Sheppard v. Moefaaua

[2008] QDC 133

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

1. 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

1. 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.

1. 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

1. 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, and the applicant was still removing shards of glass from near his eye and cheeks a number of months after the incident.[2]

   [2]Exhibit ASM2 (sentencing submissions) p 3, affidavit of Amy Marr sworn 26 February 2008.

1. The report of Dr Kent McGregor, medical officer, Logan Hospital, contained in a statement dated 23 May 2006 indicates that on examination at the Emergency Department of the Logan Hospital, the applicant had the following injuries:

“Multiple lacerations on the left side of his face and his ear.

Five deep lacerations were identified, one involving an area posterior to the left eye, three involving the left cheek and one below the left side of the chin on the neck.”

Dr McGregor noted that:

“All lacerations were sutured and the patient had no other injuries identified.”

1. The report of Dr Trevor Harris, plastic and reconstructive surgeon, indicates (after conducting an examination on 12 November 2007) that the applicant’s consequent scarring was as follows:

“1.        The left outer canthus (outer angle of the left eye)
There are several scars in this region consisting of:

a.a transverse scar at the left infra orbital ridge, 2.5 cm in length, the outer end of which is somewhat thick.

b.          a small scar below this in a crease line 0.5 cm in length.

c.a significant scar commencing over the cheek prominence and coursing upwards in circular fashion to the region below the outer end of the left eyebrow.  At its lower end it diverges into two separate scars.

2.          The left temple
There is one scar anterior to the hairline in the left temple 1.5 cm in length.

3.          The left cheek and upper neck

a.there is significant scarring in the lower portion of the left cheek and adjacent upper neck.  This consists of an oblique scar commencing below the level of the left angle of mouth and coursing upwards towards the lobe of the ear.  This scar is 7 cm in length.

b.A scar parallel with the first scar, overlying the lower portion of the cheek, crossing the angle of the mandible and extending on to the upper neck.  This scar diverges into two separate scars as it proceeds on to the neck.  Then length of this scar is 8 cm.

c.The two previous scars are joined by a vertical scar 2.5 cm in length, anterior to the angle of the jaw.

4.          The left neck
In the mid neck on the left there is a transverse scar lying in a crease line, 6 cm in length, which is reasonably fine.

It is noted that the scarring of the left lower lid and adjacent tissues result in some bunching of the tissues in this region when closing the eyelids tightly.  The eyelids close normally otherwise.

There is no interference with the movement of the lips and mouth and, hence, no indication of any damage to the underlying facial nerve.”[3]

[3]Exhibit TH1 (report dated 13 November 2007) affidavit of Trevor Harris sworn 14 December 2007.

The law

1. This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced on 18 December 1995 and provides for compensation in respect of injuries suffered by an applicant because of an offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury with comparison to the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337, is authority of the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.

Compensation

1. Mr Maher, counsel for the applicant, seeks compensation under three items as follows:

1. Item 2 – bruising/laceration (severe) – 3%-5%

1. 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.

1. Item 28 – facial disfigurement or bodily scarring (severe) – 10%-30%

1. 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.

1. Item 31 – mental or nervous shock (minor) – 2%-10%

1. 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.

1. 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.

Contribution

1. 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”.

1. In my sentencing remarks I noted that “although it is not clear what exactly was said or exchanged, it is clear that there was some form of confrontation between [the respondent], [the applicant] and [the applicant’s] companion Raymond Merry”.  I noted further that “in initial police statements given by [the applicant] and Mr Merry … both claimed in effect that they had said and done nothing, but it is clear from viewing the video, which is Exhibit 3, that however the confrontation started, Mr Merry and [the applicant] were clearly shaped up for a fight, they were circling [the respondent] and it all happens very quickly, but it seems that the violence which occurred appears, as best one can make out on a fairly blurry video, to have [been] mutual”.[8]  I went on to conclude that what the respondent had done was to “use excessive force in response to some sort of argument or confrontation and [it] had been an excessive force that … resulted in, to use the vernacular, a pub glassing, with very nasty consequences for [the applicant].”[9]

   [8]Exhibit ASM1 (sentencing submissions) p 2, affidavit of Amy Marr sworn 26 February 2008.

   [9]Exhibit ASM2 (sentencing submissions) p 4, affidavit of Amy Marr sworn 26 February 2008.

1. It is clear that in these criminal compensation proceedings, I must take a view of the evidence consistent with the view that I took at sentencing, as to do otherwise “would result in unfairness and would be incongruous”.[10]

   [10]Facer v Bennett [2001] QCA 395 para 18.

1. As Mr Maher concedes, although the respondent was a much larger man than the applicant, both the applicant and Mr Merry circled the respondent.  My sentencing remarks indicate that the applicant and Mr Merry “were clearly shaped up for a fight”, which at that stage (prior to any force actually being used) was a mutual confrontation.[11]

   [11]Exhibit ASM1 (sentencing submissions) p 2, affidavit of Amy Marr sworn 26 February 2008.

1. Mr Maher submits that in this context, the respondent’s punch to the applicant’s face with a full glass of beer was “tantamount to introducing a weapon into a fist fight” and submits that the contribution should not exceed 15%, citing Jones v Coolwell[12], where Helman  J concluded that the introduction of a knife into a fist fight was “so grossly disproportionate as to call for only a small adjustment” in a case where the weight of evidence “supported the account of the applicant having punched the respondent.”[13]

   [12][2001] QSC 130.

   [13][2001] QSC 130 at para 8.

1. The applicant in these proceedings before me was clearly, in part, the author of his own misfortune, but, as in Jones v Collwell, the respondent’s reaction was grossly disproportionate.  In that context, I consider that the contribution should be at a similar level to that utilised in Jones v Coolwell, namely 15%.

Conclusion

1. The total which I would have awarded, absent any contribution, would have been 30% of the scheme maximum ($22,500), but after deducting a 15% contribution, the balance is an amount of $19,125. 

Order

1. I order that the respondent Arona Moefaaua pay the applicant Carl Robert Sheppard the sum of $19,125.