Hutchinson v Anderson
[2015] NTSC 68
•14 OCTOBER 2015
Hutchinson v Anderson [2015] NTSC 68
PARTIES:HUTCHINSON, Sarah
v
ANDERSON, Christopher
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA 24 of 2015 (21438648)
DELIVERED: 14 OCTOBER 2015
HEARING DATES: 21 SEPTEMBER 2015
JUDGMENT OF: KELLY J
APPEAL FROM: J NEILL SM
CATCHWORDS:
CRIMINAL LAW – Appeals – Sentencing Act s 88 – Orders for compensation or restitution – The Motor Accidents (Compensation) Act does not preclude orders for compensation under the Sentencing Act – An order for compensation does not have its origin in an ‘action’ by the victim – Compensation under s 88 is not properly characterised as ‘damages’ – Error of law – Appeal allowed
CRIMINAL LAW – Appeals – Sentencing Act s 88 – Orders for compensation or restitution – Relevant and irrelevant considerations – Appellant did not demonstrate that the magistrate failed to consider that an order should be made for partial compensation or compensation by instalments
CRIMINAL LAW – Appeals – Sentencing Act s 88 – Orders for compensation or restitution – Magistrate failed to take into account that an order for compensation under s 88 encourages taking responsibility for the financial consequences of an offence – Defendant willing to pay compensation – No compensation ordered – Error of law – Appeal allowed
Motor Accidents (Compensation) Act
Sentencing Act ss 5(1)(c), 88Bartusevics v Fisher (1973) 8 SASR 601; Baxter v Hudson [2015] NTSC 17; R v Petersen [2014] NTSC 21411803 (13 October 2014) Sentencing remarks; Van Toorenburg v Westphal [2011] NTSC 31, referred to
REPRESENTATION:
Counsel:
Appellant:I Rowbottam
Respondent: P Bellach
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent: Maley and Burrows
Judgment category classification: B
Judgment ID Number: KEL15016
Number of pages: 15
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHutchinson v Anderson [2015] NTSC 68
No. JA 24 of 2015 (21438648)
BETWEEN:
SARAH HUTCHINSON
Appellant
AND:
CHRISTOPHER ANDERSON
Respondent
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 14 October 2015)
On 1 August 2014 the respondent drove without due care, knocking the victim off his motorcycle. He saw the motorcyclist hit the ground and slide across the surface of the road but he drove away without stopping. The victim suffered serious harm.
On 20 March 2015, the respondent pleaded guilty in the Court of Summary Jurisdiction in Darwin to:
(a)driving without due care; and
(b)failing to stop at the scene of the incident.
The victim received benefits under the Motor Accidents (Compensation) Act (“MACA”) but suffered additional losses, not covered by MACA, amounting to $33,788. A schedule of those losses was tendered on the sentencing hearing, by consent. They included loss of salary above that for which he was compensated under MACA, and property damage.
The learned sentencing magistrate found the offences proved, convicted the respondent on both counts and sentenced him to a fine of $745 (plus a victims’ levy of $150) on count 1, and, on count 2, to a term of imprisonment for two years suspended forthwith upon conditions which included supervision by Correctional Services with an operational period of two years. The sentencing magistrate also cancelled the respondent’s driver’s licence and disqualified him from obtaining a licence for six months.
There has been no appeal against the sentences imposed. The appellant has appealed against the sentencing magistrate’s refusal to order any compensation or restitution under s 88 of the Sentencing Act (“the Act”).
The question of compensation was first raised by counsel for the respondent, Mr Anderson. She said:
This accident has significant ramifications. They are ramifications that Mr Anderson takes responsibility for today. Having read through the victim impact statement with Mr Anderson, he instructs me he feels sorry about what’s happened. He instructs me that, although he doesn’t have the details of the expenses that [the victim] has sustained there, he would like to be in a position to at least make some contribution towards the expenses that [the victim] has suffered as a result of this road accident.[1]
… He is now qualified as a plumber and continuing to work six days a week in that role.
A contest developed in relation to the degree of remorse felt by the respondent and the admissibility of certain references tendered on his behalf. The sentencing magistrate refused to accept references which did not unequivocally state that the referee was aware of the nature of the charge, in particular because “the offence the young man’s charged with and has now been found guilty of, is one which involves extraordinarily bad behaviour.”[2]
The matter was adjourned to enable further (or amended) references to be obtained. When the matter was next before the court, the prosecutor submitted that the magistrate should reject the submission that the respondent was remorseful and, in light of the lateness of the plea, allow only a small reduction in the respondent’s sentence for the utilitarian value of the plea. In support of this contention, the prosecutor pointed out that, although there had been mention on the first return date that the respondent would like to make some contribution, this had not been repeated. He said, “… there’s not a single mention in relation to making some restitution, which again, would be a sign of remorse.”[3]
The matter was again adjourned and in the mean-time a supervision report was obtained which seemed to indicate that, despite being a plumber in full time employment, the respondent was earning quite a modest wage and had financial commitments including unpaid fines. (I presume this information was provided by the respondent. I am not aware whether any independent evidence of these matters was obtained by the author of the report.) On the next occasion on which it came before the court, without objection, the prosecutor tendered the schedule of the victim’s losses and said:
[The victim] has suffered a loss for which the reality is, given the contents of the presentence report, Mr Anderson, in his precarious financial position, is simply not going to be able to make good in any event.
… [at] the beginning of these proceedings my learned friend advised your Honour that … he was prepared to make some contribution … towards restitution.
In any event, your Honour can see the total will far outweigh an order for restitution. And in terms of the case law, effectively your Honour would be setting him up to fail.[4]
On the face of it, this appears to be a submission that the sentencing magistrate should ignore the offer of contribution towards restitution that had been made by the respondent and not make any such order under s 88 of the Act.
Defence counsel repeated the offer that Mr Anderson make a contribution towards compensating the victim in these terms:
Mr Anderson maintains, your Honour, that he would like to make some payment towards the expenses that [the victim] has sustained as an acceptance of his actions on that day. But your Honour, he is a gentleman in a situation of earning $1,100 per week, paying $250 per week in rent and $250 per week in other loan expenses and that doesn’t include general living expenses. So, your Honour, he doesn’t have a particularly substantive income. So, your Honour, that’s really about as far as I can take that.[5]
The prosecutor finally made an application that an order for compensation be made. He said:
I’ll also be asking your Honour to impose – and obviously it’s a discretionary matter – an amount, since the offer is reiterated, by way of restitution. The authorities in relation to that, in my submission, do mitigate against your Honour making the entire amount. Quite clearly, the authorities … suggest that your Honour would be falling into error if your Honour effectively set him up to fail.[6]
The sentencing magistrate refused that application. After sentencing the respondent, his Honour said:
I turn to the final aspect of this matter, which is information before me, both in the form of a victim impact statement and the other material handed up today, namely, the impact upon [the victim] and whether there should be any orders for restitution or compensation or anything of that nature.
Let me say at the outset, I am not going to make any such orders. My reasoning is twofold. First, you are not in a position where you can pay anything like the sort of money which [the victim] is out of pocket. It would be tokenism in the extreme and simply add to the burden which I’m satisfied you have enough of, to make any such order.
But equally importantly, in the Northern Territory we have a system which has been in place since, I think, 1978, of a non-fault motor vehicle injury scheme, whereby Territory residents, now all people, but back then it was Territory residents, who suffered injuries … were out of pocket as a result of motor vehicle accidents were compensated under the Motor Accidents Compensation Act and that Act specifically did away with the right for an injured person to sue the person whose negligence caused the injury.
That has been the case in the Northern Territory since 1978. We’re talking here about an accident which happened in 2014. I do not propose – notwithstanding that technically I may be able to do it under s 87 (sic) of the Sentencing Act, I do not propose to reintroduce a form of common law compensation claim via the back door in circumstances such as this.
In my view, the restitution and compensation provisions of the Sentencing Act are more properly put to work addressing one piece of damaged property or something of this nature, they are not meant to do the work of an entire compensation scheme. And I don’t propose to go there in all the circumstances of this case.
Mr N, I in no way intend to be disrespectful of you or the dreadful things that you’ve had to undergo in terms of your injuries and your personal life and the difficulties that you have on a day to day basis, having to deal with the Territory Insurance Office and all of those matters, you have my fullest sympathy; it’s not going to be helped by dumping them in the lap of this young man.[7]
The Crown has appealed against this refusal to order any restitution or compensation. The ground stated in the notice of appeal is that “the learned Magistrate erred in failing to properly consider and apply section 88 of the Sentencing Act”. In oral submissions, counsel for the appellant elaborated on the errors of principle he contended the sentencing magistrate had made.
(a)His Honour took into account an irrelevant consideration, namely that MACA had abolished common law actions for damages, and erred in law in concluding, by analogy, that the power given to the Courts under s 88 to order an offender to pay compensation should not be exercised where a person has suffered injury in an offence involving a motor vehicle, but “should more properly be put to work addressing one piece of damaged property or something of this nature”.
(b)His Honour erred in law in concluding that because the respondent did not have the capacity to make full compensation, that made it inappropriate to order him to pay any compensation, wrongly concluding that an order for partial compensation would be “tokenism in the extreme” and that this would make it inappropriate to order partial compensation to be paid.
(c)His Honour failed to take into account a relevant consideration, namely that one of the purposes served by an order for compensation or restitution is to encourage the offender to take responsibility for the financial consequences of his offending (to the extent his means allow) thereby promoting an appreciation of those consequences and facilitating rehabilitation of the offender.
When it had the potential to influence the sentencing magistrate in his favour, the respondent, Mr Anderson, said to the court below, through his counsel, that he wished to make some contribution towards compensating the victim for his losses. Despite that, once he was sentenced, he made no attempt to do so. Moreover, he has now engaged two lawyers (solicitor and counsel) to appear before this Court on the hearing of the Crown appeal, to argue why he should not be ordered to do so. Counsel for the respondent submitted (quite correctly) that this was not a matter that was relevant to the issues before this Court on the appeal. It would, however, appear to justify the sentencing magistrate’s low assessment of the genuineness of Mr Anderson’s expressed remorse.
(a)Was the sentencing magistrate in error in taking into account the abolition of common law damages under MACA and concluding that the power to order an offender to pay compensation should not be used where a person has suffered injury in connection with an offence involving a motor vehicle?
Counsel for the respondent submitted that the MACA scheme was a relevant consideration for his Honour to take into account. First, he relied on sentencing remarks of Blokland J in R v Petersen[8] quoted by Hiley J in Baxter v Hudson:[9]
When I enquired as to the current law regarding the amount of restitution which can be ordered by the Court, the parties agreed that the Court cannot order a sum of restitution if there is no realistic prospect of it being repaid. The offender’s capacity to pay is a most relevant consideration. There is very little capacity to pay here. However, I am going to order a modest amount as signifying acceptance of responsibility. It does not stop the victims pursuing the matter in the civil courts, but the law has limits on ordering restitution in the criminal setting.
Counsel for the respondent contended that this passage was authority for the proposition that it is relevant for a sentencing magistrate to take into account the availability of other remedies when considering whether to order payment of compensation or restitution, and that, therefore, it was relevant for the sentencing magistrate to take into account the MACA provisions. On the face of it, this passage is not authority for the proposition contended for. However, assuming for the purposes of the submission only that the availability of an alternative remedy would be a relevant consideration and weigh in the balance against an order for compensation, such a conclusion would favour the appellant, not the respondent. The amounts by which the victim in this case was out of pocket were all amounts which were not covered by the MACA compensation scheme. In fact that was the point the sentencing magistrate seemed to be making. MACA precludes a person from bringing an action for damages for these losses; therefore the court should not order an offender to pay them (or any part of them) under s 88. He described it as “a form of common law compensation claim via the back door”.
Counsel for the respondent contended that this reasoning by his Honour was legitimate.
The words of s 88 are general. On the face of it they empower a court to make an order for compensation for any of the kinds of injury (to the person or to property) referred to in s 88(1)(a) and (c) and restitution of the kind referred to in s 88(1)(b). I see nothing in MACA that would support the proposition that it was intended to limit in any way the power of a court to order an offender to pay compensation or make restitution. MACA s 5(1) provides that an action for damages does not lie (either at common law or by statute) for the death of, or injury to, a person arising from a motor accident that occurs in the Territory. It does not say that a person injured in a motor vehicle may not receive any compensation of any kind other than that provided for under MACA. What is abolished is “an action for damages” for death or personal injury. Compensation which the court orders an offender to pay under s 88 does not have its origin in “an action” by the victim; nor is it properly characterised as “damages”.
In any event, in focusing, as he did, on the rights given to people injured in motor vehicle accidents under MACA, it seems his Honour did not take into account that a proportion of the victim’s losses (set out in the schedule tendered at the sentencing hearing) consists of property damage of the kind his Honour thought could appropriately be the subject of an order for compensation under s 88.
In my view, on a fair reading of the sentencing magistrate’s decision, his Honour did engage in the reasoning complained of; that process of reasoning led him to too narrowly define the power given to the courts in s 88; and that amounted to an error of law.
(b)Did the sentencing magistrate err in law in concluding that because the respondent did not have the capacity to make full restitution, that made it inappropriate to order him to pay any compensation?
It is difficult to follow his Honour’s precise reasoning in relation to what use he made of the respondent’s apparently accepted inability to pay compensation of the full amount of the victim’s losses. Counsel for the appellant submitted that his Honour did not take into account two relevant considerations:
(a)that the Act permits the court to order any amount by way of compensation, and is not limited to ordering payment of the full amount of financial harm suffered by the victim; and
(b)that in considering the respondent’s ability to pay, his Honour was not limited to assessing his capacity to pay the whole amount ordered in a lump sum, but was entitled to take into account the mechanisms available for payment by instalment through the fines recovery unit.
I am not sure that these conclusions are warranted. His Honour said at one point:
First, you are not in a position where you can pay anything like the sort of money which [the victim] is out of pocket. It would be tokenism in the extreme and simply add to the burden which I’m satisfied you have enough of, to make any such order.
Insofar as that statement demonstrates that his Honour had regard to the respondent’s capacity to pay compensation, it is clear that that was a very relevant consideration, as both parties are agreed. However, his Honour’s remarks seem to go further. The reference to “tokenism” can be taken two ways. On the one hand, it may be an indication that the sentencing magistrate did have in his mind the possibility of making an order for partial compensation, indicating that he did not make the error of omission contended for by the appellant. On the other hand, if he did take into account his power to order partial compensation, it is hard to understand why he would dismiss less than full compensation as “tokenism” implying that it would not be appropriate. Further, his Honour’s later comments that the restitution and compensation provisions in s 88 were not meant to “do the work of an entire compensation scheme”; that he did not intend to “reintroduce a form of common law compensation claim” via the back door, and remarks about “dumping [all the victim’s problems] in the lap of this young man”, point the other way. They support an inference that his Honour had in mind that an order under s 88 would, at least in the normal course, be full compensation or nothing.
Counsel for the respondent pointed out that the sentencing magistrate is an experienced magistrate and can be assumed to be well aware of the operations of the fines recovery unit and its availability to collect instalments of compensation ordered to be paid under s 88. The failure by a magistrate to mention some relevant matter does not necessarily mean that it has been overlooked.[10] An appellate court is entitled to assume that a magistrate has considered all matters which are necessarily implicit in any conclusions which he has reached and counsel contended that it could not be inferred that, in this case, his Honour overlooked the statutory mechanisms for collecting payments or compensation by instalments.[11] The difficulty in applying those cases to the present circumstances is that in this case, the sentencing magistrate was careful to be explicit about his reasoning process. He said, “Let me say at the outset, I am not going to make any such orders. My reasoning is twofold,” and went on to elaborate both in some detail.
However, although I remain in some uncertainty, the onus being on the appellant to demonstrate error, I am inclined to the view that the appellant has not shown that the sentencing magistrate failed to take into account either of these two relevant factors. I therefore would not allow the appeal on this basis. (I have in any event allowed the appeal on a different basis.)
(c) Did the sentencing magistrate fail to take into account that one of the purposes served by an order for compensation is to encourage the offender to take responsibility for the financial consequences of his offending?
Facilitating an offender’s rehabilitation by encouraging the offender to take responsibility for the consequences of his offending is one of the objectives of sentencing.[12] Moreover, acceptance of responsibility can be a most important factor in facilitating the rehabilitation of an offender, and payment of restitution or compensation is a powerful indicator that an offender has accepted responsibility.
Counsel for the appellant submitted that his Honour had no regard to these principles in rejecting the application for a compensation order of a limited amount. The appellant relied heavily on the fact that the respondent, through his counsel, had a number of times expressed a willingness to contribute towards compensation of the victim (a position he has now resiled from) and contended that, in those circumstances, if his Honour had paid regard to these important principles, he would almost certainly have made an order that some limited amount of compensation be paid.
Counsel for the respondent relied once more on the principles set out in [25] above. However, his Honour set out his reasons for refusing to order compensation explicitly. They did not include any reference to encouraging the offender to take financial responsibility for the consequences of his actions; or to the fact that the respondent had indicated that he wished to contribute towards compensating the victim.
I agree with the appellant that, if the sentencing magistrate had not ignored these considerations, given the respondent’s expressed willingness to contribute towards compensating the victim, one would have expected the magistrate to make some such order in the interests of encouraging the respondent to accept responsibility for his actions. Contributing towards the financial consequences of his driving without due care[13] might encourage the respondent to reflect upon the total consequences his actions have had on the victim and would be likely to make him more likely to think twice before behaving in the same way again. At the very least, if these considerations had not been ignored, one would have expected his Honour to make some mention of the respondent’s expressed wish to make some contribution in his reasons for refusing to make such an order.
In my view these considerations were very relevant in the circumstances; his Honour did not have regard to them in reaching his decision; and his failure to do so was an error of law. The appeal should be allowed on this basis.
ORDERS:
(1)The decision of the sentencing magistrate to refuse to order the respondent to pay any compensation to the victim pursuant to s 88 of the Act be set aside.
(2)The matter be remitted to the sentencing magistrate to consider the application according to law.
[1] Transcript (20 March 2015), p 10
[2] Ibid, p 11
[3] Transcript (27 March 2015), pp 35, 38
[4] Transcript (2 April 2015), p 4
[5] Ibid, p 8
[6] Ibid, p 9
[7] Ibid, p 19-20
[8] R v Petersen [2014] NTSC 21411803 (13 October 2014) Sentencing remarks
[9] [2015] NTSC 17 at [24]
[10] Van Toorenburg v Westphal [2011] NTSC 31 at [23]
[11] Bartusevics v Fisher (1973) 8 SASR 601
[12] Sentencing Act s 5(1)(c)
[13] I do not include the more serious “hit and run” offence since it seems to me that the losses suffered by the victim occurred “in the course of or in connection with” the offence of driving without due care rather than “in the course of or in connection with” the hit and run offence.
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