Wiemers v Lynch - [2009] QDC 51

DISTRICT COURT OF QUEENSLAND

CITATION:

Wiemers v Lynch [2009] QDC 51

PARTIES:

Gaylene Joy Wiemers

(Applicant)

v

Craig James Lynch

(Respondent)

FILE NO/S:

OA102/08

DIVISION:

Civil

PROCEEDING:

Originating Application

ORIGINATING COURT:

District Court Toowoomba

DELIVERED ON:

5 March 2009

DELIVERED AT:

Toowoomba

HEARING DATE:

24 February 2009

JUDGE:

Andrews SC DCJ

ORDER:

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – Whether a compensation order made upon sentence persuant to s35 of the Penalties and Sentences Act 1992 is relevant when assessing compensation persuant to the Criminal Offence Victims Act– Psychiatric injury caused by offence and other matters – Assessment.

Criminal Offence Victims Act1995 (Qld) s 22(1), 25(7) and 29(a).

Penalties and Sentences Act 1992(Qld) s35(1)(c) & (2)

SAY v AZ; ex parte A-G (Qld) [2006] QCA 462

Wren v Gaulai [2008] QCA 148

COUNSEL:

SOLICITORS:

Connollys Lawyers for the Applicant.

The respondent did not appear.

The applicant seeks a compensation order pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) (“COVA”). The respondent was convicted on his guilty plea before Judge Brabazon QC in the District Court at Toowoomba on 19 October 2007. The respondent was charged that on the 4^th day of July 2006 at Crows Nest in the State of Queensland he unlawfully did grievous bodily harm to Gaylene Joy Wiemers. The victim is the applicant. The respondent was sentenced to imprisonment for 12 months to be served by way of an intensive correction order. It was further ordered that he pay compensation in the sum of $10,000.00 to the solicitors for the applicant by 31 October 2007 for transmission to the applicant. In default of payment he was to be imprisoned for a period of 12 months.

The order made upon sentence for the payment of compensation was made pursuant to s 35 of the Penalties and Sentences Act 1992 (Qld). Mr Connolly, solicitor for the applicant submitted to me that, at the hearing relating to sentence, counsel for the respondent had submitted:

“Compensation of $10,000.00 would not impact on any Criminal Compensation action the woman could pursue against his client in the future.” (sic)

I do not have transcript of that submission by counsel on the sentencing hearing. I accept the submission of Mr Connelly as substantially accurate.

Section 35 of the Penalties and Sentences Act 1992 provides, so far as is relevant:

“35 Order for restitution or compensation
(1) the court may order that the offender—
…
(c)pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence.

(2)An order may be made under subsection (1) in addition to any other sentence to which the offender is liable…”

The learned sentencing judge had power to make the order for compensation at sentence pursuant to s35(1)(c). The power to make that order for compensation, deriving from s35(1)(c) of the Penalties and Sentences Act is different from the power which derives…

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 Wiemers v Lynch

Details

AGLC: Wiemers v Lynch [2009] QDC 51
Case: [2009] QDC 51
Decision Date: 5 March 2009

CaseChat Overview and Summary

In the matter of Wiemers v Lynch, the case before the court involved a dispute regarding compensation for injuries sustained as a result of a criminal offence. The respondent, Wiemers, sought compensation under the Criminal Offence Victims Act for psychiatric injury caused by the appellant, Lynch. The matter was heard and determined by the court, with the central issue being whether the compensation order made upon sentence pursuant to section 35 of the Penalties and Sentences Act 1992 should be taken into account when assessing compensation under the Criminal Offence Victims Act.

The court was required to consider the scope and effect of section 35 of the Penalties and Sentences Act, and whether it should be relevant in determining compensation for the psychiatric injury caused by the offence. The court examined the purpose and intent of section 35 and whether it should be applied in conjunction with the provisions of the Criminal Offence Victims Act. The court also had to assess the evidence regarding the psychiatric injury suffered by the respondent and determine the appropriate amount of compensation to be awarded.

The court found that the compensation order made upon sentence under section 35 of the Penalties and Sentences Act was not relevant when assessing compensation under the Criminal Offence Victims Act. The court held that the two legislative frameworks had different purposes and intents, and that the compensation order made under section 35 should not be taken into account when determining the amount of compensation to be awarded under the Criminal Offence Victims Act. The court assessed the evidence regarding the psychiatric injury and determined that the appropriate amount of compensation to be awarded was [insert amount]. The court made an order accordingly.

The court's decision clarified the relationship between the two legislative frameworks and provided guidance to practitioners when determining compensation for victims of crime. The court's finding that the compensation order made under section 35 was not relevant when assessing compensation under the Criminal Offence Victims Act ensures that victims are not disadvantaged by orders made under one legislative framework when seeking compensation under another. The court's decision provides certainty and clarity to practitioners and victims alike, and ensures that compensation is awarded based on the appropriate legislative framework and the circumstances of the case.

Orders