Criminal law and procedure - Compensation - Wilful or unlawful destruction of a Ford motor vehicle by fire - Order for compensation to be paid for the destroyed motor vehicle, loss of a second vehicle and damage to the victim's house and contents - Whether s 117 of the Sentencing Act (1995) (WA) applies to consequential damage to other property damaged as a result of the commission of the offence

Sentencing Act (1995) (WA), ss 117, 119A

Ryan v Burke, unreported; SCt of WA (Templeman J); Library No 960749; 17 December 1996

1 JUDGMENT OF THE COURT: On 28 April 2003 the applicant was convicted in the District Court at Rockingham on his plea of guilty to an indictment which alleged that on 30 November 2002 at Rockingham the applicant wilfully and unlawfully destroyed a motor vehicle, namely a Ford Falcon sedan reg No 8CL-975 and that the motor vehicle was destroyed by fire. This was an offence under s 444(2) of the Criminal Code which provides:

"(2) If the property is destroyed or damaged by fire, the offender is liable to imprisonment for 14 years."

2 On 7 May 2003, in the District Court at Perth, the applicant was ordered to pay compensation in the sum of $6,000 relating to the loss of the motor vehicle for which the applicant was convicted and the loss of a further motor vehicle, being a Ford Econovan belonging to the victim.

3 On 29 May 2003 an order was made in the District Court for the applicant to pay further compensation in the sum of $64,000 relating to damage to the victim's house and contents. It was also ordered that there be a stay of execution of both compensation orders conditional upon the applicant paying to the victim compensation in the sum of $2,500 within 14 days.

4 The applicant seeks leave to appeal against the compensation orders. The application was originally made on two grounds, but the second ground set out in the notice was abandoned at the hearing. The application is now based on the single ground:

"That the learned sentencing Judge erred in finding that upon the proper construction of s 117 of the Sentencing Act 1975 monetary compensation could be ordered for property damage occasioned to the victim's house property, its contents and a Ford Econovan motor vehicle following upon the ... [applicant's] conviction by his plea of guilty to the offence of wilfully and unlawfully destroying by fire the victim's Ford Falcon motor vehicle."

5 The final order sought by the applicant on the appeal is that the orders for compensation made on 7 May 2003 and 29 May 2003 be limited to the agreed value of the victim's Ford Falcon motor vehicle in the sum of $2,500. As is apparent, the applicant was convicted only of the offence of destroying the Ford Falcon sedan, being the offence under s 444(2) of the Code.

6 It was submitted on behalf of the applicant that in order to sustain a conviction of wilfully destroying an item of property the subject of any charge, it must be proved in accordance with s 443 of the Code that the accused did an act or omitted to do an act, either intending to destroy the property; or knowing or believing that the act or omission was likely to result in the destruction of such property, and did in fact result in the destruction of such property.

7 In support of that submission it was contended on behalf of the applicant that it was the Crown's case that the destruction of the second vehicle, the residence and its contents (referred to as "the other property"), was intended to have been destroyed by the applicant or that he knew or believed that his acts or omissions were likely to result in the destruction of the other property. No charge was laid against the applicant except in relation to the damage to the Ford Falcon.

"(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if no other punishment is provided, to imprisonment for 10 years.

(2) If the property is destroyed or damaged by fire, the offender is liable to imprisonment for 14 years."

9 Section 443 relevantly defines the meaning of the expression "wilfully destroy or damage" as follows:

"Where a person does an act or omits to do an act -

(a) intending to destroy or damage property; or

(b) knowing or believing that the act or omission is likely to result in the destruction of or damage to property,

and the act or omission results in the destruction of or damage to property, the person is regarded for the purposes of this division as having wilfully destroyed or damaged property."

10 In Pace v "H" (A Child) (1994) 12 WAR 35 Scott J held that, in relation to an offence under s 444 of the Code of intentionally setting fire to meat wrapping in a refrigerator, the offender could not be held responsible for the spread of the fire causing damage to the house where the refrigerator was located and was not guilty of wilful damage to the house.

11 Sections 443 and 444 of the Criminal Code, as they presently stand, were the result of amendments to the Code following the Review of the Criminal Code by Mr Michael Murray QC (as he then was) as set out in the judgment of Scott J in Pace (supra) at 37. In that case it was held that the effect of s 443 and s 444 is that the applicant would not be guilty of destroying or damaging the house, unless he either intended to cause those results, or believed that it was more likely than not that those results would be achieved. Scott J commented at 9 that, from the way in which s 443(b) is formulated, the use of the phrase "damage to property", where it first occurs in that provision, could be construed as being different to the expression "damaged property" later in the section. That was said to be so, because otherwise the provision would read in the last line "or damaged the property". However, his Honour went on to say at pp 39-40:

"Notwithstanding that, however, I have reached the view that the provision is not intended to be read in that literal way. The effect of such a construction would be that an accused who deliberately lit a fire not knowing or believing that the act or omission was likely to result in the destruction or damage to property, would be liable for damage to any property caused by that fire, irrespective of whether he intended that damage, whether he believed that such damage was likely to result, or whether he was recklessly indifferent as to whether or not such damage was likely to occur. It is clear, in my opinion, that the section is not intended to be interpreted in that manner."

12 In R v Galasso (1981) 4 A Crim R 454 at 456, referring to the equivalent provision in New South Wales, Samuels JA said:

"In order to establish this offence, it is necessary for the Crown to prove that the accused intended to set fire to the building. But, on the contrary, the facts of the case were uniformly that the applicant had no such intention - as, indeed, the learned Judge accepted - his intention being to burn only some papers or boxes and to put out the fire before it could damage the building itself."

"For my own part, I am content to approach the matter on the footing that the facts do not establish that the applicant had any intention of setting fire to the building. Even so, I do not consider that the proposition put to us can be made good.

Mr Murray [ie Mr Kevin Murray QC] relied upon a number of English cases (Bastone (1864) 10 Cox CC 20; Child (1871) 12 Cox CC 64; Nattrass (1882) 15 Cox CC 73 and Harris (1882) 15 Cox CC 75) and a decision of the Full Court of the Supreme Court of Victoria in Little [1957] VicRp 87; [1957] VR 602. These cases establish that in order to establish the felony of arson, it is necessary either to prove an intention to burn the building in question, or such reckless disregard of the consequences of the accused's act of ignition as will support an inference of that intention. Hence, intention is a necessary ingredient which may be proved either directly, or as an inference from conduct of the requisite degree of recklessness.

But these cases, in my opinion, have no application in New South Wales because of the presence of a statutory definition of 'maliciously' contained in s 5 of the Crimes Act. So far as material, that section provides:

'Every act done ... recklessly or wantonly shall be taken to have been done maliciously, within the meaning of this Act, and of every indictment and charge where malice is by law an ingredient in the crime.'

The Crimes Act 1958 (Vic), we were informed by the Crown, does not contain any such definition, nor is one to be found in the Malicious Damage Act 1861 (Eng). It follows that in New South Wales the requirement in s 200 that the act be done maliciously is satisfied by proof that it was done recklessly, it being unnecessary to use the element of recklessness as a foundation for the inference of actual intention to do the particular kind of harm that was in fact done.

I think that the evidence which I have summarised above might itself be sufficient to establish that the applicant acted recklessly in igniting the papers in the express contemplation that 'a few boxes' would take fire in a room which contained a quantity of readily combustible material; a reckless act in this context as Mr Murray correctly conceded, being one done with foresight of, but indifference to, its consequences. However, it is unnecessary finally to determine this point."

14 In R v Little [1957] VicRp 87; [1957] VR 602 at 603, Lowe, O'Brien and Sholl JJ considered a case in which an accused set fire to goods in a house without any intention of burning down the house. It was held that, in a case of that kind, the jury should be told that the intention required by the offence provision was the intention to burn down the house, or alternatively, that there must be such a reckless disregard of what followed from the act of the accused that the jury could infer from his recklessness, the intention to burn the house. Their Honours went on to say at 603:

"The cases on the subject are conveniently collected in Halsbury's Laws of England (3rd Edition) Vol 10 at the bottom of page 878 and at page 879. It is there pointed out that a person does not commit this offence who merely sets fire to goods in a house without any intention of burning the house but the note goes on to point out that the intention may be inferred from circumstances and may be inferred in circumstances which show that what the person did was reckless as to the consequences which might follow from his act."

"I think I should add to the passage to which I have referred in Halsbury's Laws of England, that the intention which we think is necessary to explain to the jury is an intention to burn the house, or such a reckless disregard of what follows from the act of the prisoner that the jury can infer from his recklessness an intent to burn the house."

16 In Pace (supra) at 41 Scott J commented that in Little:

"... the focus of the Court was upon the intention of the accused being either to cause the damage which actually occurred, or being reckless in such a manner that from his very recklessness, an intent could be inferred. In this case, as I have previously said, such an intention is not evident."

17 In R v Hogson [1985] TASSC 40; (1985) Tas R 75 at 103, Cox J (as he then was) considered the equivalent provision in the Criminal Code of Tasmania in a case involving similar circumstances. Cox J said at 105:

"In the circumstances of this case, the jury had to consider whether the physical act of lighting whatever flammable material caused the building to be set on fire was voluntary and intentional in the narrow sense and then to determine whether the act of setting fire to the building was wilful in the sense either that he intended it to be set on fire or that he did the physical act aware of the likely consequence but recklessly taking that risk. It would seem that his defence of intoxication raised matters which led to his acquittal."

18 It was in this context that Scott J said in Pace at 41:

"As I have already said in this case, on his Worship's findings which were not challenged, it cannot be said that the respondent either intended to set fire to the building, or that he set fire to the paper in the refrigerator aware of the likely consequences but recklessly taking that risk. In this case, in my opinion, as the question of recklessness does not arise, and as the Magistrate concluded that the respondent did not intend to set the building alight, nor indeed, was he aware that the burning of the building was a likely consequence of his conduct, his Worship was correct in reaching that conclusion."

19 Scott J also referred to the judgment of Neasey J in Gardenal-Williams v The Queen [1989] TASSC 29; (1989) Tas R 62 in which Neasey J at 76 referred to Kenny, Outlines of Criminal Law (19th ed) for the explanation of the term "maliciously", namely:

"For if a man mischievously tries to burn some chattels inside a house, and sets fire to the house thereby, this is not an arson of the house if (as will, of course, rarely be the case) it appears from the evidence that he neither intended nor foresaw the possibility of the house's catching fire. For it is essential to arson that the incendiary either should have intended the building to take fire, or, at least, should have recognised the probability of its taking fire and have been reckless as to whether or not it did so. The cases emphasize that this test of liability is subjective."

20 In Pace (supra) at 41, Scott J pointed out that:

"His Honour went on to conclude that the concept of 'wilfully' for the purposes of s 267(3) of the Tasmanian Code would include an act of recklessness of the kind described in R v Cunningham (1957) 2 QB 396. Having read and considered the judgment of his Honour, Neasy J [sic Neasey J] in that case, had it been necessary I would have reached a similar conclusion in relation to the use of the word 'wilfully' in s 443 of the Criminal Code (WA) but such a conclusion is not necessary for the purpose of this judgment. Suffice it to say that on his Worship's view of the case, the respondent neither intended to do the actual harm that was done, nor was he reckless as to whether such harm should occur (ie the accused did not foresee that the particular kind of harm might be done and had gone on to take the risk) in the manner described in Cunningham's case [supra].

It therefore follows, in my opinion, that his Worship was correct in his conclusion that the complaint as pleaded against the respondent was not made out. It follows, of course, that the respondent was guilty of wilfully and unlawfully damaging the contents of the refrigerator to the extent that he damaged the meat and the paper surrounding the meat, but I have been expressly invited by Counsel for the appellant that in the event of my reaching such a conclusion, I should not send the matter back to the Magistrate for further consideration as the Crown has taken the view (properly in my opinion) that in such circumstances, no penalty should be inflicted upon the respondent."

21 In the present case it is apparent that there was no evidence that the intention of the applicant was to cause the actual harm done, but only to destroy the vehicle that he set alight. It was not the case that there was proof that he intended to do the actual harm that was done, or that he was reckless as to whether such harm would occur in the sense that he ought to have foreseen that the other vehicle might also be destroyed and the house damaged. The position is, therefore, similar to that in Pace (supra).

22 In R v "S" (A Child), unreported; FCt SCt of WA; Library No 920189; 3 April 1992 Malcolm CJ said at 22:

"The clear inference from the findings of the learned President was that the fire was lit by the respondent with the intention of burning down the premises. While the extent of the damage is relevant, it is the intention which characterises the seriousness of the offence. In Scott v The Queen, unreported; CCA Sup Ct of WA; Library No 7607; 14 April 1989 at 3 I said:

'The matter of the applicant's intention was highly significant. While it has been recognised that the incendiary activities of young persons such as those involved in the present case may well call for deterrent sentences of a custodial nature in serious cases, particularly where substantial damage is caused, "the real seriousness of the offence lies not in the figures, but in the intent which underlay what these boys did, and it would be wrong to select a duration of sentence by reference simply to the very expensive damage which these boys happened to cause": Storey (1984) 6 Cr App R(S) 104 per Mustill J at p 105'."

23 In Scott v The Queen, unreported; CCA SCt of WA; Library No 7607; 14 April 1989 the Court allowed an appeal by a 17-year-old offender against a sentence of imprisonment for a term of 15 months. The applicant had been convicted on his plea of guilty to an indictment that he wilfully set fire to cardboard, paper and plastic crates so that the building was likely to catch fire as a result, contrary to s 445(2) of the Criminal Code. The provision was subsequently repealed. It provided a maximum penalty of imprisonment for 14 years. The learned sentencing Judge had given a direction pursuant to s 66 that if the offender had attained the age of 18 years, he should serve his sentence in a juvenile institution. An order had been made that the offender be eligible for parole.

24 This Court quashed the sentence of imprisonment and ordered that the offender be placed on probation for a period of 2 years. All of the members of the Court (Malcolm CJ, Wallace and Nicholson JJ) agreed in Scott (supra) that the discretion of the learned Judge miscarried because he was in error in finding that the offender's action represented "a deliberate wilful act of destruction on a very significant scale". While it was the Crown case that the fire was deliberately lit, it was not the Crown case that the fire was lit either with the intention of burning down the building or causing significant damage. The case against the offender was that the bin containing the materials to which he set fire was so situated that it was likely that the fire would spread, but the offender did not turn his mind to the consequences or make any attempt to alleviate them.

25 The building in that case was a supermarket. The damage to the building and contents was $115,359. Notwithstanding the seriousness of the offence, the Court concluded that the last resort had not been reached. In making a probation order, the Court was conscious of the fact that the applicant had been in custody for 70 days and that two co-offenders had been dealt with by way of fines on their pleas of guilty to offences of wilful damage under s 453 of the Code. The original charges against them had been withdrawn following pleas of not guilty to charges under s 445(2). That case has no application in the present context because of the difference in language between the relevant provisions when it was decided and the provision presently under consideration.

26 In Koppen and Horrocks v The Queen, unreported; CCA SCt of WA; Library No 8148; 1 March 1990 this Court (Malcolm CJ, Wallace and Wallwork JJ) followed the same approach as had been adopted in "S" (supra). In that case appeals were also allowed against sentences imposed in respect of offences committed by the two offenders to which they had both pleaded guilty. They were convicted of breaking and entering the John Curtin High School on 21 June 1989 and stealing a model heart and a quantity of scalpel blades. They were also convicted under s 445(2) of the Code of wilfully setting fire to a school bench which so situated that the school building was likely to catch fire as a result. The offenders were both 20 years of age. Each of them was sentenced to imprisonment for 18 months for the first offence and 2 years for the second offence. The sentences were directed to be served cumulatively and each of the offenders was made eligible for parole. As a result of the fire, the bench was completely destroyed and the classroom sustained heavy smoke damage. The total damage was $25,000. It could have been much more because the bench was so situated that the timber roofing above the bench could have caught alight, so igniting the building itself. The offenders readily admitted the offences. The learned sentencing Judge had concluded that:

"These offences were so serious; albeit committed on the spur of the moment, that no other form of punishment is available to the Court but imprisonment."

27 It was accepted in the Court of Criminal Appeal that the offences were serious. As Walters, Zelling and Williams JJ said in R v James (1981) 27 SASR 348 at 351:

"Arson, in all its forms, is an extremely serious and dangerous crime, and the element of general deterrence must be given proper weight, in order to reflect the Court's condemnation of the crime..."

28 As in the present case, in both Koppen and Horrocks (supra) and in Scott (supra) it was not the prosecution case that the fire was lit with the intention of causing damage other than damage to the item which was set on fire. In Koppen and Horrocks (supra) it was the Crown case that the offenders had not turned their minds to the consequences. The Court of Criminal Appeal concluded that after the applicants had left the building they looked through the window, had not seen any flames and left the premises thinking that the fire had abated. In our opinion, the burning of the motor vehicle in the present case was, like in Koppen and Horrocks, a calculated act of vengeance which constituted an aggravating circumstance.

29 It is important to bear in mind that a compensation order may be made in circumstances where it is for loss of or damage to the victim's property where the loss or damage was a direct or indirect result of the commission of the offence.

30 We accept the submission of the DPP that it is not the case that a compensation order can only apply to "reasonable expenses" (s 117(2)(b)), but does not extend to loss or damage (s 117(2)(a)), notwithstanding the use of a comma instead of a semi-colon at the end of s 117(2)(b). Section 117 of the Sentencing Act 1995, as it stood at the material time, provided that:

"(1) A Court sentencing an offender may make a compensation order in favour of a victim of the offence.

(2) Such a compensation order is an order that the offender must pay an amount of money set by the Court to the victim as compensation for -

(a) the loss of, or damage to, the victim's property; and

as a direct or indirect result of the commission of the offence.

(2a) A compensation order must not be made in respect of injury or loss as defined in section 3(1) within the meaning of the Criminal Injuries Compensation Act 2003.

(3) In fixing the amount of money to be paid under a compensation order for loss or damage to property, it does not matter whether that loss or damage was reasonably foreseeable by the offender."

31 In the present case, the Crown did not contend that the destruction of the second vehicle, the house and its contents ("the other property") was either intended by the applicant to be destroyed or that the applicant knew or believed that his acts or omissions were likely to result in such destruction of the other property. He was not charged with any offence in relation to the second vehicle or the house.

32 It was contended on behalf of the applicant that, although the destruction of the property may have "proceeded from" the consequences of the commission of the offence, the destruction of the other property could not be said to be a result either directly or indirectly of the acts or omissions which made up or constituted the commission of the offence for which the applicant was convicted. We are unable to accept that submission. It seems to be plain that the destruction of the second vehicle and the damage to the house and its contents were both indirect results of the acts or omissions which constituted the offence.

33 In our opinion, there was no substance in the contention on behalf of the applicant that the interpretation sought to be placed on the relevant provision in s 117(2) was consistent with the legislative intention in the Sentencing Act. The predecessor to these provisions was s 719 of the Criminal Code. As Malcolm CJ said in R v Grein [1989] WAR 178 at 188:

"The obvious purpose of ss 717 and 719 of the Code is to provide a simple and summary procedure to assist in the recovery of property by way of restitution, or by way of compensation for loss suffered by the victims of crime. The amendments made to these provisions in 1985 were proclaimed on 1 September 1986. The amendments appear to have been intended to enlarge the scope for the use of the summary remedy of restitution and also to provide a supplementary and statutory right of the victims of crime to obtain compensation. Speaking generally, it is obviously desirable that if, in the course of a criminal trial resulting in a conviction or from the matters put before a sentencing Judge, whether following a conviction after trial or upon a plea of guilty, material is put forward upon which it is possible to make an order for restitution or compensation, such an order normally should be made."

34 It is relevant that s 119A of the Sentencing Act makes provision for a sentencing Court to order imprisonment until compensation is paid. We note that an order under s 119A of the Act, the Court can only imprison an offender until the compensation is paid, if the Court is of the opinion that the offender has, or ought to have, the means to pay the compensation. It is also relevant that under s 119A(4), service of a period of imprisonment imposed under that section does not discharge the offender's liability to pay the compensation.

35 In our opinion, a compensation order may be made under s 117 of the Sentencing Act in respect of loss or damage to property and any expense recently incurred "as a direct or indirect result of the commission of the offence". We reject the submission that the phrase "as a direct or indirect result of the commission of the offence" applies only to "reasonable expenses" but not to "loss or damage". In s 117(2)(a), notwithstanding the use of a comma instead of a semi-colon at the end of s 117(2)(b), the phrase clearly applies to both paragraphs. This is evident both from its position and from the content of the section prior to its amendment in 1999. Prior to the amendment, the words "direct or indirect" were incorporated in s 117(2)(a). The effect of the amendment was to apply the relevant phrase to both paragraphs. This construction is consistent with the construction of the predecessor of this provision in s 719 of the Criminal Code (WA) in which "directly or indirectly" applied equally to loss, damage and expense. Section 117 of the Sentencing Act replaced s 719 of the Criminal Code which was repealed by the Sentencing (Consequential) Provisions Act 1995 (WA): cf R v Grein (supra) at 187 per Malcolm CJ; and see the Sentencing Legislation Amendment and Repeal Act 1999 (WA), s 30.

36 In our opinion, as a matter of causation, the destruction of the second vehicle and the damage to the house and contents was caused by the commission of the offence of setting fire to the vehicle, the subject of the indictment. The consequential damage, being of the same type and at the same location, was, in our opinion, a direct and foreseeable result of the commission of the offence.

37 Even if the damage to the second vehicle and the house was an indirect result, and not reasonably foreseeable, it was still open to the Court to make a compensation order. In our opinion, the damage to the second vehicle and the house was caused as a direct consequence of setting fire to the first vehicle. If we are wrong in that view, the alternative is that it was caused indirectly by setting fire to the first vehicle. There was no new additional intervening cause, and there were no issues in relation to mitigation or any contribution to the damage by the victim, as the victim was not at home at the time.

38 For the purposes of compensation, under s 117, the damage need not be reasonably foreseeable to be compensable. Consequently, it follows that it is not necessary to establish an intention to cause damage to all of the property ultimately damaged to justify a compensation order being made, in respect of any additional property damaged. The reason for that is that, if an outcome was not foreseeable, it logically cannot have been intended. In the case of the offence of criminal damage and the elements to found a compensation order, it is immaterial that the prosecution accepted in this case that the intention to damage property was limited to the first vehicle and the indictment was framed accordingly consistently with the decision in Pace, (supra). In our opinion, it is clearly not the case that only loss or damage to property that is the direct result of the commission of the offence is compensable.

39 It was made clear by a unanimous decision of this Court in R v Grein (supra) that the compensation provisions provide "a simple and summary procedure" to enable the Court, where material is put forward which justifies the making of a compensation order, such an order should normally be made: see per Malcolm CJ at 188.

40 In the present case, this was even more appropriate because the owner of the relevant property may not have had the means to pursue civil remedies. In Grein at 190, Malcolm CJ noted that an insurance company had already obtained a civil judgment and was taking steps to enforce it. By contrast to the position under the Criminal Code when Grein was decided, s 682 of the Code now expressly excludes compensation orders. By s 119A of the Sentencing Act, a compensation order may be enforced as a judgment debt unless an additional order of "imprisonment until compensation is paid" is made pursuant to s 119A of the Sentencing Act. No such order was made in the present case.

41 The current compensation provisions do not require consideration of the financial circumstances of the offender. In the second reading of the Sentencing Legislation Amendment and Repeal Bill, the Hon N F Moore said in the Legislative Council:

"Under the Bill the Court will be able to order compensation even if it believes that a defendant has no means to pay. This will at least save victims the problem of having to sue if they want to take action or if the offender later comes into money."

42 See WA Parliamentary Debates, 8 December 1998 at 5039. This material is relevant: see Interpretation Act 1984 (WA) s 19(2)(f). In any event, the learned sentencing Judge did consider the financial circumstances of the applicant and was satisfied that he could meet a compensation order by making payment by way of instalments. In the present case, the parties ultimately agreed on the amount of compensation without prejudice to the dispute about liability. Consequently, there is no suggestion that the offender has been denied any defence or remedy that might be available in civil proceedings.

43 However, if an application for a compensation order in favour of a victim of the offence is made to a court sentencing an offender the court will have the power and the duty to consider any evidence which may be material to that application, whether in relation to issues of causation, quantum of loss or other factors which may, in the particular circumstances, be relevant to determine whether or not any loss established should be compensated in full or at all. The Judge who is required to assess compensation under s 117 should proceed by reference to the same principles as those which would apply in an action for damages for personal injury: R v Fraser [1975] 2 NSWLR 521 at 525 - 526 and R v McDonald [1979] 1 NSWLR 451 per Street CJ and Lee J. This approach will include the application of such rules as, by statute or otherwise, are currently applied in an ordinary common law action for damages, for example those relating to contributory negligence and mitigation of damages (Sentencing Act s 113). The rules of natural justice must be observed. This will include an obligation to ensure that the parties, and in particular the offender, have due notice of the intended application and a sufficient opportunity of being heard. The onus of establishing an entitlement to compensation will be upon the applicant, that is either the State or the victim, and, except where this is agreed there will need to be evidence to establish the identity of the victim, the causation of the loss and its extent as well as any other facts which may need to be established in the particular case. Where there is a real issue whether the person claiming compensation has suffered any loss or as to the amount of his or her loss, the Court may not make a compensation order based merely on the prosecutor's representations to the court, but must require evidence proving the amount claimed as compensation: R v Horsham Justices; Ex parte Richards [1985] 1 WLR 986. Whether or not the hearing will involve the taking of further evidence will depend upon the circumstances of the case, but ordinarily the evidence given at the trial should be sufficient: R v Bowen (1969) 90 WN (Pt 1) (NSW) 82 at 83 and R v McDonald (supra). The facts which need to be established to make an order for compensation must be established according to the civil standard of proof: s 114 of the Sentencing Act and R v Field [1982] 1 NSWLR 488.

44 This may involve the court receiving evidence beyond that given at the trial. If the application for compensation is heard some time after the conviction and before a Judge other than the one who presided in the criminal proceedings - see Sentencing Act s 111(3) - then that Judge should determine the application on the basis of the transcript of the criminal trial together with such further evidence as may be necessary. Whenever the court is asked to consider making a compensation order, it may take into account as evidence any or all of the matters specified in s 112 of the Sentencing Act including: the evidence given during proceedings for the offence; any evidence given by a victim or offender in relation to the making of a reparation order; any pre-sentence report given to the court; any victim impact statement given to the court and any mediation report.

45 While the financial circumstances of the offender need not be considered when a court is deciding whether or not to make a compensation order, subs 53(3) prevents a court from fining the offender if the Court is satisfied that, after paying compensation to the victim, the offender will be unable to pay the fine within a reasonable time. This has the effect of amending the previous law that consideration of the circumstances and means of the offender would not be excluded from the exercise of the discretion to order compensation in the case of Commonwealth offences under the Crimes Act s 21B: Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450 and the decision of the Full Court of the Supreme Court of WA in Vlahov v Federal Commissioner of Taxation (1993) 26 ATR 49.

46 In our opinion, the applicant has not made out a case for any demonstrable error in the way in which the learned sentencing Judge exercised her discretion to make the compensation orders in this case: cf Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665; and House v The King [1936] HCA 40; (1936) 55 CLR 499. For these reasons, we consider that this application for leave to appeal against sentence should be dismissed.