Thiet Duy Duong & Anor v. Toan Thai Ho

[2007] QSC 251

[2007] QSC 251

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MCMURDO J

No 4590 of 2007

THIET DUY DUONG	First Applicant
and
THAN VAN NGUYEN	Second Applicant
and
TOAN THAI HO	First Respondent
and
AN VAN LE	Second Respondent
and
GHI VAN LE	Third Respondent
and
LINN VAN LE	Fourt Respondent

BRISBANE

..DATE 23/08/2007

JUDGMENT

HIS HONOUR:  I have two applications for compensation orders

pursuant to the Criminal Offence Victims Act 1995. They arise

out of the events of 2 December 2001 in which each of the

applicants was shot and for which each of the respondents was

found to be criminally responsible.

Each was found to be guilty of the attempted murder of the

first applicant, Thiet Duy Duong, who was shot in the

shoulder.  In sentencing the respondents, I was unable to

determine who fired that shot.  I declined to find, as the

prosecution had submitted that I should, that the respondent

Ghi Van Le had fired the shot, or that he was the leader of

the group in their attack on the house where the applicants

were living.

I found that the culpability of the respondent, Linn Van Le,

was less than the others, between whom the culpability did

not differ.  Still, as I then found, each of them went to the

house with a common intention to kill the first applicant.

Each of the respondents, other than Linn Van Le, was sentenced

to 16 years imprisonment for this offence and Linn Van Le was

sentenced to 14 years imprisonment.

The second applicant, Thanh Nguyen, was shot in the back.  The

jury convicted the respondent An Van Le of doing grievous

bodily harm with intent to do grievous bodily harm.  Each of

the other respondents was convicted of doing grievous bodily

harm to him.

An Van Le was sentenced to 10 years imprisonment for that

offence, Toan Thai Ho and Ghi Van Le each to eight years

imprisonment, and Linn Van Le to six and a half years

imprisonment.  In each case, a serious violent offender

declaration was made.

The differences between the sentences imposed on the

respondents and the offences against each of these applicants

were due to the different levels of culpability, rather than

to other factors.  The relative burden of these orders should,

therefore, be apportioned so as to broadly reflect those

differences.

The circumstances which brought about these offences were not

completely revealed.  There had been an altercation between

the applicants and some of the respondents earlier that

afternoon, but the true explanation was that there was some

ill-will which well proceeded that.

Whoever was responsible for that ill-will need not be

investigated, because for the purposes of subsection 25(7),

neither of the present applicants could be said to have

contributed directly or indirectly to his injury.

I turn to the first applicant's injuries.  First, there is a

claim that he suffered a gunshot wound, as undoubtedly he did,

but which was "severe", thereby bringing it within item 26 of

the schedule.  The wound caused the first applicant

considerable pain.  He underwent two operations for its repair

and he was hospitalised for 10 days.  The bullet entered at

the back of his shoulder and exited through the front.

The wound has healed without any "significant physical

abnormalities", according to the doctor's opinion.  The

applicant says he still suffers soreness and also when lifting

or carrying.  He has some scarring from the wound and the

surgery.  He's now aged 43 years.

The gunshot wound is fairly assessed, I think, as severe, but

at the lower limit of that category.  Accordingly, it will be

assessed at 15 per cent of the maximum resulting in an amount

of $11,250.

Next, the first applicant claims under item 27 for the

scarring resulting from the wound and the surgery.  He claims

10 per cent, but in my view that overstates his case.

I will allow 3 per cent, which is $2,250.

Thirdly, he claims under item 33 the maximum permitted for

mental or nervous shock.  According to a report of Dr Davison,

psychiatrist, he suffers post-traumatic stress disorder,

although his emotional state has much improved during the last

few years.

During the two or three years after the shooting, his

condition was severe, I accept, and that is detailed in

Dr Davison's report.  His award should reflect that

seriousness but also the fact that he has made a significant

but not complete recovery.  That means that he cannot be

assessed at the upper limit of this category in the schedule

and, in my conclusion, he should be assessed at 25 per cent,

which is a component $18,750.

The result is that there will be a compensation order in

favour of the first applicant in the sum of $32,250.

As to the operation of section 26, each of the respondents was

a party to the offence with equal culpability, save for that

of Linn Van Le.

Accordingly, each of the respondents, Toan Thai Ho, An Van Le

and Ghi Van Le, will be ordered to pay the first applicant the

sum of $32,250 for which they will be jointly and separately

liable.  The respondent, Linn Van Le, will be ordered to pay

an amount of 80 per cent of that which is $25,800 for which

amount he will be jointly and separately liable with the other

respondents.

The second applicant, tragically, is a paraplegic as a result

of the gunshot wound he suffered.  As I have said, he was shot

in the back.  He suffered a complete T8 paraplegia.  There is

a complete paralysis of the lower trunk and limbs.

In consequence, under item 34 of the schedule, the scheme

maximum is to be allowed.

He has suffered in many other ways, but although these matters

are serious, he cannot be compensated in a higher amount than

that maximum of $75,000 to which he is entitled as a result of

his paraplegia.

Each of the respondents other than An Van Le will be ordered

to pay one half of that, that is $37,500.  An Van Le will be

ordered to pay the full $75,000.  So, each of the four

respondents will be jointly and separately liable for $37,500,

and An Van Le will be separately liable for the payment of a

further $37,500.

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