R v Dillon

[1993] QCA 237

IN THE COURT OF APPEAL [1993] QCA 237

SUPREME COURT OF QUEENSLAND
Brisbane

[R. v. Dillon]

C.A. No. 305 of 1991

T H E Q U E E N

v.
WAYNE EDWARD DILLON

Applicant

AND:

Apeal No. 108 of 1992

A JUDGE OF THE DISTRICT COURT

v.

WAYNE EDWARD DILLON

Applicant

The President
Mr Justice Pincus

Mr Justice Thomas

Judgment delivered 21/06/93
Judgment of the Court

APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED. APPEAL ALLOWED INSOFAR AS THE CONDITION WITH RESPECT TO COMPENSATION IMPOSED BY THE SENTENCING JUDGE IS SET ASIDE. IN LIEU THEREOF A CONDITION IS IMPOSED REQUIRING THE APPLICANT TO PAY $4,000 TO THE SHERIFF ON BEHALF OF THE OWNER OF THE PROPERTY STOLEN, SUCH PAYMENT TO BE COMPLETED DURING THE PERIOD OF PROBATION. CATCHWORDS: CRIMINAL LAW - SENTENCE - Breaking and

entering dwelling with intent - property stolen - owner partly reimbursed by insurance company for loss - whether could be term of probation that applicant make a payment to the insurer. S. 199(1)(b)(i)(A) Corrective Services Act

Counsel:	Mr P. Rutledge for the Crown Mr T. Carmody for the respondent
Solicitors:	Director of Prosecutions for the Crown Legal Aid Office for the respondent
Hearing Date(s):	10/05/93

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane
Before The President

Mr Justice Pincus Mr Justice Thomas

[R. v. Dillon]

C.A. No. 305 of 1991

T H E Q U E E N

v.
WAYNE EDWARD DILLON

Applicant

AND:

Apeal No. 108 of 1992

A JUDGE OF THE DISTRICT COURT

v.

WAYNE EDWARD DILLON

Applicant

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 21/06/93

On 27 September 1991, Wayne Edward Dillon, (the "applicant") pleaded guilty in the District Court at Brisbane to an offence of breaking and entering a dwelling with intent to commit an indictable offence. The property taken from the house by the applicant had been insured with New Zealand Insurance Limited which reimbursed the owner of the property with part, but not all, of the amount claimed. The applicant consented to an order that he be placed on probation for three years on the usual conditions plus a special condition that, during the probation period, the sum of $7,776.13 be paid by the applicant to the Sheriff for payment to the insurance company. That was the amount which the sentencing judge held had been lost by the insurance company, being as to $7,331.13 the sum paid to the owners of the property stolen and as to $495.00 fees paid to a loss assessor. There was no evidence of the value of the property stolen except the insurance company's assessment of the amount payable under the policy.

The applicant has applied to this Court for leave to appeal against his sentence and, alternatively, seeks certiorari to quash the order made by the sentencing judge insofar as it requires the applicant to make payment of $7,776.13 to the insurance company. The applicant's complaints are the same for both purposes, namely (as taken from the order nisi):

"(a) That it is apparent on the face of the record that His Honour erred in law in deciding that an insurer of stolen property was "a person" to whom the provisions of s.199(1)(b)(i) Corrective Services Act 1988 applied;

(b)  That the compensation requirement was made without jurisdiction;

(c)  That the compensation requirement was made as a result of a fundamental error of law and the interests of justice warrant the intervention of and correction by the Court of Appeal."

As those propositions suggest, the sentencing judge acted under subsection 199(1)(b)(i)(A) of the Corrective Services Act. That provision, so far as presently material, is as follows:- "... (1) A probation order ... (b) may contain requirements (i) in a case where the probation order is made in respect of an offence in relation to property ..., that the probationer ...(A) ... pay compensation for injury to or loss or destruction of that property ... ."

Submissions were directed by both parties to procedural issues but, in view of the dual proceedings, it is unnecessary to pursue these questions. Further, the applicant should not be disentitled to complain by his consent to the probation order on conditions which included the payment to the insurance company. It is clear that the imposition of that condition was opposed, and that probation was not available to the applicant except on that condition. Indeed, having regard to his extensive criminal history, the applicant was fortunate to be given probation at all.

The principal contention for the applicant was that a requirement for payment to an insurer was not authorised by subsection 199(1)(b)(i)(A) of the Corrective Services Act. That seems correct. Relevantly, the compensation must be for the "loss ... of ... property". It was the insured, not the insurer, who lost the property stolen by the applicant. The insurance company suffered loss of the amount which it paid to the owner, but not loss of the property in relation to which the offence was committed.

Of itself, that conclusion requires no more than that the material condition be altered to require payment of an appropriate amount to the person from whom the applicant stole the property rather than the insurer and, other considerations aside, that should be done; the applicant's prior consent is sufficient. If it were otherwise and consent was not forthcoming, then the probation order, and not merely the condition as to payment, should be quashed, and the applicant resentenced for his offence.
However, before the condition can be altered, it is necessary to consider two further points. One concerns whether compensation can be required when the insured has been reimbursed, at least in part, under a policy of insurance. The other relates to the applicant's further complaint that the amount of the payment ordered was "miscalculated and excessive."

There is little or nothing in the language of subsection 199(1)(b)(i)(A) of the Corrective Services Act which provides a solution to the first issue. However, guidance is to be found in the general law principles which form a background against which that subsection is to be construed. In particular, it is well-established that a person who has caused loss cannot avoid liability on the ground that the person who sustained the loss has been or will be indemnified under a policy of insurance: MacGillivray & Parkington On Insurance Law 8th Ed. para.1152; McGregor on Damages 15th Ed. paras.1482 and 1505. So far as the person who caused the loss is concerned, the policy of insurance is res inter alios acta and the law does not allow it to be used to deny the continued existence of the loss. Instead, the person who suffered the loss may recover from the person who caused it as though the insurer had paid nothing, although the insurer is entitled to be repaid on the basis of the doctrine of subrogation. The purpose of subsection 199(1)(b)(i)(A) is to provide a convenient procedure in summary form for the recovery of compensation for loss which has been sustained (cf. R v. Braham (1977) VR 104, 108), and the rights of the accused and the person who sustained the loss are to be determined by reference to the general law.

It is consistent with this view that the amount of compensation ordered should be assessed on the same basis as damages in a civil case: cf R. v. Stieler (1983) 2 Qd.R. 573, 575.

It may well be that in the ordinary case, evidence that an insurance company, having received the advice of an assessor, had been prepared to pay the insured in a certain sum for the value of the goods lost will be sufficient evidence of the amount of the injury or loss for the purposes of making a compensation order. However the present case was not an ordinary case. The amount of the loss was squarely placed in issue; the assessor's fees were plainly not recoverable; and the policy contained special conditions entitling the insured, in effect, to "new for old". In these circumstances, the learned sentencing Judge fell into error in allowing the sum of $7,776.13.
That raises a difficulty in the present case. However, the transcript of the proceedings before the sentencing judge shows that the applicant "concede(d) a figure for restitution of $4000.00". In all the circumstances, including the time and difficulty associated with bringing the matter before this Court, it should be resolved on the basis of that concession.

Accordingly, the condition with respect to compensation imposed by the sentencing judge should be set aside and in lieu thereof a condition should be imposed requiring the applicant to pay $4000.00 to the Sheriff on behalf of the owner of the property stolen, such payment to be completed during the period of probation. The application for certiorari is refused as unnecessary