Hawkins v Spucches

[2010] QDC 154

DISTRICT COURT OF QUEENSLAND

CITATION:

Hawkins v Spucches  [2010] QDC 154

PARTIES:

ANDREW DAVID HAWKINS

(Applicant)

v

SAM CHARLES SPUCCHES

(Respondent)

FILE NO/S:

33 of 2010

DIVISION:

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

22 April 2010

DELIVERED AT:

Ipswich

HEARING DATE:

23 March 2010

JUDGE:

Bradley DCJ

ORDER:

I order that the respondent pay to the applicant the sum of $17,250.00 by way of criminal compensation

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the respondent was convicted of the serious assault of the applicant – where the applicant did not seek medical treatment for the physical injury caused – where the injury resulted in post traumatic stress disorder – where the offence was minor yet it materially contributed to the applicant’s psychological injury.

Criminal Offence Victims Act 1995 (Qld)

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

COUNSEL:

SOLICITORS:

Mr M Kelly, solicitor McMillan Kelly Thomas for the applicant

Mr M Holmes solicitor for Murphy Schmidt for the respondent

1. On 2 June 2009 in the District Court at Brisbane the respondent, upon his plea of guilty, was convicted of the serious assault of the applicant.  The offence was committed on 30 August 2008 at Brisbane when the respondent assaulted the applicant, a police officer, with intent to resist lawful arrest.

1. The applicant now seeks an order for compensation for the injuries suffered by him because of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (the Act).

1. The respondent was legally represented and appeared at the hearing of the application.

1. I was not the sentencing judge, but the transcript of the sentence proceedings indicates that the offence took place on the evening of the River Fire Festival in Brisbane.  The applicant was conducting traffic control duties on the Story Bridge which was closed to all traffic during the fireworks event.  Vehicles were being directed to do a U-turn and travel back in the direction in which they had come. 

1. The applicant was assisting a motorist who had broken down in the far left lane on to the bridge.  He observed the headlights of a vehicle coming towards him and attempted to get out of the way.  However he was hit on the left side of his body by the vehicle which was driven by the respondent.  The respondent stopped his vehicle approximately 5 m further up the road, got out of his vehicle and began shouting at the applicant about the traffic delays.  The respondent was waving his arms.  The applicant directed the respondent to get back into his vehicle.

1. The respondent grabbed the applicant’s police torch and the applicant told him that he was under arrest and attempted to restrain him.  A struggle ensued.  The respondent attempted to hit the applicant with the torch.  Another police officer came to assist the applicant and the two officers attempted to restrain the respondent.  The applicant was able to retrieve his torch but the respondent grabbed the applicant by the testicles and squeezed with “a great deal of force”. This immediately caused the applicant significant pain.

1. The two officers were finally able to restrain the respondent and he was handcuffed at the side of the road.  The respondent told police he was angry that he could not cross the Story Bridge and when asked about grabbing the applicant’s testicles he said words to the effect “you have to do what you can in those situations”.

1. From the material before me there is no suggestion whatsoever of any behaviour on the part of the applicant which contributed to his injuries.

1. In a victim impact statement dated 4 March 2009 the applicant states that he is 36 years of age and married with a 4 year old daughter.  He has been employed in the Queensland Police Service for 9 years.  The applicant states that as a result of being hit by the respondent’s vehicle he sustained bruising to his left upper arm and left thigh. It was accepted however during the sentencing of the respondent, that the respondent did not intend to hit the applicant with his vehicle and in fact did not appreciate that he had done so.  The serious assault related only to the grabbing and squeezing of the applicant’s testicles and it is only in relation to this injury that the applicant is entitled to an order for compensation. The applicant has not sought any medical advice or treatment in relation to this injury.

1. The applicant was involved in a serious work-related motor cycle accident in November 2007 which left him with serious injuries and permanent impairment.  At the time of the incident involving the respondent, the applicant was still receiving medical treatment for those injuries.  After this incident the applicant was again in a great deal of pain and the assault has had a negative impact upon his emotional health and sleeping patterns, and on his relationship with his family and on his attitude towards his work.

1. The applicant underwent a number of interviews in late 2009 with Hilary Lennon, a psychologist. As a result of the interviews and assessments conducted by Ms Lennon, she was able to conclude in her psychological report dated 25 November 2009, that the applicant reports symptoms consistent with post traumatic stress disorder.

1. The applicant told Ms Lennon that he suffered significant intense pain for over a week after the incident and continues to experience pain in his genital region. Sitting on a motorbike remains uncomfortable for him.  Not only has he worked as a motorcycle police officer but he also owns a motorbike which previously he enjoyed recreationally.  This is now limited.

1. The applicant also told Ms Lennon that certain work colleagues found the incident amusing and he bore the brunt of office humour as a result.  This caused him additional distress, indignity and embarrassment.  It was also clear from Ms Lennon’s discussions with the applicant and the applicant’s wife that ongoing physical pain and anxiety has detrimentally affected their sex life.

1. In Ms Lennon’s opinion the symptoms of post traumatic stress disorder (chronic) suffered by the applicant are at the high end of the moderate range and in addition to PTSD, the applicant presents with symptoms of anxiety. Ms Lennon states “unless he is able to ascertain and resolve the cause of his physical pain, his psychological problems will in my opinion be exacerbated and are unlikely to be resolved”.

1. Ms Lennon recommends that the applicant seeks psychological treatment.

1. Compensation is sought on behalf of the applicant for bruising in relation to his physical injury and for moderate mental or nervous shock.

1. On behalf of the respondent it is argued that factors other than the offence may have contributed to the applicant’s psychological condition, those being the previous motorcycle accident and the injuries sustained therein; the recent death of the applicant’s mother and the effect of fellow officers’ harassment following the incident.  It is also argued that the court should balance the evidence of Ms Lennon against the fact that the physical injuries are minor.  The respondent argues that the award for bruising should be 1% of the scheme maximum and the award for mental or nervous shock should be at the lower end of the range of moderate.

1. It is clear from Ms Lennon’s report that although the physical injury to the applicant was relatively minor, despite ongoing pain, the applicant has not sought any treatment in regard to it.  Nevertheless the offence is the major contributor to the applicant’s current psychological condition.  The offence has “materially contributed” to the applicant’s psychological injury.[1]  In the circumstances of this case I am satisfied that it is not appropriate to reduce the applicant’s award for compensation for mental or nervous shock to reflect the possible (but it would appear relatively minor) effect of other factors upon his psychological condition. Despite not seeking medical treatment, the applicant’s evidence supports an award for moderate bruising for the physical aspect of his injury.

   [1]SAY v AZ; ex parte AG (Qld) [2006] QCA 462 Holmes JA, para 22 ff.

1. I assess compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:-

Item 1 – bruising (moderate) 3%  $2,250.00
Item 32 – mental or nervous shock (moderate) 20%  $15,000.00

TOTAL                   $17,250.00

1. I order that the respondent pay to the applicant the sum of $17,250.00 by way of criminal compensation.