Brown v Loveday

[2012] VSCA 57

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0311

ALAN PHILLIP BROWN	Applicant
	V
DARREN LOVEDAY & ORS	Respondents

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JUDGES	NEAVE JA
WHERE HELD	MELBOURNE
DATE OF HEARING	27 MARCH 2012
DATE OF JUDGMENT	27 MARCH 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 57

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CRIMINAL LAW − Procedure − Application for leave to appeal against extension of time to seek compensation order under Sentencing Act 1991, s 85D − Definition of ‘sentence’ in Criminal Procedure Act 2009, s 3 − Whether leave to appeal available under Criminal Procedure Act 2009, s 278 − Extension of time constitutes an order ‘incidental or preparatory’ to substantive compensation order − No jurisdiction to grant leave to appeal under Criminal Procedure Act 2009, s 278 − Application refused.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Applicant	Ms J Dixon SC, with Mr R H Stanley	Clark Toop Taylor
For the Respondents	Mr T Tobin SC, with Mr E Makowski	Arnold Thomas Becker

NEAVE JA:

1. Mr Alan Phillip Brown (‘Brown’) seeks leave to appeal against an order made by a County Court judge on 2 December 2011 granting Mr Darren Loveday, Ms Nicole Loveday and Ms Kim Lyons (‘the respondents’) an extension of time to apply for a compensation order under Part 4, Division 2 of the Sentencing Act 1991. The application for an extension of time was made under s 85D of the Sentencing Act 1991.

1. The circumstances giving rise to this application were as follows.  On 6 September 2002, Brown pleaded guilty to negligently causing serious injury and culpable driving causing the death of Mrs Margaret Loveday, the mother of the respondents.  He was sentenced to a total effective sentence of 14 years’ imprisonment. 

1. On 13 September 2010, Brown received $120,000 plus costs in settlement of a negligence claim against the State of Victoria, for a neck injury which he suffered while working as a prisoner at Loddon Prison.  After  the deduction of legal fees, he received approximately $98,000. 

1. Under Part 9C of the Corrections Act 2008, the award of damages was quarantined by the State for 12 months and a notice advising the award of damages was published under s 104Y of that Act.  The respondents became aware of the award as a consequence of a story published in the Herald Sun. They sought legal advice shortly afterwards.

1. Under s 85B of the Sentencing Act 1991, where a person is convicted or found guilty of an offence, the Court may order the offender to pay compensation to a person who has suffered injury as a direct result of the offence.[1]  Compensation can be awarded for, among other things, pain and suffering, and reasonable expenses incurred.[2]

   [1]Sentencing Act 1991, s 85B(1).

   [2]Ibid s 85B(2).

1. An application for a compensation order ‘must be made within 12 months after the offender is found guilty, or convicted, of the offence’.[3]  However, an extension of time may be granted under s 85D(1), which provides that:

A court may, on the application of a person who wishes to apply for a compensation order, extend the time within which an application for a compensation order may be made if it is of the opinion that it is in the interests of justice to do so.

[3]Ibid s 85C.

1. On 15 September 2011, the applicants sought an extension of time under s 85D of the Sentencing Act 1991 within which to apply for a compensation order against Brown.

Jurisdiction

1. Before considering this application, it is necessary to determine the basis of the Court’s jurisdiction. 

1. In his written submission, the applicant referred to s 278 of the Criminal Procedure Act 2009, which provides that an offender may seek leave to appeal against a sentence imposed on him or her. Reliance was placed on the definition of sentence in s 3 of that Act which includes ‘an order under Part 3, 3A, 4 or 5 of the Sentencing Act 1991.’ 

1. The written submission of counsel for the applicant argued that since the order for extension of time was made under Part 4 of the Sentencing Act, the Court has jurisdiction to grant leave to appeal.  The respondents’ written submission opposing the grant of leave also assumed that that was the case.  

1. The day before the hearing, counsel were asked to prepare submissions on the Court’s jurisdiction to grant leave. Unfortunately, that request was not forwarded to counsel for the applicant. At the hearing, however, the respondents’ counsel submitted that s 278 of the Sentencing Act did not apply. 

1. The full definition of sentence in s 3 which is relevant to this application is as follows:

An order under Part 3, 3A, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order.[4]

[4]Emphasis added.

1. The use of the words ‘incidental to or preparatory to the making of the order’ seems to be designed to exclude orders made under the relevant parts of the Sentencing Act which are not substantive orders.  This view is fortified by the language of s 278(1), which permits a person sentenced for an offence to appeal ‘against the sentence imposed’ if the Court of Appeal gives leave.  

1. A compensation order made under s 85B can, with little violence to the language of s 278(1), be regarded as a sentence which has been ‘imposed’. However, these words are inapt to an order extending time under s 85D. This is confirmed by other provisions in Division 2, Part 6.3 which deal with the determination of sentence appeals. Section 280(2) which empowers the Court of Appeal to refuse leave ‘if there is no reasonable prospect that a less severe sentence would be imposed’ and s 281, which establishes the criteria for allowing an appeal against sentence, support the view that s 278 relates to an application for leave to appeal against the sentence itself, but not to an order extending time to apply for a compensation order.

1. A similar view was taken by Phillips JA (Batt JA agreeing) in Esso Australia Pty Ltd v Norman Lindsay Robertson,[5] (‘the Esso case’) where the applicant sought leave to appeal against an extension of time granted by a Supreme Court judge under s 568(4) of the Crimes Act 1958 (the statutory predecessor to s 278). The definition of ‘sentence’ in s 566 of the Crimes Act1958 then included orders made under Part 3, 3A, 4 or 5 of the Sentencing Act 1991. However, it did not include the qualification now contained in the definition of sentence in s 3 of the Criminal Procedure Act 2009. 

   [5][2004] VSCA 79.

1. In hearing the application on summons, Phillips JA doubted the applicability of s 568(4), noting that even if the definition of sentence permitted the grant of leave to appeal against an order for compensation made against a person convicted of an offence, it was doubtful whether it applied to an application for leave to appeal against an order granting an extension of time. The qualification to the definition of ‘sentence’ in s 3 which now appears in the Criminal Procedure Act2009 may well have been intended to resolve that question. In that case, Phillips JA also considered whether the Court had jurisdiction to grant leave under s 17(2) of the Supreme Court Act 1986 (as it then stood) on the basis that the order was made in the civil jurisdiction of the Supreme Court.  

1. In a later appeal against the compensation order which was ultimately made by a trial division judge in favour of a victim of the offending in the Esso Case,[6] this Court decided that an application under s 85B of the Sentencing Act is a criminal proceeding and not a civil one. This makes it unnecessary to consider whether the order from which leave to appeal was sought in the instant case was an order made in civil proceedings from which an appeal with leave would lie to this Court under s 74(2D) of the County Court Act1958.  

   [6]Esso Australia Pty Ltd v Norman Lindsay Robertson [2005] VSCA 138.

1. The respondents’ counsel submitted that the order extending time might be an interlocutory order within Part 6.3, Division 4 of the Criminal Procedure Act2009. The applicant’s counsel also advanced that view.  However, even if this is the case, it does not assist the applicant, because the requirements imposed by that Division for an interlocutory appeal have not been satisfied. 

1. It is unnecessary for me to decide whether Part 6.3, Division 4 would permit the Court to grant leave to appeal against an order extending time to seek a compensation order. However, I doubt whether that Part applies. Section s 295 provides that

295     Right of appeal against interlocutory decision

(1)This section applies to a proceeding in the County Court for the prosecution of an indictable offence.

(2) Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.

1. The application for compensation in the County Court was not ‘a proceeding for the prosecution of an indictable offence’, although a compensation order may be made following an offender‘s conviction. The provisions for interlocutory appeals were primarily designed to deal with issues arising in the course of a criminal prosecution (such as a question relating to severance of counts or the admissibility of evidence). Moreover, the explicit exclusion of incidental or preparatory orders from the definition of sentence to which I have referred above, also indicates that Part 6.3 Division 4 was not intended to cover interlocutory orders arising in compensation proceedings.

Leave

1. Assuming that I am wrong in holding that there is no jurisdiction to grant leave to appeal against an extension of time to seek a compensation order, I will very briefly consider the substantive issues raised by the applicant.

1. The judge’s decision to extend time was a discretionary judgment to which the principle in House v The King[7] applied.  If leave were granted, it would be necessary for the applicant to show that the judge acted on the basis of an incorrect principle, mistook the facts, considered irrelevant matters or failed to consider relevant matters, or that the decision was so plainly unreasonable or unjust that an error must have occurred. 

   [7](1936) 55 CLR 499, 505. See also Australian Coal and Shell Employees Federation v The Commonwealth (1953) 94 CLR 621.

1. The applicant’s proposed grounds of appeal were as follows:

1.The Trial Judge failed to approach his consideration from the starting point that:

(i)the 12 month time limit set out in Section 85C(l)(a) is the general rule; and

(ii)the application to extend time is an exception to the general rule; and

(iii)the Applicants bear the onus of establishing that the interests of justice are served by the exception being taken.

2.In exercising his discretion, the Trial Judge failed to give sufficient weight to the extent of the delay.

3.In exercising his discretion, the Trial Judge failed to properly consider the general rationales for the enactment of limitation periods.

4.In exercising his discretion, the Trial Judge failed to properly consider the specific rationales for the enactment of the 12 month limitation period in 85C(l)(a) of the Sentencing Act 1991 including:

(i)The public interest in ensuring that applications for Compensation Orders are dealt with in an efficient and cost effective manner.

(ii)The public interest in ensuring that the rehabilitation prospects of offenders are not jeopardised by applications for Compensation Orders being brought long after the offending.

5.In exercising his discretion, the Trial Judge failed to take into account relevant matters, including:

(i)         The rights the Applicants have to alternate civil remedies.

(ii)The legal advice the Applicants received within the 12 month period.

6.In exercising his discretion, the Trial Judge took into consideration extraneous and irrelevant matters, including:

(i)         The change in Mr Brown's financial circumstances.

(ii)       The nature of Mr Brown's offending.

7.In exercising his discretion, the Trial Judge failed to properly consider the likely prejudice Mr Brown will suffer in defending the applications for Compensation Orders.

1. Under proposed ground 6, the applicant’s written case argued that the judge was not entitled to take account of the change in the applicant’s financial circumstances.  However, at the hearing, counsel for the applicant did not argue that the change in the applicant’s financial circumstances was irrelevant, but argued instead that the judge gave too much weight to the change in the applicant’s financial circumstances.  In essence, counsel contended that the weight given by the trial judge to the fact that the applicant was now able to pay compensation had overwhelmed the other matters which the judge was required to weigh in deciding whether it was in the interests of justice to grant the extension of time.  

1. In effect, proposed grounds of appeal 1 and 3 claim that the sentencing judge reached his conclusion on the basis of incorrect principle.  I would reject that argument.  His Honour referred to the considerable delay which had occurred.  He acknowledged that the award of compensation under the Sentencing Act 1991 was designed ‘for a fairly swift remedy to occur soon after the sentencing process is completed’.  His Honour also said that, ordinarily, an application made so long out of time should not succeed.

1. The other grounds of appeal, which now include the modified ground 6, complain about the weight which his Honour gave to relevant matters.  The applicant does not claim that his Honour was not entitled to consider these matters.  

1. The balance which the judge struck between the matters covered by the proposed grounds of appeal, the forensic difficulty the applicant might suffer in contesting the respondents’ claim to injury, and the effects of an award on the applicant’s prospects of rehabilitation if the extension were granted was well within the exercise of his Honour’s discretionary judgment.  In granting the application for an extension of time, His Honour considered the rights of the applicant to spend the money on his children as he pleased, as against the rights of the victims.  His Honour concluded that the overall interests of justice lay in favour of granting the application, having accepted that

once the applicants became aware of the compensation being paid to [Brown], they acted with reasonable alacrity, sought advice and there has been no or no substantial delay since that information came to them.

1. For these reasons, even if the Court has jurisdiction to grant this application for leave to appeal, I consider that the applicant has failed to demonstrate that it is reasonably arguable that the trial judge erred. If a compensation order is made, the applicant will be able to challenge the grant of the extension of time by appealing against the order under s 278 of the Criminal Procedure Act2009. The applicant’s counsel correctly conceded that this was the case.[8]

   [8]Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478.

1. For the above reasons, I would refuse leave to appeal.

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