Furlong v Hayes[2010] QDC 311

DISTRICT COURT OF QUEENSLAND

Introduction

HIS HONOUR:  The applicant, Scott William Andrew Furlong, seeks compensation in respect of injuries suffered by him in an incident which occurred on 12 April 2006. The respondent, Brock Randy Hayes, pleaded guilty to a large number of indictable and summary offences before me on 31 July 2007, including (relevant to this application) offences of assault occasioning bodily harm whilst armed and serious assault, both in respect of the applicant. The respondent was sentenced (relevantly) to three years' imprisonment on each count, with a parole release date of 31 July 2007. A period of 474 days of pre-sentence custody was declared time served in respect of these sentences.

Facts

The relevant facts are contained in the Schedule of Facts (Sentence Exhibit 4) and are as follows:- "At about 5 p.m. on 12 April 2006, police attended a residence in Woodridge to execute a search warrant. Police had received information that a firearm was present at the address and were therefore wearing bullet-proof vests. Police had also received information that the [respondent] was a resident of the address. Shortly after police arrived, the [respondent] attended the address. When the [respondent] saw police, he immediately ran down the street towards parkland, throwing away items of property, including a black knapsack, as he went. Police pursued on foot and the [respondent] ran into a nearby house. Police located him inside and he ran off into the back yard of the residence. Police pursued the [respondent] who stopped after a short distance and pointed a silver metal object at police. The object was protruding out of the top of a bag, such that police could not see clearly what it was and immediately thought it was the barrel of a firearm or a knife. Police produced their firearms and called for the [respondent] to drop his weapon. The [respondent] refused and yelled out obscenities.

The [respondent] started to run and was tackled by police. A struggle ensued, during which the three complainant police officers [a reference to police officers Groenhuijzen, Furlong and Poulsen] were injured. The [respondent] stabbed Detective Groenhuijzen on numerous occasions with the silver metal protruding object, hitting him in the left side of the face. Police again called for the [respondent] to drop his weapon, however he refused and attempted to run off ...

Police tackled the [respondent] for a second time and told him he was under arrest. The [respondent] then stabbed Detective Senior Constable Furlong [the applicant in these proceedings] with the metal object, hitting him in the right side of the ribs and in the upper body. The [respondent] was restrained, but again broke free, thrashing his head around, and attempted to head-butt police. The [respondent] was warned that capsicum spray would be deployed, however he continued to struggle and swear at police. Police responded by punching the [respondent] in the face in an attempt to subdue him. Police then deployed the capsicum spray which allowed police to disarm the [respondent] ... The [respondent] however broke free again and commenced throwing punches at police, yelling, 'Fuck you, you dog cunts. You're not getting me.'  Police again deployed the capsicum spray, which also hit Detective Groenhuijzen in the face. The [respondent] continued to punch police, striking Detective Senior Constable Furlong in the face and head. Police returned punches in an attempt to subdue the [respondent]. The [respondent] continued to yell obscenities at police.

Detective Senior Constable Furlong took the [respondent] to the ground in a bear hug and struggled with him for some time. The [respondent] was facing Furlong on the ground. As he felt the [respondent] place his hand on his police-issue firearm, the safety strap broke and the [respondent] attempted to remove the firearm from its holster. Police attempted to stop the [respondent] from taking hold of the firearm. Despite their actions, the [respondent] continued to attempt to gain possession of the firearm.

The [respondent] then grabbed at Furlong's testicles and squeezed, causing immediate and severe immense pain, which Furlong states as indescribable. Furlong yelled at the [respondent] to let go and police punched him to attempt to subdue him ...

Police continued to attempt to restrain the [respondent] while he fought violently and yelled obscenities at them. As police attempted to roll the [respondent] over in order to handcuff him, his body became rigid such that it would not move. The [respondent] then bit Plain-Clothes Constable Poulsen on the finger ...

The [respondent] was then handcuffed and transported to the police station."

Injuries

The applicant was examined by Dr Elizabeth Culliford, GMO, on 13 April 2006, and her statement sets out the history provided by the applicant and the result of her examination at paragraphs 9 to 10 (Exhibit JJF4, p. 2, affidavit of John James Furlong, sworn 16 November 2009). I note that this reflects the details in respect of the injury set out in the Schedule of Facts which is Sentence Exhibit 4:- "9. Detective Furlong stated that he sustained the following injuries: graze to the right knee; sore right little finger; sore right wrist; abrasion under the right eye; sore head; scratches to the right arm and shoulder; scratches to the left shoulder, bruise to the left arm, sore back and sore testicles.

10.On examination, I documented the following injuries:

(a) several non-specific tender areas on the scalp but no bruising or abrasions noted;

(b) 0.5 cm linear abrasion of the left base of the nose;

(c) 1 cm abrasion (graze) over the anterior surface of the right shoulder;

(d) 3.5 cm linear abrasion with some bruising over the mid-anterior surface of the right upper arm;

(e) 1 cm tender abrasion and bruise over the radial surface of the right wrist;

(f)indistinct cluster of bruises and abrasions over an area measuring 6 cm on the anterior surface of the left shoulder;

(g) 0.5 cm linear abrasion above the right knee;

(h) 10 x 10 cm area of abrasion with swelling and reddening over the posterior surface of the right shoulder;

(i) bruising within the right fifth nail-bed (subungual haematoma) with swelling and tenderness at the base of the finger;

(j) no tenderness, bruising or abrasion noted in the testicles or penis.

E J Culliford, Clinical Forensic Medicine Unit, Southeast Region."

The Law

This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA) which was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. Pursuant to VOCAA s. 155(1), where a conviction has occurred before the commencement of VOCAA, a person may apply to the Court for criminal compensation if VOCAA s. 154(1)(a)(i) is satisfied. In the present proceedings, the applicant had a right (prior to the commencement of VOCAA) to apply for compensation pursuant to COVA s. 24, and consequently, having brought proceedings in accordance with the time limits applicable under VOCAA s. 155(2), is entitled to an order pursuant to the repeal provisions of COVA. The application was filed within the relevant time limit pursuant to COVA s. 40(1).

I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of PatersonvChand and Chand [2008] QDC 214.

Compensation

Mr Kimmins, on behalf of the applicant, seeks compensation as follows:-

(1) Item 2 - bruising/laceration (severe) - 3%-5%.

Mr Kimmins submits for an assessment of 5% of the scheme maximum, but in my view, this could not be said to be at the upper end of the severe range for bruising and laceration, although there was some reasonable amount of both bruising and laceration described by Dr Culliford in her report.

In all the circumstances, I consider an appropriate award to be at the bottom of the item 2 range, namely 3% of the scheme maximum ($2,250).

(2) Item 32 - mental or nervous shock (moderate) - 10%-20%.

Mr Kimmins submits, in the light of the diagnosis of post-traumatic stress disorder by Mr Peter Stoker, psychologist, and Mr Stoker's assessment of "mild to moderate" mental or nervous shock, that an award should be made at 15% of the scheme maximum.

I note that Mr Stoker considers the applicant would benefit from 15 sessions of cognitive behaviour therapy at $200 per session, and also considers the applicant's impairment places him "in the upper level of the mild range or the lower level of the moderate range" (Exhibit PS-2, p.11, affidavit of Peter Stoker, sworn 23February 2009).

In my view, an award of 12% of the scheme maximum ($9,000) adequately reflects the psychological assessment by MrStoker, pursuant to item 32.

Contribution

The applicant has not contributed, directly or indirectly, to his own injuries (COVA s. 25(7)). The applicant was simply a police officer doing his job under extraordinarily stressful circumstances, with a person (the respondent) clearly out of control and representing a danger to all police officers attending as well as to others and himself. In the circumstances, I consider that the applicant's actions were appropriate and cautious, but as a result, he suffered the injuries, none of which were contributed to by his own actions.

Conclusion

I order that the respondent, Brock Randy Hayes, pay the applicant, Scott William Andrew Furlong, the sum of $11,250.