Roff v Stephen

[2000] QDC 434

IN THE DISTRICT COURT

HELD AT CAIRNS	Application No. 50 of 2000
BEFORE HER HONOUR JUDGE BRADLEY
16 JUNE, 2000

IN THE MATTER of an Application by
JACOB OSBORNE ROFF
And
IN THE MATTER of the Criminal Offence
Victims Act 1995
And
IN THE MATTER of The Queen v
PHAROAH STEPHEN (A Child)

REASONS FOR JUDGMENT

On 10 August 1999 in the District Court at Cairns, the respondent pleaded guilty to a
charge:-
That on the twenty-seventh day of February 1999 at Cairns in the State of Queensland PHAROAH STEPHEN unlawfully did grievous bodily harm to JACOB OSBORNE ROFF
The applicant is now 27 years old and was 25 years old at the time of the offence. The
applicant seeks an order for compensation for injuries sustained as a result of the offence
pursuant to s24 of the Criminal Offence Victims Act 1995 (“the Act”).
The respondent and the Public Trustee of Queensland were served with the application
and supporting material. The respondent did not appear and was not represented at the hearing
of this application and he has informed the Public Trustee of Queensland that he does not
desire to take part in these proceedings.

4	On the evening of Friday 26 February 1999, the respondent was at a friend’s house having a few drinks. At around 11.00pm the group went to the RSL club and continued to

drink. The last recollection of the evening the applicant has was running along the Esplanade
at Cairns towards the City.

Shortly after 1.00am, the applicant was seen by an independent eyewitness passed out
in a garden bed in Lake Street, opposite the Fox and Firkin bar. The eyewitness was on the
balcony of the Fox and Firkin, overlooking Lake Street. The applicant appeared to be very
intoxicated and the eyewitness states that on a couple of occasions, he tried to get up but he
couldn’t.
The eyewitness states that she saw a large dark teenager (the respondent) and a smaller
Aboriginal/Islander standing over the applicant in the garden bed. The respondent nudged the
applicant’s leg with his foot. The applicant did not move. The respondent then kicked the
applicant in the chest. The eyewitness saw the respondent kick the applicant several times
more, resulting in the applicant rolling off the garden kerbing and onto the street. The
respondent continued to kick the applicant towards the kerb. At this stage, the smaller co-
offender joined in and started to kick the applicant. The eyewitness estimates that they would
have kicked the applicant approximately six or seven times. The respondent’s kicks were
described as full hard kicks whereby he would take his leg right back before kicking him to
get more momentum. At one stage, the applicant tried to push himself up off the ground but
when he had his upper body off the ground, one of them kicked him in face, knocking him to
the ground again.
The eyewitness states that the respondent and his co-accused stopped momentarily and
gave each other a high five hand shake as if congratulating each other before continuing their
assault on the applicant. The smaller co-accused then stopped kicking the applicant but the
respondent continued to kick the applicant a further four or five times. The eyewitness states that one of these kicks lifted the applicant off the ground. The respondent again stopped, gave
the smaller co-accused a high five hand shake, danced around and jumped up to slap a hanging
shop sign. The respondent then went over and gave the applicant one last kick to the
applicant’s left side of his face near the ear. The eyewitness describes this final kick as the
hardest kick with the respondent stepping towards his head to pick up momentum, resulting
in the applicant’s head jolting.
The eyewitness and her friends were yelling out to the respondent and the smaller co-
accused to stop the assault.
His Honour Judge White said the following at the time of sentencing the respondent:-
Perhaps I have dealt with cases that are similar to this, but I have no recollection of having been involved in a case that illustrated such a shocking example of absolutely unprovoked cowardly brutality as this.
Mr Roff was drunk and helpless. He had done absolutely nothing to you or your companions. You did not even have the courage to fight someone who could fight back. You chose someone who was effectively unconscious and unable to defend himself… .You were not a hero you were a coward, and one of the worst cowards I have ever seen.
The respondent’s co-offender was charged with assault occasioning bodily harm in
company. He was cautioned on 15 July 1999 on basis that he was not the main offender and
had no criminal history.
Following the assault, the applicant was taken to the Cairns Base Hospital where he was
seen in the Emergency Department at 3.15am. A statement from a Surgical Registrar dated 23
April 1999 reveals that at that time the applicant was complaining of pain to the face and had
difficulty closing his jaw. A cranial nerve examination revealed that he was numb on the left
cheek and he had double vision when gazing downwards. X-rays taken in the Emergency
Department revealed a fracture of the orbital floor on the right and clinically also a fracture in
the left maxilla. The applicant also had a fractured nasal septum.
Repeat assessment confirmed that the applicant had left infra-orbital paraesthesia and
double vision on all ranges of movement. The applicant had bilateral step deformities in the
interior orbital margins, malocclusion which was tender over the right temporomandibular joint
and mid face laxity. There was quite marked swelling of both anterior chambers of the eye. The
applicant remained in hospital for seven days to allow the swelling to reduce and to enable
sufficient pain relief to be administered.
The applicant was admitted again at the Cairns Base Hospital on 12 March 1999 once
the swelling had reduced. Upon review, the applicant was found to have marked assymmetry
of the face with marked left sided nasal deviation and a sunken mid-face. By this time, he had
full range of eye movement and no double vision was present. Subconjuctival haematomas
were noted and he had bilateral step deformities in the infra-orbital margins with bilateral infra-
orbital nerve loss. A CT scan was performed which revealed fluid in both maxillary antrums
and also the frontal sinuses. The applicant had a fracture through the supero-lateral right
antrum to the right inferior orbital margin and a fracture to the wall of the left antrum (a
“bilateral Le Fort II fractures”). Serial neurological testing revealed that in addition to bi-lateral
infra-orbital nerve damage, the applicant also had reduced power in the left temporal branch
of the facial nerve. This was believed to have been secondary to the swelling of the face.
On 12 March 1999, the applicant underwent a four and a half hour operation in order
to perform an open reduction and internal fixation of the bilateral Le Fort II fractures of the
maxilla. It is noted that this was an extensive and lengthy operation requiring three surgeons.
The applicant had marked facial swelling post-operatively and was given antibiotics and mouth
washes for five days. The applicant was discharged on 16 March 1999.
I have been provided with four photographs of the applicant – one photograph taken several years prior to the offence, two photographs taken several days after the assault and onephotograph taken several weeks following the assault.
The applicant underwent corrective surgery by Dr M. Doyle, Plastic and Reconstructive
Surgeon. A report by Dr Doyle (undated) is in evidence. At the time the report was written,
the applicant had a misshapen nose, which was wider and flatter than it had been prior to the
offence, and numbness of his gum and teeth on the left side associated with infra-orbital nerve
injury. The applicant would require corrective and reconstructive surgery to reshape the nose
into its former position. A further report by Dr Doyle was not provided, however, the applicant
deposes to having undergone this corrective surgery in early December 1999 at the Cairns Day
Surgery.
A report dated 22 December 1999 by Dr P. Finn, Oral and Maxillofacial Surgeon is in
evidence. In relation to the applicant’s previous surgery on 12 March 1999 to repair his severe
malocclusion, Dr Finn states that the applicant had “… a stable and satisfactory occlusion. His
pre-traumatic bite had been restored. … should undergo dental review but from the
maxillofacial perspective he has obtained an excellent result”. At the time the report was
written, Dr Finn states that the only possible future maxillofacial procedure that may be
required is the removal of his maxillary bone plates. A further report by Dr Finn was not
provided, however, the applicant deposes to having undergone this surgical procedure in late
April 2000.
The applicant was referred to Mr Sheldon Goldenberg, Psychologist, for the purpose of
a neurolopsychological assessment and report. The report dated 13 December 1999 is in
evidence. The following residual difficulties were listed:

· Headaches from time to time (behind the eyes).
· Numbness in his upper gums.
· Insecurity regarding the aesthetics of his face.
· Concern regarding the shape of his nose.

· Depression.

· Fear of going out alone at night.
· Anxiety (when he sees groups of Aboriginal adolescents).

· Lack of confidence.
· Loss of concentration.
· Forgetful of names, dates and appointments.
· Loneliness.
· Anger over the break-up of a relationship, which he attributes in part to the
assault.

· Unable to play contact sport due to fear of recurring injury.

Mr Goldenberg states that there were internal inconsistencies within the results which
are suggestive of minor frontal lobe and temporal lobe dysfunction. The applicant had some
elements of Posttraumatic Stress Disorder.
After testing and interviewing the applicant, Mr Sheldon reports the applicant has the
following psychological symptoms:-
… defensive avoidance reactions in relation to the assault, dysfunctional sexual behaviour manifesting in loneliness and internal distress, and a level of self-criticism and self degradation associated with his perception that he should not have gotten himself in the situation leading to the assault.
The impact of these psychological symptoms, suggest that Mr Roff continues to avoid dealing with his issues surrounding the assault, and may in fact, be in a state of repression, or even denial. It is quite possible that he is in a generalised state of numbness and even disassociation related to the severe implications of this assault, which has damaged him both, psychologically and emotionally.
The knowledge that Mr Roff may in fact have a permanent mild head injury, is an overwhelming and traumatic possibility for him, which he has not learnt to accept.
Mr Goldenberg recommends psychological counselling for at least six months on a
weekly basis at a cost of $155.00 per hour.
The applicant was referred to Dr G. M. Boyce, Neurologist, for the purpose of
examination and preparation of a medico-legal report. In his report dated 20 April 2000, Dr
Boyce states:-
Following the accident Mr Roff complained of headaches periodically behind his eyes, there was numbness of his upper gums, more on the left side. He has seen Dr Doyle and actually started with plastic surgery to the nose. He had some elements of depression and some problems with interpersonal relationships. Initially he had some problems with memory, but he thinks that these have largely resolved. He was off work for a period of five weeks.
He advised that his sense of smell hasn’t been affected. In the longterm he thinks that his memory is back to normal. He only gets headaches associated with physical exertion. He still has numbness of the left side of his face.
He said he has no difficulty with work. He now sleeps okay and has no headache. He has numbness of the left upper lip, he has no pain in his neck and no numbness of his arms or legs.
… More recently due to the weight loss, he has had knee problems due
to instability and he hasn’t been able to run properly.
Upon clinical assessment, Dr Boyce could not find any specific abnormality, although
the applicant reported some slight numbness of the inner cheek but not of the outer cheek. It
is the opinion of Dr Boyce that the applicant “had nasty bilateral fractures of his face with mild
traumatic brain injury. He appears so have made a good recovery from most of this”. With
reference to the Compensation Table which is Schedule 1 to the Act, Dr Boyce is of the
opinion that the applicant has suffered “facial disfigurement or bodily scarring” which he
assesses at 10% and “mental or nervous shock(moderate)” which he assesses at 15%.
At the suggestion of Mr Goldenberg, the applicant was referred to Dr G. Lewis,
Audiologist, for an audiological evaluation including central auditory processing, however,
audiologically, the test results were consistent with normal peripheral auditory function and
the central auditory function is inline with his age.
The applicant spent seven days in hospital immediately following the assault. He spent
a further five days in hospital undergoing surgery to his face. As a consequence of the injuries
sustained in the assault, the applicant, who is a High School physical education teacher, was
absent from work for a period of five weeks. The applicant underwent two further surgical procedures in December 1999 and April 2000 costing $2,500.00 and $1,400.00 respectively.
The applicant was unable to eat solid foods for some time following the assault and as a result
lost approximately 10 kilograms. This has caused subsequent problems to the applicant’s knees
due to muscle loss and has resulted in decreased stability of the knees, for which he is
undergoing physiotherapy.
Prior to the assault, the applicant played rugby union on a competitive basis and touch
football on a social basis. As a consequence of the injuries suffered on 27 February 1999, the
applicant could not play in the 1999 and 2000 rugby union seasons and has been unable to play
touch football.
The applicant provided a victim impact statement to the Court at the time of sentence
proceedings against the respondent. The applicant stated that just after the assault he had an
intense headache and continuous bleeding from the nose. Morphine and other pain killers were
required continuously for one month following the incident. The operation on 12 March 1999
caused intense head pain. The applicant still suffers from pain in his left cheek after physical
exertion and the entire upper left hand side of his teeth and gums are numb. The applicant was
depressed and sometimes suffered bouts of deep depression and continues to suffer a loss of
self confidence.
Whilst the applicant was undoubtedly thoroughly intoxicated at the time the offence was
committed against him, there is nothing before me to suggest that the applicant in any way
directly or indirectly contributed to his injuries.
With reference to Schedule 1 of the Act, I assess compensation for the applicant’s
injuries as follows:-

Item 2 Bruising/laceration etc. … … … … … … . 3%-5% 4% $3,000.00
(severe)

Item 4 Fractured nose … … … … … … … … … ... 8%-20% 15%
$11,250.00
(displacement/surgery)

Item 5 Loss or damage of teeth… … … … … … .1%-12% 5% $3,750.00

Item 8 Facial fracture… … … … … … … … … … 20%-30% 25% $18,750.00
(severe)

Item 9 Fractured skull/head injury… … … … … 5%-15% 5% $3,750.00
(no brain damage)

Item 19 Fracture/loss of use of leg/ankle… … … 4%-10% 5% $3,750.00
(minor/moderate)

Item 27 Facial disfigurement or bodily scarring. 2%-10% 10% $7,500.00
(minor/moderate)

Item 30 Loss of vision (Diplopia)… … … … … … 2% $1,500.00
(both eyes)

Item 32 Mental or nervous shock… … … … … … 10%-20% 15% $11,250.00
(moderate)

Total $64,500.00

I order that the respondent do pay to the applicant the sum of $64,500.00 by way of
compensation.

Item 2	Bruising/laceration etc. … … … … … … . 3%-5%	4%	$3,000.00
(severe)
Item 4	Fractured nose … … … … … … … … … ...	8%-20%	15%

Item 8	Facial fracture… … … … … … … … … … 20%-30% 25%	$18,750.00
(severe)
Item 9 Fractured skull/head injury… … … … … 5%-15%	5%	$3,750.00

[2000] QDC 434

16/06/2000