Umutaua v Smith

[2006] QDC 492

DISTRICT COURT OF QUEENSLAND

CITATION:

Umutaua v Smith [2006] QDC 492

PARTIES:

LAWRENCE PETER UMUTAUA

Applicant

V

STUART PETER SMITH

Respondent

AND

VINCENT MARK UMUTAUA

Applicant

V

STUART PETER SMITH

Respondent

FILE NO/S:

1035/05; 1036/05

DIVISION:

Civil

PROCEEDING:

Applications for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

12 September 2006

JUDGE:

Nase DCJ

ORDER:

1.   That Stuart Peter Smith pay to Lawrence Peter Umutaua the sum of $8,250 by way of compensation pursuant to the Criminal Offence Victims Act 1995

2.   That Stuart Peter Smith pay to Vincent Mark Umutaua the sum of $9,000 by way of compensation pursuant to the Criminal Offence Victims Act 1995

CATCHWORDS:

COUNSEL:

Mr S. Simms, Solicitor for the applicants

SOLICITORS:

Howden Saggers Lawyers appeared for the applicants

No appearance or representation for the respondent.

1. These are two separate applications for criminal compensation which, because they each arise out of the one incident, may be conveniently considered together.  The applicant in the first application (1035/05) is Lawrence Peter Umutaua.  The applicant in the second application (1036/05) is his older brother Vincent Mark Umutaua.  The respondent to both applications is a Stuart Peter Smith.

1. Smith ultimately elected not to appear or to be represented at the hearing, accordingly it proceeded in his absence and solely on the materials placed before the court by that applicants.

1. On 22 October 2003 Smith was convicted on indictment in the District Court at Beenleigh of one charge of unlawfully wounding the applicant Lawrence Peter Umutaua and one charge of wounding the applicant Vincent Mark Umutaua with intent to resist his lawful detention.  The sentences imposed were two and a half years and three and a half years imprisonment respectively.

1. The circumstances of the offences can be briefly stated.  The two applicants are brothers.  Lawrence is the younger.  He was 15 years at the date of the offence (13 January 2002).  Vincent was 22.  Both applicants were at home when told that two men were in the act of stealing a motor vehicle from the house next door.  Vincent and Lawrence interrupted the two thieves and chased them on foot.  Lawrence caught up to one of the men, the respondent Smith.  Smith still had a screwdriver in his hand.  He swung it at Lawrence, striking him in the side of his face (jaw).  Lawrence continued to struggle with Smith until his older brother Vincent arrived.  When Vincent engaged with Smith he was stabbed a number of times in the back area with the screwdriver.

1. Lawrence suffered a puncture wound in the area of his jaw line.  The wound penetrated the true skin.  It bled profusely, but has healed without complication.

1. Vincent suffered two puncture wounds and a number of lacerations.  Each of the wounds has healed without complication.

1. I am satisfied that each applicant suffered an injury or injuries within the meaning of s 20 of the Act and the offences are personal offences within the meaning of s 21 of the Act.

1. Under the legislative scheme a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act.  The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act.  The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  In assessing compensation, it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

1. The appropriate item in the compensation table for the wound suffered by Lawrence is item 24 gunshot/stab wounds (minor).  The range provided is 6‑10 per cent of the scheme maximum.  Although the puncture wound did heal without complication, it did leave him with a small scar on his face, of which he is self‑conscious.  He has apparently grown a beard in part to conceal it.  On balance, 8 per cent of the scheme maximum is an appropriate allowance. Although Mr Simms, in his written submissions, treated the small scar at the site of the wound as a separate injury, the better course is to treat the residual scarring as part of the wound.[1]

   [1]See Thomas JA in Ferguson v Kazakoff (2000) QSC 156 at para 25.

1. Vincent suffered the following injuries:

(a)      an abrasion on the right knee (3 centimetres x 2 centimetres);

(b)      a puncture wound (penetrating the true skin) on the left side of the abdomen, just above the hip joint;

(c)      a scratch 5.5 centimetres in length adjacent to the puncture wound in (b);

(d)      another puncture wound (penetrating the true skin) to the left side of the mid‑back area.

1. An appropriate allowance for these lacerations (two) and puncture wounds (two) is 9 per cent of the scheme maximum (1 per cent allowed under item 1 for the lacerations, 8 per cent allowed under item 24 for the two puncture wounds).

1. In addition, both applicants have claims for mental or nervous shock.  Mental or nervous shock is a compensable injury under the Act.  In support of each claim is a report from a psychologist (Mr Hatzipetrou).  Mr Hatzipetrou saw each applicant on 9th and again on 25th June 2004.

1. Mr Hatzipetrou said he thought Lawrence experienced symptoms consistent with an acute stress disorder for a number of weeks after the offence.  The primary symptoms, as far as I can make sense of Mr Hatzipetrou’s report, were feelings of insecurity and an irritable mood.  Mr Hatzipetrou said he assessed Lawrence suffered from “mental or nervous shock” to a moderate degree.  Mental or nervous shock, however, is a legal concept, not a medical concept.  As I interpret Mr Hatzipetrou’s report, apart from an initial reaction (where Lawrence exhibited signs of an acute stress disorder), his emotional and psychological response to the wounding has been more or less a normal reaction to such an incident by a relatively young man.  I am satisfied Lawrence developed mental or nervous shock in the period of time immediately after the wounding.  The appropriate item in the compensation table is item 31 mental or nervous shock (minor).  The range provided is 2-10 per cent of the scheme maximum.  In all the circumstances, 3 per cent will be allowed for the claim for mental or nervous shock.

1. Mr Hatzipetrou said he thought Vincent was affected by an adjustment disorder with depressed mood for a period of several months after the offence.  He seems to think Vincent continued to experience residual symptoms with secondary depression over a period of two years.  If it is accepted Vincent developed mental or nervous shock after the incident, the task the court is required to undertake involves ranking the severity of his mental or nervous shock against other cases of mental or nervous shock.  The appropriate item is item 31 mental or nervous shock (minor).  In all the circumstances, 3 per cent of the scheme maximum will be allowed.

1. A court in determining compensation is required to consider whether any conduct on the part of an applicant may have contributed, directly or indirectly, to the injuries suffered by the applicant.  In this case, there was no relevant conduct on the part of either applicant which should result in a reduction in the award to which he is otherwise entitled.

Orders

1. It is ordered that Stuart Peter Smith pay to Lawrence Peter Umutaua the sum of $8,250 by way of compensation pursuant to the Criminal Offence Victims Act 1995.

1. It is ordered that Stuart Peter Smith pay to Vincent Mark Umutaua the sum of $9,000 by way of compensation pursuant to the Criminal Offence Victims Act 1995.