D v B - [2008] TASSC 36

[2008] TASSC 36

CITATION: D v B [2008] TASSC 36

PARTIES:  D, T A
  v
  B, K T

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Criminal
FILE NO/S:  112/2007
DELIVERED ON:  18 July 2008
DELIVERED AT:  Hobart
HEARING DATE:  17 April 2008
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Orders for compensation, reparation, forfeiture and other matters relating to disposal of property - Compensation - Tasmania - Sentencing Act 1997, s68 - Meaning of "as soon as practicable".
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Orders for compensation, reparation, forfeiture and other matters relating to disposal of property - Compensation - Tasmania - Sentencing Act 1997, s68 - Documents admissible on application.

Sentencing Act 1997 , ss4, 68, 81.
R v Monks (2001) 122 A Crim R 324; R v McDonald [1979] 1 NSWLR 451; R v Bowen (1969) 90 WN (NSW) 82; Fitzpatrick v R (2004) 146 A Crim R 332; Australian Associated Motor Insurers Limited v Galvin (2005) 15 Tas R 104; R v Kneeshaw [1975] 1 QB 57 referred to.
Aust Dig Criminal Law [914 - 924]

REPRESENTATION:

Counsel:
             Appellant:  P W Tree SC
             Respondent:  R Mainwaring
Solicitors:
             Appellant:  Blissenden Lawyers
             Respondent:  Legal Aid Commission of Tasmania

Judgment Number: [2008] TASSC 36
Number of paragraphs: 42

Serial No 36/2008
File No 112/2007

TAD v KTB

REASONS FOR JUDGMENT TENNENT J

18 July 2008

On 7 August 2007, KTB ("the respondent") entered a plea of guilty on an indictment dated 29 June 2007 to one count of maintaining a sexual relationship with a young person under the age of 17 years contrary to the Criminal Code Act 1924, s125A. Upon that plea being taken, a Crown statement of facts was read, a victim impact statement was provided and counsel for the respondent put forward a plea in mitigation. On 10 August 2007, the respondent was convicted of the crime and sentenced to a term of imprisonment.

On 4 January 2008, a written application for compensation pursuant to the Sentencing Act 1997 ("the Act"), s68, was filed with the Court on behalf of TAD ("the applicant"). It was supported by an affidavit of the applicant sworn 14 December 2007. The sexual relationship, the subject of the respondent's plea, subsisted between 21 February 1972 and 20 August 1975. The applicant was the victim of the crime. She was born on 25 April 1963 and was, therefore, 8 years old when the relationship began and 12 years old when it ended.

The Act, s68, provides as follows:

"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
(b)     may, in the case of any other offence –

order the offender to pay compensation for that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading D v B

Details

AGLC: D v B [2008] TASSC 36
Case: [2008] TASSC 36
Decision Date: 18 July 2008

CaseChat Overview and Summary

The case of D v B involved an application for compensation by the victim of a criminal offence against the offender. The Supreme Court of Tasmania was required to determine whether the application was made as soon as practicable, the scope of material the Court could consider in assessing compensation, and whether the Court should exercise its discretion to grant compensation. The Court found that the application was made as soon as practicable, given the circumstances of the case. The admissible material for assessing compensation was limited to that presented at the time of the offender's plea and sentencing. The Court declined to exercise its discretion to grant compensation, as the available material was insufficient to enable the Court to make a proper assessment. The case highlights the importance of timely applications for compensation and the need for sufficient material to be available to the Court to enable it to make an informed decision.

Orders