Citation: R v White (No.2) [2021] NSWDC 580
Court: District Court of New South Wales
Date: 27 October 2021
Judge(s): Abadee DCJ
Background
The appellant was convicted in the Sutherland Local Court of two offences arising from events in the early hours of 5 December 2017. He went onto or remained on railway running lines at Sutherland, and he intentionally or recklessly aided and abetted the damage of three train carriages by encouraging and filming a group of men applying aerosol graffiti spray to the carriages.
The Local Court sentenced him to a conviction without penalty for the running lines offence, and a conditional release order (with conviction) for 18 months plus a compensation order of $3,123 in favour of Sydney Trains for the property damage offence. The appellant appealed both his convictions and the severity of his sentences to the District Court.
The conviction appeal was dismissed the day before this decision (R v White [2021] NSWDC 577). This judgment dealt solely with the severity appeal.
Legal Issues
- Whether the conditional release order of 18 months was appropriate in all the circumstances, having regard to the objective and subjective features of the offending.
- Whether the compensation order of $3,123 in favour of Sydney Trains was lawfully made under ss 97 and 98 of the Victims Rights and Support Act 2013 (NSW), specifically whether Sydney Trains had sustained actual "loss" through or by reason of the offending.
- Whether Sydney Trains qualified as an "aggrieved person" for the purposes of the compensation provisions.
Decision
Abadee DCJ assessed the objective gravity of both offences as falling in the low range. The appellant was an aider and abettor rather than a principal perpetrator. There was no evidence that he orchestrated or planned the damage. Although the damaged property was public property, no circumstances of aggravation were identified. As a first offender entitled to some leniency, the appellant received a conditional release order, though the Court reduced its duration from 18 months to 12 months on the severity appeal.
The more significant issue was the compensation order. Under s 97 of the Victims Rights and Support Act, a court may direct an offender to pay compensation to an aggrieved person who has sustained loss through or by reason of the offence. His Honour held that the requirement is one of actual loss, not prospective or anticipated loss. No evidence was placed before the Court to establish what loss, if any, Sydney Trains had actually sustained: there was nothing to show the cost of removing the paint, any loss of use of the carriages, loss of value, or other economic consequences flowing from the damage.
The Court found it was erroneous to make a compensation direction based on expected future expenditure, and that the evidentiary burden rested on the Crown (on behalf of Sydney Trains) to establish actual loss. Because that burden was not met, the compensation order was set aside. The Court noted, without deciding, a further unresolved question: whether Sydney Trains, which may or may not be a statutory corporation, qualifies as an "aggrieved person" under the Act at all. Given its conclusion on the loss question, it was unnecessary to resolve that point.
Orders Made
- The term of the conditional release order (with conviction) on the sequence 5 offence is reduced to 12 months, expiring 26 April 2022.
- The order that the appellant compensate Sydney Trains in the sum of $3,123 is set aside.
- The severity appeal is otherwise dismissed.
Key Takeaways
- A compensation direction under s 97 of the Victims Rights and Support Act 2013 (NSW) requires proof of actual loss sustained through or by reason of the offending. Prospective or anticipated future loss is insufficient to ground such an order.
- The evidentiary burden of establishing actual loss rests on the Crown or the aggrieved person seeking compensation. An absence of evidence going to the cost of rectifying damage, loss of use, or other economic consequences is fatal to a compensation order.
- The District Court left open, without resolving, whether a government entity such as Sydney Trains falls within the definition of "aggrieved person" under the Victims Rights and Support Act, noting that even beneficial legislation cannot be construed beyond what a fair reading of the text permits.
- Absence of remorse or contrition, where an offender maintains innocence following a dismissed conviction appeal, is a legitimate sentencing consideration, though its weight is moderated by the offender's entitlement to contest the charges.
- In determining the gravity of an aiding and abetting offence, it is not automatic that the role is less serious than that of a principal. The particular facts and the nature of the participation remain relevant to the sentencing exercise.
Legislation and Cases Referenced
Legislation:
- Victims Rights and Support Act 2013 (NSW), ss 97, 98, 99
- Victims Support and Rehabilitation Act 1996 (NSW), s 77D
- Crimes Act 1900 (NSW), ss 195, 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 10, 10A
- Passenger Transport (General) Regulation 2017 (NSW), s 68J
- Civil Liability Act 2002 (NSW), ss 5, 34
- Competition and Consumer Act 2010 (Cth), Sch 2 (Australian Consumer Law), s 236
- Interpretation Act 1987 (NSW), s 21
Cases:
- R v White [2021] NSWDC 577
- R v Ingrassia (1997) 41 NSWLR 447
- R v Maugher [2012] NSWCCA 51
- R v Meakin (No.4) [2017] NSWSC 999
- R v Pieper [2014] NSWDC 242
- R v David Michael Wills: Application by Woolworths Ltd [2013] NSWDC 1
- Hoffenberg v District Court of NSW [2010] NSWCA 142; [2011] HCASL 77
- Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613
- South Eastern Sydney Local Health District v Lazarus [2020] NSWCA 183
- Walden v Hensler (1987) 163 CLR 561