Sutton v Massey[2010] QDC 57

DISTRICT COURT OF QUEENSLAND

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, apolice 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 therespondent'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 henor 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 tofree 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 thepolice 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 againstthe 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 aserious 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 counteractthe 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 injuriesas 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 amarried 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 stationedat 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 ceasebeing 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. Heseriously 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 afterthe event, the applicant suffered classic symptoms of posttraumatic 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 ofcausation. In SAY v AZ: ex parte Attorney-General (Qld) [2006] QCA 462, Holmes JA with whom Jones and Mullins JJagreed 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 anumber 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 theapplicant 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 anamount 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 inchanging 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.