Soley v. Inukiha-Angana & Anor

[2008] QDC 29

DISTRICT COURT OF QUEENSLAND

CITATION:

Soley v Inukiha-Angana & Anor [2008] QDC 29

PARTIES:

GERALD CAMPBELL SOLEY

(Applicant)

v

RUSSELL JOSEPH INUKIHA-ANGANA

(First respondent)

and

PAUL SIA

(Second respondent)

FILE NO/S:

124/2007

DIVISION:

Civil

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

Beenleigh

DELIVERED ON:

15 February, 2008

DELIVERED AT:

Beenleigh

HEARING DATE:

21 December 2007

JUDGE:

Dearden DCJ

ORDER:

The respondents Russell Joseph Inukiha-Angana and Paul Sia pay the applicant Gerald Campbell Soley the sum of $19,500

CATCHWORDS:

Application – Criminal compensation – Attempted robbery – Bruising – Mental or nervous shock – pre-existing vulnerability – Causation – Joint and several liability

LEGISLATION:

Criminal Offence Victims Act (Qld) 1995 ss 22(4), 25(7), 26

CASES:

R v Ward; ex parte Dooley [2001] 2 Qd R 436

Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337

SAY v AZ; ex parte Attorney General (Qld) [2006] QCA 462

COUNSEL:

Ms A Campbell (solicitor) for the applicant

No appearance for the respondents

SOLICITORS:

Campbell and White Lawyers for the applicant

No appearance for the respondents

Introduction

1. The applicant Gerald Campbell Soley seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 13 July 2005 at Station Road, Woodridge.  The first respondent, Russell Inukiha-Angana pleaded guilty relevantly to one count of attempted robbery with personal violence while in company and was sentenced by me in the District Court at Southport to a sentence of 15 months imprisonment, wholly suspended, with an operational period of three years.  The second respondent, Paul Sia, also pleaded guilty (relevantly) to a count of attempted robbery with personal violence while in company and was sentenced as a juvenile by me in the Childrens Court, Southport to two and a half years detention with an eligibility for release at 50% (15 months). 

Facts

1. The applicant and another male person, Donald Apanui, were walking along Station Road, Woodridge at about 10:00 pm on Wednesday 13 July 2005 when they were approached from behind by three male persons, punched to the ground, then kicked and punched with a demand to “give me your money”.  Mr Apanui was carrying a shoulder bag which was stolen.  The shoulder bag contained $150 and a mobile telephone.  No property was stolen from the applicant.  The matter was reported to police shortly afterwards and police apprehended three males who included the first and second respondents.[1] The second respondent was then, and still is, a juvenile.

[1] Exhibit B affidavit of Allison Campbell sworn 19 June 2007.

Injuries

1. The applicant sustained a painful right upper cheek, some grazing in the same area (right upper cheek), grazing and scratches to the upper forehead, and grazing to the knees.[2]  The applicant’s police statement dated 14 July 2005[3] also refers to him having suffered a sore right thumb and some grazes to his left and right knees as a result of falling on the footpath during the attempted robbery.

   [2] Exhibit G affidavit of Allison Campbell sworn 19 June 2007.

   [3] Exhibit A affidavit of Gerald Soley sworn 27 June 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 that 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 for 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. Ms Campbell, solicitor for the applicant seeks compensation under two items as follows:-

(1) Item 1 – bruising and lacerations (minor / moderate) 1% - 3%

1. Ms Campbell submits that the bruising and lacerations should be compensated at the level of 1% (presumably reflecting the relatively minor nature of the physical injuries).  In the circumstances I consider that submission to be entirely appropriate and accordingly I award 1% ($750) under Item 1.

(2) Item 33 – mental or nervous shock (severe) 20% - 34%

1. The applicant was examined by Mr Alec Jones, consultant psychologist, who provided a report dated 18 May 2007.[4]  Mr Jones found that the applicant was an invalid pensioner, severely impaired at the time of the attempted robbery by the psychological and physical effects of painful rheumatoid arthritis, with a naturally quiet and timid manner, who was easily threatened, had been assaulted on a dark night in a situation where he was unable to defend himself due to his condition and age, by offenders who were much younger and stronger than he was and as a consequence was suffering post traumatic stress disorder (chronic) with a secondary diagnosis of long term major depression, exacerbated by the assault.[5] 

   [4] Exhibit AJ2, affidavit of Alec Jones sworn 27 July 2007.

   [5] Exhibit AJ2, pp 2, 12, affidavit of Alec Jones sworn 29 July 2007

1. Mr Jones considered that the applicant had suffered a direct impact as a result of the assault with permanent effects and no current prospect, without intensive psychological and/or psychiatric and general medical intervention, of improvements in the applicant’s mental state.  The applicant was rendered highly susceptible to strong suicidal ideation as a result of the assault.  Mr Jones formed the conclusion that “it might be reasonably considered that, as a direct result of the assault, an already vulnerable personality could easily be precipitated into a state of psychological disintegration.  Any life factors that may have predispositioned [the applicant] to a sense of vulnerability must be considered to have been maximally impacted by the assault.  The assault must be considered to have been the maximal contributor to [the applicant’s] current condition.”[6]

   [6] Exhibit AJ2, p 12, affidavit of Alec Jones sworn 29 July 2007. 

1. Ms Campbell submits, in accordance with SAY v AZ; ex parte Attorney General (Qld) [2006] QCA 462, that a commonsense approach should be taken to the issue of causation. In the circumstances of this case, the pre-existing vulnerability of the applicant has meant that the otherwise relatively minor physical injuries he received in the incident have been followed by severe mental or nervous shock.

1. In the circumstances, taking account of that pre-existing vulnerability, but noting the diagnosis and prognosis provided by Mr Jones, it seems to me appropriate to award 25% ($18,750) pursuant to Item 33. 

Contribution

1. I do not consider that the applicant has contributed in any way to his own injuries[7].

   [7] See COVA s 25(7)

Conclusion

1. In the circumstances, it is clear that the respondents should each be jointly and severally liable for the payment of criminal compensation pursuant to this application. Accordingly, I order that the respondents Russell Joseph Inukiha-Angana and Paul Sia pay the applicant Gerald Campbell Soley the sum of $19,500.