Sutton v Massey

[2010] QDC 57

DISTRICT COURT OF QUEENSLAND

CITATION:

Sutton v Massey [2010] QDC 57

PARTIES:

SHAUN JAMES SUTTON

(Applicant)

V

CHRISTOPHER IAN MASSEY

(Respondent)

FILE NO/S:

BD50/2010

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

19 February 2010 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

19 February 2010

JUDGE:

Irwin DCJ

ORDER:

Respondent pay the applicant the sum of $10,500 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld)

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – respondent convicted of serious assault – where the applicant suffered moderate mental and nervous shock – assessment of compensation

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND –where applicant sought compensation from respondent, on the basis of his conviction of one count of serious assault – where psychologist found that the applicant suffered from an adjustment disorder with anxiety – where the respondent had been convicted of another offence of serious assault against the applicant – where the other offence was an earlier incident in a continuum of offending – where there was more than one cause of injury – contribution to the injury of acts not the subject of conviction– whether the applicant’s award of compensation should be reduced

Criminal Offence Victims Act 1995 (Qld), s 24, s 25, Sch 1

R v Ward; ex parte Dooley [2001] Qd R 436, applied

RMC v NAC [2009] QSC 149, cited

Shannon v Barry [2009] QDC 392, cited

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

COUNSEL:

A.I. James for the applicant

No appearance for the respondent

SOLICITORS:

MCG Legal for the applicant

No appearance of the respondent

HIS HONOUR:  The applicant seeks compensation pursuant to

section 24 of the Criminal Offence Victims Act 1995 (the Act)

for injuries sustained as a result of the offence of serious

assault of which the respondent was convicted on his plea of

guilty before me in the District Court at Dalby on 11

September 2009.

The application is expressly based on one charge of serious

assault.  The respondent in fact pleaded guilty on that date

to two counts of serious assault committed on the same date

and place, 21 December 2008, at Tara against the applicant, a

police officer.  He also pleaded guilty on that date to a

further count of serious assault at the same time against the

applicant's partner Sergeant Luhrs.

It is made clear from the applicant's outline of submissions

that the offence on which the application is based relates to

the respondent spitting in the applicant's face, as a result

of which it is submitted that he received psychological and

psychiatric injuries.

As I observed in my sentencing remarks the other offence

against the applicant, for which the respondent pleaded

guilty, related to his struggling against the applicant and

Sergeant Luhrs as he resisted their attempts to arrest him at

an earlier time on the same evening.  The charge of serious

assault concerning Sergeant Luhrs also arises out of this

incident.

I sentenced the applicant to 12 months' imprisonment for the

spitting offence, and six months' imprisonment for each of the

other offences.  These sentences were to be served

concurrently, however, I ordered that the sentences be

suspended forthwith for an operational period of three years.

Convictions were recorded.

On 21 December 2008 the applicant was working as a uniformed

police officer stationed at the Tara Police Station when the

respondent's partner attended there at about 12.15 a.m. The

applicant and his partner, Sergeant Luhrs, then followed the

respondent's partner back to her residence in Tara.  Upon

arrival the applicant observed the respondent, a male person,

at the front door of the residence.  The applicant immediately

noticed that the respondent had a substantial quantity of

blood over his body and jeans.  This was the result of a large

laceration to his right forearm.

The respondent immediately became aggressive towards the

police and took a fighting stance.  He raised his clenched

fists towards the police.  The applicant says that neither he

nor Sergeant Luhrs had said or done anything to provoke the

respondent to do this.  However, as stated during the

sentencing proceedings the respondent was heavily intoxicated

at the time.  As a result he did not recall what occurred.

The respondent was warned to desist from this behaviour or

risk being sprayed with OC spray.  The respondent ignored this

warning and continued to approach with the result that

Sergeant Luhrs deployed the spray which hit the face of the

respondent.

Sergeant Luhrs then told the respondent that he was under

arrest.  However, the respondent ignored the police requests to get on the ground and ran away.  The applicant gave chase and tackled him to the ground, and maintained a position on top of him until Sergeant Luhrs arrived.  The respondent struggled against both police officers ignoring their instructions.  As a result they were unable to take their weight off him as he continued to struggle and attempted to fight them.

Because of the blood covering the bodies of the applicant,

Sergeant Luhrs and the respondent, the respondent was able to

free himself from the applicant's grip.  As a result the

applicant struck him twice in the face at half power with a

clenched fist to shock him but not to injure him further.

However, as Sergeant Luhrs tried to handcuff the respondent,

he continued to violently resist.  As a result it was

necessary for the applicant to strike him to the top of his

right shoulder twice with his knee in order to regain control

of the handcuffs.

Because the applicant was unable to achieve this, at Sergeant

Luhrs instructions, he splayed a second burst of the OC spray

into the respondent's eyes.  This achieved its aim of allowing

the officers to handcuff him, however, he continued to resist.

The officers were required to use force to walk him to the

police vehicle.  Because he refused to get into the rear of

the vehicle, they were forced to lift him up by his jeans and

push him into the back seat.  After some further difficulty

the police officers were able to close the vehicle's door.

The applicant says in his victim impact statement that these

steps were taken to restrain and arrest the respondent for the

protection of the respondent's spouse and daughter, Sergeant

Luhrs, and himself and also for the protection of the

respondent.  The applicant felt that he had no choice other

than to take these steps.

During the process of the arrest, as a result of the

respondent's assault, the applicant received a number of

cuts and abrasions over his arms and hands which were covered

with the respondent's blood.

It is the respondent's violent resistance against the

applicant and Sergeant Luhrs during the course of his struggle

which was the subject of the other offence against

the applicant for which the respondent pleaded guilty.  It was

also the subject of the offence which he pleaded guilty to

committing against Sergeant Luhrs.

The applicant scrubbed the blood from these cuts and abrasions

at the house.  It was at this point that he started to feel

overwhelmed and nauseous at the prospect of picking up a

serious disease such as HIV or hepatitis.

According to his victim impact statement the applicant soon

found out that the respondent had spent time in prison.  This

made him feel extremely uneasy as he felt there was more of a

chance of the respondent having a disease.  He experienced a

feeling of desperation and inquired of the respondent's spouse

if he had any diseases.  She was unable to give him a

definitive answer.  This caused him to panic.

Although it is not entirely clear in the context of the

evidence, and the victim impact statement, I proceed on the

basis that this conversation with the respondent's partner

took place at the respondent's residence before he was

transported to the hospital.  Before that transportation

occurred, the applicant provided some after-care to the

respondent by putting some water into his eyes to counteract

the effects of the spray.

The respondent was then transported to the Tara Hospital,

given the laceration he was suffering.  The respondent was

also provided by the applicant with further after-care related

to the deployment of the spray after arrival at the hospital.

It was during the time that this after-care was being provided

to the respondent in a shower cubicle by way of a detachable

shower head that the respondent turned his head, looked

straight at the applicant and spat in his face.  This spit hit

the applicant on the right-hand side of his bottom lip.

The applicant says in his victim impact statement that some of

the spittle entered his mouth.  He washed his mouth out.  This

enraged him, and added to the angst that he was already

feeling from the previous incident. 

Due to the respondent's continual aggressive behaviour, the

nurses and doctors were unable to treat him.  A temporary

bandage was applied to his arm to stem the bleeding.  He was

then removed from the hospital and taken to the watch house.

Even at this point the applicant and Sergeant Luhrs had to

physically lift him into the police vehicle.

Following this, the applicant was required to undergo a number

of blood tests in order to determine whether he had in fact

contracted any communicable diseases.

In November 2009, approximately 11 months after the event

giving rise to this application, the applicant attended upon

Mr Chittenden, a psychologist for the purposes of medico legal

assessment.  Mr Chittenden's report is dated 18 November 2008,

and is annexed to his affidavit which forms part of the

evidence before the court.

Although the applicant did not receive any physical injuries

as a result of the offence committed upon him, and upon which

this application is based, it is submitted that he suffered

from mental and nervous shock since the incident.

It is noted in Mr Chittenden's report that the applicant was a

married man.  After school he entered a trade and completed

his motor mechanics apprenticeship.  In 2004 he joined the

police service as a general duties officer.  He was stationed

at Tara.

In his report Mr Chittenden refers to the struggle by the

applicant and Sergeant Luhrs with the respondent who was

slipping due to the blood over his body before managing to

handcuff him.  He specifically refers to the respondent

washing some of the blood from his hands and arms.  He also

refers to Sergeant Luhrs doing the same thing.

Reference is then made in chronological sequence to the

spitting incident.  Under the heading:  "Post incident

history" at paragraph 11, Mr Chittenden says:  "It was only

after he had washed the blood off himself that he realised,

having received cuts and scratches himself, that he might have

contracted HIV or hepatitis.  He felt very anxious and

nauseous, made worse when he discovered the man had spent time

in Long Bay Gaol.  He contacted the defendant's partner to

ascertain whether he suffered from any communicative disease,

but she did not know.  He then admits he panicked and became

extremely anxious."

This is written as if the applicant's reaction, which is

described, occurred after both the struggle and the spitting

incidents.  In context, as I have observed, this reaction is

described in the victim impact statement as happening after

the struggle and before the spitting incident.

The anxiety affected the applicant's sleeping pattern with him

experiencing difficulties in going to sleep at night because

his mind was constantly replaying the incident, and worrying

about the consequences of his exposure to the respondent's

blood.

He also had problems concentrating, and relationships with

fellow workers appeared to him to be affected.  The stress

became so bad that he sought support from a psychologist

within the Queensland Police Service.  He was referred to a

doctor with whom he spoke about the matter.  The concern of

the applicant that he had in fact contracted a communicable

disease resulted in him not being able to be intimate with his

partner for a period of time and caused a great strain to this

relationship.

As the applicant says in his victim impact statement:  "His

partner was born and bread in Zimbabwe, and was more aware and

scared of diseases such as HIV than most."  The applicant says

he felt sick trying to muster the courage to call her.  When

he did she was extremely upset.  They were concerned at the

possible outcomes of pending tests.  They agreed to cease

being intimate until the test results showed that he was clear

of any diseases.

There was a considerable strain on their relationship, given

that because of the geographical circumstances of his

employment, the respondent only saw her for a couple of days

at a time every two or three weeks.  His thoughts were

consumed by the matter for a large percentage of time daily.

As Mr Chittenden says in his report:  "Their whole

relationship was in the balance."

The experience also changed the way that the respondent

worked.  He avoided situations where there was blood or a

chance of contamination.  He also tried to ensure that people

did not face him to avoid the chance of being spat on.  He

seriously considered resigning from the police service partly

due to the trauma he had received and other incidents where he

had been exposed to blood although at this stage he has

decided to continue with his chosen career.

The applicant was cleared after a approximately eight weeks

when a disease test order returned a negative result.

Mr Chittenden states that during the initial eight weeks after

the event, the applicant suffered classic symptoms of post

traumatic distress disorder.  He had constant flashbacks, was

unable to sleep, could not concentrate, had reduced ability to

socialise and there was the undoubted fear of death or

permanent medical problems.  As the applicant said in his

victim impact statement, it was a relief to he and his

wife to receive news that the tests had returned a negative

result, and it felt like the entire weight of the world was

lifted from his shoulders.

The symptoms gradually lessened after he was cleared of any

communicable disease after this eight week period, but

Mr Chittenden says that the experience left him anxious and

hyper-alert for any possible threat.  He no longer feels

relaxed and secure in his job and neither does he find it as

enjoyable.

In conclusion Mr Chittenden expresses the opinion that the

applicant suffered from an adjustment disorder with anxiety

(DSM IV 309.24).  According to Mr Chittenden the applicant

will never completely overcome the trauma and stress he

experienced.  However his long term prognosis is good.

Mr Chittenden diagnosed the trauma from the event as falling

within the moderate category following the event.  However, it

can now be seen as in the mild category.  He also says that

the quality of life of the respondent has been permanently

affected.  He prefaces his conclusion with a statement at

paragraph 18 of his report that:  "Shaun Sutton, whilst trying

to restrain and arrest a man was spat at and contaminated by

the man's blood.  He had tried to give aid to the man who was

suffering from the effects of being sprayed with capsicum.

Shaun Sutton was angry and frustrated by the man's actions

when trying to be helped."  I construe this conclusion as

related to the spitting incident, and also that the diagnosis

relates to that incident.

In these circumstances it is submitted on behalf of the

applicant that he should be awarded compensation under item

32 of the compensation table which is schedule 1 to the Act.

This is on the basis of moderate, mental or nervous shock for

which there is an entitlement for an award of compensation

between 10 per cent and 20 per cent of the scheme maximum of

$75,000.  It is submitted that for the totality of the mental

or nervous shock caused by the respondent to the applicant it

is appropriate to award a total of 14 per cent of the scheme

maximum.  That is an amount of $10,500.

The respondent has not appeared on the hearing of this

application.  He was personally served with the originating

application and the supporting affidavits on 22 January 2010

by a licensed commercial agent.  This is deposed to in an

affidavit.  In the circumstances I proceed in the respondent's

absence.

The offence of serious assault on the respondent was a

personal offence. Therefore, section 24(1) of the Act is

satisfied.  The threshold question which arises is one of

causation.  In SAY v AZ:  ex parte Attorney-General (Qld)

[2006] QCA 462, Holmes JA with whom Jones and Mullins JJ

agreed described the statutory scheme as follows, at

paragraphs [4] and [5]:

"[4] The regime for the payment of the compensation for

criminally inflicted personal injury is to be found in part 3

of the Criminal Offence Victims Act 1995. It establishes a

scheme for payment of compensation for, among other things,

injuries suffered by an applicant, "caused by a personal

offence committed against the applicant".  Where someone is

convicted on indictment for such an offence, or it is taken

into account on sentence, the applicant may seek an order

"that the convicted person pay compensation to the

applicant for the injury suffered by the applicant because of

the offence", and the court may then make a compensation order

for "an amount to be paid with the convicted person to the

applicant because of the injury".

[5] As to what is to be taken into account in determining

compensation, section 25(7) provides as follows:

"In deciding whether an amount or what amount should be ordered to be paid for an injury the court must have regard to everything relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the

injury." 

Nowhere in pt 3 is there any more precise indication of how

compensation is to be assessed when factors other than

offences resulting in conviction, or taken into account on

sentence, contribute to the applicant's injury."

This is relevant in the present case because factors other

than the offence resulting in the conviction of the respondent

for the serious assault of spitting on the applicant, which is

the basis of this application, have contributed to the

applicant's injury.  This is the transfer of blood from the

respondent into the cuts and abrasions suffered by the

applicant in the course of the earlier struggle which

initially caused the applicant to reflect on the prospect of

picking up a serious disease such as HIV or hepatitis, and to

become uneasy and to panic about this.

Although the respondent has been convicted of serious assault

on the basis of this conduct, this is not an offence on which

the application is based.  As was held in SAY v AZ at [20]

that the first issue which the court has to decide under

section 25(7) is whether taking all relevant factors into

account the offence of spitting has materially contributed to

the injury identified by Mr Chittenden, namely, the adjustment

disorder with anxiety.

Before addressing this issue, I find that an adjustment

disorder with anxiety is a recognisable psychiatric illness or

disorder, and constitutes mental or nervous shock which is

compensable under the Act.  This would be in accordance with

the view of Byrne SJA in RMC v NAC [2009] QSC 149 that mental

or nervous shock within the Act is confined to a recognisable

psychiatric illness or disorder.

On the basis of the applicant's evidence, and Mr Chittenden 's

opinion, I find that the respondent's conduct in spitting on

the applicant materially contributed to this disorder and is a

proper subject for compensation.  Once this position is

reached, the second issue which arises under section 25(7) is

that of quantification as held in SAY v AZ at [20] that is:

"What amount should be ordered to be paid for that injury?"

In answering this question, other contributing factors cannot

be regarded as irrelevant.  As further stated in SAY v AZ at

paragraphs [22] and [23]:

"[22] In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.

[23] Where there is a single state of injury produced by a

number of factors, some or all of which may warrant a

reduction in the award, the court must do its best to make

allowance for their contribution, although the evidence may

not lend itself to any precision.  Given that the Act's scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes, entirely independent of the respondent, would be given considerably more weight than those merely reflecting part of a continuum of offending.  Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant's state of injury will depend on all the circumstances which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of the victim and the offender in which it occurred.  The basis on which any reduction in compensation is made must, of course, be clearly identified."

In this case the question is whether the award of compensation

for a single state of injury in the form of an adjustment

disorder with anxiety constituting mental or nervous shock

should be reduced because of the respondent's other conduct

for which he was convicted of the other offence of serious

assault against the applicant arising from the struggle.

Before I address this issue, I will consider the quantum of

compensation which I would order the respondent to pay to the

applicant subject to any reduction because of the respondent's

other conduct against him.

The decision of Rafter DCJ in Shannon v Barry [2009] QDC 392

is relevant to this assessment of compensation because this

case also involved a police officer who suffered an adjustment

disorder with anxiety as a result of being spat on and also

being bitten.

In that case, his Honour assessed the appropriate compensation

for mental or nervous shock at 17 per cent.  In that case the

applicant, who had been told that the respondent's partner had

hepatitis C, underwent blood testing at intervals of three,

six and 12 months after the assault.  She continued to suffer

from anxiety despite being cleared of any disease.

Following the assault she experienced a breakdown in her

relationship with her partner.  She no longer worked as a

first response police officer because she no longer felt

motivated to arrest people.  According to a psychologist, she

experienced symptoms of mental or nervous shock to a minor

degree including symptoms of post traumatic stress such as

hyper-arousal to a minor degree.

I consider that the consequences for the applicant in the case

before me are less serious, notwithstanding Mr Chittenden's

evidence that the level of disability following the event was

moderate, but is now in the mild category.  I've reached this

conclusion because the present applicant was cleared of

disease after eight weeks.  Although he experienced a

considerable strain on his relationship, this did not lead to

a breakdown, and although the incident has changed the ways in

which he performs his duties, he remains a first response

police officer.

The assessment of compensation must be made in accordance with

the approach in R v Ward: ex parte Dooley [2001] QDR 436 at

440, that the maximum amount of compensation allowed in

respect of each type of injury listed in the compensation

table is reserved for the most serious cases.  In this case

the applicant has suffered from serious psychological symptoms

which were moderate following the event, but 11 months later

were in the mild category.  However his quality of life has

been permanently affected.

I find that the injury is moderate, mental or nervous shock

within item 32 of the table.  Scaling the amount of

compensation within the table, having regard to my conclusion,

that the consequences for this applicant were less serious

than for the applicant in Shannon v Barry, I assess the

entitlement under this head at 14 per cent of the scheme

maximum as submitted on the applicant's behalf.  That is an

amount of $10,500.

I have come to the conclusion that this amount should not be

reduced because of the respondent's conduct for which he was

convicted of the serious assault that is not the subject of

this application because each of the serious assaults was

committed by the respondent;  the other serious assault of

which the respondent was convicted was closely related in time

and nature to the serious assault on which this application

was based;  the assaults were part of the same continuum of

offending - the other serious assault was part of a continuing course of similar reprehensible conduct by the respondent of which the spitting was the culmination; and if it had not been for the second serious assault involving spitting on which the

application is based, the mental or nervous shock would not

have evolved to the extent which was ultimately diagnosed.  It

was the spitting which was the trigger or catalyst for this

serious consequence.

In coming to this conclusion it is relevant that despite the

applicant's initial unease and panic at the prospect of

picking up a serious disease after the initial struggle at the

residence, he states in his victim impact statement that the

spitting incident added to the angst he was already feeling

from the initial incident.

According to Mr Chittenden the applicant told him that in

changing the way he worked he tried to ensure that persons

whom he approached did not face him to avoid the chance of

being spat on.  This emphasises the significance of the

respondents spitting on his face in the mind of the applicant.

Mr Chittenden's conclusion, consistently with this, is

expressed in the context of the applicant being spat on and

contaminated by the respondent's blood.

Therefore I have concluded that no alteration should be made to the percentage allowed on this basis.  Further I conclude that the applicant's actions have not contributed to the mental or nervous shock suffered by him, and does not, for this reason, require any allowance to be made, or a lower percentage of compensation to be fixed, as a consequence.

As I concluded during sentence, the police justifiably had to

use the spray, and also some physical force to restrain the

respondent.  Although the respondent refers in his victim

impact statement to beginning to think that the risk of a

police career is not worth the reward due to this and other

incidents where he has been exposed to blood or other bodily

fluids, there is no suggestion that these other incidents

contributed in any way to Mr Chittenden's diagnosis and

therefore to the compensable injury.

Therefore I assess compensation for moderate, mental or

nervous shock within item 32 of the compensation table at 14

per cent of the scheme maximum.  This results in an award of

$10,500.

I order the respondent to pay to the applicant the sum of

$10,500 by way of compensation for the injury suffered by him

because of the offence of serious assault based on spitting

committed by the respondent against his person on 21 December

2008 for which the respondent was convicted on his plea of

guilty upon being charged on indictment presented at the

District Court at Dalby and in respect of which he was

sentenced on 11 September 2009.  That is the order of the

court. 

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