R v Monks [2001] TASSC 41

Sentencing Act 1997 (Tas), s68.

MMI-CMI Insurance Limited & Zaganite Lake Asphalt Co (Tas) Pty Ltd v Budgen 5/1992; McMillan v Territory Insurance Office [1988] NTSC 58; (1988) 57 NTR 24; Richards v Schutt (1978) 18 SASR 421; Magain v Roberts 14 MVR 313; Kneeshaw [1975] QB 57; R v Braham [1977] VicRp 11; [1977] VR 104; R v Ferrari [1997] QCA 73; Landolt (1992) 63 A Crim R 220, followed.

Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, aproved.

Judgment Number: [2001] TASSC 41

1 On 28 September 2000, Hedley Charles Monks, who I will refer to as the respondent, was found guilty of seven charges of sexual intercourse with a young person under the age of 17 years, two charges of attempting to commit that crime and three charges of indecent assault. The offences were committed over a period of eight years concluding in 1990. The victim of the offences, the applicant, was a young male whose age ranged between 5 years and 13 years during the period of their commission. Following a sentencing hearing on 29 September 2000 the respondent was imprisoned for his offences.

2 On 15 December 2000, the applicant lodged an application with the Court seeking an order for compensation against the respondent, pursuant to the Sentencing Act 1997, s68, which relevantly provides:

"68 - (1) If a person is found guilty or convicted of an offence and the court finds that another person has suffered injury, loss, destruction or damage as a result of the offence, the court -

(a) must, if the offence is burglary, stealing or unlawfully injuring property; and

order the offender to pay compensation for that injury, loss, destruction or damage.

(3) An order under subsection (1) may be made by the court -

(i) by a person in whose favour the order is sought; or

(ii) on that person's behalf by the DPP, if the sentencing court was the Supreme Court, or the complainant or police prosecutor, if the sentencing court was a court of petty sessions.

(4) An application under subsection (3)(b) is to be made as soon as practicable after the offender is found guilty or convicted of an offence. "

(5) Nothing in subsection (3)(b)(ii) requires the DPP or the complainant or police prosecutor to make an application on behalf of a person.

(6) A court may exercise its powers under this section if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents, together with admissions made by or on behalf of any person in connection with the proposed exercise of the powers.

(a) any written statements or admissions that were made for use, and would have been admissible, as evidence on the hearing of the charge; or

(b) the depositions taken at the committal proceeding; or

(c) any written statements or admissions used as evidence in the committal proceeding.

(8) Nothing in this section takes away from, or affects the right of, any person to recover damages for, or to be indemnified against, any injury, loss, destruction or damage so far as it is not satisfied by payment or recovery of compensation under this section.

(9) In determining, for the purposes of this section, the amount of loss, destruction or damage to property that a person has suffered as a result of an offence, the court is not bound by the rules of evidence and it may inform itself in any matter in any way it considers appropriate."

* the Court has no jurisdiction to make a compensation order as it was not sought as soon as practicable after the respondent was found guilty or convicted as required by s68(4); and

* the Court should, in any event, exercise its discretion against the making of a compensation order in this case.

4 When sentencing the respondent, I observed that the impact of his conduct on the applicant could not be understated. It was clear from the applicant's evidence that he had suffered greatly as a consequence of the respondent's misconduct and it seemed likely that he would continue to do so. The evidence of the applicant to which I was then referring satisfies me that for the purposes of s68(1), he suffered injury, loss and damage as a result of the respondent's offences.

5 Ordinarily, when a compensation order is sought against an offender, oral application is made for the order during the sentencing hearing by counsel for the prosecution. No such application was made on behalf of the applicant during the respondent's sentencing hearing. Instead, on the day of the sentencing hearing, 29 September 2000, the applicant's solicitor wrote to the respondent's solicitor inquiring whether, in the light of the respondent's conviction, the respondent would consent to judgment being entered against him in civil proceedings that had been taken against him by the applicant. Those proceedings were instituted by a writ issued on 11 May 1999. By those proceedings, the applicant claims damages for personal injuries caused him by the respondent's conduct between 1981 and 1990. The conduct which is the subject of the civil proceedings includes the conduct which brought about the respondent's convictions.

6 On 6 October 2000, the respondent's solicitor advised the applicant's solicitor that the respondent would not consent to the entry of judgment against him in the civil proceedings and would continue to defend them on the ground that the applicant's claim was statute barred by the Limitation Act 1974, s5(1). After receiving that advice, the applicant's solicitor communicated with the Director of Public Prosecutions in relation to the making of an application for a compensation order pursuant to s68 and made other inquiries referable to such an application. Eventually an application for a compensation order was filed with the Court on 15 December 2000.

7 Pursuant to s68(4) the Court's jurisdiction is contingent upon the application for the compensation order having been made "as soon as practicable after the offender is found guilty or convicted". The phrase, "as soon as practicable" is intended to impose a time limit on the making of an application and that limit is to be assessed by reference to considerations of reasonable practicality. A determination as to whether or not something has been done as soon as practicable after an occurrence, requires the consideration of all the surrounding circumstances; MMI-CMI Insurance Limited & Zaganite Lake Asphalt Co (Tas) Pty Ltd v Budgen 5/1992 at 3 and McMillan v Territory Insurance Office [1988] NTSC 58; (1988) 57 NTR 24 at 26 - 27. The purpose of s68 is to provide a means for straightforward claims to be dealt with quickly and at minimal cost. It is intended to facilitate claims and, consistent with that intent, I consider that the requirement for claims be made as soon as practicable should be construed generously in favour of claimants. I adopt the following passage from Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, Bryson J at 43:

"The range of facts and circumstances which can bear on what is practicable is a wide range: the choice of that word is a choice away from the narrow, the restrictive and the theoretical. A requirement that a meeting is to be held as soon as practicable is not a requirement that a meeting be held as soon as possible, nor in the least time which can be arranged."

8 Time should be allowed to address any matters which warranted attention before the making of the application including the lapse of some time, provided it was a short time, in the course of that process; Richards v Schutt (1978) 18 SASR 421 at 425 and Magain v Roberts 14 MVR 313 at 320.

9 On the day the respondent was sentenced, there was nothing to stop the applicant from applying to the Court for a compensation order. The applicant was aware that he had suffered injuries as a result of the respondent's conduct. The applicant did not apply for compensation at that time. It was not until 2½ months after the respondent was convicted and sentenced that the application was made. No satisfactory explanation has been given for this delay. Nothing the applicant's solicitor did during the intervening period warranted the delay. I am accordingly of the view that the application was not made as soon as practicable after the respondent's conviction.

10 Whilst that is sufficient to dispose of the matter, some benefit may be gained from my dealing with the second basis upon which counsel for the respondent opposed the application, that is, that the Court should exercise its discretion to refuse it.

11 The applicant's claim relates to offences other than burglary, stealing or unlawfully injuring property and accordingly it comes within the second limb of s68(1). As to such a claim, the subsection provides that "the court ... may ... order the offender to pay compensation ...". It is plain from the use of the word "may" that the court is under no obligation to make an order. Legislation giving a court dealing with an offender power to order the offender to pay compensation to a victim is common throughout Australia and the United Kingdom. The general purpose of the legislation is to provide a summary and inexpensive method of compensating a victim for personal injuries or property damage. In an appropriate case, the legislation provides a convenient means for a victim to avoid instituting separate civil proceedings to recover damages. The legislation is not intended to cater for claims involving complicated or extensive inquiry or investigation; R v Kneeshaw [1975] QB 57 at 60, R v Braham [1977] VicRp 11; [1977] VR 104 at 110 - 111 and R v Ferrari [1997] QCA 73. If it appears to the court that there is a real issue to be determined, it should decline to make an order and leave the question to be determined by a civil court in accordance with its normal procedures; Landolt (1992) 63 A Crim R 220 and 223.

12 The court may exercise its power to make a compensation order "if the facts sufficiently appear from any evidence or material presented to the court, or from the available documents together with admissions" made by the offender for the purposes of the proposed order; subs(6). The evidence or material presented to the court is the evidence given on the offender's trial or material presented during the sentencing hearing. Section 68 makes no provision for the court to conduct a hearing in the nature of a trial to receive further evidence about a claim, save as provided when it is determining "the amount of loss, destruction or damage to property that a person has suffered"; subs(9). In that event, the court may inform itself in any way it considers appropriate. It is noteworthy that the application of subs(9) is confined to the court's determination of the amount of a property claim and it has no application to a personal injury claim. Whilst subs(1) empowers the court to make a compensation order when a "person has suffered injury, loss, destruction or damage", a phrase which encompasses compensation for both personal injury and property damage, the occasions on which the court, when considering the amount of its determination, may have regard to evidence beyond that covered by subs(6) are confined by subs(9) to occasions when the court is determining "the amount of loss, destruction or damage to property that a person has suffered".

13 The applicant's claim for compensation is for his psychiatric condition, a personal injury. Ordinarily the information available to the court following an offender's conviction is patently insufficient to enable the court to assess the compensation payable to a victim who has suffered personal injury as a consequence of the offender's conduct. Much of the evidence that is relevant to a victim's entitlement to compensation is irrelevant and thus inadmissible on the offender's trial. This is particularly so in the case of a claim based on the psychiatric consequences of an offender's misconduct. It would be most unusual for expert evidence on these consequences to be given in the course of the trial. The same problem arises in relation to other aspects of a claim for compensation for personal injury. It is unlikely in the extreme that the victim would give evidence in the course of the hearing which adequately delineated an entitlement to compensation for such things as pain and suffering, past and future loss of earning capacity, past and future hospital and medical expenses and other items of special damage.

14 The applicant's claim for compensation is particularly complicated and difficult. It relates to conduct which occurred between 19 and 11 years ago. No expert evidence was given in the course of the trial about the applicant's psychiatric condition. If that evidence could have been given and had been given, it would be necessary to assess it in the light of any other conduct or circumstances which may have impacted on his condition during the intervening years. Again, no evidence was given or could properly have been given about these matters in the course of the trial. The available evidence is insufficient to provide any foundation upon which the court could assess the applicant's entitlement to compensation. For this reason I would have exercised my discretion against making a compensation order had the application for the same been made as soon as practicable after the respondent was convicted and sentenced. For the same reason, I decline a request made by the applicant's counsel for the Court make an order for compensation on its own motion, pursuant to subs(3)(a). That request was made in an endeavour to avoid the consequences of the applicant's delay in applying for compensation. The requirement that an application for a compensation order be made as soon as practicable after conviction does not apply to an order made by the Court on its own motion.