Sweeney v Cullen - [2010] QDC 115

DISTRICT COURT OF QUEENSLAND

CITATION:

Sweeney v Cullen [2010] QDC 115

PARTIES:

BRETT CHARLES SWEENEY

(Applicant)

V

ANTON SHAYNE CULLEN

(Respondent)

FILE NO/S:

D35/2009

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Gladstone

DELIVERED ON:

19 March 2010 (ex tempore)

DELIVERED AT:

Gladstone

HEARING DATE:

19 March 2010

JUDGE:

Irwin DCJ

ORDER:

Respondent pay the applicant the sum of $63,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld)

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – respondent convicted of assault occasioning bodily harm – where the applicant suffered an occipital fracture and bi-frontal lobe contusions which exacerbated a pre-existing cervical dystonic tremor, and moderate to severe symptoms of post-traumatic stress disorder together with major depressive disorder – assessment of compensation

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the applicant sought compensation from the respondent, on the basis of his conviction of one count of assault occasioning bodily harm – where the applicant suffered an occipital fracture and bi-frontal lobe contusions – where the applicant had suffered a pre-existing cervical dystonic tremor – where the respondent’s offence exacerbated this condition – whether the award of compensation should be reduced

Criminal Offence Victims Act 1995 (Qld), s 24, s 25, Sch 1

AT v FG [2004] QCA 295, cited

Hall v Dizo [2010] QDC 71, applied

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

RMC v NAC [2009] QSC 149, cited

SAY v AZ; ex parte A-G (Qld) [2007] 2QdR 295; [2006] QCA 462, applied

Sopiniski v Pike [2010] QDC 72, applied

COUNSEL:

J. R. Clarke for the applicant

No appearance for the respondent

SOLICITORS:

MacDonald and Michel for the applicant

No appearance of the respondent

HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for injuries sustained as a result of the offence of assault occasioning bodily harm, of which the respondent was convicted on his plea of guilty before me in the Gladstone District Court on 22 April 2009.

I sentenced the applicant to three years' imprisonment for this offence. I ordered that his parole release date be fixed on 12 September 2009 and declared 222 days as time already served under the sentence.

On or about 14 June 2008, while the applicant was at a local nightclub known as Bojangles Piano Bar, the respondent struck him with a single blow to the head, causing him to fall backwards and hit the back of his skull.

As a result, as I described it in my sentencing remarks, he "suffered a fracture to the back…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sweeney v Cullen

Details

AGLC: Sweeney v Cullen [2010] QDC 115
Case: [2010] QDC 115
Decision Date: 19 March 2010 (ex tempore)

CaseChat Overview and Summary

Sweeney v Cullen is a case that arose in the context of an application for criminal compensation in Queensland. The applicant, Sweeney, sought compensation from the respondent, Cullen, who had been convicted of assault occasioning bodily harm. The assault resulted in Sweeney suffering an occipital fracture and bi-frontal lobe contusions. These injuries exacerbated Sweeney’s pre-existing cervical dystonic tremor and led to moderate to severe symptoms of post-traumatic stress disorder and major depressive disorder. The central legal issue before the court was whether the award of compensation to Sweeney should be reduced due to his pre-existing conditions.

The court examined the statutory framework provided by the Criminal Offence Victims Act 1995 (Qld), which sets out the criteria for awarding compensation to victims of crime. The court was required to determine the extent to which the pre-existing conditions of the applicant influenced the quantum of compensation. The court considered the evidence regarding the extent of Sweeney’s pre-existing conditions, the impact of the assault on those conditions, and the medical evidence provided by both parties. The court also assessed the overall impact of the assault on Sweeney’s health and quality of life.

After considering the evidence and arguments, the court determined that the award of compensation should not be reduced on the basis of Sweeney's pre-existing conditions. The court found that the assault had a significant impact on Sweeney's health and quality of life, and awarded him the sum of $63,750 by way of compensation. This decision reflects the court's recognition of the importance of compensating victims for the full extent of their injuries and the impact of the crime on their lives.

Orders

Orders of the court

Respondent pay the applicant the sum of $63,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld)

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sweeney v Cullen [2010] QDC 115
PARTIES:	BRETT CHARLES SWEENEY (Applicant) V ANTON SHAYNE CULLEN (Respondent)
FILE NO/S:	D35/2009
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING COURT:	District Court, Gladstone
DELIVERED ON:	19 March 2010 (ex tempore)
DELIVERED AT:	Gladstone
HEARING DATE:	19 March 2010
JUDGE:	Irwin DCJ
ORDER:	*Respondent pay the applicant the sum of $63,750 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act* 1995 (Qld)**
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – respondent convicted of assault occasioning bodily harm – where the applicant suffered an occipital fracture and bi-frontal lobe contusions which exacerbated a pre-existing cervical dystonic tremor, and moderate to severe symptoms of post-traumatic stress disorder together with major depressive disorder – assessment of compensation CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where the applicant sought compensation from the respondent, on the basis of his conviction of one count of assault occasioning bodily harm – where the applicant suffered an occipital fracture and bi-frontal lobe contusions – where the applicant had suffered a pre-existing cervical dystonic tremor – where the respondent’s offence exacerbated this condition – whether the award of compensation should be reduced Criminal Offence Victims Act 1995 (Qld), s 24, s 25, Sch 1 AT v FG [2004] QCA 295, cited Hall v Dizo [2010] QDC 71, applied R v Ward; ex parte Dooley [2001] Qd R 436, applied RMC v NAC [2009] QSC 149, cited SAY v AZ; ex parte A-G (Qld) [2007] 2QdR 295; [2006] QCA 462, applied Sopiniski v Pike [2010] QDC 72, applied
COUNSEL:	J. R. Clarke for the applicant No appearance for the respondent
SOLICITORS:	MacDonald and Michel for the applicant No appearance of the respondent