Cormack v Peever [2011] QDC 224

DISTRICT COURT OF QUEENSLAND CITATION: Cormack v Peever [2011] QDC 224 PARTIES: DONNA LYNN CORMACK (Applicant) v MATTHEW SHAUN PEEVER (Respondent) FILE NO/S: D148/2009 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 2 September, 2011 DELIVERED AT: Beenleigh HEARING DATE: 22 June 2011 JUDGE: Dearden DCJ ORDER: The respondent Matthew Shaun Peever pay the applicant Donna Lynn Cormack the sum of $15,000 CATCHWORDS: Application – criminal compensation – serious assault – mental or nervous shock – post traumatic stress disorder LEGISLATION: Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1) Victims of Crime Assistance Act 2009 (Qld) s.167(2) CASES: Paterson v Chand & Chand [2008] QDC 214 COUNSEL: Ms F Muirhead (solicitor) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland, solicitors for the applicant No appearance for the respondent -- 1 of 4 -- 2 Introduction [1] The respondent, Matthew Shaun Peever pleaded guilty in the Townsville District Court before Judge Robin QC on 17 May 2007 to a single count of serious assault in respect of the applicant Donna Lynn Cormack. The respondent was sentenced by Judge Robin QC to four months imprisonment, wholly suspended, with an operational period of 12 months.1 Facts [2] The serious assault occurred on 22 March 2005 at Townsville Hospital. The applicant was then a female police officer who was involved in transporting the respondent, under compulsion, to the hospital. The police had been contacted by the respondent‟s brother after he had perpetrated self harm, leading to his arm being cut. The respondent had been taken to hospital and his arm been sutured. Once back home, the respondent had started to undo the sutures and caused “other mayhem” leading to the police being summonsed in the respondent‟s interests. Once back at the hospital, it became necessary to remove the respondent‟s handcuffs which had been used to subdue him so that he could be examined by medical personnel. At this point the respondent flicked his hands, spraying blood into the eyes and mouth of the applicant.2 Injuries [3] The applicant suffered mental or nervous shock as a result of the respondent‟s actions. The Law [4] This is an application for compensation pursuant to s. 24 of the Criminal Offence Victims Act 1995 (COVA), repealed by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009. The proceedings were commenced in this court on 30 November 2009, and accordingly proceed pursuant to VOCAA s. 167(2) to be dealt with under the repealed provisions of COVA. This application was filed within the relevant time limit pursuant to COVA s. 40(1). [5] I refer to and adopt my exposition of the relevant applicable law under COVA as set in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214. Compensation [6] Ms Muirhead, who appears for the applicant, seeks compensation as follows:- (1) Item 32 – Mental or Nervous Shock (Moderate) – 10% - 20% The applicant was examined by Dr Ian Lynagh, psychologist on 28 August 2009. Dr Lynagh prepared a report dated 9 September 2009.3 1 Exhibit B, pp 1, 5, affidavit of Emily Cotterill sworn 28 March 2011. 2 Exhibit B (sentencing remarks) p 2, affidavit of Emily Cotterill sworn 28 March 2011. 3 Exhibit A, affidavit of Dr Ian Lynagh sworn 20 January 2011. -- 2 of 4 -- 3 Under the heading “Formulation and Opinion” Dr Lynagh states as follows:- “Donna Cormack, as a 29 year old police constable, was criminally assaulted by a highly aroused person during the process of detaining him – he deliberately splattered his blood over her face and into her eyes and mouth. Apart from the trauma involved in such an assault, it is reasonable to assume that it could readily be perceived by the victim as life-threatening in its possibilities. Ms Cormack now reports experiencing a range of ongoing psychological sequelae residual to the assault. Diagnostically and with reference to the DSM.IV.TR Ms Cormack could be considered as having sustained a:- Post traumatic stress disorder (PTSD) – “The essential feature (of which) is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or a threat to one’s personal integrity …” (DSM p. 463). In my opinion, Ms Cormack did face an “extreme traumatic stressor” and now reports a post-assault symptomatology that meets the criteria of the “characteristic symptoms” namely: 1. Re-experiencing elements of the trauma; 2. Avoidance and reduced responsiveness; and 3. Increased arousal. I assess the intensity of the disorder as being of a moderate degree for the first nine to twelve months, and being ongoing to a mild degree since. In my view, the “chronic fatigue” Ms Cormack experienced from five to nine months post-assault, may have been strongly underpinned, or at least exacerbated by suppressed anxiety and depression related to the assault – Ms Cormack does not readily express her emotions, being inclined „to bottle them up‟. As regards her functional capacity in life, Ms Cormack reports that the trauma and its sequelae have: Impacted seriously on her inter-personal relationships – she has had two significant personal relationships terminated since, mostly due to her irritability; Impacted moderately on her carrying out her policing duties in that, on attending disturbances she continues to be anxious and to experience disturbing recollections; and -- 3 of 4 -- 4 Impacted moderately on her emotional health, social functioning and general lifestyle activities. In my opinion, Ms Cormack has a number of unresolved issues related specifically to her PTSD and her associated general functioning and adjustment. I recommend she seek counselling for such matters from an appropriate psychologist. I estimate some six to eight consultations as being reasonable. The current APS recommended fee is $206 per hourly consultation. As regards criminal compensation, in my view Donna Cormack sustained a psychological injury, has suffered significant emotional distress, and has had her personal life disturbed considerably by the criminal assault in question. In my view substantial compensation is warranted.”4 Ms Muirhead submits that the diagnosis of PTSD, and Dr Lynagh‟s opinion as to its nature, immediately post the offending and subsequently, warrants an assessment at the upper end of item 32, namely 20% of the scheme maximum. [7] Given the clear and obvious detrimental effects of the respondent‟s actions on the applicant‟s mental health, with the significant impacts, outlined by Dr Lynagh, it is in my view entirely appropriate to award compensation at the level submitted by Ms Muirhead. [8] Accordingly, I award 20% of the scheme maximum ($15,000) pursuant to item 32. Contribution [9] The applicant did not contribute in any way, direct or indirect, to her own injuries.5 On the contrary, the applicant was carrying out her duties as a sworn police officer at a time when the respondent was clearly troubled and in need of mandated care. The applicant appears to have acted entirely properly and has suffered a serious and ongoing consequence as a result of doing no more than appropriately carrying out her duties as a police officer. Order [10] I order the respondent Matthew Shaun Peever pay the applicant Donna Lynn Cormack the sum of $15,000. 4 Exhibit A, pp 7-8, affidavit of Dr Ian Lynagh sworn 20 January 2011. 5 COVA s. 25(7). -- 4 of 4 --