RE; LOVATT - [2013] WADC 55

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CRIMINAL

LOCATION: PERTH

CITATION: RE; LOVATT [2013] WADC 55

CORAM: STAUDE DCJ

HEARD: 17 APRIL 2013

DELIVERED : 17 APRIL 2013

PUBLISHED : 19 APRIL 2013

FILE NO/S: APP 5 of 2013

MATTER :IN THE MATTER OF Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER OF an Appeal by

BETWEEN: BRADLEY STEVEN LOVATT
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :H L Porter
Citation  :CI 99 of 2012

Catchwords:

Criminal injuries compensation - Appeal - Injuries suffered whilst the appellant was committing an offence - No entitlement to award for compensation

Legislation:

Criminal Injuries Compensation Act 2003 s 39

Result:

Appeal dismissed

Representation:

Counsel:

Appellant: In person
Amicus Curiae : Mr P D Spragg appeared on behalf of the Chief Executive Officer of the Department of the Attorney General

Solicitors:

Appellant: Not applicable
Amicus Curiae : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Attorney General v Her Honour Judge Schoombee [2012] WASCA 29

STAUDE DCJ: Before the court is a notice of appeal from a decision of the Criminal Injuries Compensation Assessor on 23 February 2012 refusing the applicant's application for criminal injuries compensation in respect of injuries suffered as a result of an assault on 26 October 2011 on the grounds that he was committing an offence when he was injured.
Mr Lovatt lodged a notice of appeal dated 21 December 2012 appealing the decision of the assessor refusing the application on the grounds that 'the assessor made a decision before the police decided it was over excessive force' [sic].
Because the appeal was lodged out of time the court must first decide whether an extension of time should be granted. The appeal notice should have been lodged within 21 days in accordance with s 55 of the Act. The appeal notice is therefore nine months out of time. An extension should be granted if not to do so would cause a miscarriage of justice.
Factors to be considered are the length of the delay, the reason for the delay, whether there is an arguable case and the extent of any prejudice suffered by the respondent. In this case the exercise of the court's discretion really comes down to a question of whether the appeal has merit, the delay having been explained by Mr Lovatt in letters which set out his attempts to persuade the police to re‑open their investigation into the incident in which he was injured and the result of the further investigations that followed.
While there is no question that Mr Lovatt was seriously injured as a result of an assault by one Graeme Cunningham, that assault occurred during a burglary committed by Mr Lovatt at Mr Cunningham's house. Mr Lovatt pleaded guilty to and was convicted of aggravated burglary with assault on 20 November 2012 and was sentenced to three years' imprisonment.
The admitted facts of the offence of aggravated burglary were that on 26 October 2011 Mr Lovatt went to 15 Greenough Way, Gosnells, a residence occupied by Shane Bradley Smith and Graeme Lee Cunningham. Mr Lovatt was wearing a black balaclava and armed with a baseball bat. Initially he tried to get entry to a motor vehicle parked outside the house setting off the car alarm. He then gained entry to the house by breaking a side window. Inside the house he was confronted by the two male occupants. Mr Smith went to call the police. Mr Cunningham approached Mr Lovatt as he made his way to the front door, resulting in Mr Lovatt hitting him with the baseball bat. This constituted the assault on which the burglary charge was based.
Mr Cunningham was then able to disarm Mr Lovatt. He struck him a number of times to his head and body causing serious injuries which resulted in him being conveyed by ambulance to Royal Perth Hospital where he later underwent surgical procedures for repair of multiple head and facial fractures and a fractured tibia.
On those admitted facts there is no question that at the time of sustaining the injuries Mr Lovatt was committing an offence.
Section 39 of the Criminal Injuries Compensation Act 2003 relevantly provides:
If an Assessor is satisfied –
(a)that a person was injured as a consequence of the commission of an offence; and
(b)that the injury was suffered when the person was committing a separate offence,
the Assessor must not make a compensation award in favour of the person.
All that s 39 requires is a temporal connection between the inflicting of the injuries for which the compensation claim is made and the commission of an offence by the claimant.
In Attorney General v Her Honour Judge Schoombee [2012] WASCA 29 Martin CJ held at [54] that:
The question of whether there is a sufficient temporal connection between the offending behaviour of the claimant and the suffering of injuries caused by the separate criminal offence will depend on questions of fact and degree to be evaluated in all the circumstances.
In that case it was held that compensation could not be awarded to a woman who suffered a sexual assault at a time when she was using a prohibited drug.
In the case of Mr Lovatt I am satisfied that there is a sufficient connection between his offending behaviour, that is, the commission of the offence of aggravated burglary, and the injuries he suffered at the hand of Mr Cunningham who was a victim of his offence.
It seems to me that the proposed appeal is based on a misunderstanding by Mr Lovatt of the reason for the assessor's decision. Mr Lovatt was sent a letter by the assessor on 9 February 2012. He was informed that the assessor's provisional determination was that she was satisfied on the information before her that at the time of the injuries Mr Lovatt was committing an offence of aggravated burglary and, further, that he had failed reasonably to assist the police. His further submissions were invited. The basis of the second ground was that, although Mr Lovatt was interviewed whilst in hospital he did not attend to make a statement as requested. Mr Cunningham was not charged in respect of his assault of Mr Lovatt.
The applicant responded to the assessor's letter by two letters, one dated 17 February 2012 and the other undated, but received on 23 February 2012. Mr Lovatt acknowledged breaking into the house in which the assault occurred and indicated that he was guilty of the offence of which he was convicted. With respect to his failure to contact the police, he referred to memory lapses that he had suffered in consequence of his head injures and a fear of retaliation.
It is clear from the correspondence of Mr Lovatt that he misunderstood the assessor's reference to his failure to assist the police and believed that his compensation claim failed because Mr Cunningham had not been charged or convicted. Mr Lovatt made submissions to the Minister for Police which resulted in a report being made recommending that the investigation be re‑opened. Subsequently, on 8 May 2012 Mr Lovatt made a statement to the police.
This statement was to the effect that he went to the house to confront the occupants about supplying drugs to his son and other children and was struck twice on the head from behind while standing at the front door talking to an occupant. This account was inconsistent with the facts of his offending which he later admitted at his sentencing. In fairness, however, I note that Mr Lovatt's counsel did point out in his plea in mitigation that he did not have any recollection of entering through the window. I accept that Mr Lovatt suffered serious head injuries which have affected his memory of events.
The letters of Mr Lovatt which are on the court file and which I have read, together with other documents including a letter to Mr Lovatt from the Minister of Police informing him of the re‑investigation of the matter are concerned with whether Mr Cunningham committed an offence when he assaulted Mr Lovatt. The facts disclose a case of grievous bodily harm done by Mr Cunningham to Mr Lovatt. The issue is whether Mr Cunningham would have a defence pursuant to s 244 of the Criminal Code which provides that it is lawful for a person in peaceful possession of a dwelling to use any force or do anything else that the occupant believes on reasonable grounds to be necessary to cause a home invader who is wrongfully in the dwelling to leave the dwelling or to make an effectual defence against violence used or threatened in relation to a person by a home invader. On Mr Cunningham's account Mr Lovatt hit him first. It seems clear that Mr Lovatt was a home invader for the purposes of s 244.
The reference to 'excessive force' in the notice of appeal relates to information received by Mr Lovatt from the police officers who re‑investigated the matter to the effect that in their opinion Mr Cunningham may have used excessive force, that is to say unreasonable or unnecessary force.
That, however, is not an issue in this appeal. The question is whether at the time of being injured Mr Lovatt was committing an offence. By his plea of guilty and admission of the material facts of the offence of aggravated burglary he is precluded, in my opinion, from arguing that he was not committing an offence at the time he was injured.
Accordingly, the question of whether or not he was injured as a consequence of the commission of an offence by Mr Cunningham does not arise. Even if Mr Cunningham were guilty, or if the assessor found that an offence had been committed notwithstanding that the offender had not been convicted, Mr Lovatt could not be awarded compensation.
Two further applications for compensation were made by Mr Lovatt dated 22 May and 4 December 2012. The chief assessor responded to these applications by stating that no award of compensation would be made where an application has previously been refused.
An appeal from an assessor is a hearing de novo, that is to say, a fresh hearing of the evidence. Information that was not before the assessor in relation to the further police investigation I have, in the exercise of my discretion, accepted as evidence. For the purposes of determining the application to extend time I have, in effect, conducted a fresh hearing of the application, taking into account all of the information upon which Mr Lovatt relies.
I am conscious of the fact that Mr Lovatt has suffered severe injuries as a result of what may in all likelihood have been a criminal offence. It would appear that he has suffered significant brain injury and is left with cognitive impairment which affects his ability to recall in full the circumstances of the incident in question and to understand clearly the reason for the assessor's decision.
I have read all of Mr Lovatt's letters which tell a tragic story of childhood deprivation, educational disadvantage, delinquency, relationship problems, substance abuse, repeated terms of imprisonment and now, since this assault, chronic pain and disability.
However, for the reasons I have given, his application for compensation must fail because he was committing the offence of aggravated burglary when he was injured. As I have stated, in these circumstances an award of compensation cannot be made, regardless of whether or not the injuries were the consequence of the commission of an offence by Mr Cunningham. Time should not be extended where the appeal must fail.
Accordingly, the application to extend time must be refused and the notice of appeal dismissed.