R v Monks - [2001] TASSC 41

[2001] TASSC 41

CITATION: R v Monks [2001] TASSC 41

PARTIES:  R
  v
  MONKS, Hedley Charles

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  C330/2000
DELIVERED ON:  12 April 2001
DELIVERED AT:  Hobart
HEARING DATES:  6 April 2001
JUDGMENT OF:  Evans J

CATCHWORDS:

Criminal Law - Judgment and punishment - Orders for compensation, reparation, restitution, forfeiture and other matters relating to the disposal of property - Compensation - Personal injury loss or damage - Meaning of "as soon as practicable" - Purpose of such an order.

Sentencing Act1997 (Tas), s68.
MMI-CMI Insurance Limited & Zaganite Lake Asphalt Co (Tas) Pty Ltd v Budgen 5/1992; McMillan v Territory Insurance Office (1988) 57 NTR 24; Richards v Schutt (1978) 18 SASR 421; Magain v Roberts 14 MVR 313; Kneeshaw [1975] QB 57; R v Braham [1977] VR 104; R v Ferrari [1997] QCA 73; Landolt (1992) 63 A Crim R 220, followed.
Vision Nominees Pty Ltd v Pangea Resources Ltd (1988) 14 NSWLR 38, aproved.
Aust Dig Criminal Law [914 - 924]

REPRESENTATION:

Counsel:
             Applicant:  L K Wall
             Respondent:  J W Avery
Solicitors:
             Applicant:  Wallace Wilkinson & Webster
             Respondent:  Avery Partners

Judgment Number: [2001] TASSC 41
Number of Paragraphs: 15

Serial No 41/2001
File No C330/2000

THE QUEEN v HEDLEY CHARLES MONKS

REASONS FOR JUDGMENT EVANS J

12 April 2001

On 28 September 2000, Hedley Charles Monks, who I will refer to as the respondent, was found guilty of seven charges of sexual intercourse with a young person under the age of 17 years, two charges of attempting to commit that crime and three charges of indecent assault. The offences were committed over a period of eight years concluding in 1990. The victim of the offences, the applicant, was a young male whose age ranged between 5 years and 13 years during the period of their commission. Following a sentencing hearing on 29 September 2000 the respondent was imprisoned for his offences.

On 15 December 2000, the applicant lodged an application with the Court seeking an order for compensation against the respondent, pursuant to the Sentencing Act 1997, s68, which relevantly provides:

"68 ¾ (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 ¾
(a) must, if the offence is burglary, stealing or unlawfully injuring property; and
(b) may, in the case of any other offence ¾

order the offender to pay compensation for that injury, loss, destruction or damage.
(2) …
(3) An order under subsection (1) may be made by the court ¾
(a) on its own motion; or
(b) on an application made ¾
(i)by a person in whose favour the order is sought; or
(ii)on that person's behalf by the DPP, if the sentencing court was the Supreme Court, or the complainant or police prosecutor, if the sentencing court was a court of…

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 R v Monks

Details

AGLC: R v Monks [2001] TASSC 41
Case: [2001] TASSC 41
Decision Date: 12 April 2001

CaseChat Overview and Summary

The respondent, Hedley Charles Monks, was found guilty of multiple sexual offences against a young male, whose age ranged between 5 years and 13 years during the period of the offences, which were committed over an eight-year period concluding in 1990. Following a sentencing hearing, the respondent was imprisoned for his offences. The applicant subsequently lodged an application with the Court seeking an order for compensation against the respondent, pursuant to the Sentencing Act 1997, s68. The respondent submitted that the Court had no jurisdiction to make a compensation order as it was not sought as soon as practicable after the respondent was found guilty or convicted as required by s68(4), and that the Court should, in any event, exercise its discretion against the making of a compensation order in this case. The Court considered the evidence of the applicant, who had suffered greatly as a consequence of the respondent's misconduct and it seemed likely that he would continue to do so. The Court held that the requirement for claims to be made as soon as practicable should be construed generously in favour of claimants, and that the application was not made as soon as practicable after the respondent's conviction. The Court also considered the second basis upon which counsel for the respondent opposed the application, that is, that the Court should exercise its discretion to refuse it. The Court held that the applicant's claim for compensation was particularly complicated and difficult, and that the available evidence was insufficient to provide any foundation upon which the Court could assess the applicant's entitlement to compensation. The Court declined a request made by the applicant's counsel for the Court to make an order for compensation on its own motion, pursuant to s68(3)(a). The application was dismissed.

The Court held that the requirement for an application for a compensation order to be made as soon as practicable after conviction does not apply to an order made by the Court on its own motion. However, in this case, the Court exercised its discretion against making a compensation order due to the complexity of the claim and the insufficient evidence available to assess the applicant's entitlement to compensation. The Court also noted that the legislation is not intended to cater for claims involving complicated or extensive inquiry or investigation, and that if there is a real issue to be determined, the court should decline to make an order and leave the question to be determined by a civil court in accordance with its normal procedures.

Orders