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[1997] QCA 73
Court of Appeal (Qld)
1997-04-18
Before Davies J, McPherson J, White J, Davies J, As McPherson J
Original judgment source is linked above.
The application was thereupon adjourned to enable Mr Papich to be served with notice of the application. That having been done, Mr Papich sent a letter dated 18 March 1997 in which he politely explained that he was prevented from appearing before the Court on the appointed day for hearing. The letter goes on to recount some of the personal loss and inconvenience to which he has been put by being deprived of his car (which he is still paying for) and having it damaged, as well as losing certain property of sentimental value apparently taken from the vehicle. It is plain from his letter that Mr Papich opposes the application to remove the compensation condition in his favour. That, one would expect, would be the natural response of most members of the community who have suffered by the criminal conduct of another.
For the reasons given, I consider that in law the compensation condition, or the order under which it was made, cannot, having regard to the material available to the magistrate, be allowed to stand. I am bound to say, however, that it comes as a surprise to discover that scarce legal aid funds are being expended on behalf of a self-confessed offender in order to deprive the innocent victim (who is not legally aided) of the benefit of the condition in his favour for the loss he has suffered, the more so because it is not a form of punishment but a species of civil compensation and one to which s.14 of the Act gives particular statutory preference. The overall cost to the community of achieving that result in this instance must, it may fairly be surmised, by now have exceeded by a considerable margin the amount of compensation in issue on this application. Having said that, our duty in this case is clear.
The application must be granted and the appeal allowed. The order discharging the applicant, and, with it the recognisance, must be set aside. The proceedings must be returned to the magistrates court at Beenleigh to proceed according to law.
The charge preferred, the state of the evidence and the magistrate's failure to record his rejection of the applicant's version of events in so far as it related to what had been done to the car and the ambit of s.35 of the Penalties and Sentences Act 1992 together suggest that there was not a sufficient basis for the magistrate to make the order for compensation which he did. I agree with the orders proposed by McPherson JA and with his Honour's reasons for those orders.
[1] See also the definition of sentence in s.4 and s.7 of the Penalties and Sentences Act.
R
Ferrari [1997] QCA 73
Here the offence committed was the unlawful use of a motor vehicle contrary to s.408C(1)(a) of the Code. Section 35(1)(b)(ii) does not in terms require that the damage, etc. be caused by the offender by whom compensation is to be paid. What it requires is that the damage, etc. be caused either "in the course of" or "in connection with" the commission of the offence. Both of the quoted expressions are, like the expression "in relation to" in s.35(1)(b)(i), capable of a very wide meaning, and to some extent resemble the expression "in respect of", which was considered in State Government Insurance Office (Qld.) v. Crittenden [1966] HCA 56; (1966) 117 C.L.R. 412, 416, to require no more than "some connexion or relation between the two subject-matters to which the words refer".
If, on the other hand, those principles are applied here, it is difficult to say that the magistrate had sufficient material before him to require the applicant to pay compensation. By travelling as a passenger in the car without the consent of the owner, the applicant committed the tort of trespass to goods and would, to that extent but no more, be liable to the complainant for the damage to the car. A case that in some ways bears comparison to this is Schemmell v. Pomeroy [1989] SASC 1334; (1989) 50 S.A.S.R. 450, where a 14 year old boy was held liable for the consequences of careless driving by another 14 year old boy, who illegally used his mother's car and damaged it in doing so. However, in that instance the damage was held to be a foreseeable result of the illegal use of the vehicle by a 14 year old driver, which was a joint enterprise in which the defendant passenger was a participant and so liable as a joint tortfeasor. White J. observed [1989] SASC 1334; (50 S.A.S.R. 450, 452) that illegally using a car might also attract liability for the tort of conversion; for example, if there was an intention to abandon or destroy the vehicle, or strip it of parts.
The right to apply for leave to appeal against sentence derives from s.668D(c) in chap. 67 of the Criminal Code, which permits the institution of an appeal with the leave of this Court against a sentence passed on conviction, read in conjunction with s.408B and s.673 of the Code. The applicant here was discharged without conviction. Standing by itself, that might have had the consequence that there was nothing against which the applicant was entitled to appeal: see R. v. Robinson [1986] HCA 48; (1986) 60 A.L.J.R. 580, 583, approving on this point R. v. Beldan, ex p. Attorney-General [1986] 2 Qd.R. 179. Since then, however, the word "sentence" has been redefined in s.5 of the Penalties and Sentences Act 1992 to mean a penalty or imprisonment imposed "or any other order made by a court after an offender is convicted, whether or not a conviction is recorded". By s.7 of that Act, a sentence under that Act is, for the purpose of chap.67 of the Criminal Code, taken to be a sentence imposed on conviction whether or not a conviction is recorded. That is doubtless sufficient to dispose of the difficulty that arose in R. v. Robinson, but it does not confer a right to appeal, or to seek leave to appeal, against condition (iii) of the order made in the present case. That can be achieved only by treating the appeal in the present case as being directed against the order that the applicant be discharged on the particular condition now complained of.
On the whole, therefore, it seems to me to be preferable, on setting aside the order discharging the applicant, to remit or return the matter to the magistrates court at Beenleigh to conduct the sentence hearing afresh and otherwise to proceed according to law upon the applicant's existing plea of guilty to the offence charged. See R. v. T. [1994] QCA 326; [1995] 2 Qd.R. 192. It would, of course, be open to the magistrate who conducts that hearing to receive further statements or evidence to show whether or not the applicant was a joint participant with Jarrett in unlawfully taking and using the car and ought reasonably to have foreseen that loss or damage might ensue.