77D Factors to be taken into consideration
In determining whether or not to give a direction for compensation, and in determining the sum to be paid under such a direction, the court must have regard to:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person that directly or indirectly contributed to the loss sustained by the aggrieved person, and
(b) any amount that has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, and
(c) such other matters as it considers relevant.
62 Any sum the subject of such a direction must be paid "immediately" or within such period as is specified in the order. If the sum is not paid, the direction may be enforced in the manner specified in section 77F of the Act. The effect of that section is that the "aggrieved person" in respect of whom the direction was made can obtain judgment in his favour for any unpaid amount. I note that the relevant aggrieved person is not identified in the order made in the present case and that matter alone may raise an issue as to its enforceability.
63 As noted by Price J, the applicant's complaint is that he has no capacity to pay the amount of money ordered to be paid. Although that contention was not formally articulated in any ground of appeal, it was addressed in the applicant's written submissions and responded to by the Crown. I am satisfied, in those circumstances, that it is appropriate to consider the issue.
64 The question of the offender's capacity to pay the compensation sought was considered in Connor v The Queen (2005) 158 A Crim R 389. In that case, Studdert J said at [41] (McClellan CJ at CL and James J agreeing):
"the asserted impecuniosity of an offender against whom a direction is sought pursuant to section 77B ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender's impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false".
65 That is not to say, however, that impecuniosity will never be a relevant consideration. Indeed, it is implicit in those remarks that the Court may have regard to that issue in some cases, on the basis identified.
66 It may be accepted that section 77D does not direct explicit attention to the circumstances of the offender. Nonetheless, the Court is required in entertaining an application under section 77B to have regard to all the circumstances of the case: Connor at [42].
67 In determining the matters relevant to the making of an order, the Court will have primary regard to the objects of the Victims Support and Rehabilitation Act 1996 identified in section 3 of the Act, which provides:
3 Objects of Act
The objects of this Act are as follows:
(a) to provide support and rehabilitation for victims of crimes of violence by giving effect to an approved counselling scheme and a statutory compensation scheme,
(b) to enable compensation paid under the statutory compensation scheme to be recovered from persons found guilty of the crimes giving rise to the award of compensation,
(c) to impose a levy on persons found guilty of crimes punishable by imprisonment for the purpose of funding the statutory compensation scheme,
(d) to give effect to an alternative scheme under which a court may order the person it finds guilty of a crime to pay compensation to any victim of the crime.
68 In the present case, the victim of the damage to the police cars was not specifically identified but was presumably ultimately the State of New South Wales. The Crown contends in its written submissions that the order "may also include the damage to the BMW" but I do not think that can be the case. If it were, it would have been necessary for the order to identify a separate "aggrieved person" and the discrete amount attributable to that damage for the purpose of enforcement of the direction in accordance with section 77F.
69 There can be no doubt that the power to direct compensation under section 77B is a broad one. I accept, as stated by Price J, that the order made by the sentencing judge in the present case was within his Honour's mandate, but his Honour had first to have mandatory regard to section 77D. In particular, his Honour was obliged to turn his mind to any matters his Honour considered relevant to the question whether or not to make the direction sought.
70 I accept that it would have been open to his Honour to make the direction notwithstanding its potential draconian impact on the applicant. Before doing so, however, his Honour was required to have regard (in my view) at least to the amount sought and the identity of the victim of the crime for whose benefit the application was made. In my view, it would also have been relevant, in the circumstances of the present case, to have regard to the applicant's capacity to pay such a large sum but I accept that is an issue on which reasonable minds might differ.
71 The difficulty is that his Honour made no reference to the relevant legislation and there is nothing in the remarks on sentence to indicate that his Honour had regard to the matters he considered relevant in accordance with section 77D. In my view, his Honour's discretion miscarried in that respect and I would be inclined to annul the compensation direction under section 9(2) of the Criminal Appeal Act 1912.