R v Pangilinan, ex parte Owens

[2001] QSC 391

SUPREME COURT OF QUEENSLAND

CITATION:

R v Pangilinan, ex parte Owens [2001] QSC 391

PARTIES:

THE QUEEN
v
JORAI SEVERO PANGILINAN
(respondent)
ex parte
HILTON OWENS
(applicant)

FILE NO:

8199 of 2001

DIVISION:

Trial Division

DELIVERED ON:

19 October 2001

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2001

JUDGE:

Helman J.

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION ETC – COMPENSATION – QUEENSLAND - severe stab wound – some physical disability – substantial surgical scarring – mental sequelae – whether compensation for physical injury can be awarded under more than one item in Sch 1 of the Criminal Offence Victims Act 1995 (Qld) - whether applicant entitled to compensation for both stab wound and scarring

Criminal Offence Victims Act 1995 (Qld), s 25, s 26, Sch 1

Dooley v Ward [2000] QCA 493
R v Kazakoff, ex parte Ferguson [2001] 2 Qd R 320

COUNSEL:

A. J. Kimmins for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Tony Bailey for the applicant
The respondent appeared on his own behalf

1. HELMAN J: This is an application, filed on 11 September 2001, for compensation for injury under the Criminal Offence Victims Act 1995. On 14 June 2000, after a trial which resumed on 31 May 2000, the respondent was acquitted of unlawfully doing grievous bodily harm to the applicant with intent to do him some grievous bodily harm, but was found guilty on an alternative count of unlawfully doing him grievous bodily harm. For that offence I sentenced the respondent to imprisonment for six years, the sentence to be served concurrently with other sentences imposed that day for three offences against others (murder, and two offences of unlawfully wounding) of which he was found guilty at the same trial.

1. The charges against the respondent arose from an incident at a Brisbane nightclub, the Gig, on or about 1 February 1998 in which he stabbed with a knife a number of sailors of the United States Navy who were on shore liberty from the U.S.S. Blue Ridge, which was then in the port of Brisbane.   The applicant, a petty officer second class born on 22 August 1970, was one of those sailors.

1. The respondent stabbed the applicant only once, in the neck region, but the injury he inflicted was life-threatening.

1. The applicant was admitted to the Royal Brisbane Hospital on 1 February 1998.  He was found to have a bleeding laceration in the left lower neck region.  He was resuscitated with blood and fluid intravenously, and, when his condition had become stable, an exploratory operation was performed.  Persistent heavy bleeding was found to be coming from the depths of the wound.  A median sternotomy was then performed to facilitate control of the injured vessels.  Branches of the subclavian artery were ligated and the bleeding stopped.  The wounds were closed but draining tubes were left in the chest.  The applicant recovered after treatment with physiotherapy and mobilization, and was discharged on 9 February 1998.  The applicant has been left with a prominent keloid scar which extends from above the left collarbone at the site of the stab wound down the midline of his chest to the bottom of his sternum.  There are two other, less prominent scars, from entry points of the draining tubes.  He has chest pain on exertion, itching and irritation along the scar line, and some residual nerve damage which has caused numbness in his left lower arm and weakness in his left hand.  It is possible that the itching and irritation can be reduced by injection therapy and that the scar may be successfully revised by plastic surgery.  In addition to the physical effects of the scar the applicant suffers embarrassment when it is seen by others.  The left arm and hand may recover in time. 

1. Dr Ian Curtis, consultant psychiatrist, examined the applicant and spoke to the applicant’s wife on 10 February 1998.  Dr Curtis recorded the results in a report dated 9 April 1999.  He found that the applicant had suffered an adjustment reaction, an acute stress disorder, with an associated depressive reaction.

1. When examined on 8 May 2001 by Dr Mark Johnson, clinical psychologist, at a U.S. Naval Hospital in Japan, the applicant was found to have a continuing psychological reaction to the stabbing which was diagnosed as a chronic post-traumatic stress disorder.  He still had flashbacks but slept ‘adequately’. 

1. The applicant gave evidence at the trial to the effect that the respondent had stabbed him without warning and that the applicant then held his right arm over his wound and tried to fight the respondent off with his left hand.  Asked whether he actually made contact with the respondent he replied by saying he did not know, but thought he hit the respondent once, ‘probably in the face or the head or somewhere’.  The applicant swore that he had not had any ‘spoken or physical contact’ with the respondent prior to the incident.  Another U.S. sailor, yeoman Derrick Law, had told him ‘to watch out for that dude because he is starting trouble’ before the incident, after which the applicant and the respondent made eye contact, but there were no accompanying gestures from either to the other.  The applicant denied having done or said anything to the respondent which might have led to, or provoked, the stabbing.  The applicant denied in cross-examination that he saw a fight on the night in question, although he said he may have speculated about there having been a fight when questioned on 5 February 1998.

1. At the trial the issue of self defence arose on the evidence, and accordingly I gave the jury directions on it. From the verdicts it is clear that the jury rejected self defence as a justification or excuse for the respondent’s actions. On my assessment of the evidence the applicant was not guilty of any behaviour that directly or indirectly contributed to his injury. He did admit to striking the respondent, but only in defending himself after the stabbing. Accordingly, there is no occasion for reducing, under s. 25(7) of the Act, any award to the applicant.

1. The stabbing was extremely serious and has left the applicant with some physical disability and substantial surgical scarring.  In addition, the applicant has suffered mental sequelae.  He has however recovered well enough to be able to continue his service in the U.S. navy.

1. The item in the Compensation Table in Schedule 1 to the Act most relevant to the physical injury suffered by the applicant is item 26, ‘. . . stab wound (severe)’. Thomas J.A., dealing at first instance with a case in which eight stab wounds with scissors had caused scarring, concluded that those physical injuries constituted a ‘single state of injury’ within the meaning of that expression in s. 26 of the Act, and so compensation for them should be assessed under one item in the Table: R. v. Kazakoff, ex parte Ferguson [2001] 2 Qd. R. 320 at p. 325. Thomas J.A. assessed compensation for them under item 24, ‘. . . stab wounds (minor)’, but took into account the fact that the wounds produced some scarring. I shall adopt the same approach in this case. Applying the method of assessment explained in Dooley v. Ward [2000] QCA 493, especially at paras. 5 to 7, I assess the applicant’s entitlement in respect of his physical injury at thirty-five per cent. of the scheme maximum, taking into account the initial wound and the scars left by the surgery. It is therefore not necessary for me to consider an assessment under items 27 and 28, which concern bodily scarring. Had it been necessary to do so, however, I should have allowed twenty-five per cent. under item 26 and ten per cent. under item 28, ‘. . . bodily scarring (severe)’. But I should add that I am in respectful disagreement with Thomas J.A. so far as he treats the provisions of s. 26 as an obstacle to an assessment for physical injury under more than one item. (His Honour did allow recovery under a mental or nervous shock item in addition to recovery under one item for physical injury.) I disagree because I construe s. 26 as intended to prevent an unnecessary and undesirable multiplicity of applications to each of which the scheme maximum would apply, but as not touching on the question whether more than one item on the Table might be resorted to to compensate a victim on the one application. In many cases an assessment under one item for physical injury will provide adequate compensation - as in this case, and in R. v. Kazakoff, ex parte Ferguson - but in others it may not.  An assault to the face might for instance cause facial disfigurement (items 27 and 28) and loss of vision in one eye (item 29) which cannot be compensated for adequately under just one item.  It will be important to ensure that there is no duplication of compensation, but it is equally important to ensure that an applicant is as fully compensated as the current scheme properly permits.

1. The mental effects of the stabbing call for another ten per cent. under item 32, ‘[m]ental or nervous shock (moderate)’. 

1. It follows that the applicant should be awarded $33,750 by way of compensation.  I shall order that the respondent pay to the applicant $33,750 by way of compensation for the injury suffered by the applicant as a result of the commission of the offence against the applicant of which the respondent was convicted.