R v White

Background

1. On 26 April 2021 the Sutherland Local Court imposed sentences upon the appellant after convicting him of two offences. The appellant brought an all grounds appeal.
2. Yesterday, I dismissed the appellant's appeal against conviction of those offences. The reasons for that decision appear on Caselaw in R v White [2021] NSWDC 577.That leaves the appellant's severity appeal.
3. In his severity appeal, the appellant asked that his father, Mr Justin White, make submissions on his behalf. The Crown did not oppose that course and Mr White (senior) was permitted to do so. To some degree, some of what Mr White (senior) had to say veered into the giving of evidence. When this was pointed out to Mr White (senior) he applied for and, with the neutrality of the Crown, granted the opportunity to lead evidence from the appellant. There were parts of the appellant's written submissions in his conviction appeal also relevant to the severity appeal and I refer to those below.
4. To reiterate, the appellant was convicted of the offences that on 5 December 2017, between 12:01am and 12:11am, at Sutherland, he: Sequence 2: had gone onto or remained on running lines contrary to s 68J(1)(b) of the Passenger Transport (General) Regulation 2017 (NSW); Sequence 5: intentionally or recklessly destroyed or damaged property belonging to another, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW).
5. The maximum penalties for these offences was a $5,500 fine for the sequence 2 offence; 2 years and/or $1,100 fine when tried summarily in the Local Court, for the sequence 5 offence (or 5 years imprisonment when tried on indictment in this Court).
6. The Sutherland Local Court sentenced the appellant as follows: Seq 2: a conviction without penalty, in accordance with s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) ('CSP Act'); Seq 5: a combination of (a) a conditional release order, with conviction, in accordance with s 9(1)(a) of the CSP Act, for a period of 18 months (expiring 25 October 2022); and (b) an order for the appellant to compensate Sydney Trains in the sum of $3,123.
7. In this severity appeal, the Crown relies upon the Local Court bench papers and attendance notices, the reasons of the Magistrate for convicting the appellant of the two offences and the antecedents of both the appellant and the co-offender, Mr Omah Naim (Exhibit A).

CIRCUMSTANCES OF THE OFFENDING

1. It is sufficient, for present purposes, to adopt as generally correct the findings relied upon by the Magistrate in convicting the appellant. These appeared at T21-23 on 26 April 2021. As indicated in the reasons for dismissing the appeal against conviction, to a significant extent, the Magistrate's reasons reflected a rejection of the credibility of the appellant's evidence. As was noted in the reasons for dismissing the conviction appeal, this Court was naturally reluctant to depart from credit-based findings. Given the nature of this severity appeal, the Court does not have the facility to make credit findings, one way or the other, against the appellant even if, as occurred, the appellant gave some brief and limited evidence. But the Court is naturally cautious of evidence or matters raised on sentencing which is founded only upon the evidence of the appellant; even where the general approach to fact finding in sentencing is to accept matters raised in mitigation on the probabilities.
2. On the relevant date, the appellant was on running lines or associated rail infrastructure and remained there for a period of time. This was however, a relatively brief period of time. In the Local Court and in this Court, the appellant's defence was that he only went on to the railway lines under the duress or coercion of those who were perpetrating the damage, when his original purpose was only to photograph a rare locomotive train, was rejected. Whilst he was there he filmed and took photographs of a group of men applying aerosol spray, in a graffiti fashion, to three carriages of a stationary train. This constituted the infliction of damage to the train and the Magistrate determined (and I affirmed) that the group of men did so with the appellant's intentional encouragement or assistance. The Magistrate found, and in the conviction appeal, I affirmed, findings that the appellant filmed and took photographs of the damage being applied to the carriages of the train and even issued certain instructions to the men who were doing it. Different parts of the train were filmed with the appellant moving alongside the train. The Crown submitted that the appellant appeared to derive a sort of voyeuristic pleasure in what he was filming and photographing; or, at least, it appealed to his artistic sensibilities.
3. Given the failure of the defence of duress, the appellant had no reasonable excuse to be present on the running lines or rail infrastructure. This ensured that the Crown established the offence under the Regulation.
4. There were no suggested circumstances of aggravation.
5. In relation to the Crimes Act offence, it is pertinent to acknowledge that the offender was an aider or abetter. He was not a principal perpetrator inflicting the aerosol spray himself. It is not axiomatic that the gravity of an aider and abetter is of a lesser order than principals. There was only limited material before the Local Court, as there is in this Court, as to the precise relations and dealings between the appellant, his co-offender and the men who inflicted the property damage. There was nothing to suggest, for example, that the appellant or co-offender actually orchestrated the infliction of the damage.
6. I accept the force of the Crown's submission that the property damaged was public property and, further that this does not assist the appellant. Although, for reasons to be developed at greater length when considering the compensation order, it may be unclear, certainly at the time of the offending, what consequences may flow to the public purse as a result of the offending.
7. Nevertheless, the objective gravity of this offending, and also the offending under sequence 2, was in the low range.

Age and background

1. The appellant was over 21 years of age at the date of the offending.
2. Very little was put before this Court about the appellant's background; other than the circumstance that he had undertaken some study - a 'cinematic' course - and apparently is qualified as a cinematographer. At the hearing in the Local Court, as part of his defence of duress, the appellant had emphasised, as a matter supporting his defence, the circumstance that he has a heart condition, for which he takes prescribed medication. This matter was not, however, cited as being particularly relevant to the sentencing exercise.

Antecedents

1. I note that prior to the subject offending, the appellant was charged on many occasions throughout 2014 of the offence which is now sequence 2, however all of those charges were withdrawn and cannot be held against the appellant. He is fairly to be regarded as a first time offender and is entitled to a degree of leniency on that account.
2. There was also some evidence of his good character in the Local Court, although it is pertinent to acknowledge that it was not from an independent source. It came from the appellant's father.
3. The appellant mounted a vigorous appeal against his convictions, as was his entitlement. Consistently with that, he has shown no remorse or contrition. His father indicated, unsurprisingly enough, that his son disagrees with the findings of guilt in the Local Court and, by extension, the confirmation of the Local Court's decision in this Court.
4. It may be one thing to assert, and maintain innocence of the s 195(1) offence even after his appeal was dismissed, as the appellant was perfectly entitled to do, but even where, as indicated in the reasons of the Magistrate and in my decision on the conviction appeal, the question of damage to property was not in issue, there has not been a skerrick of acknowledgement or regret, on the appellant's part, that public property was vandalised. This, to my mind, reinforces the correctness of the Crown's submission that the appellant received gratification from what he filmed and photographed.

Delay

1. In submissions on the conviction appeal, reference was made to the delays in the criminal proceeding since the appellant was arrested and charged on the date of the offending (5 December 2017). The first day of the hearing was 28 September 2018 and after multiple adjournments, the Local Court made its decision on 26 April 2021. The appellant complains of 'inordinate delay' although is not, at least directly, critical of the prosecutorial authority. I infer that he is complaining about the Local Court's processes.
2. The appellant also complains that he was not provided with transcripts during the course of the Local Court hearing. It is not clear what consequence might follow from that complaint. He complains further that as a result of what he calls a 'lengthy drawn out' process, he has sustained significant study difficulties. He did not specify what those difficulties were and nothing was objectively placed before the Court to enable a meaningful comparison between the progress of his studies before and after he was charged.
3. Delay on the part of the criminal justice system (being outside an offender's control) may be taken into account as a mitigating factor where it has had an adverse impact upon the offender. Notwithstanding the protestations, there is little to support the notion of any tangible impact. Nothing specifically was identified as interrupting the course of study the appellant was undertaking. It was not suggested, for example, that the appellant's heart condition had been exacerbated. Nevertheless, I accept that for a young man with no prior convictions, the delay would at least have been unsettling and caused a natural anxiety. In a sense, delay has worked in the appellant's favour, by demonstrating his rehabilitation, in the absence of any subsequent offending conduct.

Impact of sentence

1. The appellant submitted that the orders for convictions on both charges was likely to impede his prospects of being able to work in the United States of America generally and in Los Angeles in particular. The submission was put no more specifically than that. The Crown accepted that the appellant's employment prospects might be compromised, in terms of his capacity to work in the United States.

Extra-curial punishment

1. The appellant submitted that from his arrest following the offending conduct, he had camera equipment, which had been utilised in the course of the offending, confiscated by police. The appellant gave sworn evidence, that this comprised a Sony camera and Sigma lens as well as lens adaptor and a camera bag. He gave evidence that the camera was less than 18 months old and he valued the camera as being in the sum of $4,500 and the lens at the value of $1,500. The appellant said that he had also had confiscated two mobile phones, which had his contacts listed and which, he said, prejudiced his capacity to obtain 'jobs'. The appellant complained, and indeed criticised, police for not returning the items to him despite his making requests to do so.
2. The appellant was not cross-examined in relation to this evidence. This is of some significance given the adverse credibility findings made by the Magistrate against the appellant in the Local Court; although in fairness to the Crown, without any prior notice given by the appellant of his intention to give evidence of this kind, or make submissions about it, the Crown was not well placed to challenge the evidence. Ultimately, the Crown submitted that little weight should be given to it.
3. Mr White (senior) generally referred to an economic burden. This was similar to an argument cited in the conviction appeal. It was suggested in the appellant's written submissions on the conviction appeal that due to economic circumstances, the appellant represented himself during the proceeding in the Local Court, albeit assisted by a McKenzie friend. There was no objective content in support of that submission. It is not irrelevant, when evaluating that submission, to note that at least as at March this year, the appellant was living in the suburb of Gordon on Sydney's North Shore and, further, at the time of the offending in December 2017, he was driving his father's BMW motor vehicle. His father was called as a witness in his case and was reputed to have been very supportive of his son during the Local Court hearing. Nothing was put before the Court to indicate that this position had changed. I am sceptical, in the circumstances, of any suggestion that he is economically deprived. I will refer to the matter of economic detriment again later.

Custody

1. The Crown acknowledged that the offender had spent a day in custody after his arrest and that this should be taken into account.

PARITY

1. The penalties imposed upon Mr Naim, the co-offender, after he had belatedly entered a guilty plea to the same offences upon which the appellant was convicted, were: The offence under the Regulation: a s 10A conviction with no other penalty The offender under the Crimes Act: a conditional release order of 12 months; and an order for compensation for the sum of $600.
2. In Mr Naim's favour, however, was the circumstance that he took a plea; even if the discount for him doing so may not have been as significant as it might have been had he taken the plea earlier: the proceeding had run a significant distance, in terms of hearing time, before the plea was ultimately made. (Neither the Crown nor Mr White were able to indicate what discount was given on the guilty plea). Although the lateness of the plea diminished its utilitarian value, it could have been taken to reflect some evidence of contrition which is not available to the appellant. Self-evidently, this Court has extremely limited information regarding the co-offender's subjective case. Given the nature of this Court's jurisdiction for severity appeals, this appellant has had fair opportunity of placing before the Court all that might be put to build his particular subjective case.
3. It may be seen that the differential in penalty only concerned the Crimes Act offence, with the period of the of the Conditional Release Order being longer (by 6 months) in the case of the appellant and the appellant having imposed upon him a more significant amount of compensation (the difference being $2,523).
4. Before this Court, the Crown acknowledged that although Mr Naim was entitled to some discount which was not available to the appellant, he had two earlier convictions for similar offences. Other than this, unfortunately, the Crown was not able to assist the Court to understand other features of Mr Naim's subjective case. As to the nature of Mr Naim's offending, however, the Crown fairly characterised the appellant's conduct as marginally less serious. The Crown's case against Naim was that he was part of the group of men who were vandalising the train (a matter which might have been inferred from the circumstance, referred to by the Magistrate and in my decision on the conviction appeal, that a glove with paint on it and a paint spray nozzle were located in the appellant's car after the offending); whereas the appellant functioned in the role of a " lookout".
5. I will now address the three principal points of contention in this appeal. They are, first, whether some order may be made under s 10 of the CSP Act through which the appellant should avoid a conviction (in relation to both offences); secondly, what follows from the parity principle; and thirdly, whether the compensation order made by the Magistrate should be sustained (in relation to the sequence 5 offence).

Submissions

1. Mr White (senior) advocated for orders made under s 10 of the CSP Act. He did not, in terms advocate for a dismissal of the charge (s 10(1)(a)), or a conditional discharge under s 10(1)(c). The remaining alternative under s 10 is a discharge under a conditional release order (s 10(1)(b)), or what used to be known as a 'good behaviour bond' (the conditions being those set out in Part 8 of the CSP Act). Although he did not refer to s 10(2) or the factors referred to in s 10(3) in terms (the factors enumerated in the last provision not being exhaustive as to what the Court may take into account: s 10(3)(d)), ultimately, he argued that any penalty recording a conviction was, because of the anticipated effect it might have upon the appellant's capacity to work in the United States, disproportionate to the nature of the offending or, in the language of the text, that it was "inexpedient" to inflict anything other than nominal punishment and expedient to discharge the appellant under a conditional release order. By reference to s 10(3)(b), I took Mr White (senior) to submit that even if offending could be regarded as serious, with reference to the maximum penalty, in the circumstances, the appellant's conduct itself and the circumstances in which it occurred was 'trivial': Walden v Hensler (1987) 163 CLR 561. (It is not a precondition to the order under s 10 that conduct is characterised only as being trivial). The appellant is young and has his career ahead of him. It is acknowledged that when this particular sentencing option is considered, the consequences on the offender of receiving a conviction, such as the offender's employment prospects (or ability to travel) is a relevant consideration. So too is the punishment that has (or will be) suffered (see the authorities collected in S Odgers, Sentence (5th ed, Longueville Media, 2020) [5.10.20]).
2. Mr White (senior) did not make any submissions as to what, if any additional conditions might be imposed if the Court was inclined to make a conditional release order.
3. The Crown submitted that to make an order not recording any conviction would fail to accord weight to the sentencing factors in s 3A; specifically, of general and specific deterrence. With reference to the offence under the Crimes Act, the offender's conduct was not "trivial". He stood by and derived voyeuristic satisfaction in observing vandalism being done against public property. This elevated both general and specific deterrence. It also elevated the need for denunciation. Although, as indicated, the Crown accepted that his employment prospects might be compromised, it would be inapposite to impose an order under s 10 to evade or avoid the result of conviction. I took the Crown to be submitting that the situation is analogous to the erroneous decision to dismiss a charge in order to avoid automatic consequences flowing in law, such as disqualification from holding a licence following a driving offence.

Authorities on s 10

1. In R v Ingrassia (1997) 41 NSWLR 447 at 449, Gleeson CJ said of the statutory predecessor of s 10, s 556A of the Crimes Act: "The legal and social consequences of being convicted of an offence often extend beyond any penalty imposed by a court. As Windeyer J said in Cobiac v Liddy (1969) 119 CLR 257 at 269, 'a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice'"
2. Although each case will turn on its own facts, it is pertinent to observe another case involving contravention of s 195(1) of the Crimes Act in which a submission was made that an order under s 10 was expedient. In Hoffenberg v District Court of NSW [2010] NSWCA 142 at [25], it was held that a finding of the Chief Judge (in a severity appeal from the Local Court) that a deliberate act of vandalism placed the s 195(1)(a) Crimes Act offence beyond the "trivial" was open. The deliberate acts involved urinating on the door and also smashing a shopfront window. The Chief Judge discharged the obligation to consider the statutory factors in s 10(3). This included taking into account the consequences flowing to the offender if the conviction was maintained, including the impact upon his future aspirations for university study in the United States and "there was no error in the deliberative process followed": per McClellan CJ at CL at [29]. An application for special leave to appeal this decision was refused. [1]

Consideration

1. I am required, but not limited to, taking into account the considerations referred to in s 10(3)(a)-(c).
2. As to s 10(3)(a) I acknowledge that the offender was relatively young at the date of the offending, was of prior good character, had no prior record and he had a heart condition. As indicated in the conviction appeal, I do not find that that the heart condition affected the offending. Section 10(3)(a) strongly points to a non-recording of a conviction; and even supports an order dismissing the charges altogether.
3. As to s 10(3)(b), acknowledging that the maximum penalty for the Crimes Act offence is not determinative, I do not regard the appellant's conduct, and the circumstances surrounding that conduct, as remotely trivial. He intentionally assisted and encouraged vandalism of public property. As the Crown correctly submitted, his conduct contributed to a situation whereby public funds were likely to be required to restore the train to its condition. He appeared to derive gratification from what he saw. The Magistrate made a finding, which I did not disturb on appeal, that he sought to conceal evidence which he knew was incriminating (the SD card).
4. As to s 10(3)(c), there were no extenuating circumstances - the appellant's duress defence was rejected both by the Magistrate and myself.
5. As to other considerations (s 10(3)(d)), I acknowledge that a conviction may be apt to compromise a person's employment prospects in the United States. However, there was no proof that this was certain (especially for a citizen of a foreign country with whom the United States has friendly relations, as recently demonstrated by security arrangements). In R v Maugher [2012] NSWCCA 51 at [29]-[31], Harrison J (Beazley JA and McCallum JA agreeing) determined that 'generalised prognostications about the (offender's) ability to travel overseas unsupported by clear evidence' did not fall within the matters comprehended by s 10(3)(d). In my opinion, this holding applies to the position of the appellant in this case. If however, I am wrong at the level of principle, although the Court may also take into account, as common knowledge, that the United States of America generally, and the West Coast (and possibly also East Coast) in particular, provide potential employment opportunities for a budding cinematographer like the appellant, the submission was no more specific as to what the prejudice was likely to be. There was no suggestion of any imminent desire to work in the United States or what particular speciality, or areas of interest that the appellant may wish to pursue. His position was somewhat different to the offender in Hoffenberg, who had a particular course of University study in America that he wished to pursue; which could have been jeopardised by the recording of a conviction. There was no suggestion that the appellant would be compromised in pursuing work in other areas of the world, such as Europe.
6. I do not find persuasive the evidence of economic loss said to have arisen from what was asserted to be the confiscation of the camera, camera accessories and the two mobile phones. The appellant said that the equipment had not been returned, but his father seemed to submit that the equipment was unlikely to be in the same condition; two propositions which appear difficult to reconcile. The loss of contacts on a phone and potential jobs, from the loss of possession of the photos, was only vaguely indicated. I am not persuaded by what was essentially hearsay evidence as to the reasons why the appellant has not been able to retrieve equipment should it be necessary to demonstrate what he has lost. No evidence was adduced as to what the appellant has tried to do over the course of what is approaching 4 years to retrieve contacts and jobs by other means; or even efforts made, contemporaneously with the date of seizure of items, by the appellant to seek out contacts whilst they were relatively fresh in his memory. More generally, nothing has been shown to indicate the appellant's employment history in the last four years. All that the Court knows is that he has been studying a cinematic course.
7. I find even less persuasive the suggestion of the appellant's father that some other economic burden has arisen on the appellant even through the course of a protracted criminal proceeding. There was really no evidence for that. As I noted elsewhere, the appellant was apprehended driving his father's BMW at the time of the offending. He told the Magistrate in April this year he lives in Gordon. He did not retain a solicitor to act for him.
8. The appellant's submissions in favour of an order under s 10 relate only to mitigating matters. As indicated, I have found no remorse or acknowledgment of harm and, I accept the Crown's submission that the considerations of specific and general deterrence and the need for denunciation of the appellant's conduct are applicable factors under s 10(3)(d).
9. On balance, I am not persuaded that the Court should, in its discretion, make an order under s 10 generally and s 10(1)(b) in particular.

CONSEQUENCES OF THE PARITY PRINCIPLE

1. The appellant did not expressly or directly complain that the length of the conditional release order for this offence was excessive. However, he generally relied upon the parity principle.
2. Comparison between the length of the conditional release order for the appellant (18 months) and Mr Naim (12 months) indicates a substantial disparity in the length of the conditional release order.
3. It is well recognised that a conditional release order is an onerous sanction. In my view, acknowledging the point of distinction arising from Mr Naim's guilty plea (even though it was very belated), without more information as to Mr Naim's subjective case (and the Crown did not put before the Court such information), the disparity in the length of the conditional release order appears unjustified. This is so when regard is had to the Crown's characterisation of the different roles of the appellant and the co-offender, the appellant's prior good record (and character) and the co-offender's prior antecedents.
4. I consider that it is appropriate to reduce the length of the appellant's conditional release order to 12 months.

THE COMPENSATION ORDER

1. As indicated, both the appellant and the co-offender (Mr Naim) were ordered by the Local Court to pay compensation. In the appellant's case, this was the sum of $3,123 and was made payable to Sydney Trains.
2. On this severity appeal, I raised a threshold question of the Crown as to the Magistrate's power to make that order. The Crown cited the provisions in Part 6 of the Victims Rights and Support Act 2013 (NSW) (the "VRS Act"). The Crown argued that "Sydney Trains" - the designated beneficiary of the compensation order - was an "aggrieved person" for the purposes of ss 92(b), 96 and 97 of the VRS Act. The Crown relied upon s 21 of the Interpretation Act 1987 (NSW) in submitting that Sydney Trains could be regarded as a 'person'. The Crown argued that an order could be made under s 97 to compensate Sydney Trains for any loss sustained, through or by reason of the offence. The power is discretionary (s 97(2)) and is exercisable having regard to mandatory considerations (s 99).
3. The Crown cited, as an illustration of the exercise of the power to make a direction to compensate for loss the decision of Letherbarrow SC DCJ in R v Pieper [2014] NSWDC 242. In that case, an offender, who was the general manager of the Riverina County Council, pleaded guilty to multiple counts of misconduct in public office over a 10 year period, involving his dishonest appropriation of monies belonging to the Council. As the judgment indicates at [35], in the sentencing proceeding, the offender did not oppose that he be subjected to a direction for compensation under s 97 representing the total monies lost. Inexplicably, the reported sentencing remarks do not in fact record the direction being made; however the Court's records refer to directions made by the sentencing judge on the day of the sentencing remarks that the offender pay the Riverina County Council compensation.
4. I note for completeness, although the problem does not arise in this particular case, that on a severity appeal from the Local Court, this Court is not empowered to make a direction for compensation if such order had not been sought in the Local Court, being the court that actually convicted the offender: South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183.
5. After the hearing of the severity appeal concluded, I granted liberty to the appellant to respond to submissions made by the Crown regarding the Local Court's power to direct that the appellant pay compensation to Sydney Trains. Unsurprisingly, and without criticism, the appellant, who was not legally represented, suggested that, construed in its context, a 'person', for the purposes of ss 96-97 is a human. The submission was further made that compensation should be for the infliction of injury, not property loss.
6. This last submission led me to form a further doubt about the power to make the compensation order. Section 97 refers to "loss" which a person sustains through or by reason of the offence. The problem did not obviously arise in Pieper. The Council had sustained financial loss from monies misappropriated by the offender.
7. The offence featured, as an essential element, damage to the carriages of the train. Graffiti was applied through the use of aerosol spray. The Magistrate accepted, beyond reasonable doubt, that property damage was caused. The question that occurred to me is whether a direction for compensation may be made under s 97 for what, in substance, appeared to be damage to property?
8. On this issue, the Court invited further submissions from the Crown and the appellant. The Crown submitted that an order for compensation would go a long way to embracing the damage the subject of the s 195 offence. The appellant submitted, relevantly, that the damage in this case was the application of paint and that this was capable of being removed by washing the train. But whether and by what cost that occurred was not proven.

Analysis

1. Section 91 of the VRS Act identifies, as a statutory object, giving 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. The alternative scheme is a reference to the essentially administrative regime for victims recovering 'financial support and recognition payments' contained in Part 5 of the VRS Act. Part 6 generally provides the means by which courts (which convict offenders) may order compensation following convictions for offences.
2. By its structure, Part 6 of the VRS Act differentiates between compensation orders for "injury" (Division 2) and "loss" (Division 3). The definitions (in ss 94 and 97, respectively), do not define the words 'injury' or 'loss'. I note in s 98, which generally deals with restrictions on the Court's power to direct compensation for 'loss', reference is made (in s 98(a)) to 'economic loss' referable to financial support given under Division 2 (for persons who are 'injured'). Section 98(b) imposes an effective cap on compensation for loss which would represent the maximum recoverable under the court's civil jurisdiction for a debt.
3. In R v David Michael Wills: Application by Woolworths Ltd for a direction for compensation pursuant to s 77B of the Victims Support and Rehabilitation Act 1996 (NSW) [2013] NSWDC 1; (2013) 16 DCLR 4 ("Woolworths") Haesler SC DCJ set out principles when considering the predecessor to the present Act, the Victims Support and Rehabilitation Act 1996 (NSW). His Honour relevantly said: "[9] Loss is not defined but given the distinction in the Act between injury and loss it must include economic loss. [10] A causal connection between the loss and the crime must be established: Fagan v Crime Compensation Tribunal (1982) 150 CLR 666 at 673, R v Skaf [2001] NSWCCA 199 at [35]. [11] While the Act is silent on the topic, given the nature of the orders to be made are akin to civil compensation, it seems appropriate that the civil standard of proof apply. … … [13] A court must take into account the factors noted in s77D. Other relevant factors can include the amount sought and the identity of the victim: Flynn v R [2010] NSWCCA 171 at [70] per McCallum J. The asserted impecuniosity of an offender while relevant should not ordinarily be regarded as a reason for declining to make an order as circumstances may change or may later be demonstrated to be false: Connor v R [2005] NSWCCA 431; (2005) 158 A Crim R 389 at [41]." I note that s 77D was in identical terms to s 99 of the present Act.
4. His Honour's statement of principles was adopted by Davies J in R v Meakin (No.4) [2017] NSWSC 999 at [8], with reference to the current legislative regime. So too, I respectfully adopt the principles as being applicable. In Woolworths, application had been made by the Crown on behalf of the bereaved parents of a person who had been murdered by the offender, after the sentencing of the offender. The parents had unsuccessfully applied under what is now the regime under Part 5 of the VSR Act. The Crown applied on their behalf by an application under what is now Part 6. What was apparent from that decision was that sworn evidence was adduced by the parents, as the 'aggrieved persons', relating to funeral and associated expenses and, separately, leave from work.
5. There was nothing in the Magistrate's reasons for conviction that identified economic loss, as distinct from damage to the train. Nor was there anything else in the Crown's evidence in this severity appeal (Exhibit A) to identify loss. Does that matter?
6. In my view, it does. As Haesler DCJ indicated in Woolworths, orders made under Part 6 are analogous to orders for compensation in civil law. In civil law, there are many examples, in statutory law and the common law, of the distinction between the species of harm of 'damage' and 'loss', which might be said to fall within the genus of 'harm'. They may be related species of harm, but they are separate. Thus, in federal law, the right to damages under s 236 of the Australian Consumer Law relates to "loss and damage". A more refined distinction appears in ss 5 and 34 of the Civil Liability Act 2002 (NSW), which, in differing contexts, distinguishes between 'damage to property' and 'economic loss'. In the course of construing the latter statutory provision, the plurality in Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 at [24] alluded to the distinction in general law between 'damage', which amounted to the injury and other foreseeable consequences suffered by a person (plaintiff) and 'economic loss', which meant harm to a person's economic interests. But at [26], the plurality also indicated the relatedness of the concepts: economic loss may arise because of a diminution in the value of property impaired by wrongful conduct.
7. The problem with the extant compensation order is that there is no evidence before the Court to indicate that what was patently property damage (the application of paint to the train carriages) had crystallised into any loss. As Haesler DCJ also noted in Woolworths with reference to the predecessor statutory regime, ss 96 and 97 import a causal requirement of proof between the offending and the loss: it must be shown that the aggrieved person "has sustained loss" through or by reason of the offending. Plainly, there is not only a causal connection with offending, but also a requirement of actual loss; and not prospective loss.
8. There was no evidence to indicate what loss was sustained by Sydney Trains, or anyone else, as a result of the offending. There was no evidence, for example, to show the loss of the use of the train, or loss of value of the train or any other economic consequences of the damage caused by the offending, including (if appropriate) expenditure to restore the affected carriages to the condition they were in before the offending. There is substance in the appellant's point that it was for the Crown, on behalf of Sydney Trains, to establish, if at all, what expense was incurred in removing the paint. For all that the Court knows, it may not have been intended to use the train again. In the period of nearly 4 years since the offending, it is possible that expenses have been incurred, but the Court does not know. More importantly, as indicated, it is erroneous to make a direction for compensation under s 97 on the basis of expected future loss.
9. It follows that I am not persuaded that 'Sydney Trains' has sustained loss through or by reason of the appellant having been convicted of the offence under s 195 of the Crimes Act.
10. As is evident, the above conclusion relieves the Court of the necessity to determine the separate question whether 'Sydney Trains' can be an 'aggrieved person' for the purposes of ss 96 and 97. But it is not self-evident to me that it is. It is not an individual or body politic. It might be a (statutory) corporation, but the Court does not know. Conscious as I am that the VRS Act generally, and Part 6 in particular, is beneficial legislation to be construed liberally, the concept arguably cannot be stretched to reach beyond the point that a fair reading of the text would permit. The Court is also relieved of the need to consider the matters in s 99.
11. The compensation order should be set aside.

Summary and orders

1. In the result, I vary the sentence imposed by the Sutherland Local Court on 26 April 2021 on the sequence 5 offence as follows: 1. The term of the conditional release order (with conviction) is reduced to 12 months, so as to expire on 26 April 2022; and 2. The order that the appellant compensate Sydney Trains for the sum of $3,123 is set aside.
2. The severity appeal is otherwise dismissed.

Endnote

1. Hoffenberg v District Court Of New South Wales [2011] HCASL 77 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2021