Vidovic v The State of Western Australia
[2024] WASCA 63
•11 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: VIDOVIC -v- THE STATE OF WESTERN AUSTRALIA [2024] WASCA 63
CORAM: QUINLAN CJ
MAZZA JA
VANDONGEN JA
HEARD: 7 DECEMBER 2023
DELIVERED : 11 JUNE 2024
FILE NO/S: CACR 36 of 2023
BETWEEN: IVAN VIDOVIC
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: MIOCEVICH DCJ
File Number : IND 1421 of 2021
Catchwords:
Criminal law - Appeal against sentence - Appellant convicted of six counts of stealing formwork equipment - Quantity and value of stolen property in dispute - Special verdicts taken by trial judge - Appellant sentenced to 3 years 6 months' imprisonment - Compensation order - Whether individual sentences manifestly excessive - Whether total effective sentence infringes first limb of totality principle - Whether the making of compensation order was unjustified
Legislation:
Criminal Code (WA), s 378
Criminal Procedure Act 2004 (WA), s 113(2)
Sentencing Act 1995 (WA), s 109, s 110, s 111, s 112, s 113, s 114, s 115, s 117, s 119, s 119A
Result:
Leave to appeal on grounds 1, 2, 3 and 4 refused
Leave to appeal on ground 5 granted
Appeal dismissed
Category: B
Representation:
Counsel:
| Appellant | : | H Sklarz |
| Respondent | : | K C Cook |
Solicitors:
| Appellant | : | Sklarz Lawyers |
| Respondent | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1
Cooper (also known as Peter Simon Servend) v Sinnathamby [2007] WASCA 32
Fitzpatrick v The Queen [2004] WASCA 99; (2004) 146 A Crim R 332
Higgs v The State of Western Australia [2014] WASCA 100
Kabambi v The State of Western Australia [2019] WASCA 44
Lynden v The State of Western Australia [No 2] [2013] WASCA 186
PES v The State of Western Australia [2014] WASCA 96
Rini v The State of Western Australia [2015] WASCA 124
JUDGMENT OF THE COURT
Introduction
On 23 February 2023, the appellant was convicted after trial before Miocevich DCJ and a jury of six counts of stealing, contrary to s 378 of the Criminal Code (WA) (the Code). It was alleged that the appellant had stolen a significant quantity of various types of formwork equipment from the complainant, Kevin O'Shea. An issue arose at the trial as to the quantity and value of the items the subject of counts 1 to 4. The trial judge sought special verdicts from the jury as to the quantity of the property the subject of these counts.[1] Following the verdicts of guilty, the jury delivered special verdicts as sought by his Honour.
[1] Under s 113(2) of the Criminal Procedure Act 2004 (WA).
On 24 March 2023, the appellant was sentenced to a total effective sentence of 3 years 6 months' immediate imprisonment, with parole eligibility. The details of the individual offences and sentences are set out in the table below.[2]
[2] The table reflects amendments to the indictment made by consent at trial and the charges on which the appellant was arraigned: see ts 46, 47 ‑ 48.
| Count | Offence (the Code) | Description | Maximum penalty | Sentence imposed |
| 1 | s 378 | On a date or dates unknown between 29 May 2019 and 8 October 2019 at Wattleup Ivan Vidovic stole a quantity of formwork props the property of Kevin O'Shea | 7 years' imprisonment | 2 years 6 months' imprisonment (head sentence) |
| 2 | s 378 | On a date or dates unknown between 29 May 2019 and 8 October 2019 at Wattleup Ivan Vidovic stole a quantity of formwork beams the property of Kevin O'Shea | 7 years' imprisonment | 15 months' imprisonment (concurrent) |
| 3 | s 378 | On a date or dates unknown between 29 May 2019 and 8 October 2019 at Wattleup Ivan Vidovic stole a quantity of formwork 'H' frames the property of Kevin O'Shea | 7 years' imprisonment | 12 months' imprisonment (cumulative) |
| 4 | s 378 | On a date or dates unknown between 29 May 2019 and 8 October 2019 at Wattleup Ivan Vidovic stole a quantity of screw jacks the property of Kevin O'Shea | 7 years' imprisonment | 12 months' imprisonment (concurrent) |
| 5 | s 378 | On 28 June 2019 at Wattleup Ivan Vidovic stole a skyhook the property of Kevin O'Shea | 7 years' imprisonment | 4 months' imprisonment (concurrent) |
| 6 | s 378 | On 12 July 2019 at Wattleup Ivan Vidovic stole a table lifter the property of Kevin O'Shea | 7 years' imprisonment | 6 months' imprisonment (concurrent) |
In addition to the individual sentences, his Honour made a compensation order, which required the appellant to pay Kevin O'Shea $500,000.[3]
[3] Under s 117 of the Sentencing Act 1995 (WA).
The appellant appealed to this court against the sentences and the compensation order, relying on five grounds of appeal. In substance, ground 1 alleges that the sentencing judge erroneously found that the items stolen by the appellant the subject of counts 1 to 4 were valued, in total, at approximately $725,000. The appellant alleges that this finding was contrary to the special verdicts delivered by the jury. The appellant contends that his Honour should have found that the value of the stolen property was substantially less than $725,000. The appellant also alleges that the trial judge erred in finding that the appellant stole 'a majority' of the items the subject of counts 1 to 4. Grounds 2 and 4 together allege that the total effective sentence of 3 years 6 months' immediate imprisonment infringes the first limb of the totality principle. Ground 3 alleges that the sentence imposed on count 1 of 2 years 6 months' immediate imprisonment is manifestly excessive. Ground 5 alleges that the compensation order in the sum of $500,000 was 'unjustified'. This contention is supported in part by the appellant being an undischarged bankrupt at the time the order was made.
In our opinion, none of the grounds of appeal have been made out and the appeal should be dismissed. Our reasons for these conclusions are as follows.
The trial
In order to understand the factual error alleged in ground 1, it is necessary to say something about the trial and some aspects of the evidence adduced by the State.
The State's case
Kevin and Michael O'Shea are brothers who, together, operated a formwork business. Although both brothers substantially conducted business together, at trial, the formwork equipment was taken to be the property of Kevin O'Shea only. In summary, the business hired out a formwork system that comprised various props, beams and frames. These items were used to form structures into which concrete is formed and then used in the construction of buildings. The components of the system could be used and reused in different configurations and were said to have a 'limitless lifetime'. By May 2019, the O'Shea brothers had accumulated a large amount of formwork equipment which was said to be worth a considerable sum of money. Perhaps more significantly, if lost, the equipment would be expensive to replace.
Up until late 2018, the O'Shea brothers stored the formwork system at a yard on Dalison Avenue, Wattleup. However, they were required to find a new location for its storage. The appellant operated a large yard on Philips Road, Wattleup. The yard was large enough to store the O'Shea brothers' formwork equipment. It was also fenced and its gates were secured by padlocks. A caretaker lived onsite.
The appellant rented his yard to the O'Shea brothers by way of a 'handshake agreement', following which, the equipment was moved onto the appellant's yard. This took a number of weeks to complete. There was no detailed inventory of the formwork equipment stored at the yard.
Initially, the relationship between the O'Shea brothers and the appellant was good, such that, between March and June 2019, the O'Shea brothers employed the appellant to work on a job they had in Newman.
In the period leading up to the offending, the appellant did not issue regular invoices for rent to the O'Shea brothers. Nevertheless, when an invoice was issued, the rent was paid.
However, the relationship between the O'Shea brothers and the appellant soured when, in or about May or June 2019, the appellant issued the O'Shea brothers with an invoice for $80,000 for rent and other charges. In Michael O'Shea's evidence, he stated that the rent included on the invoice was paid but the other charges were disputed. In response to the invoice, Michael O'Shea told the appellant to 'put a stop to everything'.[4]
[4] ts 324.
In early July 2019, Kevin O'Shea visited the Wattleup yard and noticed that a large quantity of the formwork equipment that had been stored there was missing, including the equipment the subject of the charges. This equipment had been seen at the yard by Kevin O'Shea in late May 2019. Michael O'Shea rang the appellant, who denied any knowledge of the missing equipment.
Michael O'Shea then went to the yard to check on the equipment. He saw the appellant leaving the yard. Michael O'Shea followed the appellant to another yard in Naval Base. There, he saw formwork props in piles.
On 17 July 2019, Michael O'Shea telephoned the police and reported the alleged theft.
In the course of the police investigation, it was discovered that between 14 June 2019 and 19 July 2019, 11 separate loads of steel,[5] weighing in total more than 64 tonnes, had been sold as scrap to Sims Metal in Kwinana Beach for $17,264.15, by a company associated with the appellant's wife. This was much less than the commercial value of the equipment. Photographs taken by Sims Metal revealed that a truck belonging to the appellant delivered the missing formwork equipment to Sims Metal. In some of the photographs, the letters 'OSB' (for 'O'Shea Brothers') can be seen stencilled on the equipment. In essence, the State's case was that the appellant stole the formwork equipment that belonged to the O'Shea brothers and sold at least part of it for scrap.
[5] The sentencing judge referred to 14 separate loads of steel being delivered to Sims Metal. This seems to be an error derived from the parties' submissions at trial. Exhibit 18, the Sims Metal ticket list, shows 11 ticket numbers.
In summary, the State ran a circumstantial case at trial that the appellant stole the entire quantity of formwork equipment missing from the yard at Philips Road, Wattleup. The evidence led to prove this allegation included the photographs referred to at [16], aerial photographs of the appellant's yard taken in May 2019, showing the presence of the equipment, and again in October 2019, showing the absence of the equipment, as well as various records from Sims Metal. The State was not required, nor did it attempt, to prove the exact quantity of equipment stolen by the appellant.
Both Kevin and Michael O'Shea testified for the State at the appellant's trial. Both brothers gave testimony as to the quantity and value of the items the subject of counts 1 to 4. As mentioned, there was no formal inventory system and there was a degree of inconsistency between the testimonies of Kevin and Michael O'Shea about the number of items stored at the appellant's yard and the value of those items. The relevant evidence led from the brothers relating to counts 1 to 4 is as follows.
Count 1 concerned a quantity of formwork props. Michael O'Shea testified that 4,100 of them were stored at the appellant's yard, each of which had a replacement cost of $100.[6] Kevin O'Shea testified to the effect that there were about 4,000 formwork props, 'maybe over', with a replacement cost of $100 per prop.[7]
[6] ts 95. The transcript records the value as $1,000 per prop, but it is very likely that this is a typographical error, and was accepted as such in the proceedings below.
[7] ts 160.
Count 2 concerned a quantity of formwork beams. Michael O'Shea testified that 800 beams were stored at the appellant's yard, each of which had a replacement cost of between $200 ‑ $300, although modifications could increase the cost to as much as $1,000 per beam.[8] Kevin O'Shea testified that there were '800 or so' beams stored at the appellant's yard, which were worth about $240 per beam.[9]
[8] ts 98.
[9] ts 161.
Count 3 concerned a quantity of formwork 'H' frames. Michael O'Shea testified that 'about 2,000' 'H' frames were stored at the appellant's yard, which had a replacement cost of 'probably $50' each.[10] Kevin O'Shea testified that there were 'about 2,000 H frames, maybe more', each with a replacement cost of about $150.[11]
[10] ts 99.
[11] ts 161.
Count 4 concerned a quantity of screw jacks. Michael O'Shea testified that approximately 4,000 screw jacks were stored at the appellant's yard, each of which had a replacement cost of '$25 probably'.[12] Kevin O'Shea testified to the effect that there were about 4,000 screw jacks, valued at about $20 each.[13]
[12] ts 100.
[13] ts 162.
It is unnecessary to set out the evidence of Kevin and Michael O'Shea in respect of the items the subject of counts 5 and 6. Counts 5 and 6 concerned specific items alleged to be stolen and there was no real dispute about their quantity or value. Count 5 concerned a skyhook, while count 6 concerned a table lifter. Kevin O'Shea estimated the replacement cost of the table lifter to be $10,000 and the skyhook to be $25,000.[14]
[14] ts 162 - 163.
The photographs taken of the trucks at Sims Metal provided some evidence of the quantity of the items allegedly stolen by the appellant. Kevin and Michael O'Shea identified items that belonged to them in these photographs.
The defence case
The appellant did not testify or adduce evidence in his defence. However, as part of the State's case, evidence was led of the appellant's video recorded interview with police on 6 May 2020.[15] In this interview, the appellant denied stealing any of the formwork.
[15] Exhibit 20.
Through counsel at trial, the defence argued that the State could not prove that if the formwork was stolen, it was the appellant who stole it. It was suggested that unknown persons could have entered the yard and stolen the missing items. The defence also disputed whether the State had proved that Kevin O'Shea was the owner of the formwork. It was argued that the stolen property was owned by companies operated by the O'Shea brothers, and it had been hidden by them from liquidators appointed in respect of the companies.[16]
The special verdicts
[16] ts 325.
During the trial, it became evident that in relation to counts 1 to 4 there was uncertainty about the quantity of the items allegedly stolen. The charges on the indictment did not specify the precise quantity of the stolen formwork or its value. It is not suggested that the State was obliged to particularise the precise quantity and value of what was stolen. The jury were correctly instructed that in respect of counts 1 to 4, they were only required to determine whether the appellant had stolen a quantity of the relevant item, and that they did not have to be satisfied beyond reasonable doubt that the appellant 'stole the total amounts allegedly missing. That's approximately 4,000 props, 800 beams, 2,000 H‑frames and 4,000 screw jacks'.[17]
[17] ts 292.
However, presumably as a result of the uncertainty, and for the purposes of sentencing in the event the appellant was convicted of any or all of counts 1 to 4, his Honour decided to direct the jury to deliver a special verdict regarding the quantity of items stolen the subject of counts 1 to 4, in the event the jury delivered a verdict of guilty for each count.
The directions given by his Honour about the special verdicts were as follows:[18]
[18] ts 293 - 295.
So in summary, members of the jury, the ultimate question for you to decide in respect of the charge that you're considering is whether, having regard to the whole of the evidence and the directions I've given you, the State has proven beyond reasonable doubt that Mr Vidovic is guilty of the charge you are considering.
After you've considered all the evidence and you've all agreed upon a verdict of whether Mr Vidovic is guilty or not guilty, you'll announce that decision publicly through your foreperson. Your verdict must be unanimous and I'll explain that in detail in a moment.
The taking of your verdict will take place in the following way, and I'll just have handed to you, Mr Foreperson, a script which can assist you in the taking of the verdict. So Mr Clerk of Arraigns will ask the foreperson in your presence, in this court room, 'Have you agreed upon your verdict,' to which I anticipate the foreperson will then answer yes, otherwise you wouldn't be delivering a verdict.
Mr Clerk of Arraigns will then say, 'How say you as to count 1? Is Mr Vidovic guilty or not guilty?' The foreperson will then answer either guilty or not guilty. The clerk of arraigns will then ask the foreperson, 'Is that the verdict of you all,' to which again I anticipate the answer will be yes, otherwise you wouldn't be delivering a verdict.
So for counts 1 to 4, I will be taking a special verdict. If you find Mr Vidovic guilty [on] counts 1, 2, 3 or 4, you will be asked the following question, 'What do you find Mr Vidovic to have stolen?' And you should see there in the special verdict, Mr Foreperson, there's three answers to that. One is approximately 4,000 formwork props.
So in relation to that, if you find beyond reasonable doubt, and this is looking at the State's circumstantial case, that Mr Vidovic took all those props, then you would answer one, he stole approximately 4,000 formwork props. If you're not satisfied for that, the second answer is only the property identified by the O'Sheas as Kevin's on the back of Mr Vidovic's truck, or three, an unknown quantity.
So if you can't be satisfied beyond a reasonable doubt as to either the first or the second, then the answer would be an unknown quantity. So for counts 2 to 4, question one will be in turn, in count 2, whether he stole approximately 800 formwork beams, count 3, approximately 2,000 formwork H‑frames, and count 4, approximately 4,000 screw jacks. In the special verdict, you will also be asked, 'Is that the verdict of you all?'
So, by way of example, and I'm not suggesting this is what you should do, if eight jurors find beyond reasonable doubt that Mr Vidovic stole 4,000 props and four jurors were only satisfied he stole what was on the back of the truck as identified by the O'Sheas, then you could not reach a special verdict that he stole the 4,000 props as you are not unanimous.
You could, however, reach a special verdict that he stole what was on the back of the truck as you are all in agreement that he stole that quantity. There is no need for a special verdict on counts 5 and 6 as they are specific items allegedly stolen, so there'll be no special verdict taken in relation to those.
So those are the only words that the foreperson is asked to say. Neither I, [nor] anyone else, is entitled to ask the foreperson or anyone else in the jury for the reasons which have led to your verdict and we will not do so. What's gone on in the jury room is private between the members of the jury.
Each of you is entitled to express your opinion on the evidence when you're in the jury room and each of you has an obligation to listen to what other members of the jury are saying. But you don't have to explain to me or to anyone else the reasons for coming to the conclusions that you do.
How you approach your deliberations is a matter for you, the jury. You don't have to deal with the evidence of the counts on the indictment in any particular order or sequence. How and in what order you approach them is a matter for you. I do remind you that it's your responsibility as jurors to apply the law as I've explained it when deciding the facts of the case.
Members of the jury, it's also your responsibility to ensure that whatever verdicts are delivered in this case are delivered solely on the basis of the evidence produced during this trial and not on any other matters. Each of you has sworn or affirmed that you will give a true verdict according to the evidence. That's an important responsibility that you all must fulfil to the best of your ability.
Your verdicts must be unanimous. If you all agree upon the verdict, that is the verdict. If you all agree that the verdict is not guilty, then that is the verdict. If you all agree that the verdict is guilty, then that is the verdict. You cannot deliver any verdict, whether guilty or not guilty, unless you are all agreed upon it.
Thus, it may be seen that on each of counts 1 to 4, if they reached a guilty verdict, the jury were directed to return one of three alternative special verdicts as to the quantity of the formwork which was stolen, being:
(1)The approximate quantity of the relevant item alleged by Kevin O'Shea to have been in his possession and gone missing, being:
(a)count 1: approximately 4,000 formwork props;
(b)count 2: approximately 800 formwork beams;
(c)count 3: approximately 2,000 formwork H‑frames; and
(d)count 4: approximately 4,000 screw jacks,
(first alternative special verdict).
(2)Only the property identified by Kevin and Michael O'Shea as being the property of Kevin O'Shea photographed on the back of the offender's truck at Sims Metal (second alternative special verdict).
(3)An unknown quantity (third alternative special verdict).
After deliberating for approximately two and a half hours, the jury delivered their verdicts and special verdicts. Relevantly to counts 1 to 4, the jury delivered a guilty verdict, and a special verdict, being the third alternative special verdict, for each count - that being 'an unknown quantity'.[19]
[19] ts 298 - 300.
After the verdicts were taken, sentencing was adjourned to 24 March 2023.
The sentencing submissions
On 14 March 2023, the State filed a written outline of its sentencing submissions. This document included submissions as to the findings the sentencing judge should make as a consequence of the special verdicts delivered on counts 1 to 4.
The State asserted that the effect of the jury's special verdicts in relation to counts 1 to 4 was to put findings of fact as to the quantity of items stolen in those counts 'back into the province of the sentencing judge'.[20]
[20] State's sentencing submissions, par 9.
Relevantly to counts 1 to 4, the State contended that it was implicit from the jury's special verdicts that the jury were satisfied that the appellant stole a larger quantity of each item than he had sold to Sims Metals for scrap. However, the jury were not satisfied that the appellant had stolen the entire quantity of each item said by the O'Shea brothers to have been stored in the appellant's yard. The State submitted that the third alternative special verdict of 'an unknown quantity' the jury returned on counts 1 to 4 could only be rationally understood, on the evidence at trial and in the context of the way that the State ran its case, as an unknown quantity greater than that sold for scrap to Sims Metals, but less than the quantities estimated by the O'Shea brothers in their evidence.[21]
[21] State's sentencing submissions, pars 10 - 22.
The State encapsulated its position in its written submissions in these terms:[22]
In terms of the quantity and value of items stolen in counts (1) to (4), they will be somewhere between an upper limit (the approximate total quantity of the O'Sheas' possession before the thefts) and a lower limit (the approximate total quantity identified on the offender's truck).
[22] State's sentencing submissions, par 22.
The State's written submissions set out in written form its calculations of the 'upper limit' and the 'lower limit'.[23]
[23] State's sentencing submissions, pars 23 - 44.
The State calculated the upper limit to be $690,000 based on the lower estimate of the quantity and value of each item given by Kevin and Michael O'Shea in their evidence.
The lower limit was calculated by the State to be $83,100, having regard to the approximate total quantity identified by the O'Shea brothers based on their evidence relating to the items on the appellant's truck as seen in photographs taken at Sims Metals.[24]
[24] Exhibit 19.
Converted into tabular form, the State's calculations as to the upper and lower limits are as follows:
| The upper limit | ||||
| Count 1 | Count 2 | Count 3 | Count 4 | |
| Lowest estimate of the quantity in the O'Shea brothers' possession prior to thefts | Approximately 3,900 formwork props | Approximately 600 formwork beams | Approximately 2,000 formwork H‑frames | Approximately 4,000 screw jacks |
| The upper limit | ||||
| Count 1 | Count 2 | Count 3 | Count 4 | |
| Lowest estimate of value of each item | $100 each | $200 each | $50 each | $20 each |
| Total value: $690,000 | $390,000 | $120,000 | $100,000 | $80,000 |
| The lower limit | ||||
| Count 1 | Count 2 | Count 3 | Count 4 | |
| Only property identifiable on the appellant's truck | Approximately 510 formwork props | Approximately 128 formwork beams | Approximately 130 formwork H‑frames | Very low quantity of screw jacks[25] |
| Lowest estimate of value | $100 each | $200 each | $50 each | N/A |
| Total value: $83,100 | $51,000 | $25,600 | $6,500 | N/A |
[25] In its submissions, the State considered that given the relatively low value of an individual screw jack (approximately $25 each) and the low quantity of screw jacks depicted in the photographs at Sims Metals, it was unnecessary for sentencing purposes to add the screw jacks to the calculations for the 'lower limits': State's sentencing submissions, par 43.
When the total value of the State's proposed 'upper' and 'lower' limits were combined with the estimated replacement costs of the property the subject of counts 5 and 6, the total lower limit was approximately $120,000, and the total upper limit was approximately $725,000.
The State submitted, in substance, that the fact that the jury did not deliver a special verdict on the first alternative was unsurprising given the absence of any accurate inventory of the formwork items, and having regard to the (small) discrepancy between Kevin and Michael O'Shea's testimonies about the quantities of formwork that were stored at the appellant's yard. Further, the State submitted that, on the evidence adduced at trial, it was highly improbable that the appellant stole only those items that were visible in the Sims Metals photographs, and that someone other than the appellant stole the remainder of the missing property. The State submitted that the evidence led at trial established that access to the appellant's yard was restricted and that a caretaker was present. Further, there was no evidence that a person unconnected with the yard in which the equipment was stored had the opportunity to steal the formwork. To the contrary, the appellant had the opportunity to move, and to remove, large quantities of the formwork equipment, as demonstrated by the delivery of a considerable quantity of the formwork to Sims Metals.
Defence counsel did not file any written sentencing submissions. In his oral submissions, defence counsel referred to the State's outline of written submissions and said that he did not take any issue with them.[26] Specifically, defence counsel accepted that the jury's special verdicts should be understood to mean that the quantity of formwork equipment stolen in counts 1 to 4 '… must be an amount somewhat greater than what was on those trucks …'.[27] The reference to 'on those trucks' is plainly a reference to the formwork equipment taken to Sims Metals in the appellant's truck and sold for scrap.
[26] ts 311.
[27] ts 311.
In the course of defence counsel's oral submissions, the sentencing judge indicated that he would be making a finding that the appellant had taken 'the majority of the items identified as being stolen'. Defence counsel took no issue with this indication.[28]
[28] ts 311.
Victim impact statement
Kevin O'Shea provided a victim impact statement. In it, he described how the financial burden placed on him as a result of having lost the formwork system which he had built up over a period of approximately 10 years had adversely affected him and his family. He wrote how, as a result of the offences, his relationship with his partner had broken down due to the stress and financial burden that was placed upon him, and that he feared that the time it would take to recover from the financial loss would be time that he did not have with his family.
Sentencing remarks
His Honour referred to the special verdicts taken in respect of counts 1 to 4 as to the quantity of the items stolen.
His Honour identified the available findings of fact left to the jury as to the quantity of items stolen in respect of counts 1 to 4, as referred to at [30].
His Honour acknowledged that in respect of each of counts 1 to 4, the jury had returned a special verdict of 'unknown quantity', and that he was bound to sentence in accordance with the verdicts of the jury, including the special verdicts.[29] His Honour found that the special verdicts meant that the quantity of the items stolen in each of counts 1 to 4 must be less than that identified by Kevin O'Shea, but not so low as to be the quantity of items identified by the O'Shea brothers in the photographs taken at Sims Metal.
[29] ts 322.
Critically, the sentencing judge found that the appellant stole the majority of the items which were identified by Kevin O'Shea as being stolen, some of which were taken to Sims Metal and sold as scrap metal.[30] As will be seen when we deal with ground 1, his Honour made no specific finding as to the value of the items stolen in respect of grounds 1 to 4.
[30] ts 326.
His Honour noted that the jury, by their verdicts, rejected the appellant's defence at trial, being that the State was unable to prove who the owner of the property was. Further, the jury rejected the suggestion that the items stolen belonged to companies controlled by the O'Shea brothers and were being hidden by them from liquidators appointed in respect of those companies.[31] His Honour did accept that the appellant honestly believed that he was owed $80,000 by the O'Shea brothers, and that he (the appellant) 'took matters into [his] own hands' by selling the formwork for scrap.[32]
[31] ts 325.
[32] ts 326.
His Honour noted the 'devastating effect' the offences had had on Kevin O'Shea. His Honour found that the offending engaged in by the appellant was serious. He said that it was 'deliberate persisting offending which involved a great deal of effort'.[33] His Honour observed that, when the appellant was confronted by Kevin O'Shea, he denied stealing the property. His Honour found that the appellant's offending constituted a breach of trust, in the sense that he used the access that he had to the yard to commit the offences.
[33] ts 326 - 327.
His Honour found that the motive for committing the offence was not greed but, rather, a belief that he was owed money.[34] The sentencing judge observed that if the appellant had not denied the offending when first confronted, Kevin O'Shea would have had the opportunity to recover at least some of the property that had been sold to Sims Metal. Instead, the appellant made recovery of the property more difficult by denying the O'Shea brothers access to the yard in order to ascertain what property had been left there.[35]
[34] ts 327.
[35] ts 327.
His Honour found that the appellant lacked any remorse for the offending, as evidenced by his denial of the offending in the appellant's recorded interview with police, lying to the O'Shea brothers and enduring belief he was 'in the right', throughout the commission of the offences and the duration of the trial.[36]
[36] ts 326.
His Honour characterised the circumstances of the offending as being 'in the middle range of seriousness'.[37]
[37] ts 327.
His Honour set out the appellant's personal circumstances, noting that:
(a)The appellant was born in Bosnia to a large family (although his Honour did not mention the appellant's age, there is no dispute that at the time of the offending he was 51 years old, and at the time of sentencing he was 55). He fled Bosnia as an adult and settled in Australia with his family, which comprises his wife and three children. The appellant had, in the past, provided financial support to his family in Bosnia. However, at the time of the sentencing, he was an undischarged bankrupt.[38]
(b)Since his arrival in Australia, the appellant had been employed as a labourer and concreter, although, at the time of his sentencing, he was unemployed as a result of shoulder reconstruction surgery.
(c)The appellant had a minor criminal history.
(d)As a result of his service in the Bosnian war, the appellant had been left with significant trauma. Although there is no formal diagnosis of post‑traumatic stress disorder, he had been referred to a psychologist who specialises in this disorder.
[38] ts 328.
The sentencing judge recognised as mitigating factors that the appellant had no relevant criminal history and had been, in the past, an honest and hardworking individual. His Honour said that he regarded the offending as being out of character.[39]
[39] ts 328.
His Honour accepted that the appellant cooperated in the conduct of the trial by not putting the State to proof on all issues.
His Honour noted that the main sentencing considerations for offences of the kind committed by the appellant are general deterrence, personal deterrence, punishment, and the protection of the community. His Honour said that personal deterrence played 'a large role' in the appellant's sentencing.[40] His Honour acknowledged that it was accepted by the appellant that terms of imprisonment were the only appropriate disposition.[41]
[40] ts 329.
[41] ts 329.
After imposing the individual terms of imprisonment referred to at [2] above, his Honour then turned to the question of totality. While recognising that the offending occurred as part of one transaction, he said that some accumulation was required to reflect the total value of the items stolen.[42]
[42] ts 329.
His Honour said that, having regard to the seriousness of the offending and the appellant's complete lack of remorse, he was positively satisfied that suspended imprisonment was not appropriate.
After pronouncing the sentences, his Honour turned to the question of compensation under s 117 of the Sentencing Act 1995 (WA) (the Sentencing Act). His Honour said, in effect, that in light of the discussion he had with defence counsel and the prosecutor in open court, it was appropriate to make a reparation order in the sum of $500,000. His Honour said that the sum did not reflect all of the items allegedly taken from Kevin O'Shea, but it fit with the findings of fact that he had made, being that the appellant had taken 'the majority' of the items identified by the O'Shea brothers. His Honour acknowledged that the making of the compensation order may be of no value to Kevin O'Shea because the appellant was, at the time he was sentenced, an undischarged bankrupt. However, his Honour regarded it as appropriate to make the order because it allowed Kevin O'Shea to 'register that judgment and take whatever action he [wished] to do so to attempt to recover that without having to go through the process of a civil action, to actually get a judgment against you'.[43]
[43] ts 331.
His Honour continued:[44]
If it turns out you in fact have other assets, this does not prevent Mr Kevin O'Shea from commencing civil action to recover the full amount that he says was stolen from him.
[44] ts 331.
We will return to his Honour's approach to the making of an order under s 117 of the Sentencing Act when we deal with ground 5.
Grounds of appeal
As mentioned, the appellant relies upon five grounds of appeal. Grounds 1 to 4 challenge the sentences that were imposed upon the appellant. Ground 5 concerns the reparation order.
Ground 1 alleges various express errors by the sentencing judge in respect of findings he made, or allegedly made, concerning the quantities and value of the stolen property the subject of counts 1 to 4 (but not counts 5 and 6).
Grounds 2, 3 and 4 allege implied errors on the part of the sentencing judge. Grounds 2 and 4 are, in effect, duplicates, and allege in combination that the total effective sentence of 3 years 6 months' immediate imprisonment infringed the first limb of the totality principle. Ground 3 alleges that the sentence of 2 years 6 months' imprisonment in respect of count 1 was manifestly excessive.
The question of leave to appeal in respect of all of the grounds of appeal was referred to the hearing of the appeal.
Ground 1 - alleged express errors
Ground 1 is as follows:
1.The sentencing judge erred in law and fact by:
a)Not properly determining the quantities and values of the stolen property comprising counts 1, 2, 3 and 4 of the Indictment;
b)Improperly speculated and made 'rough calculations' about the quantities and valuations;
c)Improperly determined that 'the majority' of the items were stolen by the appellant without quantifying and valuing these items;
d)Improperly adopted a valuation of $725,000, which was at the 'upper end' and inconsistent with the jury's special verdict.
Ground 1 - the appellant's submissions
The most benign thing that can be said about the written submissions filed on behalf of the appellant as they related to ground 1, is that they are unclear.
As explained by the appellant's counsel in his oral submissions, ground 1 is, in substance, a complaint that the sentencing judge erroneously concluded that the total value of the property stolen by the appellant was $725,000. This figure concerns the value of the formwork equipment in respect of all six charges.
It was submitted that this finding was inconsistent with the jury's special verdicts, and, in particular, their rejection of the first alternative special verdict. It was submitted by the appellant's counsel that his Honour should have found that the value of the stolen property was halfway between the upper and lower limits set out in the State's written submissions. That is, the value was halfway between $120,000 and $725,000.[45] Based on this calculation, according to the appellant, the sentencing judge should have found that the stolen property was worth approximately $422,500.
Ground 1 - disposition
[45] Appeal ts 5 - 8.
The fact‑finding duties of a judge required to sentence an offender as a result of a finding of guilt after trial by jury were stated by Gleeson CJ, Gummow and Hayne JJ in Cheung v The Queen.[46] We adopt, without repetition, that statement of principles. For present purposes, it is enough to say the following.
[46] Cheung v The Queen [2001] HCA 67; (2001) 209 CLR 1 [4] ‑ [20].
Fundamentally, a sentencing judge must sentence an offender upon a factual basis consistent with the verdict of the jury. The concept of 'verdict' necessarily includes any special verdict delivered by the jury. This is because s 113(2) of the Criminal Procedure Act 2004 (WA) provides that a judge may only require a jury to give a special verdict on a specific fact that does not constitute an element of an offence charged if the judge is of the opinion that the proper sentence may depend upon that specific fact.
While a jury's verdict is conclusive of the facts necessarily implicit in the verdict of guilty (described by McLure P in PES v The State of Western Australia as 'core facts'),[47] and of any specific fact the subject of a special verdict, the verdicts are not conclusive of all facts possibly relevant to sentencing. Other facts must be found by the sentencing judge, but only if the evidence permits.
[47] PES v The State of Western Australia [2014] WASCA 96 [37].
Where facts relevant to sentence are disputed, any finding about a fact that is aggravating must be proved by the prosecution beyond reasonable doubt. If the disputed fact is mitigatory, it must be proved by the offender on the balance of probabilities. A sentencing judge is entitled (but is not bound) to proceed on facts which are agreed or not disputed.
Contrary to the written submissions of the appellant, there is no general requirement that a sentencing judge must sentence an offender upon a view of the facts consistent with the verdict which is most favourable to the offender.[48] However, the practical effect of the obligation of a sentencing judge to make findings of fact against an offender beyond reasonable doubt may, in a given case, lead to the sentencer taking a view of the facts which is most favourable to the offender.
[48] Appellant's case, par 11.
A jury's verdict on the issue of guilt will often leave to a sentencing judge the difficult task of deciding questions of degree in the assessment of an offender's culpability and the proper measure of punishment. This task may be made less difficult by seeking a special verdict from a jury. There is, in our view, a well‑founded reluctance on the part of trial judges to seek special verdicts from a jury. In this case, his Honour's apparent aim in seeking a special verdict as to the quantities of formwork equipment stolen on counts 1 to 4 was to provide assistance to him in the event he was required to sentence the appellant.
It is debatable whether it was necessary or desirable to seek special verdicts in the circumstances of this case. The special verdicts had the potential to unnecessarily complicate the trial, in which the jury were required to deliver unanimous verdicts in respect of the six counts on the indictment, by also requiring them to determine whether they could reach unanimous decisions about their choice of special verdict.
There are also questions about whether it was open to the trial judge to require the jury to give the special verdicts they were required to consider in this case. In that regard, s 113(2) of the Criminal Procedure Act is in the following terms:
If the judge is of the opinion that the proper sentence or order to be imposed -
(a)on an accused if convicted; or
(b)on an accused if found not guilty on account of unsoundness of mind,
may depend upon a specific fact, the judge may require the jury to give its verdict on that fact specifically.
It can be seen that pursuant to s 113(2) a trial judge may require a jury to give their verdict on a 'specific fact'. However, and on the assumption that the 'proper sentence' may have depended on the special verdicts that were put to the jury in this case, it is difficult to see how a verdict that the quantity of the stolen framework was 'an unknown quantity', the third alternative specific verdict, could amount to a 'specific fact'.
Nevertheless, the special verdicts concerned an issue which was plainly relevant to the sentencing of the appellant, although it was not the only relevant sentencing factor nor, for that matter, the most important. The three alternative special verdicts formulated by his Honour, in substance, set the boundaries within which the quantity of stolen formwork equipment was to be determined for the purposes of sentence.
The jury were required to choose one of the three alternative special verdicts. As a result, the upper and lower limits described by the State in its written sentencing submissions reflected the first and second alternative special verdicts left to the jury. It is patent that the jury rejected them. As a result, in accordance with the legal principles set out above, the sentencing judge was precluded from sentencing the appellant on a factual basis which reflected them.
His Honour was required to sentence the appellant on the basis of the third alternative special verdict, 'an unknown quantity'. In the context of how the appellant's trial was conducted and as accepted by defence counsel in the sentencing proceedings, this special verdict meant that the jury were satisfied beyond reasonable doubt that the quantity of stolen items was more than that sold by the appellant to Sims Metals for scrap, but not as much as claimed by the O'Shea brothers in their evidence.
The evidence adduced at trial relevant to quantity in counts 1 to 4 was not precise. As a matter of law, the State was not required to prove the precise quantity of the property that the appellant allegedly stole. Because of the absence of an inventory of the formwork stored at the appellant's yard, the exact quantity of stolen formwork equipment could never be ascertained. This does not mean, as the appellant's submissions implied, that no finding could be made on the issue.
The evidence adduced at trial was to the effect that a large amount of formwork equipment was stored at the appellant's yard. The amounts of equipment were estimated with reasonable precision by the O'Shea brothers. The yard was fenced, its gates were padlocked, and there was a caretaker who lived on the premises. There was no evidence that anyone, apart from the appellant, stole the formwork equipment or had the ability to do so. The appellant had the means of transporting the equipment off his property, and had done so. He also had a motive for taking the property.
Given the absence of an inventory of the items stored in the appellant's yard and the (relatively minor) inconsistencies between the O'Shea brothers in their evidence about the quantities of items stored at the yard, it is understandable that the jury did not deliver special verdicts in accordance with the first alternative special verdict.
In our opinion, it was well open to his Honour to conclude, as he did, that the appellant stole the majority of items taken from his yard, and that this was a proper finding to make on the state of the evidence. Indeed, as mentioned at [44] above, when his Honour indicated that he would make a finding to this effect, defence counsel, at the sentencing hearing, took no issue in respect of it.
For these reasons, we reject the contentions made by the appellant in particulars a), b) and c) of ground 1.
Furthermore, there is no merit in particular d) of ground 1, which encapsulates the main complaint made by the appellant's counsel in his oral submissions in this court. This particular is based on a false premise. The sentencing judge did not, at any point of his sentencing remarks, make a finding that the stolen property was worth $725,000. The actual finding made by his Honour was that the appellant stole 'the majority of the items identified as being stolen by Kevin O'Shea'.
His Honour did refer to the sum of $725,000 at three points in his sentencing remarks. However, he did not, as claimed by the appellant, 'adopt' this figure as the value of the items that were stolen.
At ts 323, his Honour referred to the sum of $725,000 as the upper limit of the value of the stolen items described in the State's written sentencing submissions. The figure of $725,000 also appears as an integer to his Honour's calculations of the rough value of the items that were sold to Sims Metal, and not as a finding of the actual value of the items stolen.
At ts 326, the sentencing judge made the following comment to the appellant:
If someone took your property worth over $725,000 and sold it for scrap, I have no doubt you would be incensed by that.
In context, his Honour was attempting to convey to the appellant the justifiable sense of outrage felt by Kevin O'Shea at having property that he thought to be worth over $725,000 being stolen from him. In context, the reference to $725,000 in this part of the sentencing remarks cannot reasonably be read as a finding on the part of the sentencing judge that the property stolen was worth $725,000.
While the appellant's written submissions assert, at ts 331, that the sentencing judge adopted the sum of $725,000 as the value of the items stolen, no such finding appears on that page.
Even if his Honour had erroneously made the finding that the stolen property was worth approximately $725,000, it would not have resulted in the imposition of different individual sentences or a different total effective sentence, bearing in mind that, even on the appellant's position as expressed to this court, the value of the items he stole was still very considerable. Moreover, the items stolen by the appellant were expensive to replace and deprived Kevin O'Shea of the ability to use them again and again, as he had in the past.
Ground 1 has no reasonable prospect of succeeding and must be dismissed.
Grounds 2, 3 and 4
Grounds 2, 3 and 4, being allegations of implied error, may be dealt with together.
The general principles governing appeals on the basis that an individual sentence is manifestly excessive or that a total effective sentence infringes the totality principle are well established and were described in Kabambi v The State of Western Australia,[49] as follows:
[49] Kabambi v The State of Western Australia [2019] WASCA 44 [21].
(1)Sentencing is a discretionary exercise. An appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred. Thus, an appellate court cannot substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised a sentencing discretion differently.
(2)In order to determine whether a sentence for an individual offence is manifestly excessive or inadequate, the offence should be viewed in light of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily imposed with respect to it, the place that the criminal conduct occupies in the scale of seriousness of crimes of that type, and the offender's personal circumstances.
(3)The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases.
(4)The range of sentences customarily imposed for a crime does not establish the range of a sound exercise of the sentencing discretion. Sentences customarily imposed in comparable cases provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors, and that there is no single correct sentence. What is important is the unifying principles which sentences imposed in comparable cases reveal and reflect.
(5)When this court dismisses an appeal against sentence and when it resentences on a successful appeal, its decision does not fix the upper or lower limit of the range.
(6)Where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count generally falls to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. A heavy individual sentence (which is not manifestly excessive) may be softened by an order that it be served concurrently with sentences imposed in relation to the other counts. A relatively light sentence (which is not manifestly inadequate) may, as a practical matter, have increased severity if it is ordered to be served cumulatively. The real question is whether the total effective sentence is unreasonable or plainly unjust.
Grounds 2, 3 and 4 - the appellant's submissions
By ground 3, the appellant alleges that the sentence on count 1 of 2 years 6 months' imprisonment is manifestly excessive. In his written submissions, the appellant claims that his Honour, in effect, found that the items the subject of count 1 were valued at $390,000, when they should have been valued at around $51,000.
In support of grounds 2 and 4, which allege that the total effective sentence infringed the first limb of the totality principle, the appellant submits that the total effective sentence was disproportionate to his criminal culpability, personal antecedents, and the circumstances surrounding the offence. The appellant submits that while he should not have taken the law into his own hands, the appellant's criminal culpability was reduced because he stole the items to recover a debt that he believed he was owed by the O'Shea brothers. It was submitted on behalf of the appellant that these circumstances made the offending 'exceptional and unique'.
In relation to all of the implied error grounds, counsel for the appellant also emphasised the appellant's favourable antecedents, and that the offending was out of character. It was also submitted that the appellant was entitled to some mitigation because he had 'cooperated' with the prosecution to enable a shorter and more efficient trial.[50]
Grounds 2, 3 and 4 - disposition
[50] Appeal ts 13 ‑ 14.
There is no merit in grounds 2, 3 and 4.
The maximum penalty for each of the offences committed by the appellant is 7 years' imprisonment.
The sentencing judge comprehensively described the facts of the appellant's offending. His findings as to the relevant circumstances have been summarised by us already. There is no need to repeat them. There is no challenge, nor could there reasonably be one, to the finding that the appellant's offending was in the 'middle range of seriousness'.
The theft of the formwork equipment was calculated and continued over a period of time. The appellant stole a large amount of formwork worth, on any view, significantly more than the debt of $80,000 he alleged that the O'Shea brothers owed him. His actions deprived the O'Shea brothers of very valuable business assets from which they derived income, as the appellant must have known. As a consequence of the thefts, this source of income has been lost to them. As Kevin O'Shea's victim impact statement shows, the appellant's actions have had a severe economic effect upon him and his family. The psychological impact upon him has also been significant.
When the O'Shea brothers confronted the appellant about the theft, he falsely denied involvement in it. He also lied to police. The appellant took steps to prevent the O'Shea brothers from having access to the yard to ascertain exactly what had been stolen. He took steps which thwarted any attempts that the O'Shea brothers could have made to recover the formwork equipment.
The fact that the appellant stole the items because he believed that he was owed $80,000 by the O'Shea brothers is not mitigating and does not excuse the offending. The resolution of any claim the appellant had should have been dealt with according to law by the courts. It was not for the appellant to take the law into his own hands. Such conduct is to be deterred.
We acknowledge the mitigating factors identified by the sentencing judge. In light of the seriousness of the offending and the need to provide general and personal deterrence, they can only afford limited weight. This was not a case where the appellant could rely on the mitigation of youth or genuine remorse. While not an aggravating factor, it is abundantly clear that the appellant is far from remorseful for his conduct.
The appellant did not cite any comparable cases in support of grounds 2, 3 and 4. The respondent cited three cases: Rini v The State of Western Australia;[51] Higgs v The State of Western Australia;[52] and Lynden v The State of Western Australia [No 2].[53] These cases were focused on ground 3. They are of limited assistance but suggest that the sentence imposed on count 1 was not manifestly excessive.
[51] Rini v The State of Western Australia [2015] WASCA 124.
[52] Higgs v The State of Western Australia [2014] WASCA 100.
[53] Lynden v The State of Western Australia [No 2] [2013] WASCA 186.
It is not suggested that the individual sentence on count 1 was manifestly excessive other than by reason of the sentencing judge allegedly making an error as to the value of the formwork that was stolen. This submission cannot be accepted as his Honour did not expressly or impliedly make, as claimed by the appellant, a finding that the items stolen were worth $390,000.
As to the allegation that the total effective sentence infringed the first limb of the totality principle, given the amount of property stolen and the fact that the thefts were systematic and repetitive, some accumulation of the sentences was required in order to properly reflect the appellant's overall criminality.
In our opinion, when all of the relevant facts and sentencing principles are applied, there is nothing unjust or unreasonable about the individual sentence that was imposed on count 1, or the total effective sentence. The individual sentence imposed on count 1 was not manifestly excessive and the total effective sentence of 3 years 6 months' immediate imprisonment did not infringe the first limb of the totality principle. Implied error has not been demonstrated. Leave to appeal should be refused on grounds 2, 3 and 4.
Ground 5 - the reparation order
Ground 5 reads:
The order for reparation of $500,000 was, in the circumstances of the case, unjustified.
The terms of the reparation order referred to in the ground of appeal is set out in the certificate of final outcome in these terms:
Compensation order
Amount: $500,000
Payee: Kevin O'Shea
Due date: 22 April 2023
The written and oral submissions in support of the ground are very brief. In essence, the appellant contends that the sentencing judge should not, as an exercise of discretion, have made the reparation order because, at the time it was made, the appellant was an undischarged bankrupt and was 'totally impecunious'. The appellant also complains that the quantum of $500,000 was 'from left field', that is, it was unsupported by the evidence.
It was not submitted that by reason of the appellant's bankruptcy, the sentencing judge was precluded from making the reparation order.
Ground 5 - pt 16 of the Sentencing Act
Part 16 of the Sentencing Act is headed 'Reparation orders'.
By s 109, a reparation order is defined to be either a compensation order or a restitution order made under pt 16. In the present case, the order made by the sentencing judge is a compensation order under s 117, and not a restitution order.
Section 110 of the Sentencing Act sets out a number of general provisions relating to reparation orders, including:
(1)A reparation order is in addition to and not part of the sentence imposed on an offender.
(2)A sentence must not be reduced because a reparation order is made.
…
(6)Despite subsection (1) an offender may appeal against a reparation order as if it were part of the sentence imposed on him or her.
Section 111 provides that a reparation order may be made by a court on its own initiative or on the application of a victim or a prosecutor. Further, an application for a reparation order must be made during the sentencing proceedings or within the time after that prescribed by the regulations.
In the present case, the application for the reparation order was made by the prosecutor during the sentencing proceedings.
Section 112 describes the evidence which a court may take into account in making a reparation order, and its terms. Relevantly to the present case, under s 112(1)(a) a court may take into account any evidence given during the proceedings for the offence.
Section 113 of the Sentencing Act empowers a court not to make a reparation order, or to reduce it by reason of the victim's behaviour or their relationship with the offender. It was not suggested that this section had any application to the present case.
Section 114 provides that in deciding matters in connection with the making of a reparation order, the standard of proof is proof on the balance of probabilities.
Section 115 sets out the effect of a reparation order on civil proceedings. We note that by s 115(1), the making of a reparation order does not preclude civil proceedings being taken against an offender for loss or damage suffered. Further, by s 115(2), the victim can only recover an amount equal to the amount (if any) by which the award made in any civil proceedings exceeds a compensation order made in respect of the offence.
Section 117 is headed 'Compensation order in favour of victim'. The section is in these terms:
(1)A court sentencing an offender may make a compensation order in favour of a victim of the offence.
(2)Such a compensation order is an order that the offender must pay an amount of money set by the court to the victim as compensation for -
(a)the loss of, or damage to, the victim's property; and
(b)any expense reasonably incurred by the victim,
as a direct or indirect result of the commission of the offence.
(2a)A compensation order must not be made in respect of injury or loss within the meaning of the Criminal Injuries Compensation Act 2003.
(3)In fixing the amount of money to be paid under a compensation order for loss or damage to property, it does not matter whether that loss or damage was reasonably foreseeable by the offender.
Section 119 concerns the enforcement of a compensation order. Relevantly, it provides that if the amount payable under a compensation order is not paid within 28 days after the date of the order, the person in whose favour the order was made may enforce it by lodging, with a court of competent jurisdiction (the District Court is such a court), certain documents, including a certified copy of the order. When lodged, the order is taken to be a judgment of the court and may be enforced accordingly. Compensation orders are therefore enforceable debts under s 5 of the Civil Judgments Enforcement Act 2004 (WA).
Section 119A of the Sentencing Act provides a court with the power to order that the offender be imprisoned until the compensation is paid, but only if it is of the opinion that the offender has, or ought to have, the means to pay the compensation. No such order was sought or made in respect of the appellant.
In Cooper (also known as Peter Simon Servend) v Sinnathamby,[54] McLure JA (with whom Steytler P & Pullin JA agreed) said that the clear purpose of the provisions in pt 16 of the Sentencing Act relating to the making of a compensation order is to benefit the victim, rather than to provide additional punishment to the offender. Her Honour said:[55]
The clear purpose of the provisions of the Sentencing Act relating to the making of a compensation order is to benefit the victim rather than to provide additional punishment for the offender. Part 16 of the Sentencing Act provides a victim of crime with a summary procedure in the nature of civil proceedings for the recovery of compensation for their loss without being put to the additional trouble and expense of independent proceedings. That being the case, it cannot be wrong in principle to make a compensation order under s 117 against an offender who is without means. This construction of pt 16 is consistent with the legislative purpose for the inclusion of s 119A by the Sentencing Legislation Amendment and Repeal Act 1999 (WA). In the second reading speech for that Act, the Minister said:
'[T]he court will be able to order compensation even if it believes that a defendant has no means to pay. This will at least save victims the problem of having to sue if they want to take action or if the offender later comes into money. It also allows for an order for imprisonment until compensation is paid. This would be used when it is believed that the offender has the means to pay[.]'
[54] Cooper (also known as Peter Simon Servend) v Sinnathamby [2007] WASCA 32.
[55] Cooper [24].
In the earlier case of Fitzpatrick v The Queen, the court said that the compensation provisions in pt 16 of the Sentencing Act 'do not require consideration of the financial circumstances of the offender'.[56]
[56] Fitzpatrick v The Queen [2004] WASCA 99; (2004) 146 A Crim R 332 [41].
However, the issue of whether an offender's means is an irrelevant consideration in the exercise of the discretion to grant a compensation order under s 117 of the Sentencing Act has not been authoritatively decided. In Cooper, McLure JA said that it was unnecessary in that case to determine the matter.[57] In the present case, the question was not addressed by the parties. We will assume, in favour of the appellant, that his means were not an irrelevant factor in the exercise of the discretion in this case.
Ground 5 - disposition
[57] Cooper [25].
Prior to the making of the reparation order, his Honour discussed with defence counsel the question of whether it was appropriate to make the order and, if so, the amount of the compensation. As mentioned, his Honour indicated that he would make a finding that the appellant had stolen the majority of the items identified as being stolen.[58] Defence counsel opposed the making of the reparation order. The sentencing judge discussed with the prosecutor and defence counsel the amount of any reparation order. The prosecutor submitted that a conservative value of the majority of the formwork equipment that was stolen was $725,000. The prosecutor then said that taking 'a conservative approach', he sought an order in the sum of $500,000.[59]
[58] ts 311.
[59] ts 317.
His Honour then turned to defence counsel, who said:[60]
In terms of the value, I don't think I can make any submissions against the amount of half a million.
[60] ts 319.
In our opinion, having regard to the policy considerations underpinning the making of a reparation order under pt 16 of the Sentencing Act, the sentencing judge was correct to exercise his discretion to make such an order in favour of the victim. While it may be accepted that the appellant had no means to pay such an order, by making the order Kevin O'Shea was spared the additional trouble and expense of obtaining an enforceable civil judgment against the appellant through the courts. It is clear from the evidence before the sentencing judge that Kevin O'Shea had already suffered considerable hardship as a result of the appellant's actions, and that to refuse to make a reparation order would have only added to that burden.
Of course, the making of the order does not necessarily mean that Kevin O'Shea will ever be able to recover anything from the appellant. Only time will tell whether that is possible. Despite the appellant's impecuniosity, the making of a reparation order was appropriate.
We now come to the quantum of the order.
It is clear that his Honour wished to resolve this issue as expediently as possible. As understandable as this is, and bearing in mind the summary manner in which reparation orders are to be made, a compensation order must be made according to the evidence and the general principles applicable to the assessment of compensation in like cases.[61]
[61] In Fitzpatrick [43], it was held that compensation in that case, being in respect of criminal damage to a car, should, for the purposes of s 117 of the Sentencing Act, be assessed by the same principles as those in an action for damages in personal injury.
In the present case, the question of quantum was discussed between bench and bar, and, ultimately, defence counsel in effect accepted that the amount of $500,000 was an appropriate measure of compensation. Given his Honour's finding that the appellant had stolen the majority of items the subject of the charges on the indictment, the position taken by defence counsel was appropriate. We note that the sum is broadly consistent with the amount the appellant claims the sentencing judge should have found the stolen property was worth, namely, halfway between $120,000 and $725,000.[62] His Honour did not, in the circumstances of this case, err in his assessment of the amount of compensation payable by the appellant.
[62] Appeal ts 5 - 8.
For these reasons, while we would grant leave to appeal on ground 5, the ground has not been made out.
Conclusion and orders
Grounds 1, 2, 3 and 4 have no reasonable prospect of succeeding. Leave to appeal should be refused in relation to them. We would grant leave to appeal on ground 5 but the ground has not been made out. The appeal against sentence must be dismissed.
The orders that we make are as follows:
1.Leave to appeal on grounds 1, 2, 3 and 4 is refused.
2.Leave to appeal on ground 5 is granted.
3.The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
Research Associate to the Honourable Justice Mazza
11 JUNE 2024
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