N v Collins[2003] QDC 456

DISTRICT COURT OF QUEENSLAND

3. [3]
   This is an application by N under the now repealed Chapter 65A of the Criminal Code (which by virtue of s 46(2) of the Criminal Offence Victims Act continues to apply to injuries suffered as a result of offences committed prior to 18 December 1995) for compensation for injury suffered by her as a result of 14 sexual offences committed upon her by the respondent Lloyd Francis Collins.

4. [4]
   Those offences were committed between December 1974 and October 1983. The applicant was born on 7 December 1970 and was aged between four and twelve at the time the offences were committed upon her. The sexual abuse involved in the offences was touching, digital penetration, oral sex and sexual intercourse. The applicant was first subjected to an act of sexual intercourse when she was only nine years of age and a further similar act took place when she was 12 years old.

5. [5]
   The applicant did not tell anybody about the offences until she was 18 years old. Initially that was because she did not know that what the respondent was doing to her was wrong, later because she was scared that nobody would believe her, and later still because she was ashamed and embarrassed at what had been done to her. Even after telling her family, she was fearful that reporting the matter to the police may have torn her family apart as the respondent was a family friend.

6. [6]
   It wasn’t until 2000 when the police approached the applicant in the course of investigating other complaints against the respondent that the applicant made a complaint. As a consequence of that complaint the respondent was charged and on 15 September 2000 was convicted in the District Court at Brisbane on two counts of rape and 12 counts of indecent dealing.

7. [7]
   In sentencing the respondent Judge O'Sullivan said that the applicant’s Victim Impact Statement showed that the offences have had an appalling impact on the applicant. The applicant in an affidavit in support of this application sets out in considerable detail the impact she considers that the offences have had upon her.

8. [8]
   The applicant describes herself as being withdrawn and having no friends when in primary school. At high school she became a complete extrovert and was frequently in trouble. After leaving school she moved around Queensland not staying in any particular job for longer than three weeks. She drank heavily and was promiscuous. She entered into relationships with men which were physically and mentally abusive. She had a hatred for her face and body and would self harm.

9. [9]
   Further insight to the applicant’s problems are revealed in the applicant’s Victim Impact Statement tendered before Judge O'Sullivan. In that document the applicant states:

“As I became older I went through so many emotional fears, that if people stared at me long enough they could see that I had been sexually abused.  It was such a fear for me back then that I tried so hard not to get too close to many people.  You could say I became emotionally unattached up to the point where I would go out of my way to deliberately sabotage any relationship with men, even women friends.  Being in my early teens was really difficult for me especially going through puberty as well as trying to cope with my past experience with the sexual abuse.  I found that in my late teens that when I did become sexually active what should have been a wonderful and unique experience was stolen from me when I was nine.  I guess I can never explain the pain in losing my virginity when I was nine.  For anybody to understand they would have to have experienced it themselves.  The physical pain was so intense because if you could imagine a nine year old girl being penetrated by a 40 year old man.  I can only say that it was unbearable, the sheer pain of my vagina ripping.  Although I cannot remember much about the actual intercourse I do remember the pain I felt.  This was a memory that will stay with me for the rest of my life.

Due to the offences that Lloyd had committed I have lost my self worth and self esteem.  I felt dirty, ashamed and guilty, guilt from constantly lying about what had been done to me.  I had been taught not to lie as a child so it became very shameful in having to keep this a secret for so long.  For a long time I have blamed myself for this abuse.  As a small child my mother and father would take me to Sunday School.  I learnt that when you had done something wrong that God would punish you, so for many years I believed that God was punishing me for something I had done.  That is why Lloyd was doing these terrible things to me.  I felt ashamed because I liked it when he tickled me and played with me until he started to hurt.    I have had enormous anger that I have had to work through. Anger at myself for not saying anything thus protecting him.  Anger at him for knowing what he was doing and continuing to do so and showing no remorse.

At 18 I met the man that I was to marry.  He and I became very seriously involved.  Because of a fight, my anger took over, I blurted that Lloyd Collins had sexually abused me.  From this moment on what I had tried to blot out for many years of my life I had just re-opened the nightmare of my life.  I relived what Lloyd had done to me.  Through nightmares and flashbacks I decided to try to work through my past although it would be very difficult to do so.  My relationship with my future husband was very strained.  He had to deal with nightmares, extreme anger and loss of trust and friendship.  I trusted nobody for a long time and it was really difficult to let my guard down to be able to trust anybody including my future husband.  After telling my future husband Brian, about the abuse we had many difficulties in our intimate lives and certain things that Brian would do would send me into extreme rage.  Mostly I would have flashbacks of things that Lloyd had done to me during intercourse with Brian.  This was very disturbing to our relationship.

At 19 I had fallen pregnant with our first child.  During the first trimester of the pregnancy it became apparent to my local GP that I was having difficulty carrying the baby to full term.  During this time I had also mentioned I had been sexually abused when I was a young girl.  My GP transferred me to the Toowoomba Hospital to ensure the safety of our baby, he also suggested I go to the psychologist at the hospital.  I chose not to for I was not ready to tell anybody else that I didn’t know.  I feel that so many of my medical problems through my past and present including extreme depression, suicidal tendencies, extreme weight loss and gain, excruciating period pain, collapsed uterus, pelvic pain are part of what happened when I was a child.

I had great difficulty in being able to trust people to babysit my children.  The fear, the terror of not being there to protect my children, who was touching them, who was there, what is going on that I don’t know about.  For many years I had trouble trusting my husband with our children and this caused enormous problems in our relationship.  I continually watch people with my children, where their hands are because it is so easy for them to touch a child.  I am extremely over protective of my children.  I feel angry and sick inside not to be able to trust people enough to let my children go and play at somebody else’s place.  I always have to check the people out first, get to know them, I will never feel ill at ease.  I believe that I am over protective of children because I felt that I was never protected when I was a child.”

10. [10]
    As a consequence of her psychological vulnerability, the applicant has attempted suicide on several occasions.

11. [11]
    In March 2000 the applicant was seen by Dr Ian Goldsmith a psychologist for the purpose of preparing a report for this application. Subsequently Mr Goldsmith has seen the applicant for counselling on 15 further occasions. Up to date that counselling has cost almost $2000. Mr Goldsmith estimates that further counselling costing approximately $4,500 will be needed in the future.

12. [12]
    In a report of 28 November this year Mr Goldsmith states that the respondent’s assaults on the applicant have had a profound effect on her and the legacy of those assaults will continue to impact on her for many years.

13. [13]
    Chapter 65A of the Criminal Code first came into operation on 1 January 1969 and provided for a prescribed maximum of $2,000 compensation. On 1 July 1975 that prescribed maximum was increased to $5,000. The legislation was further amended on 1 July 1984 which resulted in a further increase in the prescribed maximum except where the injury was suffered prior to 1 January 1984 in which case the maximum amount was $5,000.

14. [14]
    It was submitted by the applicant in this case that although the offences were all committed before July 1984 the complainant’s injury at least in respect of the injury consequent upon the offences of rape, was not suffered until after that date at a time when the applicant was older and had a fuller realisation of exactly what the respondent had done to her.

15. [15]
    There is no doubt from the applicant’s account of her early childhood that she suffered significant psychological effects during her childhood from the respondent’s abuse of her.

16. [16]
    In particular the applicant refers to the abuse causing her to wet the bed, being terrified of going to sleep in case she wet the bed, developing a nervous rash, not being able to tell her parents and the guilt she felt about lying.

17. [17]
    Although the extent of the applicant’s psychological injury may have become more extensive and caused her even more distress as she got older, that injury was suffered at the time the offences were committed and thus prior to July 1984.

18. [18]
    Before July 1984 it was possible for a separate compensation order, up to the prescribed maximum of $5,000, to be made in respect of each offence. In July 1984 s 663B(1) of the Criminal Code was amended to preclude the making of separate awards in respect of a number of offences if those offences arose out of one course of conduct or closely related courses of conduct.

19. [19]
    The issue arises in this case whether the amendment to s 663B(1) applies to offences committed before 1984. That in turn depends on when the applicant’s cause of action occurred.

20. [20]
    Following the decision in R v Chong ex parte Chong (2001) 2 Qd R 301 it is now accepted that it is only after conviction that a victim has a cause of action for compensation.  In this case the applicant’s cause of action occurred when the respondent was convicted on 15 September 2000 and her entitlement is accordingly subject to the 1984 amendment of s 663B(1). 

21. [21]
    The question then arises should each of the offences be the subject of a separate award or do they all or some of them arise out of one course of conduct or closely related courses of conduct.

22. [22]
    Whether offences arise out of one course of conduct or closely related courses of conduct is a question of fact to be determined having regard to the circumstances of the particular case. The relevant matters to be considered when determining that issue have been considered in the Court of Appeal decisions of Hendry v Llorente 2000 QCA 377 and Marsten v Kello 2000 QCA 410. 

23. [23]
    It is a difficult and somewhat arbitrary task to determine whether a series of sexual offences committed by the same person on another constitutes one course of conduct or closely related courses of conduct.

24. [24]
    The offences of which the respondent was convicted, leaving aside the offences of rape, did not involve significantly different sexual acts. There is however significant time intervals between some of the offences.

25. [25]
    In my view, apart from the two offences of rape which each constitute a separate course of conduct, the other offences should be regarded as constituting five separate courses of conduct. Those courses of conduct are Count 1 that was committed in 1975, Count 2 that was committed in 1976 or 1977, Count 3 that was committed in 1978, Counts 6-10 which were committed in 1981 and Counts 11 and 12 which were committed in 1982. The two offences of rape which were committed in 1980 and 1983 make up a total of seven separate courses of conduct.

26. [26]
    Since the decision of the Court of Appeal in McClintock v Jones (1966) 1 Qd R 524 it has been established that applications for compensation under Ch 65A of the Criminal Code are to be assessed in accordance with the ordinary principles of assessment of damages for personal injury subject to the prescribed maximum.  In this case as there were seven separate courses of conduct the prescribed maximum compensation would be $5,000 x 7, namely $35,000.

27. [27]
    The applicant’s claim assessed on a common law basis would in my view exceed $35,000 and in respect of each individual course of conduct would exceed $5,000.

28. [28]
    Accordingly, I order that the respondent pay to the applicant the sum of $35,000 as compensation for injury suffered by the applicant by reason of the offences which the respondent committed upon her and for which the respondent was convicted on 15 September 2000.

29. [29]
    I order that the respondent pay the applicant’s costs of the application.