Petersen v Neale
[2006] QDC 357
•28 August 2006
DISTRICT COURT OF QUEENSLAND
CITATION: Petersen v Neale [2006] QDC 357 PARTIES: ALAN GEORGE PETERSEN
Applicant
and
BRADLEY JOHAN NEALE
Respondent
FILE NO: 213 of 2006 PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court Southport
DELIVERED ON: 28 August 2006 DELIVERED AT: Rockhampton HEARING DATE: 28 August 2006 JUDGE: Newton DCJ ORDER: The respondent to pay Criminal Compensation to the applicant in the sum of $18,750.00. CATCHWORDS: CRIMINAL LAW – COMPENSATION – LEGISLATION – Criminal Offence Victims Act 1995 – assault occasioning bodily harm whilst armed with an offensive weapon – lacerations to hands, arms, shoulder and scalp – extensive bruising and contusions to shoulders and arms – psychological injury – assessment of compensation COUNSEL: Mr J L Hutton – applicant SOLICITORS: Trilby Misso – applicant
This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995. The applicant, Alan George Petersen, is a 72-year-old man who was unlawfully assaulted by the respondent, Bradley Johan Neale, on 12 June 2002 at Thangool.
The applicant obtained an order for substituted service on 18 August 2006 as a result of the following circumstances: Mr Robert Lyndon, a licensed commercial agent, received instructions from the applicant’s solicitors to locate and serve the respondent with an originating application and supporting affidavits. Mr Lyndon conducted a search confirming that the respondent had previously resided at three separate addresses south-west of Rockhampton between January 2006 and June 2006.
Mr Lyndon instructed an associate to attend those addresses in order to effect service of the material upon the respondent. He was informed by his associate that the latter had attended Mount Morgan Road, Bouldercombe, no. 38765 Burnett Highway, Bouldercombe and 3 Ford Street, Thangool and that the respondent could not be located at any of those addresses. Mr Lyndon then attempted to contact the respondent’s father at this place of work but was informed that the respondent’s father no longer worked with that business. Mr Lyndon was provided with a further contact number for the respondent’s father but when he telephoned the number he discovered that it had been disconnected.
Mr Lyndon also checked the Telstra White Pages, the electoral roll and Corrective Services in order to locate either the respondent or his father. Those attempts were unsuccessful. In his affidavit filed in the Registry of the Southport District Court on 18 August 2006 Mr Lyndon confirms that he has exhausted all avenues available to him for the purpose of locating the respondent in order to effect personal service.
Accordingly, on 18 August 2006 the following orders were made:
1. That pursuant to r 116 UCPR, the applicant is to serve the Originating Application and Supporting Affidavits in Proceeding 213 of 2006 on the respondent, by advertisement in the Public Notices section of the Courier Mail newspaper, in the terms of Annexure “A” to this Order;
2. Service is deemed to have been effected upon the respondent, Bradley Johan Neale, at the expiry of seven (7) days after compliance with the Order;
3. A copy of the Order be held, along with the Originating Application and Supporting Affidavits at the offices of the applicant’s solicitors, Trilby Misso Lawyers, Level 20, 288 Edward Street, Brisbane.
Annexure “A” was in the following terms {as amended to reflect the hearing date}
“To: BRADLEY JOHAN NEALE, formerly of Queensland.
1. That the applicant, Alan George Petersen, has commenced a proceeding against you claiming compensation as may be determined by the court under section 24 of the Criminal Offence Victims Act 1995 (Qld) for injuries sustained as a result of the offences which lead to your conviction on 16 May 2003, upon indictment.
2. That is has been ordered that service of the Originating Application and Supporting Affidavits be effected by the advertisement in the Public Notices section of the Courier Mail newspaper.
3. That service of the Originating Application and Supporting Affidavits shall be deemed to have been served on you seven (7) days after today.
4. That the hearing of the Application will be on Monday 28 August 2006 in the Rockhampton District Court, Cnr Bolsover & Fitzroy Streets, Rockhampton at 9.30am.
A copy of the Originating Application and Supporting Affidavits may be obtained from the applicant’s solicitors, Trilby Misso Lawyers, of level 20, 288 Edward Street, Brisbane in the State of Queensland, telephone (07) 3331 9100.”
An advertisement in the above form was duly placed in the Courier Mail of 23 August 2006. I am satisfied that service has been duly effected in terms with the order made on 18 August 2006. In the circumstances, I am satisfied that it is appropriate for the hearing of this application to proceed in the absence of the respondent or his legal advisers.
The respondent pleaded guilty in the District Court at Rockhampton on 16 May 2003 to one count of assault occasioning bodily harm whilst harmed with an offensive weapon. He was placed on a good behaviour bond for two years with no conviction being recorded.
In my sentencing remarks I stated:
“The incident arose out of a relationship that had become extremely unpleasant between yourself [the respondent] and the complainant [the applicant] largely but not wholly because of a sexual assault committed by the complainant upon your wife.
You foolishly took the law into your own hands and the photographs of the injuries to the complainant show that considerable force was used by you in striking him with a length of timber. Until I heard the full circumstances of the background surrounding this matter, I was seriously considering sending you to prison for such a vicious assault on an old man. However, once I became aware, through the prosecutor’s submissions, of the background to this, it seems to me that it would be quite unjust to send you to prison in these circumstances.”
[10] The facts upon which the prosecution relied at the sentencing hearing were detailed in the submissions of Mr McGrath who appeared on behalf of the Crown and who stated:
“Your Honour, the facts are these. The complainant is a 69 year old man, he was 68 at the time of the incident. He has known the prisoner for about 16 years. For about 18 months leading up the incident the prisoner and his family had been residing in a residence on a property owned by the complainant. The complainant also lived there from time-to-time and had his own bedroom which also doubled as an office.
On the 12th of June 2002 the complainant attended the residence; he had been away for about four days prior. Some time before this a letter had been sent from a firm of solicitors acting for the complainant to the prisoner and his family demanding that the residency arrangements be terminated and they leave the property.
The complainant said that when he arrived at the house the prisoner’s wife was the only person present. He spoke to her civilly about some general matters. Shortly after he was outside in – he went outside into the yard. She was in the yard. He tried to speak to her but she said ‘I’ve been told not to speak to you.’
He then picked up a moisture testing rod, intending to test the water content in the soil of some of the paddocks. This testing rod has been described by the complainant as being a half-inch steel rod. Unfortunately, your Honour, there isn’t any information as to its length.At about this time he saw the prisoner coming towards where he was. The prisoner was riding a motorbike and appeared to have come from a nearby property. As the complainant walked to his car, carrying the rod, the prisoner walked up to him. The prisoner was carrying a piece of timber in both hands. A police officer who subsequently attended the scene retrieved two pieces of wood that originally made up the weapon. Your Honour, I tender a photograph of those pieces of timber as they were subsequently found.
…
The police officer estimated, your Honour, that the piece of timber was originally about two metres long. The prisoner said, ‘You’ve got 20 seconds to get off the property.’ The complainant said that he then dropped the testing rod and put his hands or his arms over his head to protect himself. He was then struck with the timber by the prisoner on the arms, the back and the back of the head. The piece of wood broke and half of it fell to the ground. The rest remained in the prisoner’s hands and he again struck the complainant a number of times in the same area of the body. The complainant said that the blows were landed with a lot of force.The prisoner then said, ‘You’ve got five seconds to get off the place.’ The complainant said that he could see blood on his arms and hands and he felt pain in his arms, hands and head. He then walked to his car. As he did so, the prisoner followed behind him and said, ‘If you come back here again they will cart you off in a box.’ The complainant got into his car and drove to the police station to make a complaint.
Later that day the complainant was examined by a doctor. The doctor noted his injuries as firstly two haematoma on his left forearm; secondly abrasion to the back of the scalp; thirdly abrasions on both hands, wrists and forearms. The following day the complainant was again seen by the same doctor who noted that he had bruising to his left upper back.
…
Your Honour, on the 29th of July 2002 the police spoke to the prisoner and interviewed him. During the interview he admitted assaulting the complainant by striking him over the head with the piece of timber. He said the wood broke in two while this was happening. He said he struck the complainant because the complainant had the moisture testing rod in his hand and had swung it at him. He agreed that he could have avoided the rod by moving away and also agreed that there wasn’t any person in apparent danger at the time.Your Honour, there is another important and significant factor in this matter. In this Court on the 18th of March 2003 the complainant in this matter was convicted of an offence of sexual assault. The complainant in that matter is this prisoner’s wife. The incident occurred in the kitchen of the residence about half an hour before this assault. It involves the complainant putting his arms around Mrs Neale from behind and then grabbing her on the breast.
Shortly after that incident occurred she rang her husband, told him what had happened and asked him to come home. It was as a result of that phone call that he came home and the assault occurred.”
[11] I have set out in some detail the submissions of the prosecutor at the sentencing hearing interview he light of the provisions in s 25(7) of the Act which is in the following terms:
“(7) In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.”
[12] In my view it seems clear that the applicant was at least indirectly responsible to some degree for the injuries he sustained during the attack upon him by the respondent. However, there is no doubt that the respondent, quite unlawfully and no doubt foolishly, decided to take the law into his own hands when he attacked the applicant , having received a telephone call from his wife in respect of the conduct of the applicant. The background to the assault upon the applicant was taken into consideration at the time of sentencing the respondent. However, it should not necessarily follow that any award of compensation ordered to be made should be reduced solely because of that background.
[13] Reprehensible though the applicant’s conduct may have been towards the respondent’s wife, it remains the case that the applicant was the victim of a rather vicious and sustained attack by the respondent who, it should be remembered, was armed with an offensive weapon. There was no defence at law for the attack upon the applicant and thus there should not be a reduction in the amount of compensation ordered on this application because of the applicant’s conduct on a separate (although not unrelated) occasion.
[14] In his affidavit the applicant identifies the following sequelae to the incident:
(a) multiple cuts and bruises multiple cuts and bruises to the hands, scalp, shoulders, back and chest; also bruising to the left side of the head;
(b) difficulty trusting people;
(c) difficulty going back to the property, and if at that particular property, would sleep with a knife beside him for his own protection;
(d) intrusive thoughts during the day although mostly at night;
(e) difficulty sleeping with sleep only up to four (4) hours per night;
(f) feelings agitation and anxiety and loss of motivation;
(g) frequent and ongoing vision problems, unable to see at all when waking up at night, with vision gradually returning after several minutes;
(h) constant vision problems involving a dark spot on the left eye;
(i) occasional visual impairment involving circular shapes with corrugated edges gradually expanding in size resulting in loss of vision for up to 10 minutes.
[15] The photograph evidence which is exhibited to the applicant’s affidavit corroborates the applicant’s evidence with respect to the lacerations and bruising to his hands, scalp, shoulders, back and chest. The photographs, in particular, depict multiple lacerations to the backs of both hands and to both forearms. There is also clearly visible at least one laceration to the back of the applicant’s skull on the left-hand side. Significant bruising is shown on the left shoulder and a large contusion is apparent on the inner aspect of the applicant’s left arm extending from the bicep to the wrist.
[16] Dr Alan Hilton, a specialist ophthalmologist, examined the applicant on 10 January 2005. His report dated 17 January 2005 notes that the applicant received an injury to the posterior part of his head, namely the occipital area. The occipital part of the brain, the report notes, is that part of the brain known as the visual cortex which is where visual information from the eyes is transmitted by the optic nerves and other pathways to the occipital cortex, where the visual information is received and processed.
[17] Dr Hilton notes that there was no history of any injury to either eye of the applicant and his examination of the applicant’s eyes showed both to be normal, with normal visual acuity at 6/6 in each eye.
[18] Dr Hilton reported that the applicant told him that he gets “a shade in front of his left eye,” which is worse at night time. This was said to occur up to three times a week since the assault. Dr Hilton reports that he could find no visual cause for these symptoms. He noted that the visual fields in both of the applicant’s eyes were essentially normal. There were some non-specific changes, but none that reflected any direct damage to the occipital cortex.
[19] Dr Hilton concluded that there were no wounds to the eyes that required treatment, that the applicant is not suffering from any permanent disability as a result of the injuries, and that the pain caused at the time of the original injury would have lasted for some few days to a week or two. In Dr Hilton’s opinion the applicant had not suffered any percentage disability in relation to any of the injuries and that the applicant’s ability to carry out his normal employment had not been adversely affected. None of the applicant’s injuries required assessment by another specialist.
[20] Dr Donald Grant, clinical Associate Professor in psychiatry, saw the applicant on 1 March 2005. In his report dated 2 March 2005, Dr Grant made the following comments:
“From the psychiatric point of view the assault as described by Mr Petersen was a very traumatic incident. He suffered significant physical injuries and describes a range of psychological and emotional problems thereafter. The symptoms he describes are clearly anxiety symptoms produced by the trauma of the assault and are similar in nature to those seen in Post-Traumatic Stress Disorder. However, the range of symptoms would probably not be sufficient to make that precise diagnosis. It would be more appropriate to describe Mr Petersen as suffering from a Chronic Adjustment Disorder with Anxious and Depressed Mood following this assault.
Mr Petersen has no past history of any psychiatric disorder and it would appear that his Adjustment Disorder is a direct result of the assault and the associated traumatic events.
Mr Petersen has not undergone any psychological or psychiatric treatment. He has had some use of a probable tranquillising medication on an as-needs basis from his general practitioner. He is a man who is resistant in general to seeing doctors or taking medication. He would probably benefit from some psychological or psychiatric treatment but it is doubtful that he will undertake such treatment and it may not be practical, since he lives away from such services. If he did undergo some therapy he would benefit from about six sessions of psychiatric treatment costing approximately $220 per session.
Mr Petersen is a man of 71 and clearly his reserves in terms of recovery are reduced as compared to a younger person. It is likely that he will have some permanent impairment from the psychiatric point of view as a result of this assault. I believe that he will suffer a degree of Chronic Adjustment Disorder with Anxious Mood and that this is likely to be of the order of 5% according to AMA Guidelines.
Mr Petersen indicates that he is able to work as a mechanic on a part-time basis and there is no reason why he could not continue to do this.”
[21] The applicant states, at paragraph 6 of his affidavit, that he consulted a number of medical specialists in relation to this application. He has reviewed the reports of Dr Grant and Dr Hilton and states that the facts recorded in those reports accurately record the information that he conveyed to the doctors.
[22] I accept the evidence of the applicant with respect to the injuries he sustained as a result of the assault upon him by the respondent, and I also accept the evidence of the medical specialists.
[23] The bruising and lacerations suffered by the applicant as a result of the assault on him by the respondent, fall for assessment under the Compensation Table set out in Schedule 1 to the Criminal Offence Victims Act, under injury number 2. An award of between 3 per cent and 5 per cent of the scheme maximum (which at the present time is fixed at $75,000.00) may be made for these injuries. Having regard to the number of discrete abrasions and lacerations depicted in the photographic evidence, it is, in my view, appropriate to assess these injuries at the upper limit of the permitted range, that is, at 5 per cent of the scheme maximum which yields the sum of $3,750.00.
[24] The psychological harm sustained by the applicant as a result of his being assaulted, should be assessed under injury number 32 of the Compensation Table which refers to mental or nervous shock (moderate). An assessment may be made for such injury at between 10 per cent and 20 per cent of the scheme maximum. In the light of the report of Dr Grant which notes that “from the psychiatric point of view the assault as described by Mr Petersen was a very traumatic incident,” it is appropriate to again assess the injury at the upper level of the permitted range, that is, at 20 per cent of the scheme maximum. This yields a further sum of $15,000.00.
[25] I make no award of compensation with respect to the claimed eyesight problems of the applicant in accordance with the report of Dr Hilton.
[26] The total is therefore $18,750.00.
[27] I order that the respondent Bradley Johan Neale, pay criminal compensation in the sum of $18,750.00 to the applicant, Alan George Petersen.
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