DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant was one of three complainants in respect of a range of sexual offences contained on indictment 720/2005 on which the respondent proceeded to trial in the Ipswich District Court on 21 November 2005. Relevantly (in respect of the applicant in these criminal compensation proceedings) the indicted counts were:

Count 26: Indecent dealing.

Count 27: Rape (or in the alternative unlawful carnal knowledge).

Count 28: Indecent dealing.

Count 29: Rape (or in the alternative unlawful carnal knowledge).

Count 30: Indecent dealing.

Count 31: Indecent dealing.

Count 32: Rape (or in the alternative unlawful carnal knowledge).

Count 33: Indecent dealing.

Count 34: Rape (or in the alternative unlawful carnal knowledge).

2. [2]
   On 21 November 2005 the Crown entered a nolle prosequi in relation to count 31 (indecent dealing).^[1]  On 24 November 2005 the respondent was found guilty in respect to counts 26, 27, 28, 29, 30, 32, 33 and 34 and was sentenced as follows:

Counts 26, 28, 30 and 33 – imprisonment 4 years.

Count 34 – imprisonment 12 years.

Counts 27, 29 and 32 – imprisonment 5 years.

All sentences were to be served concurrently with all other sentences imposed at the same time and also served concurrently with the sentence then currently being served by the respondent, on unrelated charges.^[2]  In respect of counts 27, 29 and 32 (which were indicted as rape or in the alternative unlawful carnal knowledge), the respondent was found guilty in each case of the alternative count of unlawful carnal knowledge.  In respect of count 34 (which was also an indicted count of rape or in the alternative unlawful carnal knowledge) the respondent was found guilty of rape.  The guilty verdicts in respect of counts 26, 28, 30 and 33 relate in each case to counts of indecent dealings.

Facts

3. [3]
   The applicant was born on 25 December 1975^[3] and was aged between 13 and 14 in respect of the eight counts on which the respondent was convicted in relation to the applicant as complainant.^[4]

4. [4]
   The relevant facts in respect to each of the counts in relation to the applicant in these proceedings are as follows:

“In respect of NAS, counts 26 and 27 arise from the “bath incident”.  Count 26 involved an indecent deal constituted by touching on her breasts and vagina and kissing her breasts and putting your fingers in her vagina in the bath and count 27 was an unlawful carnal knowledge when you had intercourse with her afterwards and gave her money.

Counts 28, 29 and 30 arise from the “threesome incident” involving DG, NAS and yourself.  There was an indecent dealing, which was count 28 when you asked DG to touch NAS’s breasts and rub your hands on the inside of NAS’s legs and asked the two of them to kiss.

Count 29 was an unlawful carnal knowledge constituted by an act of intercourse between you and NAS in this threesome and count 30 was an indecent deal, which involved you placing your penis in NAS’s mouth.

Count 32 arose from the “shaving bowl” incident when you committed an offence of unlawful carnal knowledge by having intercourse with NAS from behind after you had shaved her legs, utilising a bowl on your bed.

Counts 33 and 34 arose from the “tattoo” incident.  Count 33 was an incident dealing which involved you touching her on her breasts and vagina and count 34 was a count of rape (I note that is the only count of rape upon which you were convicted in respect of NAS).  This occurred after NAS had her breast tattooed by DG and involved you inserting your penis into her vagina and giving her money afterwards.  As Mr Power [Crown Prosecutor] submitted – and I accept – the basis of the rape conviction in respect of count 34 was clearly a lack of consent by NAS.”^[5]

5. [5]
   The relevant transcript has been quoted verbatim, and clearly reflects its context of a sentence in which the remarks were addressed directly to the respondent, then the defendant in the relevant criminal proceedings.

6. [6]
   I went on to state^[6] that;

“in respect of NAS, the conduct was similar [to the conduct engaged in between the respondent and DG, another complainant].  It also involved kissing her breasts, encouraging sexual contact between DG and NAS, placing your penis in NAS’s mouth, and raping her on at least one occasion, as well as committing unlawful carnal knowledge with her on three other occasions, the rape, as I have said, being based upon her lack of consent. …

You clearly and deliberately targeted vulnerable young women, from dysfunctional families, living marginalised lives, who were open and available to your corrupt influence.

Your sexual behaviour was, without doubt, predatory and continuing.”^[7]

7. [7]
   I then, in the sentencing remarks, commented on the respondent’s strategy of seeking sexual satisfaction, utilising grooming behaviours to deliver sufficient co-operation to satisfy the respondent’s sexual urges on “these young girls”. I noted that the respondent had paid or offered to pay money at different times all of the three complainants and I commented that the respondent’s behaviour was “cunning, calculating, persistent and corrupting.”^[8]

8. [8]
   I also noted, in respect of the complainant/applicant, NAS as follows:

“NAS, who was here tonight to see the end of this saga, she too had her childhood robbed by you. In fact, as a result of … what you did to her, she has become involved very heavily in taking drugs, an admission that she made fully and frankly when giving evidence in this court.  She did not have to, but she did, and it is clear that she did with frankness and honesty, because that is what has happened to her.  She talks of having lost the custody of her sons because of the drug use, and the drug use, of course, directly relates back to your abuse of her, sexually.  She talks of nightmares for some 12 or 13 years; the fact that she has slept with her light on every night since she was a child; of her fear of men and relationships; of loss of jobs; of the fact that she is in her early 30’s I think, at an age where she is back living with her mother, because she has no money and no-where else to live.

She too, I hope, will take from the outcome of this trial, some comfort that she can reconstitute a life for herself, reconstitute her family, conquer the drug addiction, and look forward to a life which has something positive to offer, as part of the healing process of what is sometimes a very imperfect criminal justice system.”

9. [9]
   I went on to note the substantial age difference of some 40 years between the respondent and the applicant. The deeply distressing and difficult experience that the applicant suffered in giving evidence on intimate sexual matters before a jury, and the uncharged sexual acts over a significant period of time placed in context the corrupting and corruptive nature of the respondent’s sexual predation.^[9]

10. [10]
    Upon the query by the Crown Prosecutor at the conclusion of my sentencing remarks as to whether I had intended to impose the maximum penalties with respect to the unlawful carnal knowledge counts, I stated as follows:

“I thought in each case they represented, in my view, a worst case scenario.  I have already expressed my particular views about the nastiness of count 25 [an unlawful carnal knowledge count in respect of the complainant DG] and the circumstances of that and, in respect of the three counts of unlawful carnal knowledge in relation to NAS.  Each of them I regard as, in effect, just a shade under rape, and they were part of ongoing corrupting conduct by this defendant in those circumstances.”^[10]

Injuries

11. [11]
    The applicant has suffered mental or nervous shock as a result of the offences committed by the respondent against her.

The Law

12. [12]
    This application proceeds under the now repealed provisions of Ch 65A (ss 663A, 663AA, 663B and 663BA) of the Criminal Code^[11].

13. [13]
    Prior to 1 July 1984, Criminal Code s 663A defined the “prescribed amount” to mean:-

3. “(a)
   where the offence in connection with which the case arises is committed before the commencement of the Criminal Code and the Justices Act Amendment Act 1975, $2,000;

2. (b)
   in all other cases, $5,000.”

The “prescribed amount” was increased to $20,000 in respect of mental or nervous shock by s 663AA which commenced on 1 July 1984^[12].  In R v Jones ex parte McClintock^[13] it was held that the assessment of damages under (repealed) Criminal Code s 663B is on common law principles of assessment of damages for personal injury, provided that the amount does not exceed the prescribed amount.  Costs can be awarded.  Criminal Code s 663B(1) relevantly provides:-

1. “(1)
   where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than

one indictable offence relating to the person of any person (whether in respect of one indictment or more than one indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the Court, on the application by or on behalf of the person aggrieved by the offence or offences may, in addition to any other sentence or order it may make, order him to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injuries suffered by him by reason of the offence or offences of which the offender is convicted.

For the purpose of determining whether such courses of conduct are closely related, regard shall be had, in addition to any other relevant matter, to the acts or omissions constituting the courses of conduct and the times of the doing of the acts or the making of the omissions, one in relation to another.”

14. [14]
    In HW v LO [2001] 2 Qd R 415 de Jersey CJ noted that:

“In determining whether courses of conducted are ‘closely related’, [Criminal Code s 663B] invite[s] analysis of the relationship between pieces of conduct, by reference to their nature and the periods of time separating them.^[14]

…

Assaying a definition of ‘course of conduct’ for [the] purposes of s 663B, the words connote in this context a succession or series of acts (or omissions) which, because of a sufficiently close interrelation, whether by nature, time, place or otherwise, display, in aggregation, an identifiable overall pattern.”^[15]

De Jersey CJ went on to state that:

“It goes without saying that one cannot be prescriptive of the requisite extent of the relationship.  One obviously cannot, for example, specify a maximum duration for any separate course of conduct.  Given a high level of regularity and consistency in the time, place and nature of the acts, a course of conduct might persist over days, weeks, months.  But even with similar acts, substantial separation in time would ordinarily exclude their being regarded as arising out of the same course of conduct or closely related courses of conduct.”^[16]

Compensation

15. [15]
    Mr Stevenson, who appears for the applicant notes that the applicant was examined by Dr Barbara McGuire, psychiatrist on 15 January 2007, who provided a report dated 19 January 2007.^[17]  Under the heading “The Effects of the Abuse” Dr McGuire states as follows:

“The effects of the abuse are that she [the applicant] started on drugs at the age of 13 or 14, initially marijuana and then amphetamine at the age of 18.  She has not had amphetamine for three years and has been off marijuana for nine weeks.  She worries that having to come and talk about the abuse may precipitate a relapse.  She has not had any counselling apart from two occasions with a sexual abuse counsellor in New South Wales.  She said it helped a little.

She has nightmares every night.  She has to have the light on.  She has security fears and has to check that the house is securely locked.  Her boyfriend has to stay awake for several hours after she goes to bed in order for her to feel secure.  She said she and her boyfriend are having a lot of fights because she experiences flashbacks which are triggered by sexual activity and they have a lot of problems.  She would rather not have sexual intercourse.  She doesn’t enjoy it.  She feels that her organs have been damaged.  She feels dirty.  She has a lot of showers.

She experiences flashbacks if she sees rape on television or hears news of rape.  She is very avoidant, will not go out alone.  She always has her mother with her and sometimes her mother and brother.  This also causes problems with her boyfriend.

She has four children 15, 12, 6 and 9 weeks.  All of them have different fathers.  The elder two are in the care of the Department of Community Services, New South Wales.  The 5 year old is in the care of her ex boyfriend’s mother and the nine week old child is with her.  She stated that she had undergone a period of promiscuity after the sexual abuse because she thought that she had to have sex with people in order to be loved.  She said that the children were taken into care because of domestic violence.  They are all in New South Wales.  She gets on well with the DOC workers and wants to get the children back.  She is over protective of her children.  She never allowed them to be baby sat by any one except her mother.  All the children are boys and she would have found it harder had she had a girl.  If she notices anybody looking at her she feels bad and angry.  She went through a period of wearing very long skirts and thick baggy clothes because she did not want her body to be seen.  She gets very offended and angry if anybody whistles at her.”^[18]

16. [16]
    Under the heading “Psychiatric Disorder” Dr McGuire states that:

“She [the applicant] exhibits the criteria necessary for diagnosis of post traumatic stress disorder.  I consider she suffers the condition to

a severe degree and the likelihood is that her symptoms will be life long though they may diminish over time.

I believe that her substance abuse can also be attributed at least partially to the sexual abuse as she used to self medicate to rid herself of distressing thoughts.”

“Contributing factors were the mother’s and father’s problems [her father is alcoholic and her parents separated when she was aged 14 or 15 with a lot of verbal arguing and her father blaming the applicant for the separation] which rendered her vulnerable and in need of refuge.  She said that Roy [the respondent] had been her father figure and he tended to select people who were vulnerable “that she believes that he has sexually abused at least 10 girls”.^[19]

Courses of Conduct

17. [17]
    Dr McGuire addressed the issues of “course of conduct” in her report and stated as follows:

“She [the applicant] said that when the abuse started she knew it shouldn’t happen and she felt guilty but felt she had to be compliant and that this was the only way she could avoid being hurt.  In general she remembers feeling disgusted and numb and said that the worst ever offence was when he first had intercourse with her.  She said everything fell apart and she hated it.  She told him that she didn’t want it but he disregarded this.  She turned away and “went into a safe room in my head” which sounds like a dissociative episode.”

She found the incident when he made her dance and videoed her embarrassing and felt ashamed.  She worried about the video.  She had been told that it had been destroyed but then found out that it had been confiscated and worried about it being taped and sent over the internet.

Counts 26 and 27:

These were the worst.  He said that when he gave her money she felt like a commodity.

Counts 28, 29 and 30:

She felt disgusted and revolted.  She worries about the fact that he made the girls do things to each other.  She felt it was unnatural but she felt powerless and helpless.

Count 32:

She had become desensitised and dissociative mechanisms were well in place.

Counts 33 and 34:

These involved the tattoo and him [the applicant] offering her money.  Again the feelings of “being a commodity prevailed.”^[20]

18. [18]
    Dr McGuire went on to note that “at the time of the offences [the applicant] experienced disgust, helplessness, low self esteem and a feeling of dirtiness. … Immediately [after the offences] she would shower and usually take drugs or drink and smoke. She said that she also got involved with valium and serapax … [which] made her sleep.”^[21]  Dr McGuire noted that the applicant had started to feel mistrust for her father although he was never sexually abusive, that the applicant blamed herself, didn’t have any friends and didn’t want any, worried about women and same sex relationships but did have “some optimism about [the applicants] future”.^[22]

19. [19]
    Mr Stevenson submits that the counts can be separated into four courses of conduct (in so far as they relate to NAS). These courses of conduct he submits are as follows:

3. (1)
   Counts 26 and 27, “the bath incident” (where the respondent touched the applicant on her breasts and vagina, kissed her breasts, put his fingers in her vagina in the bath and then had intercourse with her afterwards and gave her money).

3. (2)
   Counts 28, 29 and 30, the “threesome incident” where the respondent was involved in a “threesome” with the complainant DG as well as the applicant.  That threesome included an indecent dealing (count 28) where the respondent asked DG to touch the applicant’s breasts, the respondent rubbed his hands on the inside of the applicant’s legs and asked the applicant and DG to kiss, then the respondent had intercourse with the applicant (count 29) followed by the respondent putting his penis in the applicant’s mouth (count 30).

3. (3)
   Count 32 (the shaving bowl incident) this involved the respondent having intercourse with the applicant from behind after he had shaved her legs utilising a bowl on his bed.

3. (4)
   Counts 33 and 34, the “tattoo incident” (this incident involved an indecent dealing when the respondent touched the applicant on her breasts and vagina) (count 33) and then raped the applicant, after the applicant had her breast tattooed by DG.  The applicant was given money afterwards by the respondent.

20. [20]
    Mr Stevenson submits that these sexual offences were not closely related because of:

3. (1)
   The difference in nature of the circumstances surrounding the grouped offences;

3. (2)
   The different effects of the grouped offences on the applicant as described in Dr McGuire’s report;^[23] and

3. (3)
   The different effects of the grouped offences on the applicant as described in the applicant’s affidavit.  In that respect, Mr Stevenson notes that the applicant deposed in paragraphs 26-29 of her affidavit as follows:

“26 Because of the first lot of offences that Roy was convicted of, I hardly ever shaved.  I won’t let my partner touch me like that.

27 I am scared about the notion of sex with women, because of those offences that involved Roy forcing Donna to do things to me.  On one occasion I was out with a girlfriend and I was freaked out because I thought she wanted more (sex).  Roy forced us to do that.  I now know that women won’t do that to me.

28 When Roy used the bowl to shave me I remember he made it feel like everyone did it.  Roy made it normal.  I used to shut my eyes and go into my own little world.  That way I tried to stop being aware of what he was doing to me – it was my way of coping.

29 I was constantly reminded of the time he abused me when the tattoo was made on my breast.  I have since covered it up, but every time I saw the tattoo when I undressed I would see him on me (in my mind).  Sometimes I still feel him on me and still hear him saying things like “you are pretty” “you are beautiful”.  I can still hear his words ringing in my ears.”

21. [21]
    In my view, the applicant has satisfied the tests set out in HW v LO [2000] QCA 377 and MAJ v KM [2000] QCA 410 and I therefore consider that there were four separate courses of conduct which resulted in the mental or nervous shock sustained by the applicant in these proceedings.

Causation

22. [22]
    I have no doubt that despite the contributing factors^[24] (the problems of the applicant’s mother and father), the actions of the defendant resulting in the convictions in relation to NAS, materially contributed to the total damage suffered by NAS.^[25]

Quantum

23. [23]
    Mr Stevenson submits (correctly) that the applicant’s damages^[26] are to be assessed on ordinary civil principles subject to any prescribed maximum.^[27]

Pain and Suffering and Loss of Amenities

24. [24]
    Mr Stevenson submits that the applicant has suffered a significant injury, has been diagnosed with severe post traumatic stress disorder with the likelihood of lifelong symptoms, and that there has been a profound impact on the applicant, her family and social relationships. In the circumstances, Mr Stevenson submits that an award of $50,000 should be made under this head of damage.

Future Medical Treatment

25. [25]
    Mr Stevenson refers to Dr McGuire’s opinion that the applicant needs 12 months of weekly counselling at an approximate cost of $150 - $200 per session, a total of $7,800 - $10,400.^[28]

Economic Loss

26. [26]
    Mr Stevenson notes that the applicant has deposed to the direct impact of the sexual abuse upon her education and employment,^[29] that the applicant has been disadvantaged in the labour market as a result of the offences and is likely to continue to be disadvantaged.  In the circumstances, Mr Stevenson submits that a global allowance in respect of resultant economic loss taking into account the vicissitudes of life would be an amount of $30,000.

Contribution

27. [27]
    There is no suggestion that the applicant contributed in any way to her own injuries.^[30]

Conclusion

28. [28]
    Having concluded that there were four courses of conduct each subject to a prescribed amount^[31] of $20,000, it is therefore in my view appropriate to award in total the sum of $80,000.^[32] This sum, in my view, still represents a substantial discount on the order that I would have made based on ordinary civil principles for personal injuries.

Order

29. [29]
    I order that the respondent Roy Schloss pay the applicant NAS the sum of $80,000 and costs to be assessed on a standard basis.