Sattler v Dallen

[2009] QDC 196

DISTRICT COURT OF QUEENSLAND

CITATION:

RBR v Dallen [2009] QDC 196

PARTIES:

RBR

(Applicant)

V

LINDSAY GORDON DALLEN

(Respondent)

FILE NO/S:

157 of 2009

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court at Southport

DELIVERED:

Ex tempore on 15 June 2009

DELIVERED AT:

Southport

HEARING DATE:

15 June 2009

JUDGE:

Kingham DCJ

ORDER:

1. The respondent pay the applicant $29,250 by way of compensation.

CATCHWORDS:

CRIMINAL COMPENSATION – mental or nervous shock severe - bruising/laceration – fractured skull or head injury (no brain damage)

Criminal Offence Victims Act 1995 (Qld)

Say v. AZ ex parte Attorney-General (Queensland) [2006] QCA 462, cited

COUNSEL:

McNab for the applicant

SOLICITORS:

O’Keefe Mahoney Bennett for the applicant

No appearance for the respondent

HER HONOUR:  RBR has applied for an order that

Lindsay Gordon Dallen pay her compensation for injuries she

sustained as a result of offences committed by Mr Dallen.

On 1 June 2006 he was convicted on his own plea of guilty to

three counts: two of assault occasioning bodily harm; the

first occurred between July and November of 2001;  the second

occurred on the 18th of November 2001, and there was a third

count of assault occasioning bodily harm, while armed, which

occurred between the 18th and the 28th of November 2001.

As a result of those pleas Mr Dallen was convicted and

sentenced to concurrent terms of imprisonment of two years.

He is now in custody serving a lengthy term for other

offences.  He is aware of these proceedings.

The first offence involved repeated punches to the face and

Head. Ms RBR's head hit a concrete wall.  She

sustained a blood nose, a sore head and bruising as a result

of the assault.

On the 18th of November, the second offence, Ms RBR

was punched to the head repeatedly and was also kicked by the

respondent.  She again sustained bruising as a result of

that offence.

The third is the most serious of the offences.  She was beaten

all over her body with a bed post.  As well as that,

Ms RBR was cut to the back.  It was a superficial

laceration and is compensable along with the bruising under

the one head.

Ms RBR was restrained during the offence.  She was tied

down.  As well as being tied down and beaten, she was burnt.

Her chin was burnt, it appears, by a cigarette lighter.  The

respondent also ripped up a phone book and poured the pieces

of paper on to Ms RBR’s back while she was restrained and

set them alight. She sustained other burns to her skin as a

result.

Whilst this was happening Mr Dallen threatened Ms RBR

with all sorts of other consequences, including violence at

his hand and sexual violation by others.

As a result of those three offences, Ms RBR has sustained

injuries which I consider to be compensable under three

headings.  For each of the offences she is entitled to an

award under the bruising/laceration item, number one in the

schedule, which is compensable in a range of one to three per

cent. I consider an award of three per cent for each

offence is appropriate.

For the third offence, I consider a single award under that

item would not properly compensate Ms RBR, as she is

entitled to be compensated, in relation to the burn to her

chin. After hearing submissions from counsel, I'm satisfied

that item 9 is the appropriate item under which to calculate

compensation.

Item 9 is an item for a fractured skull or head injury (no

brain damage).  There is no reason, in my view, to read down

the word "injury".  I accept that it is appropriate to

compensate Ms RBR for the injury to her chin, caused by

the burn at Mr Dallen's hand. Assessing the range of five to

15 per cent, I award the bottom end of five per cent to Ms

RBR. 

Of course, the most significant injury that Ms RBR has

sustained at the hands of Mr Dallen is mental or nervous shock

(severe).  It is clear from Dr Chittenden that Ms RBR has

suffered and continues to suffer and has for over a five-year

period or more, suffered severely from post-traumatic stress

disorder.  It is also clear from Dr Chittenden's report that

that injury relates to not just these three offences, but

arises from Mr Dallen’s course of conduct in his most abusive

and violent relationship with Ms RBR.

The Court of Appeal has confirmed in Say v. AZ ex parte

Attorney-General (Queensland) [2006] QCA 462 , that in cases

such as this, where it is not possible to allocate or

apportion a degree of injury to particular incidents, the

Courts should adopt a broad-brush approach and discount the

award to allow for the role of factors other than the offences

charged.  In this case, what I must do is allow for the

behaviour not charged as offences under this Act.  That

behaviour was very severe, including not just acts of violence

such as those charged, but also sexual violence over a lengthy

period, including allegations of rape.

It seems that the most serious behaviour has not been charged,

although I accept Mr McNab's submission that the final count

was a most serious incident, not so much because of the

violence, although that in itself is significant, but

because of the other circumstances.  Ms RBR was tied down

whilst being beaten and threatened with all sorts of

behaviour, some of which she had experienced in the past.

Taking those matters into account, I consider an award of 25

per cent under the heading of mental or nervous shock (severe)

is appropriate, and, if anything, somewhat conservative.  It

indicates, in my view, a very careful approach by Mr McNab to

the way in which this lady's injuries should be compensated.

So taking all of those awards into account, the total award is

39 per cent of the scheme maximum.  That equates to the sum of

$29,250.  Do you have a draft order, Mr McNab?

MR McNAB:  No, I don't, your Honour.

HER HONOUR:  Right.  I will order that Mr Dallen pay

Ms RBR the sum of $29,250 by way of compensation pursuant

to section 24 of the Criminal Offence Victims Act 1995.

There is no capacity for me to order costs, so none are

awarded.

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