JURISDICTION : CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA

ACT : CRIMINAL INJURIES COMPENSATION ACT 2003

CITATION : COAD [2022] WACIC 6

CORAM : C F HOLYOAK-ROBERTS

DELIVERED : 3 MAY 2022

FILE NO/S : CIC 701 of 2019

BETWEEN : BENJAMIN JOHN COAD
Applicant

Catchwords:

Procedural fairness – Involvement with drugs

Legislation:

Criminal Injuries Compensation Act 2003, s 3, s 12, s 19, s 39, s 43, s 50, s 52

Representation:

Counsel:

Applicant : Not applicable

Solicitors:

Applicant : A & E Legal PTY LTD

Case(s) referred to in decision(s):

Nil

Reasons for Decision:

1 Benjamin John Coad, (the applicant), who was born on 16 March 1993 made an application on 7 April 2019, resubmitted on 7 September 2021 for compensation for injuries he suffered as a result of an offence which occurred on 24 April 2016 at Margaret River (the offence). On 31 March 2022 I awarded the applicant $12,975.00 compensation for injuries and losses he suffered as a consequence of the offence. By letter dated 7 April 2022, the applicant’s solicitors A & E Legal, requested my reasons for decision which are set out below.
2 The application was made pursuant to section 12 of the Criminal Injuries Compensation Act 2003 (the Act) which authorises an assessor to award an applicant compensation if satisfied the claimed injury and any claimed loss occurred as a consequence of the commission of a proved offence. Proved offence is defined in section 3 of the Act.
3 In relation to the offence, Samuel Isaac Norris, (the offender), entered a plea of guilty to the charge of with intent to do grievous bodily harm unlawfully wounds another, in the District Court at Bunbury on 22 August 2016, having previously entered a plea of guilty in the Magistrates Court on 20 June 2016. As such I was satisfied a proved offence as defined in the Act was constituted.
4 The circumstances of the incident as recorded in the Statement of Material Facts provided as part of the brief for fast track plea by the Department of Public Prosecution (DPP) outlines the circumstances of the offence as follows:
The victim and accused have known each other since they were children and regularly socialise. The accused and the victim’s father both live at the same unit complex at … Margaret River.
On 24 April 2016, the accused was at home in …, Margaret River. the victim and accused’s relationship had recently been on bad terms because of family issues. The victim knocked on the accused door to visit. The accused was in an agitated state, he warned the victim of his anger but let him into the unit.
The accused aggressively began questioning the victim about family issues. The victim tried verbally [sic] calm the accused down. The accused pushed the victim to the chest and grabbed him around the throat with his hand. The victim pushed back at the accused which further aggravated him. The accused grabbed the victim by the throat again and reached for a knife which was sitting near them on a kitchen bench. The accused lunged towards the victim with the knife held in his right hand above his head. The accused pushed the knife down towards the victim’s head. The victim ducked his head down towards the ground resulting in the knife inserting into the back of the victim’s head and neck. The victim sustained a 10cm wound between the base of the skull and the C3 vertebrae.
The victim’s father head [sic] the shouting and went to the unit to assist. The victim and his father fled whilst the accused followed them with the bloodied knife. The victim shouted “get out of town and don’t come back”. The victim ran to the hospital whee he was treated and subsequently conveyed to Bunbury hospital.
The accused was interviewed and made full admissions, stating “I wanted to hurt him” and “see him in pain”. The accused was charged and his bail refused.
5 In support of his application the applicant submitted medical records from Margaret River Hospital where he attended following the incident. It is recorded by hospital staff he attended on the 24 April 2016 with a head injury stating he was stabbed by a knife to the back of the head. He had a past medical history of drug abuse and was currently taking Naltrexone daily for a methamphetamine addiction and further he presented with a knife wound to the base of his skull. A pressure bandage had been applied but he was bleeding heavily. Adrenaline was applied to the wound and suturing commenced. He also had a three inch laceration to his right forearm which was sutured. A three inch laceration to his right hand was noted which was also sutured. He was given a tetanus shot and commenced on IV fluids. It was recorded by hospital staff the applicant told them he “had a bong” before this offence occurred.
6 The applicant was transferred from Margaret River Hospital to Bunbury Hospital for further treatment. A urine drug screen noted “THC”, “Meth” and “AMP” (which I took to be “methamphetamine” and “cannabis”) in his system. He was referred for a scan and not long afterwards discharged himself against medical advice. The Discharge Summary noted the applicant was accepted by the Surgical Registrar with instructions for a CT scan. The CT scan was substantially unremarkable with post-laceration changes in the midline of the cervical spine noted. He was told to follow-up with his General Practitioner (GP).
7 The applicant also provided some medical notes from Margaret River Medical Centre who I understood to be his GP. He first attended on 26 April 2016 following the offence where wounds and facial bruising were noted. It is not clear what treatment he received. He further attended on the 3 May 2016 for suture removal with additional blood tests conducted. He reattended on 17 May 2016 and was reported to be doing well. His blood tests were normal though it was noted the applicant had been on cannabis (THC) since he was eight years old. He described both parents as “addicts”. It was recorded “Chilled all on Naltrexone tabs – given to him by father for his own alcohol”. The applicant reattended on 27 May 2016 where it was noted the scalp wound was healing well. He had mild to moderate symptoms of post-traumatic stress disorder (PTSD) from the offence and wanted to see a counsellor. He said his friend (who I assume to be the offender) was on “meth” and he (the applicant) had been off everything for approximately nine weeks. When he attended on the 15 July 2016 for an unrelated matter it was recorded he had had a few sessions with “Katrina Yates”. He reattended on the 30 September 2016 for a welfare check and was noted to not be on “speed”, but having the occasional “cone”. His mood was good and he felt positive about the future. He presented on 16 May 2017 needing a counsellor and was referred to Mr Zish Rosenback‑Ziembinski (Zish) on a mental healthcare plan. Whilst he attended on the 4 June 2019 for mental health issues, it is not clear to me the origins of those issues. On 20 August 2019 he attended reportedly struggling with the experience from the offence. On the 29 October 2019 he attended for another reason but it was recorded he had also seen the psychologist Zish, but had not been back for awhile. He was encouraged to go back. He subsequently had mental health issues primarily relating to his relationship with his wife and child and on presentation on 6 November 2020 it was recorded his PTSD was discussed and his symptoms were faded most of the time. A copy of the mental health plan was not provided in the documents.
8 Given the applicant’s admission of drug use immediately prior to the incident and his positive tests for meth, THC and amphetamines recorded in the medical notes from Bunbury Hospital, I wrote to the applicant’s solicitor on 7 December 2021 seeking additional information in relation to his drug use. The applicant responded by statement dated 20 December 2021 advising he commenced Naltrexone approximately two weeks before the incident to assist him to become sober. He said he had no drugs or smoking equipment on his person when he entered the premises prior to or following the offence. There was no record in the police documents of any drug or smoking paraphernalia in the applicant’s possession at the time of the offence and I was therefore satisfied with his explanation such that section 39 of the Act did not operate to prevent me from making an award.
9 To assist in determining the extent of the psychological injury allegedly suffered by the applicant in the incident, I obtained a copy of the medical notes from Margaret River Medical Centre to see whether a copy of the mental healthcare plan or any correspondence from the psychologist was available. Contained in those documents was a handwritten letter from Katrina Yates to the applicant’s doctor stating the applicant had attended on 16 July 2016 but had not booked another appointment since. Clinical psychologist, Zish Rosenback‑Ziembinski, wrote to the applicant’s GP on 19 June 2019 advising him he had seen the applicant that day and he had decided to attend on a regular basis. It was recorded he had been referred to this psychologist two years previously and he saw him only once on that occasion. On the prior occasion he was described as virtually mute but presented differently on this occasion communicating his experience clearly and intelligently. He said the applicant made three more appointments which he did not attend but relayed to Zish he had made some positive changes in his life since and was keen to persevere with treatment.
10 Mr Rosenback-Ziembinski further reported to the applicant’s GP on 4 July 2019 he consulted with the applicant on 23 May 2017, 30 August 2018, 19 June 2019 and 3 July 2019. He said on his second visit he observed the applicant to be extremely anxious and found it difficult to talk about himself. He spoke of the offence but could not provide details. He eventually did so on his last visit. He reported the applicant found talking about the offence very traumatic. Following the offence he had recurring nightmares of being attacked for several months which restarted four to five months before he reattended the psychologist. He considered himself to be overprotective, vigilant and anxious, but reluctant to seek treatment.
Procedural Fairness
11 Initially, the application was submitted by the applicant in person by email attaching the application and stating if any additional information was required, to contact the applicant. Confirmation of receipt of the application was sent to the applicant on 19 May 2019 advising him the OCIC would be in contact if further information was required. The application was subsequently rejected by letter dated 17 June 2019 on the basis it had been submitted incomplete as it did not contain a statement of events, statement of impact, reports relating to treatment, details of the claimed future treatment or evidence of loss of earnings. The applicant emailed on 24 February 2020 advising his medical report had been received and asked for this claim to be finalised. The medical report was not provided by him to the OCIC.
12 By letter dated 26 February 2020, the OCIC advised the applicant his claim could not be finalised as the additional information requested in the OCIC’s letter dated 17 June 2019 had not been received and he was asked to obtain all supporting information and submit it to the OCIC along with the medical report.
13 The applicant subsequently instructed solicitors A & E Legal and by letter dated 29 March 2021 they wrote to the OCIC advising they acted for the applicant and the information requested would be submitted once received. By letter dated 1 April 2021, the applicant’s solicitors asked for copies of information the applicant had already provided to the OCIC and by letter dated 7 April 2021, the OCIC asked the applicants solicitors to provide a written authority from the applicant to do so. The applicant’s solicitors provided an unsigned authority and accordingly the OCIC wrote to the solicitors on 8 April 2021 asking for a signed copy to be provided. This document was received on 13 April 2021 following which a copy of the application form, being the only document the applicant had submitted in support of his application, was provided to the applicant’s solicitors by letter dated 14 April 2021.
14 By letter dated 7 September 2021, the applicant’s solicitor resubmitted the application, enclosing additional documents in support including a victim impact statement, police report, medical records from Margaret River Hospital, Bunbury Hospital and Margaret River Medical Centre and a medical report from Zish Siembinski. They also provided an outline of submissions regarding the claim. No indication any additional information would be forthcoming was foreshadowed. The resubmitted application was therefore accepted on the basis it was a complete application and the OCIC began to investigate and process the claim and in due course based on the documents submitted the claim was assessed.
15 During the course of the investigation, it became apparent the applicant was involved in drugs at or near the time of the offence, which has been addressed above. Once it was determined there was no impediment to an award being made, the matter was assessed.

Assessment
16 On review of the evidence I was satisfied the applicant suffered physical injuries by way of stab wounds described above. These were sutured and appeared to have healed without incident. I was also satisfied he suffered psychological injury. The evidence provided led me to conclude the psychological element of his injuries was limited as he did not engage with the medical care providers in any form of extended or intense treatment in this regard. Having considered all of the information available me, I awarded the applicant $12,500 compensation for his injuries.
17 The applicant claimed damage for personal items in the offence, primarily clothing which he said was covered in blood. I awarded the sum of $475 for those personal items. The applicant also claimed future psychological treatment but I had no evidence to satisfy me future treatment was required for the effects of the offence and in any event, the applicant had shown a reluctance to engage in psychological treatment as evidenced from the information provided. I therefore awarded the applicant the total of $12,975 for his injury and losses arising from the offence.
18 The applicant was also an offender in an incident on 31 December 2014 whereby he was convicted of assault occasioning bodily harm in the Magistrates Court at Margaret River. He was found guilty following trial on 23 September 2015. The victim in that matter made a claim for compensation for injuries he suffered in that incident. Compensation was awarded (in application CIC 2892/2017) to that applicant on 29 August 2019 by me in the sum of $10,531.05. Pursuant to Part 6 of the Act and in particular section 50 of the Act, the Chief Executive Officer (CEO) applied for a compensation reimbursement order against the applicant in relation to that offence. On 21 January 2020 a Compensation Reimbursement Order was made pursuant to section 52 of the Act ordering the applicant pay the Department $10,531.05 by lump sum payment forthwith. No payments had been made by the time the applicant’s claim was assessed and pursuant to section 43 of the Act, that amount was offset against the compensation award made in this application.

Therefore, the sum of $10,531.05 was deducted from the award assessment of $12,975 and I awarded the sum of $2,443.95 be paid to the applicant and $10,531.05 to the State.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Criminal Injuries Compensation Assessor of Western Australia.

C F Holyoak-Roberts, CHIEF ASSESSOR OF CRIMINAL INJURIES COMPENSATION

3 MAY 2022