R v CA (No 2)

[2016] ACTSC 371

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v CA (No 2)

Citation:

[2016] ACTSC 371

Hearing Date:

Determined on the papers.

DecisionDate:

15 December 2016

ReasonsDate:

15 December 2016

Before:

Murrell CJ

Decision:

Application refused.

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Reparation orders – whether insurer entitled to reparation order for insurance payout for stolen property – whether loss suffered as a direct result of offence – meaning of “direct result” in Crimes (Sentencing) Act 2005 (ACT) s 19 – insurer suffered indirect loss – no entitlement

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 6, 11, 13, 19, 20, 110

Crimes Act 1914 (Cth) s 21B
Criminal Code 2002 (ACT) s 300
Legislation Act 2001 (ACT) ss 126, 139, 140, 142

Sentencing Act 1991 (Vic) ss 85B, 86

Cases Cited:

Fagan v The Crimes Compensation Tribunal (1982) 150 CLR 666

Kaplan v Lee-Archer (2007) 15 VR 405
R v Annesley (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 4 November 2011)

R v Foster [2009] 1 Qd R 53

Texts Cited:

Arthur Delbridge et al (eds), Macquarie Dictionary (Macquarie Library, 3^rd ed, 1997)

Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)

Parties:

The Queen (Crown)

CA (Offender)

Representation:

Counsel

Ms S McFarland (Crown)

Mr R Davies (Offender)

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Offender)

File Number(s):

SCC 139 of 2014; SCC 140 of 2014; SCC 93 of 2016; SCC 94 of 2016

MURRELL CJ:

Background

1. The offender was sentenced for offences of aggravated burglary and theft that occurred when, in the company of a co-offender, he forcibly entered a hair salon causing damage of $2,510 and stole property to the total value of $7,118.

1. Pursuant to s 19(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) the Director of Public Prosecutions applied for reparation orders requiring the offender to make reparation to the proprietor of the salon (for the payment of insurance excess) and an insurance company (for the amount paid in satisfaction of the proprietor’s insurance claim).  Without objection, I made a reparation order in favour of the proprietor.

1. The offender contended that the insurance company was not entitled to reparation pursuant to s 19(1) of the Sentencing Act because it did not suffer loss “as a direct result of the commission of the offence.”

Entitlement to reparation

1. Relevantly, s 19 of the Sentencing Act provides:

(1)    This section applies if—

(a)   an offender is convicted or found guilty of an offence against a territory law; and

(b)a person (the injured person) suffers loss or incurs expense (including any out-of-pocket expense) as a direct result of the commission of the offence.

...

(4)This section is subject to chapter 7 (Reparation orders) and section 134 (Operation of ancillary and restitution orders).

...

(Emphasis added.)

Section 19(5) of the Sentencing Act imports into s 19 the definition of “loss” in s 300 of the Criminal Code 2002 (ACT):

loss means a loss…