AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 5 November 2002

Regina v Thuoc VAN HOANG

[2002] NSWCCA 406

Also reported as (2002) 135 A Crim R 244
Theft & property
ORDER FOR COMPENSATION SENTENCE APPEAL NO PARITY ISSUE

Citation: Regina v Thuoc Van Hoang [2002] NSWCCA 406
Court: NSW Court of Criminal Appeal
Date: 5 November 2002
Judge(s): Dowd J; Smart AJ

Background

The applicant was convicted in the District Court of break, enter and steal, with two further offences taken into account on a Form 1. He was sentenced to three years imprisonment with an 18-month non-parole period. At sentencing, the trial judge also ordered him to pay $6,500 in compensation to the victim whose property had been stolen.

The offence was committed jointly with a co-offender, Cross, who was not sentenced until several months later. When Cross was sentenced, no compensation order was sought or made against him. The applicant sought leave to appeal against the compensation order on the basis that it should either be halved to reflect shared liability, or set aside entirely.

The Crown conceded two errors: the sentencing judge had failed to give reasons for rejecting the applicant's request to apportion the compensation between the two co-offenders, and the correct compensation figure (accounting for goods that had been returned) was $5,400, not $6,500.

  • Whether the compensation order of $6,500 should be quashed or reduced on appeal
  • Whether the principle of parity between co-offenders applied to compensation orders, not just custodial sentences
  • Whether a sentencing court should apportion a compensation order between co-offenders where both are jointly liable for the victim's loss
  • What the correct compensation amount was, given some stolen goods had been recovered

Decision

The Court granted leave to appeal and allowed the appeal to the extent of correcting the compensation amount from $6,500 to $5,400. The Crown conceded this adjustment was warranted because some of the stolen property had been recovered.

On the question of apportionment, the Court confirmed that each co-offender is jointly and severally liable for the full amount of the victim's loss. Ordering the applicant to pay only half the loss would not extinguish the victim's entitlement to pursue the applicant civilly for the remainder, creating unnecessary complexity. The Court preferred that the applicant bear the burden of seeking contribution from Cross as a joint tortfeasor, rather than requiring the victim to pursue a further civil action.

The Court also rejected the parity argument. The principle of parity, which guards against a co-offender having a justifiable sense of grievance about a disparity in punishment, is directed at custodial and punitive sentences. It does not generally apply to compensation orders, which are designed to compensate victims rather than to punish offenders. The absence of a compensation order against Cross did not give the applicant grounds to have his own order reduced on parity grounds.

The Court noted that the sentencing judge ought to have given reasons for rejecting the apportionment submission, but given the minimal submissions made at the time, this was an understandable omission rather than a substantial error warranting the order being set aside entirely.

Orders Made

  • Leave to appeal against the compensation order of $6,500 granted
  • Appeal allowed; original compensation order set aside
  • In substitution, the applicant ordered to pay $5,400 out of his property by way of compensation to the victim, such sum to be paid in the first instance to the Registrar, District Court, Sydney

Key Takeaways

  • The Court of Criminal Appeal confirmed that co-offenders are jointly and severally liable for the full amount of a victim's loss under a compensation order; apportionment between co-offenders is not required as a matter of law.
  • Where only one co-offender has a compensation order made against them, the appropriate course is for that offender to seek contribution from the other as a joint tortfeasor, rather than reducing the order to spare the victim the expense of further civil proceedings.
  • The parity principle applies to punitive and custodial sentences and does not ordinarily extend to orders for compensation, which serve a compensatory rather than punitive purpose.
  • Under the Victims Support and Rehabilitation Act 1996, the primary purpose of court-ordered compensation is to do justice to the victim, and courts must have regard to all relevant circumstances under s 77D when making such orders.
  • A sentencing judge's failure to give reasons for rejecting an apportionment submission constitutes an error, but will not necessarily warrant setting aside the order where the underlying submissions were brief and the correct legal result supports the order in substance.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 112, 154A, 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Criminal Appeal Act 1912 (NSW), ss 2, 6(3)
- Law Reform (Miscellaneous Provisions) Act 1946 (NSW)
- Victims Support and Rehabilitation Act 1996 (NSW), ss 77B, 77C, 77D

Cases
- Lowe v The Queen (1984) 154 CLR 606
- R v Bowen (1969) 90 WN (Pt 1) (NSW) 82
- R v Diamond [1992] NSWCCA (unreported, 18 February 1993)
- R v Rose (1987) 31 A Crim R 52
- R v Simpson [2001] NSWCCA 534 (unreported, 19 December 2001)