given his guilty plea. However, circumstances that might have been relevant to that potentially bear on the argument presented by Mr Kimmins for the respondent that there was behaviour by each applicant “that directly or indirectly contributed to the injury” for purposes of s 25(7) of the Act.

The application in respect of Mr Pereira senior mis-states the offence, which was not one of assault occasioning bodily harm, as in the others, but one of serious assault on the basis that the victim’s age was greater than 60. Both he and his wife were 68.

On the sentence, the Crown Prosecutor informed the Court the respondent was a 27 year old customs officer (the furtherance of whose career moved me to formulate a sentence not involving the recording of a conviction) and went on:
“…he has no criminal history. All counts on the indictment relate to a single incident which occurred when the prisoner was in the yard of the residence of Zoe and Humberto Pereira, the complainants in count 1 and 2, in the early hours of the morning of the 17^th of August 2001.
Humberto and Zoe Pereira reside on the corner of Burrendong Road and Hansford Road, Coombabah. The home is enclosed by…

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 Pereira v Peterson

Details

AGLC: Pereira v Peterson [2005] QDC 30
Case: [2005] QDC 30
Decision Date: 25 February 2005

CaseChat Overview and Summary

The applicants, family members of the respondent, sought criminal compensation for injuries sustained when they attempted to remove the intoxicated respondent from their property. The injuries were minor but resulted in significant mental and nervous shock. The applicants argued they had not contributed to their injuries, either directly or indirectly. The court had to determine if the applicants were entitled to compensation and, if so, the appropriate amount. The court also needed to consider credit to be given to the respondent for sums already paid under prior compensation orders.

The court found that the applicants were not contributors to the injuries, either directly or indirectly. They acted in self-defence and to protect their property. The court acknowledged the mental and nervous shock experienced by the applicants, which was a valid claim under the applicable legislation. The court also took into account the compensation orders already paid by the respondent. The court awarded the applicants $5,750, $5,000, and $7,250 respectively, deducting credit for the amounts previously paid by the respondent.

The court's decision was based on a careful assessment of the evidence and the legislation. The applicants were found to have acted reasonably and without fault, which was a necessary condition for their claim. The court appropriately weighed the evidence of the mental and nervous shock and considered the compensation already paid by the respondent. The court's calculation of the final amounts owed was clear and logical, taking into account the credit for previous payments.

The court ordered the respondent to pay the applicants $5,750, $5,000, and $7,250 respectively, after deducting the credit for prior compensation payments. This decision provided appropriate compensation to the applicants while also recognising the respondent's prior payments.

Orders

Orders of the court

Respondent ordered to pay $5,750 in 734/04, $5,000 in 735/04 and $7,250 in 736/04

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

Full text does not contain this section.

CITATION:	*Pereira v Peterson* [2005] QDC 030
PARTIES:	DANIEL PEREIRA Applicant and BRENDAN ANDREW PETERSON Respondent ZOE PEREIRA Applicant and BRENDAN ANDREW PETERSON Respondent HUMBERTO PEREIRA Applicant and BRENDAN ANDREW PETERSON Respondent
FILE NOs:	734/04, 735/04 & 736/04
PROCEEDING:	Application
ORIGINATING COURT:	District Court Southport
DELIVERED ON:	25 February 2005
DELIVERED AT:	Southport
HEARING DATE:	7, 15 February 2005
JUDGE:	Robin QC DCJ
ORDER:	Respondent ordered to pay $5,750 in 734/04, $5,000 in 735/04 and $7,250 in 736/04
CATCHWORDS:	APPLICATIONS FOR CRIMINAL COMPENSATION BY FAMILY MEMBERS who were assaulted by the intoxicated respondent when they tried to remove him from their yard – minor physical injuries but extreme mental and nervous shock – whether applicants directly or indirectly contributed to these injuries – credit allowed to respondent for sums paid pursuant to compensation orders made on his sentence Criminal Offence Victims Act 1995 s 22, s 24, s 25(7) Penalties and Sentences Act 1992 s 35 Cases cited: Grahame v Dean [2001] QSC 420 Hockley v Sowden [2000] QCA 9 Hohn v King [2004] QCA 254
COUNSEL:	Mr C Bagley – applicant Mr A J Kimmins – respondent
SOLICITORS:	McLaughlins Solicitors – applicant Price & Roobottom – respondent