DB v The Estate of Elles John Pont (deceased) [2008] QDC 239

DISTRICT COURT OF QUEENSLAND CITATION: DB v The Estate of Elles John Pont (deceased) [2008] QDC 239 PARTIES: DB (Applicant) v THE ESTATE OF ELLES JOHN PONT (deceased) (Respondent) FILE NO/S: 87/2008 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 19 September DELIVERED AT: Beenleigh HEARING DATE: 27 August 2008 JUDGE: Dearden DCJ ORDER: 1. The respondent, the estate of Elles John Pont (deceased) pay to the applicant DB the sum of $ 55,000 by way of compensation pursuant to s 663B(1) of the Criminal Code for injuries sustained as a result of the offences which led to the conviction of the respondent on 27 February 2007 upon indictment under the Criminal Code of Queensland. 2. The respondent pay the costs of and incidental to the application CATCHW ORDS: APPLICATION – CRIMINAL COMPENSATION – RAPE – INDECENT TREATMENT OF A GIRL UNDER 17 – MENTAL OR NERVOUS SHOCK – RETROSPECTIVE APPLICATION OF LEGISLATIVE AMENDMENTS TO COMPENSATION SCHEME . LEGISLATION: Acts Interpretation Act 1954 s 20(2)(c) Criminal Code Amendment Act 1984 Criminal Code and Justices Act Amendment Act 1975 Criminal Offence Victims Act 1995 s 46(2) -- 1 of 9 -- 2 Succession Act 1981, s 66(1) Criminal Code 1899, ss 663A, 663AA, 663B(1) Supreme Court of Queensland Act 1991 s 93N(1), (3). Uniform Civil Procedure Rules (UCPR) rr. 71(1), 71(2). CASES: R v Boughton; ex parte Holt (Unreported, Helman CJDC, Dist Ct, 13 August 1993) Carroll v Pont (Trafford-Walker DCSJ, Dist Court, BO 884/2004, 29 April, 2004). Chong v Chong [1999] QCA 314 HW v LO [2000] QCA 377; [2001] 2 Qd R 415 MAJ v KM [2000] QCA 410 Parker v Pont (Forno, DCJ, Dist Court, BD824/2004, 31 March, 2004) P v B [2004] QDC 149 R v Jones; ex parte McClintock [1996] 1 Qd R 524 R v Wilkinson; ex parte Leber (Unreported, Atkinson J, Sup Ct, No 9080/1998, 29 July 1999) COUNSEL: Ms F Muirhead (solicitor) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent Introduction [1] The applicant, DB, was the complainant in respect of seven counts of indecent treatment of a girl under 17 and four counts of rape, to which counts the respondent Elles John Pont (now deceased) pleaded guilty before me at the Brisbane District Court on 27 February 2007. In respect of each of those 11 counts, the respondent was sentenced to one year’s imprisonment, concurrent as between each of the 11 counts, but cumulatively with all other custodial sentences that the respondent was then serving. Relevantly, the respondent was, at the time I sentenced him, serving an effective 12 year sentence, having previously also served one year of a three year suspended sentence in respect of sex offences against other complainants. Facts [2] The applicant was born on 3 October 1958. During the relevant time frame of the 11 counts (2 October 1968 to 1 January 1972) she lived in the township of Y, where her father was the postmaster. Over a period of some two years, the applicant was sexually abused by the respondent on a regular basis, when she was aged between 11 and 12 years. The indicted counts to which the respondent pleaded guilty relate to four discrete episodes. -- 2 of 9 -- 3 [3] Count 1 (indecent treatment) occurred when the applicant, at the respondent’s invitation, visited a set of horse yards (with a feed shed) attached to the Y Railway Station where the respondent kept a number of ponies. After the applicant turned 11 (late 1969), the applicant was at the horse yards, and was inside the feed shed. The respondent put hessian bags down on the hay, removed the applicant’s shorts and penetrated her vagina with two fingers causing her to bleed. Count 2 (rape) occurred when the applicant then exposed his penis, put on a condom with Vaseline and then penetrated her vagina with his penis causing significant pain. The respondent threatened the applicant not to tell, because (he said) if the applicant’s father found out, the applicant’s father would kill the respondent and he would be sent to jail and the applicant would be left without a father. This threat was frequently repeated by the respondent during the course of the predatory sexual relationship. [4] Count 3 (indecent treatment) occurred when the applicant and her brother were left in the care of the night operator at the telephone exchange (for which the applicant’s father was responsible as Post Master). The applicant’s parents were attending a ball or dance on a Saturday night, and early in 1970, the respondent (who among other jobs) worked as a night telephone operator, utilised the opportunity of access to the applicant, to firstly have the applicant fellate him, followed by the respondent digitally penetrating the applicant’s vagina (count 4 – indecent treatment) before penetrating the applicant’s vagina with his penis (count 5 – rape). [5] The respondent frequently gave the applicant a lift in his utility. On the first time this occurred, the respondent had the applicant suck his penis while he drove (count 6 – indecent treatment) and he then took her to the forest, put hessian bags on the ground, digitally penetrated the applicant’s vagina (count 7 – indecent treatment) before putting a condom on his penis and penetrating the complainant’s vagina (count 8 – rape). [6] The final discrete memory that the applicant has relates to offences which occurred in the telephone exchange towards the end of 1970 when the applicant and her brother were staying there overnight while their parents were at a ball or dance. The respondent had the applicant hold his testicles while he made a phone call (indecent treatment – count 9), then when the phone call finished the respondent had the applicant perform fellate him (count 10 – indecent treatment) before the respondent then put a condom on his penis and penetrated the applicant’s vagina (count 11 – rape).1 Injuries [7] The applicant has suffered mental or nervous shock as a result of the offences committed by the respondent against her. Death of the Respondent prior to proceedings 1 Exhibit C (Sexual Offences Schedule – tendered on sentence), Affidavit of Fiona Muirhead sworn 6 June 2008. -- 3 of 9 -- 4 [8] This application for criminal compensation was filed in the District Court at Beenleigh on 20 June 2008 but the respondent Ellis John Pont died of acute myocardial infarction and coronary atherosclerosis at the Wharfton Correctional Centre, Wacol on 15 June 2007. 2 Uniform Civil Procedure Rules (UCPR) r. 71(1) provides that: “(a) When an originating process is issued – (i) a person who would otherwise be a defendant or a respondent is dead; and (ii) a grant of representation has not been made; and (b) the course of action survives the person’s death.” then the originating process must name as defendant or respondent “the estate of [person’s name] deceased.” 3 [9] The provisions of Supreme Court of Queensland Act 1991 s 93N(1) provide that if an originating process names a respondent who was dead when the process issues and the course of action survives the person’s death, without a grant of representation having been made when the originating process issues, then the proceeding is taken to have been brought against the person’s estate. Even if there has been no grant of representation when an order is made in the proceeding, that order binds the estate to the same extent as if a grant had been made and a personal representative of the deceased had been a party to the proceeding.4 [10] In Chong v Chong5 it was held that a proceeding for criminal compensation under Criminal Code s 663B was a cause of action which survived the death of the offender by virtue of s 66(1) of the Succession Act 1981.6 [11] The affidavit of Ms Fiona Muirhead7 indicates that she wrote to the informant on the certificate of death, Ms L Somers (the deceased’s sister) who advised (by voicemail) that the deceased had died without any assets.8 The affidavit of Ms Debbie Richardson9 indicates that on 4 June 2008 Ms Somers had two conversations with Ms Richardson in which she advised that the deceased had died without a will, with no estate and no next of kin, and that a sum of $1,700.00 sent to her by the prison after her brother’s death had been returned by her to the prison. Ms Muirhead deposes further that the official solicitor of the Public Trustee advised by letter dated 14 November 2007 that they had no record that the Public Trustee was administering the estate of the deceased.10 2 Exhibit B, Affidavit of Fiona Muirhead sworn 6 June 2008. 3 UCPR r. 71(2). 4 Supreme Court of Queensland Act 1991 s 93N(3). 5 [1999] QCA 314. 6 [1999] QCA 314 per Demack J at p. 16. 7 Sworn 6 June 2008 8 Affidavit of Fiona Muirhead sworn 6 June 2008 paras 6-9. 9 Sworn 30 May 2008. 10 Affidavit of Fiona Muirhead sworn 6 June 2008 para 10. -- 4 of 9 -- 5 [12] In my view, therefore, the applicant’s cause of action for criminal injuries compensation has survived the death of the respondent, and can proceed, in the absence of any person representing the estate of the deceased respondent, given that the deceased left neither a will nor an estate of any substantial value and no person appears to have applied for or been granted administration of the estate of the deceased.11 The Law [13] This application proceeds under the now repealed provisions of Ch 65A (ss 663A, 663AA, 663B and 663BA) of the Criminal Code12. [14] At the relevant time, prior to 1 July 1984, Criminal Code s 663B(1) provided:- “Where a person is convicted on indictment of any indictable offence relating to the person of any person, the Court, on the application by or on behalf of the person aggrieved by the offence, 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 injury suffered by him by reason of the offence of which the offender is convicted.” [15] Criminal Code s 663A defined the “prescribed amount” to mean:- “(a) where the offence in connection with which the case arises is committed before the commencement of the Criminal Code and Justices Act Amendment Act 1975, $2,000; (b) in all other cases, $5,000.” [16] The “prescribed amount” was increased to $20,000 in respect of mental or nervous shock by Criminal Code s 663AA which commenced on 1 July 198413 . The pre- existing definition of “prescribed amount” was deleted, and instead a new definition of “prescribed amount” substituted (relevantly) a subsection (a) which provided “where injury in connexion with which an application is made was suffered before the commencement of The Criminal Code Amendment Act 1984, $5,000”. [17] In R v Jones; ex parte McClintock14 it was held that the assessment of damages under (repealed) Criminal Code s 663B proceeds on common law principles of assessment of damages for personal injury, provided that the amount does not exceed the prescribed amount and that costs can be awarded. [18] There is some significant conflict as to whether the “course of conduct” provisions of the Criminal Code Amendment Act 1984 amendments apply in respect of injuries suffered from offences committed prior to the commencement of those amendments 11 See Chong v Chong [1999] QCA 314. 12 Ch 65A of the Criminal Code is preserved in respect of offences which occurred prior to 18 December 1995 – see Criminal Offence Victims Act 1995 s 46(2). 13 Criminal Code Amendment Act 1984 14 [1996] 1 Qd R 524 -- 5 of 9 -- 6 (1 July 1984). In both HW v LO [2000] QCA 377 and MAJ v KM [2000] QCA 410, it was assumed that the 1984 amendments to Criminal Code s 663B applied to injuries suffered because of acts which occurred prior to the 1 July 1984 amendments, although the issue of the retrospectivity of the amendments does not appear to have been specifically considered. [19] The issue has been considered in a range of single judge decisions of the District Court. A detailed analysis of this issue can be found in the decision of Robertson DCJ in P v B [2004] QDC 149 at paragraphs 6 – 33, and I respectfully adopt His Honour’s conclusion that “on a proper construction of [Criminal Code] s 663B(1) and the decided cases”, the better view was to adopt the reasoning of Helman CJDC in R v Boughton; ex parte Holt (Unreported, Dist Ct, 13 August 1993.) Chief Judge Helman’s conclusion was that the applicant in the criminal compensation matter acquired a right when the injuries were suffered (i.e. pre 1 July 1984) which remained in limbo until crystallised by the conviction of the respondent and was therefore preserved by Acts Interpretation Act (1954) s 20(1)(c) (now s 20(2)(c)) and consequently the applicant’s right to compensation was a maximum of the prescribed amount for each offence of which the respondent was convicted, without being restricted by the “courses of conduct” amendments. [20] The second issue which then arises is whether the “prescribed amount” in respect of offences occurring prior to 1 July 1975 is $2,000 or $5,000. The Criminal Code Amendment Act 1975 increased the amount of compensation from $2,000 (Criminal Code s 663B(1), as in force from 1 Jan 1969 ) to $5,000, effective 1 July 1975. The question then is whether, as a matter of statutory construction, the Criminal Code Amendment Act 1984, commencing 1 July 1984, was effective in retrospectively increasing the ‘prescribed amount’ to $5,000 back to 1 January 1969. [21] The 1984 amendments defined ‘prescribed amount’ in Criminal Code s 663A, in part, as: “(a) where injury in connection with which an application is made was suffered before the commencement of the Criminal Code Amendment Act 1984 - $5,000.” [22] In HW v LO15 all judges stated (without hearing argument on the point) that compensation for injuries suffered before 1 July 1975 was subject to a maximum of $2,000.16 [23] However, Atkinson J in R v Wilkinson; ex parte Leber 17 held: “This is the plain meaning of the sections. The 1984 amendments were explicitly retrospective in increasing the maximum amount of compensation which could be awarded for injuries received prior to 1975. If, contrary to my view, there were any ambiguity in the meaning of the legislation then as it is remedial it should be given a benign construction.”18 15 [2001] 2 Qd R 415. 16 de Jersey CJ, Muir J agreeing at p 419, para [21], McMurdo P at p 421, para [51]. 17 Unreported, Supreme Court, No 9080/1998, 29 July 1999. 18 R v Callaghan and Fleming; ex parte Power [1986] 1 Qd R 457 at 458. -- 6 of 9 -- 7 [24] I note that other victims of the (deceased) respondent in similar proceedings who were the subject of pre- 1 July, 1975 offences, recovered compensation based on an applicable maximum of $5,000 per offence. 19 [25] In all the circumstances, I consider that the views expressed in HW v LO 20 are dicta, and that Atkinson J’s analysis on this statutory construction point is persuasive and should be followed. Accordingly, for offences committed after 1 January 1969 and before 1 July 1975, I consider the relevant “prescribed amount” to be $5,000 per offence. The applicable maximum given there are eleven offences, with the ‘course of conduct’ provision not applicable, is $55,000. I note, relevantly, that although the indictment alleged a range of dates from 2 October 1968 until 1 January 1972, the applicant recalls the first offences occurring after her birthday in 1969, i.e. after the commencement of the Criminal Code s. 663B amendment on 1 January 1969, which has the effect that all offences are compensable under the relevant legislation. Compensation [26] The applicant was examined by Dr Susan Brann on 12 January 2008 and she provided a report dated 29 January 2008.21 That report sets out in scarifying detail the consequences of the respondent’s predatory sexual offending against DB. Dr Brann concludes that in her opinion “[DB] suffers from a moderately severe version of chronic post traumatic stress disorder caused by innumerable childhood sexual assaults and the accompanying emotional abuse. In [Dr Brann’s experience], when such assaults are numerous, occur at such a vulnerable age and are accompanied by a threat, the effects are typically severe and pervasive. Issues of trust, personal safety, the ability to be protected by others, the issue of privacy, bodily space and sexual development are all adversely affected. The hyper-arousal seen in chronic post traumatic stress disorder, relate to the significant adverse impact on the nervous system which gears the human being for the ‘fight/flight reaction’. As the being has come to have to face unpredictable threat, the internal mechanisms are often set on consistent arousal and lead to chronic insomnia, agitation, ‘nervous energy’, startle reaction and a need to keep busy. At the same time, the individual works hard to avoid reminders of the traumata, but clearly as occurred in 1990 and 2000 [a reference to multiple exacerbations of the applicant’s symptoms at those particular times] the psychological defences can readily be completely overwhelmed, when the associations are very closely related. This is an extremely common trigger to massive de-compensation.” [27] Dr Brann went on to state that in her opinion: “There were no pre-existing psychiatric problems or pre-disposing factors in relation to the consequences of the abuse by [the respondent] … and the abuse is likely to have left [the applicant] much more vulnerable to the inappropriate touching by other males. … The emotionally abusive, manipulative and threatening behaviour by [the respondent] can be seen to result in negative influence in 19 Parker v Pont (Forno DCJ, Dist Court, BD824/2004, 31 March, 2004) and Carroll v Pont (Trafford- Walker DCSJ, Dist Court, BD 884/2004, 29 April, 2004). 20 [2000] QCA 377. 21 Exhibit B, Affidavit of Dr Susan Brann sworn 11 June 2008. -- 7 of 9 -- 8 intimate emotional relationships and the repeated rape, not surprisingly, resulting in avoidance of sexual intercourse as an adult. Tragically [in Dr Brann’s experience] this is also a common consequence of childhood sexual abuse when penetration is part of the assault. [In Dr Brann’s opinion] it is likely that the events [described by the applicant] initially though to be seizures were probably “pseudo seizures” – another physiological consequence of an individual being completely overwhelmed emotionally. This is regarded as a psychosomatic symptom in some severe manifestations of psychiatric disorder. The dental problems [described by the applicant] are also a common consequence, with jaw clenching, often at night leading to cracked teeth, or even broken teeth and [are] often associated with significant pain in the ‘temporomandibular joints of the jaw.’ Panic attacks are also very commonly associated with post-traumatic stress disorder. They are related to the individual feeling trapped and subsequently are typically triggered and exacerbated by future experiences when these feeling re-emerge. This is indeed the pattern exhibited by [the applicant]. [The applicant] has, [in Dr Brann’s opinion] been able to function because she clearly has significant skills and personality attributes which have allowed her to train and be very busy in all of her areas of endeavour. This is in no way to diminish [the applicant’s] worthy accomplishments, but rather to acknowledge the likely psychological protection that these constant involvements have afforded. [The applicant] at the assessment was able to recognise for herself, that it was very important to be busy, to thus avoid much time for thinking and feeling. This is a common pattern for those adults who, superficially at least, seem to be less adversely affected by childhood traumata. However [in Dr Brann’s opinion] such a pattern also often is a fragile camouflage for great distress, fear and emotional pain. [In Dr Brann’s opinion] this is the case with [the applicant]. [Dr Brann expressed the view that she did not] envisage this pattern or disorder to change in the foreseeable future. If [the applicant] chooses further therapy, it is likely to be continued for at least a number of years, on a regular basis (e.g. weekly). Confronting again such intense feelings would require this therapy because of the distress that needs to be worked with and the vulnerability that the individual re-experiences. To not do such therapy, whilst an understandable choice, will leave [the applicant] with a continuing pattern of chronic symptoms and the need for avoidance of reminders. Cost is not possible to estimate.” [28] It is clear that, were the applicant’s assessment to be dealt with under common law principles of assessment for damages for personal injury,22 any award would be 22 see R v Jones; ex parte McClintock [1996] 1 Qd R 524. -- 8 of 9 -- 9 significantly in excess of $55,000. There is no issue of contribution on the part of the applicant to the injury she has suffered.23 Conclusion [29] Given the conclusions that I have drawn as to the applicable maximum sum which I can award, consistent with the legislative framework applicable to such applications, I order the estate of the respondent to pay the applicant the sum of $55,000 by way of compensation. I order the estate of the respondent to pay the applicant’s costs of and incidental to the application. 23 Criminal Code s 663B(2). -- 9 of 9 --