Sopinski v. Pike [2010] QDC 72 (10 March 2010)

Last Updated: 15 March 2010

DISTRICT COURT OF QUEENSLAND

CITATION:	Sopinski v Pike [2010] QDC 72
PARTIES:	MARGUERITE MARY SOPINSKI (Applicant) v MAURICE JAMES PIKE (Respondent)
FILE NO/S:	BD 74 of 2010
DIVISION:	Civil
PROCEEDING:	Criminal Compensation
ORIGINATING COURT:	Brisbane
DELIVERED ON:	10 March 2010
DELIVERED AT:	Brisbane
HEARING DATE:	26 February 2010
JUDGE:	Dorney QC DCJ
ORDER:	1. The Respondent pay criminal compensation to the Applicant for injuries suffered by the Applicant as a result of offences of which the Respondent was convicted before the District Court on Brisbane 2 July 2007 in the amount of $12,750.
CATCHWORDS:	Application for Criminal Compensation Criminal Offence Victims Act 1995 ss 20, 21, 24(2), 24(3), 30(3) Victims of Crimes Assistance Act 2009 ss 154 and 155 SAY v AZ [2006] QCA 462; [2007] 2 Qd R 363 RMC v NAC [2009] QSC 149
COUNSEL:	A. Cappellano for the Applicant D. McIver for the Respondent
SOLICITORS:	Campbell and White Lawyers for the Applicant Lang Hemming and Hall for the Respondent

Introduction
[1] The Originating Application was filed in this court on 11 January 2010. It seeks that the Respondent, Maurice James Pike, pay criminal compensation for injuries suffered by the Applicant as a result of an offence of which the Respondent was convicted on 2 July 2007. The Applicant was then 43; she is now 47.
[2] The application came on before me on 26 February 2010 when I reserved the decision.
[3] Both the Applicant and the Respondent made written submissions, and both addressed me orally.
Legislation
[4] The application is brought pursuant to s 24 of the Criminal Offence Victims Act 1995 (“the Act”). It continues in force for applications such as this by reason of ss 154 and 155 of the Victims of Crimes Assistance Act 2009.
[5] Section 24 applies if the convicted person – here the Respondent – is convicted on indictment of a personal offence. By s 24(2) the person against whom the personal offence is committed – here the Applicant – may apply to the court before which the court is convicted for an order that the convicted person pay compensation to the applicant for the injuries suffered by the Applicant because of the offence. There is no doubt here that an indictment was presented to which the Respondent pleaded guilty on 2 July 2007 to one count of assault occasioning bodily harm on 14 May 2006 at Brisbane in the State of Queensland and one count of common assault on 14 May 2006 at Brisbane in the State of Queensland.
[6] By reason of definition of s 21 of the Act of “personal offence” there is no doubt that a personal offence has been committed. As to “injury”, since s 20 defines “injury” to include both “bodily injury” and “mental or nervous shock”, for the reasons next advanced, both of those have been satisfied.
[7] Finally, s 24(3) of the Act states that a court may make an order for an amount to be paid by the convicted person to the Applicant because of the injuries.
Judge’s remarks
[8] Since it is necessary to take into the remarks of the sentencing judge, it is noted that Forno QC DCJ on 2 July 2007 stated that the actual physical injuries could not be said to be major but that the general psychological effect “must have been very large”, subsequent to describing in some detail the “unprovoked” attack on the Applicant and her companion. This conclusion obviates any necessity to consider s 25(7) of the Act (concerning a potential deduction for contributing conduct).
Physical injuries
[9] According to the statement of Dr Ross Patrick Cruikshank, on 14 May 2006 the following injuries were documented:

1. a 2 cm laceration to the right side of the nose.
2. swelling and bruising to the left side of the face.
3. swelling and bruising to the right side of the face.

[10] Dr Cruikshank further notes that the above injuries would have caused moderate pain and discomfort at the time. He did not report on any examination of the lower back. Photos of her facial injuries were in evidence.
Psychiatric injuries
[11] The Applicant’s psychiatric injuries are dealt with in the report of Peter J Stoker, a psychologist, of 20 October 2009. The general conclusion reached was that the Applicant had suffered a “moderate” degree of mental and nervous shock and that her permanent psychological impairment was in the “mid to upper level of the moderate range”. Before turning to other aspects of the report, it should be noted that the Applicant’s affidavit refers to the frightening circumstances under which the assault occurred, entirely consistently with the sentencing remarks.
[12] The psychologist’s approach to the Applicant’s psychological injuries I hold to fall within the definition of “nervous shock” in the Act: see RMC v NAC [2009] QSC 149 at [38]. But the Respondent submitted that:-
• There were further aspects of the Applicant’s background which were not included in the report of the psychologist and those ought to have led to a moderation in the eventual diagnosis.
• Aspects of those admissions were said to include the fact that the Applicant had initiated contact with the Respondent on six separate occasions since the incident and that a psychologist remain unidentified who had provided treatment allegedly given to the Applicant in late 2008.
• Such contact should counter the conclusions which go to: that the Applicant has agoraphobia; that the Applicant is fearful of the Respondent (with the consequences that flow from that); that the Applicant is angry at the Respondent; that the Applicant cannot work again; that the Applicant become a prisoner in her own home; and that the Applicant is fearful of further assault.
[13] The Applicant’s response conveyed to the court was that she agreed that she had had some contact which was neither minimal nor extensive. Further, a second report from Peter J Stoker was tendered dealing with these contentions. It stated, essentially, that no opinion originally reached was changed.
[14] The conclusion that I reach, given that s 30(3) of the Act permits that the court receive information in any form that the court considers appropriate, is that the essential thrust of the psychologist’s original report remains true, while noting that any extreme view about the Applicant’s concern of the Respondent should be moderated to a level of the absence of any significant fear.
[15] The other aspect of the psychological injury which the Respondent has focused on are the conclusions that the psychologist reached that the Applicant has had a number of other psycho-social stresses, including car accidents, a dysfunctional childhood, alleged harassment in the police force, and incidents when policing, that resulted in her developing PTSD symptomotology. This led to the further conclusion of the psychologist that the Applicant had a vulnerable pre-morbid personality structure that was prone to decompensating when exposed to the relevant incident.
[16] While it is clear that SAY v AZ [2006] QCA 462; [2007] 2 Qd R 363 requires that only those injuries to which the relevant offences materially contributed are to be compensable (at 370 [22]), it should also be understood that the Court of Appeal sanctioned a broad-brush approach as being often necessary, with the addition that it would be reasonable to suppose that (when discounting) contributing causes entirely independent of a respondent would be giving considerably more weight than those merely reflecting part of the continuum of offending: at 370-371 [23].
[17] Two observations can be made. First, the Respondent has to deal with the fact that these offences were committed against a person who was already vulnerable. Therefore, what the Applicant has suffered is that she has been made much worse than she originally was, or would have been (absent other traumatic events in her life). Secondly, whilst she did have pre-incident symptomotology, the extent of that symptomotology has been expressly referred to as being assessed, as at October 2003, as an 18% permanent disability for her PTSD. With a reasonable degree of certainty, some assessment can be made of the applicability of the pre-existing conditions.
Application of scales
[18] Section 22(4) demands an approach to the scales mentioned in the various applicable Items in the Schedule as requiring the maximum be reserved for the most serious cases, and further requiring the amounts provided in other cases as being intended to be scaled according to their seriousness.
[19] Taking the physical injuries first, the relevant Item in Schedule 1 is Item 1 which deals with minor and moderate bruising and lacerations. Given that the range of the scale is 1% to 3%, and given the nature of the injuries suffered, including the 2 cm laceration, it is appropriate in these circumstances that the top of the scale be used, because the circumstances of the physical injuries and the manner in which they were inflicted, as well as the injuries themselves, suggest that this would be one of the most serious in the minor to moderate range. Therefore, the court concludes that 3% is appropriate.
[20] As to the nervous or mental shock, in light of the experts’ evidence not only has the Applicant suffered a moderate degree of such shock but also her percentage of impairment is in the middle to upper level of that assessment. But taking the contributing factors into account of the pre-existing morbidity, it is appropriate under Item 32, with a range of 10% to 20%, that a percentage of 14% be determined.
Amount of order
[21] Adding the 3% and the 14% together, applying regulation 2 of the Criminal Offence Victims Regulation 1995 and noting that the amount is then calculated on the basis of $750.00 per per cent, the amount of the award in this case is $12,750.
Orders
[22] The Court orders that:
1. The Respondent pay criminal compensation to the Applicant for injuries suffered by the Applicant as a result of offences of which the Respondent was convicted before the District Court on Brisbane 2 July 2007 in the amount of $12,750.