Veenker v Ottley
[2010] QDC 424
•12 November 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Veenker v Ottley [2010] QDC 424
PARTIES:
Sarah Lainey Veenker
(applicant)v
Shannon Mathew Ottley
(respondent)FILE NO:
D56/10
PROCEEDING:
Application
ORIGINATING COURT:
District Court
DELIVERED ON:
12 November 2010
DELIVERED AT:
Southport
HEARING DATE:
1 November 2010
JUDGE:
Newton DCJ
ORDER:
The respondent, Shannon Mathew Ottley, is to pay criminal compensation to the applicant, Sarah Lainey Veenker, in the amount of $48,750.
CATCHWORDS:
APPLICATION – CRIMINAL COMPENSATION – chest injury – fracture of toe – bruising or laceration – fracture of wrist – mental or nervous shock
Criminal Offence Victims Act 1995
Victims of Crime Assistance Act 2009
COUNSEL:
Mr C Bagley for the applicant
SOLICITORS:
Robbins Watson Solicitors for the applicant
The respondent conducted his own case
This is an application for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995, which was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. In these proceedings the applicant had a right, prior to the commencement of the Victims of Crime Assistance Act 2009, to apply for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995, and consequently, having commenced proceedings in accordance with the time limits applicable under the Victims of Crime Assistance Act 2009 is entitled to an order pursuant to the repealed provisions of the Criminal Offence Victims Act 1995.[1]
[1] Section 155(2), Victims of Crime Assistance Act 2009.
The respondent was convicted on 9 August 2008 after a trial in the District Court at Southport of the following counts:
“Count 1: Torture between 11 May 2007 and 18 October 2007;
Count 4: Assault occasioning bodily harm on or about 17 September 2007;
Count 5: Dangerous operation of a motor vehicle on or about 18 September 2007;
Count 6: Deprivation of liberty between 13 October 2007 and 16 October 2007;
Count 7: Assault occasioning bodily harm on or about 14 October 2007;
Count 8: Assault occasioning bodily harm on or about 16 October 2007;
Count 9: Grievous bodily harm on or about 17 October 2007.”
The respondent was acquitted of Count 2: rape and Count 3: assault occasioning bodily harm.
In respect of each offence the respondent was sentenced to imprisonment for various terms ranging between 12 months and 6 years. The Public Trustee of Queensland was served with the application on 19 July 2010, as the respondent had been sentenced to a term of 6 years’ imprisonment.
The applicant and the respondent were involved in a brief de facto relationship which deteriorated into escalating violence and abuse by the respondent culminating in the torture count which is particularised by the six other counts committed over approximately the final two months of the relationship. As a result of the unlawful personal offences committed against her by the respondent the applicant has suffered significant physical injuries as well as mental or nervous shock.
A statement dated 8 May 2008 has been provided by Dr Anne-Louise Swain. Dr Swain is a Clinical Forensic Medical Officer for the Gold Coast. Information relating to the injuries, treatment and medical opinion based on the applicant’s statement to investigating police officers is contained within Dr Swain’s statement.
In relation to count 4: assault occasioning bodily harm on 17 September 2007 the applicant stated that on that date she attempted to leave the respondent at Doug Jennings Park. She started walking along some sand dunes towards Surfers Paradise when the respondent came from behind her and tackled her to the ground. He then pushed her face into the ground and screamed, “You stupid bitch. I hate you.” He then rolled her onto her back, grabbed handfuls of sand and started shoving sand into her mouth. The applicant could not breathe and attempted to get away. The respondent then sat on the applicant and punched her hard in the left ribs causing immediate pain. He then got off her. The respondent ignored the applicant’s requests to be taken to hospital although the following morning he did take her to hospital where it was determined that she had several fractured ribs on both sides. Information from Gold Coast Hospital Emergency Department Notes reveal that the applicant presented to the Emergency Department at 8:49am on 18 September 2007. Triage notes refer to epigastric (upper-central abdomen) pain and shortness of breath. According to medical notes her presenting complaint was painful ribs. On examination the applicant had painful left ribs and sternum (breastbone) and a mildly tender abdomen. A chest X-ray was normal as was an abdominal ultrasound scan. A diagnosis of a rib fracture was made and the applicant was given pain relief and advised to rest until the injury had healed.
In Dr Swain’s opinion this injury would have interfered with the applicant’s health and comfort as evidenced by the fact that she received pain relief. Without medical treatment this injury would have healed.
In Dr Swain’s opinion these injuries would have interfered with the applicant’s health and comfort as evidenced by the fact that she received pain relief and was required to have her hand plastered. Without medical treatment the fracture may not have healed properly.
In relation to count 5: dangerous operation of a motor vehicle, the applicant was walking along a footpath when the respondent got into his motor vehicle and drove towards her, running over her foot. She screamed in pain and was taken to hospital. On examination the applicant revealed:
·bruising on her face and shoulder;
·a bite mark on her left forearm;
·multiple bruises on her legs;
·abrasions to her foot; and
·she was unable to place her full weight on her right foot.
The injuries not relating to the applicant’s right foot may have been caused during an altercation between herself and the respondent at triage. This incident was noted in the nursing notes. X-ray revealed a fracture of her second metatarsal (one of the bones of her foot which joins the base of her second toe). This fracture only involved one surface of the bone.
In Dr Swain’s opinion, the injury to the applicant’s right foot would have interfered with the applicant’s health and comfort as evidenced by the fact that she was unable to fully weight-bear on her right foot and was required to mobilise with crutches. Without medical treatment the injury was likely to have healed.
With respect to count 6: deprivation of liberty the hospital notes record that between 13 October 2007 and 16 October 2007 the applicant stated that she was unable to continue taking her medication suddenly because she had been locked in the respondent’s caravan.
With respect to count 7: assault occasioning bodily harm on or about 14 October 2007 the applicant alleged that on the day in question the respondent claimed that she owed him $7,500 and that she was going to stay with him and work it off. The respondent threatened to “hire you out as a prostitute for 50 bucks a go and you are going to do video internet stuff”. The respondent forced the applicant to stay in the caravan for the next 24 hours, sitting beside the door barring the exit with his leg. During the day the respondent was said to have punched the applicant in the breast, stomach and several times on the face. The applicant was not allowed to leave to use the toilet, the respondent making her “go in front of him”. The following day the respondent took the applicant around to one of his friend’s houses where he left her in the car. The applicant fled to a neighbouring house and police were called.
Dr Swain was unable to find hospital records on the dates in question. However, hospital notes from 17 October 2007 documented numerous bruises, some of which were yellow, indicating that they were more than 18 hours old and hence possibly inflicted on the date in question.
In respect of count 8: assault occasioning bodily harm, on or about 16 October 2007 the applicant states that on 16 October 2007 the respondent collected her from hospital as she had nowhere else to go and drove her to his caravan at Advancetown. He was very angry and said to her, “You have been sleeping with other people if you slept on the street. You would have slept with someone, you slut.” He then smashed his hand into her face causing bleeding and immediate pain in her nose. He then slapped her on the ear causing the ear to bleed. He eventually calmed down and stopped hitting her.
Again, Dr Swain was unable to find hospital records on this date. However, hospital notes from 17 October 2007 documented numerous bruises, some of which were yellow, indicating that they were more than 18 hours old and hence possibly inflicted on this date.
With respect to count 9: grievous bodily harm on or about 17 October 2007 the applicant stated that on this date the respondent began to verbally abuse her. She replied, “Well just leave me then”. He replied, “Are you being smart, are you?”. He grabbed her by the left wrist with two hands and placed her wrist in a hold causing her wrist bone to break. As a result of these assaults she complained of severe pain in her wrist and face and asked him to take her to hospital. He declined to do so. However, at approximately 1pm the respondent did take her a doctor at Ashmore Plaza. The doctor advised that the applicant needed to attend hospital as she had a broken wrist. The respondent drove the applicant to Robina Hospital where she was admitted. On examination the applicant had:
(a) multiple bruises and abrasions to her face, torso, arms and legs. Some of the bruises contained yellow areas indicating that they were more than 18 hours old;
(b) tenderness over her lower chest on both sides;
(c) tenderness over the lower and middle abdomen;
(d) deformity, swelling and tenderness of her left arm, near the wrist; and
(e) decreased range of movement in her wrist.
X-ray revealed a fracture of both of the bones in the left lower arm, near the wrist. The bone on the little finger side of the arm was fractured in multiple places. There was deformity of the bones with the fragments of the wrist-side of the fracture angling towards the back of the wrist and impaction of the bones. The fracture was manipulated under local anaesthetic to improve angulation and impaction. The arm was then plastered. Dr Adam McLeay, a Staff Specialist in the Emergency Department at Gold Coast and Robina Hospitals provided a report dated 11 January 2008 in relation to the applicant’s injured left wrist. Dr McLeay states that the following findings were made on clinical examination:
·no neurovascular deficit to left hand
·elbow, full range of movement without deformity or swelling
·deformity to distal radius and ulna
·very tender
·decreased range of motion in wrist
·X-ray revealed comminuted distal radial fracture with ulna styloid fracture and dorsal angulation and impaction of the distal radial fragments
The applicant was observed in the Emergency Department overnight after she had been treated with analgesia and a haemotoma block performed with the fracture being manipulated to improve angulation and impaction. The wrist was placed in plaster.
In the opinion of Dr Swain the injury to the left arm would have interfered with the applicant’s health and comfort as evidenced by the fact that she received pain relief, had the bones in her arm manipulated, had her arm plastered and was admitted to hospital. Without medical treatment the fractures would have healed with deformity.
A report from Mr Craig Holt, consultant psychologist, dated 15 February 2010 is before the Court. Mr Holt assessed the psychological health of the applicant on the date of the report. Mr Holt notes that the applicant reported a range of symptoms that were causing distress. These included:
(1)flashbacks;
(2)heightened anxiety;
(3)severe sleep disturbance;
(4)emotional lability;
(5)heightened fear;
(6)concentration and attention difficulties;
(7)loss of trust;
(8)loss of confidence;
(9)self-medicating; and
(10)uncertainty.
Mr Holt diagnosed post-traumatic stress disorder, major depressive disorder and alcohol dependence. The latter began in 2005 and was exacerbated during and after her relationship with the respondent. Mr Holt reports that the applicant presented with a complex clinical picture requiring long-term psychological and psychiatric treatment. He believes that the applicant would benefit from psychiatric treatment to assist with post-traumatic stress disorder, major depressive disorder and to reduce her alcohol dependence. She would benefit from ongoing psychological therapy (particularly cognitive behaviour therapy) and therapy for alcohol dependence. Desensitisation therapy for trauma would also be appropriate. The report states that the applicant requires ongoing counselling support that includes post-trauma counselling and counselling for the sequelae to the abuse that she has received. Mr Holt considers it likely that the applicant will require treatment for at least the next two years. After that period, it is likely that she will require intermittent therapy on an ongoing therapy on an ongoing basis as needed.
Mr Holt describes the applicant’s condition as chronic and that it is likely she will have mild to moderate level residual symptoms permanently. Treatment will assist in the management of her symptoms and reducing their intensity. Mr Holt considers it likely that the applicant will require at least 50 sessions of treatment over the next two years. The rate recommended by the Australian Psychological Society for such treatment is $206 per hour. Mr Holt recommends ongoing psychiatric treatment be conducted concurrently.
I accept the evidence of the applicant, Dr Swain, Dr McLeay and Mr Holt. It is clear from that evidence the applicant has suffered significant physical injuries as well as mental or nervous shock as a result of the offences committed against her by the respondent.
The injuries inflicted upon the applicant by the respondent fall for assessment under the relevant schedule to the Criminal Offence Victims Act 1995. In relation to the injuries sustained with respect to count 4, item 21 of the schedule is relevant. This refers to minor chest injuries and permits an assessment at between 2% and 7% of the scheme maximum. Injury number 22 is also relevant as this refers to moderate chest injuries and permits an assessment at between 5% and 10% of the scheme maximum. In my view whichever of these two items is applied the injury should be assessed at 7% of the scheme maximum which yields an award of $5,250. This injury should also be regarded as relevant when assessing the mental or nervous shock award.
In relation to count 5 the injury to be assessed is the fracture of the second metatarsal. In this regard item 18 of the schedule enables an assessment of between 2% and 5% for a minor or moderate fracture of the foot. The injury could hardly be considered to be minor and in my view is properly categorised as moderate. An award at 5% of the scheme maximum or $3,750 is appropriate in the circumstances. Again, this injury will fall for consideration when the award for mental or nervous shock is discussed.
In relation to count 6 and count 7 should be considered jointly when assessing the injuries sustained by the applicant whilst she was being deprived of her liberty in a caravan and at which time she was struck several times across the face, punched in the breast and stomach and pushed back onto the bed and kneed in the stomach. In this regard item 1 of the schedule which relates to minor or moderate bruising is the relevant item under which these injuries should be assessed. The item permits an assessment of between 1% and 3% of the scheme maximum. Again, the injuries could scarcely be considered minor and are more appropriately described as moderate in which case an award of 3% of the scheme maximum or $2,250 is appropriate.
Count 8 involves injuries sustained when the applicant was struck in the nose and ear causing both to bleed. In this regard item 2 of the schedule which relates to bruising and laceration of a severe nature is appropriate. An assessment of between 3% and 5% of the scheme maximum is provided for and in this case an award at 4% is in my view appropriate which yields a further $3,000.
The injuries sustained with respect to count 9 relate to the broken wrist sustained by the applicant when the respondent grasped her hand and forced it back with such force that a number of bones were broken in the wrist. In this case item 16 of the schedule is relevant. This relates to a fracture of the wrist (displaced and immobilised) and permits an assessment of between 8% and 30% of the scheme maximum. Having regard to the evidence of Dr McLeay and Dr Swain I am satisfied that an award of 20% of the scheme maximum or $15,000 is an appropriate assessment with respect to this injury.
No separate claim falls for assessment with respect to the charge of torture (count 1 on the indictment).
The diagnosis by Mr Holt of chronic post-traumatic stress disorder, major depressive disorder and alcohol dependence indicates that the degree of mental or nervous shock in this case is significant. The post-traumatic stress disorder is described as chronic and severe and will require treatment for at least the next two years. The other diagnoses complicate the applicant’s treatment. Of particular concern is Mr Holt’s opinion that even with treatment the applicant will have mild to moderate levels of residual symptoms permanently. The symptoms I regard as severe and bearing in mind the length of time the applicant has suffered these symptoms (almost three years) and the high probability of permanent psychological impairment I am of the view that an assessment under item 33 of the schedule is appropriate. This item refers to mental or nervous shock that is categorised as severe and permits an assessment at between 20% and 34% of the scheme maximum. Having regard to Mr Holt’s evidence I consider that an assessment at 32% of the scheme maximum or $24,000 to be an appropriate assessment for this injury.
In my sentencing remarks I commented that:
“You undoubtedly, found the relationship with the complainant Sarah Veenker, extremely difficult and I accept that. I accept that she was an alcoholic, that she had significant mental health issues, that she abused, not only alcohol but prescription drugs and was also taking illicit drugs. I accept that, at times, she behaved in an irrational manner and on occasions exhibited antagonism towards yourself which included acts of violence. I accept that you, in general terms, experienced degrees of provocation and at times, were obliged to protect yourself from physical harm.”[2]
However, these observations must be balanced by the matters contained in the paragraph following:
“But, when all is said and done, Sarah Veenker was a particularly vulnerable young woman, largely because of her mental health issues, her alcoholism and drug abuse. Your conduct towards her, as revealed in the evidence, was at times, quite despicable.”[3]
[2] Sentence transcript, p2, lines 18-35.
[3] Sentence transcript, p2, lines 40-48.
I accept the submissions of counsel for the applicant that nothing can excuse domestic violence to the extent of torture and chronic assault as committed by the respondent, and further that nothing done by the applicant towards the respondent seems to have been in any way an excuse for the acts of violence in the counts as particularised. Accordingly, I conclude that the applicant’s behaviour towards the respondent should not be seen as justifying a reduction in the amount of any award that might otherwise be made in her favour.
I order that the respondent, Shane Mathew Ottley, is to pay criminal compensation to the applicant, Sarah Lainey Veenker, in the amount of $48,750 which represents an award at 65% of the scheme maximum.
I was informed by the respondent, Mr Ottley, that he intends making an application for special leave to the High Court to appeal against his convictions in respect of these charges. It was, therefore, agreed by the parties that it would be appropriate to order a stay of this judgment at least until 13 December 2010 to enable the application to be filed by Mr Ottley. I so order. The matter will be mentioned on that date in the District Court at Southport at which time arrangements will be put in place for Mr Ottley to appear by video-link from the custodial facility in which he is presently incarcerated. It is expected that the Court will be advised as to the position with respect to the mooted appeal on that date.
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