South Eastern Sydney Local Health District v Lazarus

District Court of NSW|2019-12-18

Robertson Saxton Osborne (Plaintiff) Lee Johnson Lawyers (Defendant) File Number(s): 2013/176236

Background

By a Notice of Motion filed on 30 May 2019 the applicants South Eastern Sydney Local Health District (South Eastern) and Northern Sydney Local Health District (Northern) seek orders against the respondent Ms Sandra Lazarus pursuant to s 97 of the Victims Rights and Support Act 2013 (NSW) (the Act). The applicants seek directions that a specified sum be determined by the court to be paid out of the property of Ms Lazarus by way of compensation for loss sustained "through and by reason of the offences the Court convicted Ms Sandra Lazarus of on 12 December 2017".

Relevant provisions in the Victims Rights and Support Act 2013 (NSW)

Section 97 of the Act is contained in Pt 6 - Compensation Awarded By Court.
Section 91 of the Act provides: "The object of this part is 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."
Section 97 of the Act occurs in Div 3 of Pt 6, dealing with Compensation For Loss.
Section 97 of the Act provides as follows: "Directions for compensation for loss (1) A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a specified sum be paid out of the property of the offender to any: (a) aggrieved person, or (b) aggrieved persons in such proportions as may be specified in the direction, by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. (2) A direction for compensation may be given by a court on its own initiative or on an application made to it by or on behalf of the aggrieved person."
Section 96 of the Act contains definitions of two matters relevant to s 97. Section 96 provides: "Definitions In this Division: 'aggrieved person', in relation to an offence, means a person who has sustained loss through or by reason of: (a) an offence for which the offender has been convicted, or (b) a further offence that a court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted. 'court' means the Supreme Court, the Court of Criminal Appeal, the District Court or the Local Court."

History of the criminal proceedings

The history of the convictions recorded against Ms Lazarus is set out in the affidavit of Alexander Trevena solicitor filed on 6 November 2019 and in the decision of the Court of Appeal in Lazarus v Independent Commission Against Corruption [2019] NSWCA 100. The history is summarised as follows: 1. In 2010 and 2011 the Independent Commission Against Corruption (ICAC) conducted an investigation into corrupt conduct in two Sydney hospitals. Following completion of that investigation, criminal proceedings in the Local Court were commenced against Ms Lazarus by a Court Attendance Notice (CAN) dated 1 March 2013. 2. After a defended hearing, Magistrate Keogh found Ms Lazarus guilty of 16 offences against s 178BB of the Crimes Act 1900 (NSW) and guilty of 28 offences against s 300(1) of the Crimes Act. 3. Ms Lazarus brought proceedings in the Supreme Court to quash her conviction and prohibit the Magistrate from proceeding to sentence her. That application was dismissed by Justice Garling on 16 April 2015 - Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426. 4. On 27 April 2015 Magistrate Keogh sentenced Ms Lazarus to a total effective sentence of one year and nine months, and an effective non-parole period of one year and four months. 5. On 27 April 2015 Ms Lazarus filed a Notice of Appeal to the District Court against her conviction and sentence. 6. Magistrate Keogh granted bail to Ms Lazarus that day and accordingly the execution of that sentence was stayed from 27 April 2015 until the final determination of her appeal - Crimes (Appeal and Review) Act 2001 (NSW) s 63(3). 7. On 20 June 2017 Judge Conlon in the District Court summarily dismissed Ms Lazarus' conviction appeal in view of her failure to appeal. His Honour adjourned the severity appeal to 28 June 2017. 8. On 7 and 8 December 2017 the severity appeal brought by Ms Lazarus was heard by Judge Hoy. Judgment was reserved. 9. On 12 December 2017 Judge Hoy varied the non-parole period of the sentence for counts 24, 25, 27-31 and 40-53 from 10 months to 7 months. 10. As a result the total effective sentence remained one year and nine months, but the total effective non-parole period was reduced to one year and one month. 11. The orders entered to record the outcome of the sentence appeal were: "Sentence Appeal Dismissed - Order Varied The sentence with respect to counts/sequences 24, 25, 27-31 and 40-53 is confirmed however varied…". 1. On 13 July 2017 Ms Lazarus commenced proceedings in the Court of Appeal by a Summons. Inter alia, the proceedings in the Court of Appeal involved a challenge by way of judicial review to the decisions of Judge Conlon and of Judge Hoy. 2. On 8 May 2019 the Court of Appeal dismissed the application made by Ms Lazarus.

Which court convicted Ms Lazarus?

In Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501 the High Court approved the following statement of the Victorian Full Court in R v Tonks [1963] VR 121 at 127-128 : A conviction is a determination of guilt, and a determination of guilt must be the act of the court or the arm of the court charged with deciding the guilt of the accused.
It is beyond argument that Ms Lazarus was found guilty and was convicted by Magistrate Keogh in the Local Court.
The question then becomes whether, as a result of the outcome of the conviction appeal and/or the sentence appeal to the District Court, it can be said that the District Court has convicted Ms Lazarus of an offence, within the meaning of s 97(1) of the Act.
Section 20 of the Crimes (Appeal and Review) Act deals with both conviction and severity appeals from the Local Court to the District Court. It provides: "Determination of appeals (1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal, or (c) in the case of an appeal made with leave under section 12 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court. (2) The District Court may determine an appeal against sentence: (a) by setting aside the sentence, or (b) by varying the sentence, or (c) by dismissing the appeal."
The conviction appeal of Ms Lazarus was dealt with by the District Court without a hearing on the merits. The order made by Judge Conlon was an order under s 20(1)(b) dismissing the appeal. That order was not disturbed by the Court of Appeal.
Judge Conlon was faced with a binary choice, since s 20(1)(c) had no application. He could either set aside the convictions or dismiss the appeal. He dismissed the appeal. There was no order made affecting or disturbing the convictions entered by Magistrate Keogh in the Local Court.
On the severity appeal Judge Hoy was faced with three choices under s 20(2). The order he made varied the sentence imposed by the Local Court, pursuant to s 20(2)(b) of the Crimes (Appeal and Review) Act.
While Judge Hoy varied the sentence imposed by the Local Court, no order which his Honour made disturbed the convictions imposed and recorded by the Local Court. On a sentence appeal the matter of conviction is not before the District Court - Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 at [123]. On a sentence appeal, if the sentence is varied, the sentence becomes that of the District Court and is no longer the sentence of the Local Court - Higginson at [19], [125].
A District Court judge does not "confirm" the conviction - Higginson at [17], [111]. This was the language contained in earlier legislation - the Justices Act 1902 (NSW) s 125. Section 20(2) of the Crimes (Appeal and Review) Act does not empower or require a judge to "confirm" a conviction. Any use of such word in a sentencing severity appeal judgment is "mere surplusage" - Higginson at [111].

Conclusion

Section 97 of the Act gives power to make a direction for compensation for loss, not to the court which sentences an offender, but to the court which convicts a person of an offence.
The orders made by Judge Hoy varied the sentence imposed by the Local Court, and thus became a sentence imposed by the District Court. Even though Judge Hoy varied the sentence of the Local Court, and thus imposed a sentence of his own, the convictions in the Local Court were the unchallenged foundation for consideration of an appropriate sentence. The court which convicted Ms Lazarus of the offences remained the Local Court.
For those reasons, I find that there is no jurisdiction in the District Court, on the facts of this case, to make a direction for compensation for loss under s 97 of the Act. The only court which has jurisdiction to make such an order is the Local Court, being the court which convicted Ms Lazarus of the offences.
The application for directions for compensation for loss made in this court will be dismissed. The applicants are free to seek such relief in the Local Court, if so advised. The appropriate order for costs is for each party to pay its or her own costs of the applicants' Motion.

Theoretical findings on the merits

On the hearing of the Motion, I received all of the applicants' evidence in support of their application for compensation orders. There was no evidence tendered for the respondent. In case my conclusion that the District Court has no jurisdiction is successfully appealed, I will record the findings which I would have made, if I had jurisdiction.
The evidence establishes that: 1. South Eastern is a person aggrieved within the meaning of s 97 of the Act. 2. South Eastern sustained losses of $199,000 through or by reason of the offences of which Ms Lazarus was convicted. 3. South Eastern is entitled to a direction that $199,000 be paid to it out of the property of Ms Lazarus. 4. Northern is a person aggrieved within the meaning of s 97 of the Act. 5. Northern sustained losses of $234,300 through or by reason of the offences of which Ms Lazarus was convicted. 6. Northern is entitled to a direction that $234,300 be paid to it out of the property of Ms Lazarus.
I note that the respondent filed a Notice of Motion on 29 November 2019 but this Motion was not listed for hearing, nor was it pursued by Ms Johnson, who withdrew from representation of the respondent during the morning of the second day of the hearing.

Orders

My orders are: 1. Dismiss the Notice of Motion dated 30 May 2019. 2. Order that each party pay its or her own costs of the Notice of Motion.

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: 19 December 2019

Justices Act 1902(NSW)s 125.

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