Regina v Thuoc VAN HOANG

COUNSEL : Crown - Mr P Ingram Applicant - Mr M Thangaraj SOLICITORS : Crown - DPP NSW Applicant - Legal Aid Commission of NSW CATCHWORDS : Order for compensation - sentence appeal - no parity issue Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 LEGISLATION CITED : Criminal Appeal Act 1912 Law Reform (Miscellaneous Provisions) Act 1946 Victims Support and Rehabilitation Act 1996 Lowe v The Queen (1984) 154 CLR 606 R v Bowen (1969) 90 WN (Pt 1) (NSW) 82 CASES CITED: R v Diamond [1992] NSWCCA (unreported, 18 February 1993) R v Rose (1987) 31 A Crim R 52 Rv Simpson [2001] NSWCCA 534 (unreported, 19 December 2001) DECISION : 1) Leave to appeal against order for compensation granted (2) Appeal allowed; order for compensation set aside (3) Compensation ordered for $5400.

IN THE COURT OF CRIMINAL APPEAL 60443/01

DOWD J SMART AJ

5 November 2002 REGINA v Thuoc VAN HOANG Judgment 1 DOWD J: The applicant sought leave to appeal against the sentence imposed by Dodd DCJ on 6 July 2001 for one count of break, enter and steal, an offence contrary to s112 of the Crimes Act 1900 ("the Act"), with two matters on a Form 1 being taken into account pursuant to s33 of the Crimes (Sentencing Procedure) Act 1999, the first of which being, carried in a conveyance, contrary to s154A of the Act and the second being an offence of goods in custody, contrary to s527C of the Act. The maximum penalty for an offence under s112 of the Act is fourteen years imprisonment. 2 The applicant was sentenced to three years imprisonment, which commenced on 17 August 2000 to expire on 16 August 2003. Dodd DCJ found special circumstances pursuant to s44(2) of the Crimes (Sentencing and Procedure) Act 1999 to reduce the non-parole period and thus, imposed a non-parole period of eighteen months which expired on 16 February 2002. At the time of sentencing Dodd DCJ also made an order against the applicant for compensation, in the sum of $6,500. 3 The applicant has sought an order of this Court, pursuant to s6(3) of the Criminal Appeal Act 1912, quashing the order made against the applicant by Dodd DCJ for compensation, in the sum of $6,500.

Facts 4 On 21 July 2000, the applicant and the co-offender arrived at Turramurra and parked a stolen Nissan 300ZX car outside 185 Kissing Point Road. The applicant and co-offender illegally entered the premises of Kim Che Wong and stole one gold bracelet, a pair of ruby earrings, a watch, one Canon camera, one bass guitar, two fountain pen gift sets, one Subaru Impreza car key, one set of immigration papers and one birth certificate, the property of one You Ok Lee. 5 The applicant and his co-offender were subsequently noticed by the car owner who called into 185 Kissing Point Road requesting that the owners, a Mr and Mrs Brown, call the police. The Browns then headed outside and met up with the applicant and the co-offender emerging from the premises next door with a guitar case in hand. 6 The first offence on the Form 1 was that, on 21 July 2000 in Turramurra New South Wales, the applicant allowed himself be carried in a conveyance, namely, a Nissan 300ZX registration number KC-1389, knowing that said conveyance was taken without the consent of the owner. The second offence on the Form 1 was that, between 4 July and 5 July 2000, the applicant gave custody of fifty-two compact discs (suspected stolen) to a Maria Peterson, manager of Revolution CD store. 7 The applicant had a long history of criminal offences. He was estimated as being some 31 years of age at the time of sentence, having been born in Vietnam, the youngest of nine children. He came to Australia in 1990 having lived in a refugee camp and has been addicted to heroin since 1997. The Learned Sentencing Judge found that there had been no pre-planning of the offence but also noted that the applicant was on a bond and subject to a suspended sentence imposed in Victoria at the time of the offence. 8 The primary offence was committed with a co-offender, Cross, who did not stand for sentence until 20 September 2001 at which time he was sentenced by O'Reilly DCJ at Campbelltown for that and a number of other serious offences and on that sentence received a sentence of three years six months with a non-parole period of two years. Each of the sentences were imposed concurrently. No order for compensation was sought or made. 9 The Crown concedes an error on the part of Dodd DCJ in that he did not express his reasons for refusing the application for apportioning the compensation between co-offenders. It is also conceded that the compensation sum involved was the maximum claim made, there having been some goods returned, and the sum should have been $5,400. 10 It was submitted by the Crown that the sentences imposed upon the co-accused were demonstrably, manifestly inadequate and the Crown pointed out that there was no application made for compensation. 11 Indeed, no application is made by the applicant in terms of a justifiable sense of grievance in respect of the prison sentence imposed on the co-accused as against his own. This application is solely confined to the amount of compensation. 12 The order for compensation appears to have been made pursuant to Pt 4 Div 2 of the Victims Support and Rehabilitation Act 1996 s77D which provides:

"Factors to be taken into consideration s77D. 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."

The Crown submitted it was clearly within the power of the court to permit an apportionment of the compensation but that the applicant was jointly liable for the whole amount of the damages as was his co-offender. 13 Clearly, as a matter of law, each co-offender is not limited in obligation as to half of the total amount of loss sustained by the victim since both of them are equally liable for the full amount. It may well be that action by way of indemnity might bring the two co-offenders into parity but the primary purpose of the Victims Support and Rehabilitation Act 1996 is to compensate victims, not penalise offenders. 14 The judgment of Street CJ in Regina v Rose (1987) 31 A Crim R 52, which expressed the view of the majority of the court, reaffirmed the joint and several liability of co-offenders and makes it clear that even though a compensation order is made under the statutory regime which was the predecessor to the current power to make awards in favour of victims that the civil action by the victim against the other party remains. Indeed, Regina v Rose underlines the fact that it may well be that a determination of a civil judgment will override the effect of a compensation order and if the compensation order is larger then the civil judgment will reduce the amount payable under a statutory compensation order. 15 From a practical point of view the judge awarding compensation for the first of two co-offenders does not know, even though a plea of guilty has been entered, that the other co-offender will answer to the charge as he may change his plea or that he will necessarily be in the country or alive or may be bankrupt and thus, the first sentencing judge had no choice other than to compensate the victim in the full amount. 16 It is appreciated that having a remedy against someone who may be a person of straw is of little value to a person such as the victim and that from a practical point of view the statutory scheme is more likely to pay out the victim and the scheme then recovers that sum from the property of the person against whom the order is made. 17 Clearly, this award of compensation constitutes a sentence within s2 of the Criminal Appeal Act 1912. The Crown submitted that, notwithstanding the error by the sentencing judge in failing to give reasons, this Court ought not intervene and quash the order unless satisfied that a lesser sentence was warranted in law. The Crown relied on Regina v Simpson [2001] NSWCCA 534 (unreported, 19 December 2001), which held at para 78, that:

"Sentencing appeals in this Court frequently proceed as if the statutory trigger for the quashing of a sentence were expressed as follows: 'If it is of the opinion that error has occurred in the sentencing process.' That is not the statutory formulation. By s 6(3) this Court must form a positive opinion that 'some other sentence … is warranted in law and should have been passed'. Unless such an opinion is formed, the essential pre-condition for the exercise of the power to 'quash the sentence and pass such other sentence in substitution therefore' is not satisfied. As the judgments in Dinsdale to which I have referred indicate, the exercise of the power in s 6(3) further requires the identification of error in the requisite sense."

And as held by Sully J in a separate judgment at para 99-100: "…Whenever an applicant for leave to appeal against sentence submits that there is cause to show why this Court should intervene and reduce the primary sentence, it is, as I think, obvious that the first thing to be established by the applicant is that the primary sentencing discretion has miscarried, by reason of some error of fact or law; or because of the cumulative effect of errors of both fact and law. The errors, whether of fact or of law, may be either latent or patent; but whether latent or patent, some error must be demonstrated before this Court becomes entitled at all to consider interfering with the sentence passed at first instance: Vachalec [1981] 1 NSWLR 351 at 353F; Visconti [1982] 2 NSWLR 104 at 108G. Error once demonstrated, it does not follow automatically that this Court will, without more, intervene in fact and resentence. Before that can happen properly in law, the condition specified in s 6(3) of the Criminal Appeal Act 1912 (NSW) must be satisfied; that is to say, this Court must be persuaded, not only that error has been shown in the process of reasoning of the primary sentencing Court, but that some other sentence is ' warranted in law' . I agree with the observations made in this connection by Lee AJ in Astill (No 2) [1992] 64 A Crim R 289 at 303, 304 …".

The Crown, whilst admitting that an error of law had occurred, submitted that the Court would not form a positive view that some other sentence is warranted in law. 18 It seems to me clear that the Learned Sentencing Judge had a duty to award compensation. He had no control over what happened in the proceedings involving the co-offender. It seems to me in terms of applying the principle of parity that there may still be a civil remedy on the part of the applicant against the co-accused and that in any event the order against the applicant under the statutory regime did not take any further the obligation in tort which he already owed, to compensate the victim. 19 The justifiable sense of grievance on which the applicant based his parity argument, as articulated in Lowe v The Queen (1984) 154 CLR 606 at 610, is that the test for determining a sense of grievance is an objective one and that a person complaining of sentencing disparity irrespective of his or her own feelings should show that a reasonable person looking at the circumstance of the case would regard the offender's grievance as justified. 20 I further consider that parity must be looked at in the light of the overall sentence, which includes the actual sentence as well as the amount of compensation. I consider that it is not open to a party to select an aspect of the sentence and seek to isolate a sense of grievance in respect of that one aspect of a sentence rather than taking into account the whole of the sentence imposed including any compensation order. To select part only of a sentencing package would be to extend the doctrine of parity beyond its reasonable limits. 21 In R v Diamond [1992] NSWCCA (unreported, 18 February 1993) it was held that the reduction of a sentence (where the lower sentence in disparity is manifestly inadequate) may, in some cases, be inappropriate where the reduction of an otherwise appropriate sentence would be an affront to the proper administration of justice. On the limited evidence available as to the facts of the sentences imposed on the co-offender, it would appear that those sentences were inadequate and thus, inappropriate to use as a basis for comparison. It is not, however, necessary to decide that issue, particularly as it was not argued before the court. 22 In any event the imposition of a compensation order under the statutory regime does not relieve the co-offender of his obligation to make recompense to the victim or to pay his share in the event of any indemnity action being brought by the applicant. 23 Accordingly, I do not consider that any justifiable sense of grievance arises, and the parity ground of appeal, therefore, fails. 24 I do, however, consider that the larger amount ordered, namely $6,500, is an improper sum to recover against either or both co-offenders as it did not reflect the actual loss and therefore I consider that this error is such that the court should intervene. 25 Accordingly, I would therefore propose the following orders: (1) Leave to appeal against the order (or direction) for compensation for $6500 be granted.

(2) Appeal allowed; order for compensation set aside. (3) In lieu thereof the applicant is ordered to pay $5400 out of his property by way of compensation to You Ok Lee; such sum in the first instance to be paid to the Registrar, District Court, Sydney.

26 SMART AJ: Van Thuoc Hong, the applicant, was sentenced in the District Court on 6 July 2001 pursuant to his plea of guilty, to imprisonment for 3 years with a non-parole period of 18 months for the offence of break, enter and steal, taking into account the offence of being carried in a conveyance without the consent of the owner and that of giving custody of certain property to a person not lawfully entitled to possession thereof, such property being reasonably suspected of being stolen or otherwise unlawfully obtained. The judge also ordered that the applicant pay compensation to You Ok Lee, such compensation to be paid to the Registrar of the District Court, Sydney. It is against the order for compensation that the applicant seeks leave to appeal. The applicant contends that he should not have been ordered to pay the whole of the loss suffered by the victim but only half, the other half being payable by his co-offender. 27 On 21 July 2000 the applicant and Jason Cross were seen to emerge from 185 Kissing Point Road, Turramurra. The applicant was carrying a guitar case. The property stolen comprised one gold bracelet, a pair of gold ruby earrings, a watch, one Canon camera, one Bass guitar, two fountain pen gift sets, two car keys, one birth certificate and one set of immigration papers, the property of Ms You Ok Lee. Both the applicant and Mr Cross got into the stolen car which was driven away by Mr Cross. A request to wait was declined. Both the applicant and Mr Cross appeared to be heavily involved in the offences. They were together when arrested in Kings Cross on 24 July 2000 in connection with a stolen vehicle. 28 Cross was sentenced on 20 September 2001, some 2½ months after the applicant, for the offence in question and a number of other serious offences, to concurrent terms of 3 years 6 months with a non-parole period of 2 years. No order for compensation was sought or made. The Crown contended that an analysis of the sentences imposed upon Cross demonstrated that those sentences were manifestly inadequate. 29 The transcript reveals that after the judge had imposed the sentence of imprisonment upon the applicant, the judge enquired whether any other orders were required. The Crown Prosecutor replied that the victim souht compensation for the property stolen, namely $6500 and that it was a matter for others whether realistically, it could be recovered. The transcript continues: "HIS HONOUR: Do you have anything to say about that Mr Voros, some of it was recovered is that right. This is for the outstanding things that weren't recovered.

VOROS: Your Honour there's not a great deal I can say other than I think it's obvious that he certainly is not a man with any great ability to do it.

HIS HONOUR: That may be and if it's absolutely futile then I probably wouldn't make the order but in the circumstances I think I should make it as Mr Crown says it's a matter for others to decide whether it's reasonable to pursue it I suppose.

The order I should make is that I order the prisoner to pay compensation of $6,500 to Mr (sic) You Ok Lee. I make that order.

VOROS: Your Honour it just came to my mind, there is a co-accused which (sic) has not yet been sentenced and that is clearly Mr Cross. I should have made the submission that given there are two people would it be appropriate for your Honour to halve that amount. HIS HONOUR: I think I'll leave it as it is.

Such compensation to be paid to the registrar of the District Court Sydney." 30 It was common ground that allowing for the property recovered, the correct amount was $5400. The submissions made to the judge were very brief and he was clearly prepared to hear further argument. The Crown did not dispute that the judge ought to have expressed his reasons for rejecting the applicant's contention that he pay but half of the compensation. That is probably correct but it is a little hard on the judge having regard to the minimal submissions which were made. The judge would not have realised that this was a substantial issue.

The Statutory Framework 31 The Victims Support and Rehabilitation Act 1996 provides in Part 2 that a primary victim of an act of violence, and a secondary victim of an act of violence are eligible for statutory compensation. There is a table of benefits specifying how much is to be received for particular benefits. None of the amounts payable exceed $50,000 despite the gravity of the injuries. The authority which awards compensation is the Victims Compensation Tribunal. 32 Part 4 of the Act deals with compensation awarded by a Court. By virtue of Division 1 of Part 4 a Court, in respect of actual physical bodily harm or psychological or psychiatric disorder may award an aggrieved person on conviction of the offender a sum not exceeding $50,000 to be paid out of the offender's property. Division 1 contains various restrictions on this power but it is unnecessary to detail them. 33 Part 4 Division 2 provides (s77B) that if a person is convicted by a court of an offence, the court may direct that a specified sum be paid out of the property of the offender to any aggrieved person or persons by way of compensation for any loss sustained through or by reason of the offence. 34 Section 77C, which contains important limitations on the Court's power, provides: "A court may not give a direction for compensation:

(a) for any loss for which compensation is payable under Part 2 or under Division 1 of this Part, or

(b) for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt." 35 Section 77D provides: "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." 36 It should be noted that there is no limitation on the amount which a court may award under s77B. This is understandable because the property loss which follows an embezzlement often exceeds several hundred thousand dollars and is not in dispute. The remaining provisions of Division 2 cover payment of the sum directed, the enforcement of directions for compensation and the effect of directions for compensation on subsequent civil proceedings. 37 Part 4 contains provisions of a summary nature designed to do some measure of justice to the victim of a crime without the delay, expense and formality of a civil action for, for example, assault, trespass or conversion (see Bowen (1969) 90 WN (Pt 1) (NSW) 82 at 84). 38 As a joint tortfeasor the applicant is liable for the whole of the damage suffered by the victim. However, he is entitled to contribution from his co-offender. Section 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946 provides: "5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) … (c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been liable in respect of the same damage. …" 39 Section 5(2) provides that the amount of the contribution recoverable from any person shall be just and equitable having regard to the extent of that person's responsibility for the damage. 40 It was implicit in the applicant's submissions that the victim should be left to pursue Mr Cross for half the amount of the loss which she suffered. That would involve the victim incurring the expense of bringing a civil action against Mr Cross. In view of the sentence of imprisonment that Mr Cross received and his age, bringing such an action would appear to be imprudent in that he is unlikely to have any capacity to pay. It is a preferable result that the applicant be left to pursue Mr Cross for contribution. There is no good reason to alleviate the applicant's liability at law. If this Court were to order that the applicant pay one-half of the victim's loss ($2700) that would not prevent her suing the applicant in a civil court for the other half of her loss. 41 The Court is dealing with a small amount of money. It is important to keep expense to a minimum and to avoid a further action. The expense and inconvenience of pursuing Mr Cross for contribution should fall upon the applicant as a joint tortfeasor. 42 The principle of parity has no application in the present circumstances. That principle is mostly, if not entirely, related to the punishment imposed or to be imposed, whether custodial or otherwise. It is not usually directed to orders for compensation where the tortfeasor is liable for the whole loss but is entitled to seek contribution from his co-offender. Of course, this does not mean that if the co-offenders were before the same judge for sentencing and each had assets or resources capable of meeting half the loss or a portion of the loss, orders would not be made accordingly. Again, in embezzlement cases where each embezzler has or has access to moneys or assets, orders for compensation are made fashioned to the circumstance of the case. A judge considering orders for compensation must have regard to the matters mentioned in s77D of the Act. That will include what is just and equitable in all the circumstances of the particular case. 43 Subject to adjustment of the amount of the order, the order for compensation made in the present case was correct. 44 I propose the following orders: (1) Leave to appeal against the order (or direction) for compensation for $6500 be granted.

(2) Appeal allowed; order for compensation set aside. (3) In lieu thereof the applicant is ordered to pay $5400 out of his property by way of compensation to You Ok Lee; such sum in the first instance to be paid to the Registrar, District Court, Sydney.

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