DISTRICT COURT OF QUEENSLAND
CITATION:
Sheppard v Moefaaua [2008] QDC 133
PARTIES:
CARL ROBERT SHEPPARD
(Applicant)
V
ARONA MOEFAAUA
(Respondent)
FILE NO/S:
BD48/08
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
District Court, Beenleigh
DELIVERED ON:
27 June 2008
DELIVERED AT:
Beenleigh
HEARING DATE:
20 June 2008
JUDGE:
Dearden DCJ
ORDER:
The respondent Arona Moefaaua pay the applicant Carl Robert Sheppard the sum of $19,125
CATCHWORDS:
APPLICATION – Criminal Compensation – wounding – glassing- 53 stitches - multiple lacerations - significant scarring - bruising/laceration - facial disfigurement - mental or nervous shock - contribution
LEGISLATION:
Criminal Offence Victims Act (Qld) 1995 ss 22(4), s 24, 25(7), 26
CASES:
Jones v Coolwell [2001] QSC 130
R v Ward; ex parte Dooley [2001] 2 Qd R 436
Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337,
COUNSEL:
Mr A Maher for the applicant
No appearance for the respondent
SOLICITORS:
Trilby Misso Lawyers for the applicant
No appearance for the respondent
Introduction
The applicant, Carl Robert Sheppard, seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 19 February 2006 at the Kensington Bar and Grill, Crestmead, resulting in the respondent, Arona Moefaau pleading guilty before me in the District Court at Beenleigh on 16 April 2007 to a single count of unlawful wounding. The respondent was sentenced to 18 months imprisonment with an order that he be released on parole after serving three months of that imprisonment.
Facts
Around 8.30 pm on Sunday 19 February 2006 the applicant and a friend, Raymond Merry, went to the Kensington Bar and Grill at Crestmead. They went to the bar to have a beer and after purchasing the beer went to the pokies room. The applicant and his friend had a beer in the pokies room and then returned to the bar area to purchase one final beer before leaving, Mr Merry’s girlfriend having called and told them that she had dinner ready.
The respondent was also at the bar. There was some interaction at the bar between the applicant, Mr Merry and the respondent. There were gestures made by all parties and the respondent was circled by the applicant and his friend, Raymond Merry. The respondent then swung a beer glass, which was full at the time, into the side of the applicant’s head, and the glass shattered against the applicant’s face. The fight then continued with the applicant swinging punches at the respondent. After a number of punches were thrown by both the applicant and the respondent, the respondent then left the hotel and the applicant, who suffered from a significant loss of blood, subsequently passed out. The applicant was taken to the Logan Hospital for treatment.[1]
[1]Exhibit ASM2 (sentencing submissions) pp 2-3, affidavit of Amy Marr sworn 26 February 2008.
Injuries
The applicant was treated at the Logan Hospital where he received 53 stitches to his face, which was bruised and swollen for a number of weeks after the attack,…
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- AGLC
- Sheppard v Moefaaua [2008] QDC 133
- Case
- [2008] QDC 133
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the quantification of compensation for severe bruising and lacerations, significant facial disfigurement, and minor mental or nervous shock. Counsel for the applicant argued for awards at the upper end of the relevant compensation items due to the severity of Sheppard's injuries, supported by medical evidence and photographs. The court considered these submissions and the medical reports provided, ultimately awarding compensation at the higher end of the suggested ranges for severe bruising and lacerations, and lower end for facial disfigurement. For the minor mental or nervous shock, the court awarded compensation at the upper end of the suggested range.
The court's reasoning was based on the severity and lasting impact of the injuries sustained by Sheppard, as evidenced by the medical reports and photographs. The court accepted the submissions that the injuries warranted higher compensation awards for the bruising and lacerations and lower for the facial disfigurement, considering the overall impact on Sheppard's life. The award for mental or nervous shock was made at the upper end due to the documented post-traumatic stress disorder and residual fear. The court also considered Sheppard's potential contribution to his injuries under the Compensation for Victims of Crime Act.
The final orders of the court were that the respondent, Arona Moefaaua, pay the applicant, Carl Robert Sheppard, the sum of $19,125 in compensation for the injuries sustained. This amount was calculated based on the court's determination of the appropriate percentages of the scheme maximum under the relevant items of the compensation scheme.
Orders
Orders of the court
The respondent Arona Moefaaua pay the applicant Carl Robert Sheppard the sum of $19,125
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Item 2 – bruising/laceration (severe) – 3%-5% Mr Maher submits that the extensive bruising and lacerations to the face area from the injury, which then required 53 sutures, should be the subject of an award at the top end of Item 2 ie 5% of the scheme maximum. Exhibit CS2 to the applicant’s affidavit[4] is a copy of five photographs depicting the applicant’s facial injuries. Although the injuries are clear and obvious from those photographs, there is no bruising immediately apparent. However, the prosecutor in his submissions on the sentence indicated that the applicant’s “face was bruised and swollen for a number of weeks after the attack and [the applicant] was still removing … shards of glass from near his eye and cheeks … a number of months after the offence.”[5] In these circumstances, the submission that an award should be made for bruising/laceration at the upper end of Item 2 is appropriate and accordingly I order 5% of the scheme maximum ($3,750) under Item 2.[4]Affidavit of Carl Robert Sheppard sworn 30 January 2008.[5]Exhibit ASM2 (sentencing submissions) p. 3, Affidavit of Amy Marr sworn 26 February 2008. Item 28 – facial disfigurement or bodily scarring (severe) – 10%-30% Mr Maher submits that given the extensive scarring suffered by the applicant and outlined in the passage which I have extracted from Dr Harris’ report at paragraph [6] of this decision, and taking into account Dr Harris’ opinion that “using the AMA guides [his] estimate of the impairment of the whole person due to the facial scarring is 5% … in that there are numerous facial scars but no evidence of facial nerve injury and no distortion of the face”,[6] an award should be made towards the lower end of Item 28 (facial disfigurement (severe)). I accept this submission and accordingly I award the applicant 15% of the scheme maximum ($11,250) pursuant to Item 28.[6]Exhibit TH1 p 4, affidavit of Trevor Harris sworn 14 December 2007. Item 31 – mental or nervous shock (minor) – 2%-10% Mr Maher submits that the conclusion of Dr McGuire, psychiatrist, that the applicant suffered “post traumatic stress disorder which lasted for about two months after the incident … [but as of 12 November 2007 the] symptoms had settled”, taken together with the applicant’s indication that he felt threatened when he saw Samoans (the respondent is Samoan) and he has a residual fear of crowded pubs,[7] justifies an award at the upper end of Item 31 (mental or nervous shock (minor)), namely at 10%.[7]Exhibit BM1, p 2 affidavit of Barbara McGuire sworn 17 December 12007. In the light of the conclusions of Dr McGuire’s report, I consider 10% to be appropriate in the circumstances. Accordingly I award the applicant 10% of the scheme maximum ($7,500) pursuant to Item 31. COVA s 25(7) provides that “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”.