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District Court 19 December 2019

South Eastern Sydney Local Health District v Lazarus

[2019] NSWDC 760

Other
COMPENSATION

Citation: South Eastern Sydney Local Health District v Lazarus [2019] NSWDC 760
Court: District Court of NSW
Date: 19 December 2019
Judge(s): Russell SC DCJ

Background

Two local health districts applied to the District Court under s 97 of the Victims Rights and Support Act 2013 (NSW) for a direction that a specified sum be paid from the respondent's property as compensation for losses arising from her offences. The respondent had originally been convicted in the Local Court by a magistrate. Her subsequent appeals to the District Court resulted in her conviction appeal being dismissed and her sentence being varied on a severity appeal.

The central dispute was whether the District Court, as the appeal court, had jurisdiction to make a compensation order under s 97. The legislation confers that power only on "a court that convicts a person of an offence," so the question turned on which court could properly be described as having convicted the respondent.

Legal Issues

  • Whether the District Court had jurisdiction under s 97 of the Victims Rights and Support Act 2013 (NSW) to make a compensation direction where the conviction was recorded in the Local Court
  • Whether the dismissal of a conviction appeal by the District Court amounts to the District Court itself convicting the offender
  • Whether the variation of a sentence on a severity appeal causes the conviction to become a conviction of the District Court

Decision

Issue 1: Which court convicts under s 97?

Section 97(1) of the Act confers the power to direct compensation for loss on "a court that convicts a person of an offence," not on the court that sentences the offender (at [3], [19]). Russell SC DCJ held that the convicting court and the sentencing court are not necessarily the same, and the statutory language fixes jurisdiction to the former (at [19]).

Issue 2: Effect of the conviction appeal on the District Court's jurisdiction

The respondent's conviction appeal was dismissed by the District Court without any hearing on the merits, under s 20(1)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). That order left the convictions recorded by the magistrate entirely undisturbed (at [14]-[15]). The District Court made no order of its own recording a conviction, so it could not be said to have convicted the respondent (at [15]).

Issue 3: Effect of the sentence appeal on the District Court's jurisdiction

On the severity appeal, the District Court varied the sentence, which then became the sentence of the District Court rather than of the Local Court (at [17], [20]). However, the matter of conviction is not before the District Court on a sentence appeal, and a District Court judge does not confirm the conviction (at [17]-[18]). Any reference to "confirming" a conviction in a severity appeal judgment is mere surplusage, a concept carried over from earlier legislation no longer in force (at [18]). The convictions therefore remained those of the Local Court notwithstanding the varied sentence (at [20]).

Conclusion on jurisdiction

The District Court found it had no jurisdiction to make a compensation direction under s 97, because the Local Court was the court that convicted the respondent of the offences (at [21]). The application was dismissed, and the judge noted in passing that the Local Court retains jurisdiction to entertain such an application (at [21]-[22]).

Orders Made

  • The Notice of Motion dated 30 May 2019 was dismissed.
  • Each party was ordered to pay its or her own costs of the Notice of Motion.

Key Takeaways

  • Under s 97(1) of the Victims Rights and Support Act 2013 (NSW), the power to direct compensation for loss belongs to the court that convicted the offender, not simply to the court that ultimately sentences them (at [3], [19]).
  • Dismissal of a conviction appeal by the District Court does not transfer the conviction to the District Court; the original convictions recorded in the Local Court remain the convictions of the Local Court (at [14]-[15]).
  • On a severity appeal, even where the District Court varies a sentence so that the varied sentence becomes the District Court's own, the underlying convictions are not before the appeal court and are not disturbed (at [17]-[18], [20]).
  • Any language in a severity appeal judgment describing the appeal court as "confirming" the conviction is regarded as mere surplusage, a holdover from superseded legislation, and does not alter the jurisdictional position (at [18]).
  • Where an offender was convicted in the Local Court and the conviction was not disturbed on appeal, only the Local Court has jurisdiction under s 97 to make a compensation direction (at [21]).

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW)
- Crimes Act 1900 (NSW)
- Justices Act 1902 (NSW)
- Victims Rights and Support Act 2013 (NSW)

Cases
- Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426
- Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
- Maxwell v The Queen  [1996] HCA 46; (1996) 184 CLR
- R v Tonks [1963] VR 121
- Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151