DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the offence of serious assault committed by the respondent on 17 July 2005.

2. [2]
   On 19 December 2006 the respondent pleaded guilty to 1 count of serious assault. A nolle prosequi was entered in relation to 2 other counts of serious assault. On 21 December 2006 the respondent was sentenced following a contested sentence hearing. The respondent was sentenced to 6 months imprisonment with a parole release date fixed at 19 January 2007. A conviction was recorded.

3. [3]
   The applicant filed an application for leave to appeal against sentence on the ground that it was manifestly excessive. The appeal was heard on 13 February 2007 and her application was dismissed on 23 February 2007.^[1]

4. [4]
   In an attempt to serve the respondent with the application and supporting material the solicitor for the applicant provided a process server with 2 possible addresses for the respondent.

5. [5]
   On 6 October 2009 the process server attended one of the addresses and spoke with the occupant who stated that she had bought the house recently and was unaware of the location of the respondent. On 7 October 2009, the process server attended the other residence. It was vacant and advertised as available for rent. The process server spoke with a neighbour who indicated that the respondent had previously been residing there but no longer knew of her whereabouts.^[2]

6. [6]
   The applicant’s solicitor made further extensive attempts to locate the respondent without success.^[3]

7. [7]
   On 29 October 2009 I ordered service of the respondent be effected by advertisement in “The Courier Mail”, addressed to the attention of the respondent stating the time, date, and place of hearing. Service was to be taken as effected on the respondent 7 days after publication.

8. [8]
   On 5 November 2009 the solicitor for the applicant caused an advertisement to be placed in the Courier Mail.^[4]

9. [9]
   There was no appearance by or for the respondent at the hearing of the application.

Circumstances of the offence

10. [10]
    The applicant is a police constable. On the morning of Sunday 17 July 2005 she was called to a disturbance involving a passenger in a taxi in the Fortitude Valley mall. The applicant observed the respondent in the back seat of the taxi in an intoxicated state. The back of the taxi was littered with McDonald’s takeaway food and vomit. The respondent was slumped over in the back seat, asleep.

11. [11]
    The applicant approached the respondent, woke her and identified herself as a police officer. The respondent immediately commenced swearing at the applicant. The applicant advised the respondent that the taxi driver had complained about her, that she had to pay her fare and asked her to get out of the taxi. The respondent replied “No fuck off. He is taking me home. Fuck off bitch.”

12. [12]
    The applicant continued to attempt to reason with the respondent as she became further agitated. The applicant gave her a direction to get out of the taxi at which point she called the applicant a slut and again told her to fuck off.

13. [13]
    The taxi driver again asked to have the respondent removed from the vehicle. The applicant then began to lift her out of the rear seat. The respondent went limp and landed on the pavement. She continued swearing and became more aggressive. She was then placed under arrest.

14. [14]
    At this point, a colleague of the applicant, Constable Hodgson began walking the respondent toward the police beat, the respondent all the while dragging her feat. She began struggling, the applicant heard her clear her throat and she turned towards the applicant and spat directly in her face. The spit landed in the applicant’s eyes and mouth.

15. [15]
    The applicant placed her hand on the back of the respondents head in an attempt to prevent her spitting at the officers again. The applicant and Constable Hodgson restrained the respondent and forced her to the ground.

16. [16]
    The respondent struggled as attempts were made to place her in handcuffs. As the applicant used both her hands to attempt to restrain the respondent, the respondent bit firmly on the applicant’s hand.

17. [17]
    The respondent again spat at the applicant once detained in the interview room at the police station. The applicant was later told by fellow officers that the respondent had indicated to them that the respondent’s partner had Hepatitis C.

18. [18]
    The respondent was sentenced following a contested hearing as to the facts. The respondent claimed the police officers deliberately slammed her head into the pavement. In passing sentence I concluded:

“Having listened to the evidence and watched the witnesses closely, I accept that after resisting police attempts to remove you from the taxicab you attempted to break free and then you spat directly into the face of Constable Shannon. Spit landed in her mouth and eyes. I accept the evidence of Constable Shannon and Constable Hodgson that you resisted and struggled with them. I am satisfied that the police did no more than was necessary to restrain you and that you were struggling throughout the ordeal.

I do not believe that excessive force was applied to you in the course of the incident with the police. I do not accept your evidence in that regard. You were intoxicated and in your own words you had a scattered memory of the events. Moreover, as the cross-examination by the Crown Prosecutor revealed, you don’t remember some of the essential parts of the night in question. You don’t even recall biting and spitting at Constable Shannon.

In the circumstances I have difficulty with your evidence and I accept the evidence of the two police officers. No doubt you did suffer injuries and they may well have been occasioned during the struggle with the police, but as I say I am satisfied that the police used force that was reasonable in the circumstances in order to restrain you.

Having regard to your conduct, the police were entitled to forcibly restrain you. I do not accept that Constable Shannon repeatedly and deliberately smashed your head into the pavement. Not surprisingly the impact of the offence upon Constable Shannon has been considerable. She was required to have many blood tests. She was told that you told police your partner had Hepatitis C which heightened her anxiety. She became apprehensive, doing night work in Fortitude Valley. She has a scar on her hand where you bit her.”^[5]

Injuries and medicalreports

19. [19]
    The applicant attended the St Andrew’s Priority Emergency Centre and was examined by Dr Riesa Ginsberg. The applicant presented with an abrasion on her left hand, which Dr Ginsberg noted was consistent with a bite and that the true skin had not been broken. The applicant underwent HIV, Hepatitis B and Hepatitis C blood tests, which returned negative.

20. [20]
    In her affidavit^[6], the applicant stated that the spittle landed in her eyes which caused immediate irritation and she could smell vomit and feel a sticky residue over her face. She stated in relation to the bite:

“12. An altercation ensued and as I attempted to place handcuffs on the Respondent, she bit me on the hand. I felt excruciating pain on the back of my left hand and I had to literally pull my hand from her clenched teeth, despite requesting she release her grip and having let her arm free (as I had her hands behind her back, trying to handcuff the respondent).

13. The Respondent’s teeth bit straight through my police glove and tore the fine skin on the back of my hand, drawing blood. I observed that around the wound, the Respondent’s saliva, vomit and food were mixed with my blood and I felt instant disgust.”

21. [21]
    The applicant in her affidavit states that since the incident she is less patient and easily irritated. She underwent blood testing 3, 6 and 12 months after the assault and has continued to suffer form anxiety, despite being cleared of any disease.^[7] She states that she experienced restless sleep for several months following the assault.^[8] This led to a breakdown in her relationship with her partner.

22. [22]
    The applicant no longer works as a first response police officer. She states that she no longer felt motivated to arrest people and that her new position does not cause her as much concern for her safety. She states that she is still conscious of being spat on and limits her contact with offenders.^[9]

23. [23]
    The applicant was examined by Trudy Leivesley on 2 April 2007. In her report dated 5 November 2007^[10]  Ms Leivesley stated that the applicant provided responses which were consistent with experiencing significant cognitive distress during the assault, including feelings of fear, distress and helplessness, along with feelings of horror and concern for her safety.^[11]

24. [24]
    Ms Leivesley stated that the applicant experienced symptoms of depression following the incident. She states that she considers the applicant meets the DSM-IV-TR criteria for Adjustment Disorder with anxiety.

25. [25]
    Ms Leivesley states that the applicant has experienced mental or nervous shock to a minor degree, including symptoms of posttraumatic stress, such as hyper arousal to a mild degree.

Relevant principles

26. [26]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

27. [27]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.  The amount of compensation cannot exceed the scheme maximum (s 25(2)).  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). 

28. [28]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[12]

29. [29]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[13]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[14]

Assessment

30. [30]
    Mr Davies for the applicant submitted in his written outline that compensation in accordance with the items in the compensation table be assessed as follows:

Bruising/laceration etc. (severe) 3%

Item 27 – Facial disfigurement or bodily scarring (minor/moderate) 4%

Item 32 – Mental or nervous shock (moderate) 20%

31. [31]
    In my view the appropriate assessment for bruising is under item 1 Bruising/laceration etc. (minor/moderate) 1%–3%. I would allow 2% of the scheme maximum. ($1,500)

32. [32]
    The medical reports in relation to the scarring on the applicant’s hand, show that there were 2 teeth marks leaving a minor scar. In my view the appropriate award for bodily scarring is 3% of the scheme maximum. ($2,250)

33. [33]
    In relation to mental or nervous shock Mr Davies submitted 20% of the scheme maximum was an appropriate award. Mr Davies referred me to the decisions in Nikas v Mellville^[15] and Wakerly v Jupiter^[16] in which 20% of the scheme maximum was awarded for mental or nervous shock.  He submitted that the applicant continues to suffer symptoms whereas in those cases the applicants made complete recoveries. He submitted that the applicant suffered the same, if not more severe symptoms as the applicants in those cases.

34. [34]
    The assessment of injury must be made in accordance with the approach in R v Ward, ex-parte Dooley^[17]as outlined above.^[18] 

35. [35]
    The applicant clearly suffered from serious psychological symptoms. The experience was distressing. The applicant’s relationship broke down and as a result of the incident she required a change of position within the Police Service.

36. [36]
    In my view the appropriate assessment for mental or nervous shock is 17%. ($12,750)

37. [37]
    The total assessment is $16,500.

38. [38]
    There is no behaviour of the applicant that contributed directly or indirectly to her injuries.

Order

39. [39]
    The respondent pay to the applicant the sum of $16,500 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault, which led to the conviction of the respondent in the District Court at Brisbane on 19 December 2006