The Queen v Ferrari[1997] QCA 73

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 501 of 1996

Brisbane

THE QUEEN

v.

JOHN PAUL FERRARI

(Applicant)

Davies JA

McPherson JA

White J

Judgment delivered 18 April 1997.

Separate reasons for judgment of each member of the Court, Davies J.A. dissenting.

APPLICATION GRANTED AND APPEAL ALLOWED.  THE ORDER DISCHARGING THE APPLICANT, AND, WITH IT THE RECOGNISANCE, SET ASIDE.  THE PROCEEDINGS TO RETURN TO THE MAGISTRATES COURT AT BEENLEIGH TO PROCEED ACCORDING TO LAW.

REASONS FOR JUDGMENT - DAVIES JA

Judgment delivered 18 April 1997

The facts relevant to this appeal are set out in the reasons for judgment of McPherson J.A. and I shall not repeat them.  The sentence sought to be appealed against was one made under s. 19(1)(b) of the Penalties and Sentences Act 1992.^[1]  As part of that sentence the Magistrate imposed a condition^[2] that the appellant pay $1,010 to the Clerk of the Court for and on behalf of Michael Papich.  His Worship misdescribed that sum as restitution but it was plainly intended as compensation being, as McPherson J.A. has pointed out, one half of the sum paid out to Mr. Papich by his insurer for damage done to his vehicle.  The submission made on the applicant's behalf was that that condition ought not to have been imposed as part of the sentence.

Under s. 19(2) a court may, in making an order under sub-s. (1)(b), impose any additional conditions that it considers appropriate.  Sub-section (3) also allows the court, when making an order under sub-s. (1), to make an order for payment of compensation that the court could have made had the offender been convicted;  that is, one pursuant to s. 35.  But there is no reason to think that the conferring of that power in sub-s. (3) was intended, in any way, to limit the conditions which could be imposed under sub-s. (2).  Nor, in my view, is there any reason to think that a condition imposed under sub-s. (2) that compensation be paid is, like an order made under sub-s. (3), confined by reference to s. 35.  One would have thought that, had the legislature intended that, it would have said so.

Plainly the applicant was entitled to seek leave to appeal against the sentence imposed on him including and because of the conditions which I have referred.^[3]  The question, in my opinion is whether, on the facts which were before the Magistrate that condition was one which his Worship could not have considered to be appropriate.

As McPherson J.A. has pointed out the car was taken during the night of 13/14 September after 11.30 p.m.;  the applicant and his co-offender were observed in the car on the night of 14 September;  the applicant said that he had been with his co-offender during the day of 14 September and had seen him paint the bumper bar;  and that during the period between when the car was taken and when they were observed the compliance and number plates, the glove box and a panel between the back seat and the boot had been removed, the steering column shroud had been damaged and parts of the car had been repainted.  Furthermore both offenders apparently initially lied about how long the car had been in Jarrett's possession.

In those circumstances the Magistrate could not have been satisfied that the applicant, or his co-offender, caused all of the damage to the car to which I have referred.  But in view of the failure of either to give any credible explanation of his part in causing the damage and the likelihood that it had occurred when both were present I am unable to conclude that he could not have considered it appropriate that they should share equally in compensating the owner for the damage caused and so impose that obligation as a condition of the sentence which he imposed.

I would therefore refuse the application.

I should add that I agree with the comments made by McPherson J.A. with respect to the necessity, in appeals of this kind, of ensuring that the person in whose favour an order for compensation or restitution has been made has an opportunity to be heard.

REASONS FOR JUDGMENT - McPHERSON JA

Judgment delivered 18 April 1997

Michael Papich locked and secured his Ford Falcon sedan at 11.30 p.m. on Friday 13 September 1996.  By 6.30 on Saturday morning 14 September it was gone.  At 10.30 p.m. on that day a police patrol saw the car in Beenleigh.  At first they lost sight of it, but shortly afterwards it was located in Dublin Drive, Eagleby.  One Jarrett was driving the car and the present applicant John Paul Ferrari was a passenger in the vehicle.  By then it had no compliance or registration plates or label.  The steering column shroud had been damaged; the glove box removed and emptied; the panel between the back seat and the boot taken out; and parts of the car repainted.

Jarrett claimed he had bought the car a couple of weeks before for $2,000.  This, if the dates given above are correct, was plainly false.  Jarrett and the applicant were taken to the Beenleigh police station, where each of them was interviewed and later charged jointly with unlawful use of the motor vehicle contrary to s. 408C(1)(a) of the Criminal Code.

At separate hearings in the Beenleigh magistrates court on 29 October 1996, the defendant and Jarrett each pleaded guilty to the charge of unlawfully using the motor vehicle.  The magistrate placed the defendant on a two-year good behaviour bond in the sum of $100 without recording a conviction, but made it a condition of the recognisance that within six months the applicant pay $1,010 restitution to the clerk of the court for the complainant.  That figure was apparently arrived at by halving the amount of $2,020, which was the total for which the R.A.C.Q. was said to have settled the complainant’s insurance claim.  The other half was made the subject of a similar order or condition in the case of Jarrett, who had been sentenced earlier on that day.

This application for leave to appeal is now brought by the applicant, who appears by counsel from the Legal Aid Office.  The notice of appeal is directed “against my sentence ... on the ground that it is manifestly excessive in all the circumstances”.  However, the written outline of submissions makes it clear that the object of the application for leave to appeal is to have the condition requiring payment of compensation eliminated from the recognisance or bond without altering the remainder of the sentence.  The submission is, in effect, that the condition is unreasonable in requiring the appellant to pay compensation for damage he did not himself cause to the car.  All he did, or so he claims, was to ride as a passenger in the vehicle.

According to the account given by the applicant to the police, as recited by the prosecutor at the hearing in the magistrate’s court, the applicant travelled with Jarrett in the vehicle, knowing it was stolen but not knowing who the owner was.  He claimed he had seen the vehicle for the first time either on Friday 13 or Saturday 14 September.  It was in a garage at Jarrett’s address, where he said he had seen Jarrett painting the bumper bars of the vehicle.  At the hearing, the applicant’s legal representative submitted that the applicant was not charged with doing damage to the car, and it was not alleged that he had been involved in doing any of it.  He submitted that it was only because of the applicant’s co-operation with the police and the information he gave that Jarrett’s initial story to the police that he had purchased the car was shown to be false.  Accordingly, there was no basis for an order against the applicant for payment of compensation.

There is some reason to doubt the accuracy of this version of events when compared to the facts as they were known to the police.  Mr Papich had last seen his vehicle at 11.30 p.m. on the evening of Friday 13 September.  Jarrett could not have been in possession of the vehicle for two weeks or have bought it from anyone.  There was no need for the applicant’s statement to establish the falsity of Jarrett’s story.  Furthermore, there was a possible basis for supposing that the applicant was not disclosing the whole truth when he said he knew nothing more than that Jarrett had painted the bumper bars of the vehicle.  He had said he had been home all day on Saturday; that Jarrett had also been there; and that the two of them had been drinking together that day. Having regard to what had been done to the vehicle in the rather short time available before it was recovered, it seems rather improbable that the applicant knew as little about the matter as he claimed.

It may be that the magistrate had doubts about the applicant’s version of events; but, if he did, he did not say so.  He proceeded to dispose of the matter as described.  The question is whether the order made can be justified. The recognisance executed by the applicant refers to payment of “restitution” of $1,010.  Strictly speaking, restitution in this context means the return or redelivery of particular property: cf. R. v. Beldan, ex p. Attorney-General [1986] 2 Qd.R. 179, 198.  What was in contemplation here was not restitution of the vehicle to its owner, who had already recovered it, but compensation for damage to it.  Under s. 35(1)(b) of the Penalties and Sentences Act 1992, an order for payment of compensation may be made “for any loss or destruction of, damage caused to, or unlawful interference with” property:

“(i)in relation to which the offence was committed; or

2. in the course of, or in connection with, the commission of the offence.”

It is, however, plain that the order was not made under s. 35(1)(b).  The magistrate did not in terms order the applicant to pay compensation.  What he did was to order him to be released on entering into a recognisance on condition that he: (i) be of good behaviour; (ii) appear for conviction and sentence if called on within two years; and (iii) pay “restitution” or compensation to or for the complainant.  It is true that the short form minute of order on which the magistrate wrote the sentence records condition (iii) of the recognisance as “defendant is ordered to pay $1,010 restitution”, but the formal sealed recognisance itself correctly records it as a condition (iii) that he “pay $1010 restitution ...”.  Such an order might perhaps have been made by using s. 24 in combination with other powers conferred by provisions of Division 2 of Part 3 of the Act; but it seems clear that in this instance the order for release (which was the only order) was made pursuant to s. 19(1) in Division 1 of that Part.  The short minute of order is in fact written on a printed form headed “Section 19 of Penalties and Sentences Act”.

Section 19(1) authorises the making of an order that an offender be released if he enters into a recognisance on the conditions that he be of good behaviour, and that he appear for conviction and sentence if called on at a specified time: see s. 19(1)(b).  Subject to s. 20(2), such an order may be made only if a conviction is not recorded: see s. 16.  No conviction was recorded here.  In making an order under s. 19(1), the court may under s. 19(2) impose “any additional conditions that it considers appropriate”; and by s. 19(3) the court on making an order under s. 19(1) may “make any other order for payment of compensation or restitution that the court could have made had the offender been convicted”.

It is not immediately apparent why s. 19(3) speaks of any “other” order for compensation that could have been made on conviction.  However, it seems clear enough that that expression includes an order of a kind contemplated in s 35(1)(b).  As we have seen, s. 35(1)(b) contemplates an order for compensation for loss of, damage to, or interference with, property: (i) in relation to which the offence was committed, or (ii) in the course of or in connection with the commission of the offence.  The expression “the offence” in s. 35 plainly enough refers to the offence committed.  It cannot reasonably be considered as referring to some other offence that the offender has not committed, or to an offence that someone else has committed.

Here the offence committed was the unlawful use of a motor vehicle contrary to s. 408C(1)(a) of the Code.  Section 35(1)(b)(ii) does not in terms require that the damage, etc. be caused by the offender by whom compensation is to be paid.  What it requires is that the damage, etc. be caused either “in the course of” or “in connection with” the commission of the offence.  Both of the quoted expressions are, like the expression “in relation to” in s. 35(1)(b)(i), capable of a very wide meaning, and to some extent resemble the expression “in respect of”, which was considered in State Government Insurance Office (Qld.) v. Crittenden (1966) 117 C.L.R. 412, 416, to require no more than “some connexion or relation between the two subject-matters to which the words refer”.

In the present case the damage (or some of it) to the vehicle, or the loss sustained as a result, can, at least remotely, be connected with the unlawful use of the motor vehicle by Jarrett.  He was seen painting the bumper bars of the car, and there is some reason to suppose that Jarrett was responsible for the other damage done to the vehicle.  But on the material before the court, it is difficult to connect the offence committed by the applicant with that or any other damage to the car or the loss sustained by the owner.  The most that the applicant is shown to have done was to ride as a passenger in the vehicle driven by Jarrett.

To my mind the application raises the much wider question of the proper basis of liability for the purpose of s. 35(1)(b).  The Act provides little or no assistance on the question.  However, if one thing is clear about a compensation provision like s. 35(1), it is that an order under it, although part of the “sentence” or judgment, is not a form of punishment.  See R. v. Lovett (1870) 11 Cox C.C. 602; R. v. Muckan [1975] Qd.R. 392; R. v. Braham [1977] V.R. 104; R. v. Civoniceva [1983] 2 Qd.R. 633; R. v. Stieler [1983] 2 Qd.R. 573.  Although none of those decisions was given under s. 35(1) of the Penalties and Sentences Act and some of them related to compensation for personal injury not property damage, the similarities in the relevant legislation are sufficiently close for the same principle to apply to that provision.  Section 35(1)(b) is, for the most part, a rescript of s. 685A of the Criminal Code, which was the provision considered in the Queensland authorities referred to.

The general purpose of the legislation is to provide a summary and inexpensive method of compensating a person for injury or damage to person or property.  See R. v. Braham [1977] V.R. 104, 108.  It is not intended to cater for cases involving complicated or extensive inquiry or investigation; but, with that qualification, it provides a useful means of avoiding the need to institute separate proceedings to establish civil liability: R. v. Braham, at 107, 110; R. v. McDonald [1979] 1 N.S.W.L.R. 451, 459.  The authorities are almost uniformly at one in holding that criminal compensation awards are, subject necessarily to any legislative provisions to the contrary, governed generally by the ordinary legal principles of civil liability and assessment for loss or damage of that kind: see R. v. McDonald [1979] 1 N.S.W.L.R. 451, 459-461; R. v. Stieler [1983] 2 Qd.R. 573, 575; McClintock v. Jones (1995) 79 A.Crim.R. 238; Stinson v. Webb-Myer (1995) 79 A.Crim.R. 502.  These were all cases of compensation for personal injuries; but in R. v. Braham [1977] V.R. 108, 112-113, the Full Court of Victoria appears to have regarded civil liability principles as equally applicable to compensation for property loss.  The court left open the question whether contribution between tortfeasors was available under the equivalent of s. 5 of the Law Reform Act 1952 (Qld.), while inclining to the view that an order for contribution could be made in respect of compensation awarded in criminal proceedings.  It is, in any event, difficult to imagine what principles would or could be adopted if, apart from any relevant statutory provision, ordinary principles of civil liability were not applied.  It would presumably be necessary to develop a completely new system of law or principles for determining claims for compensation under provisions like s. 35(1)(b).

If, on the other hand, those principles are applied here, it is difficult to say that the magistrate had sufficient material before him to require the applicant to pay compensation.  By travelling as a passenger in the car without the consent of the owner, the applicant committed the tort of trespass to goods and would, to that extent but no more, be liable to the complainant for the damage to the car.  A case that in some ways bears comparison to this is Schemmell v. Pomeroy (1989) 50 S.A.S.R. 450, where a 14 year old boy was held liable for the consequences of careless driving by another 14 year old boy, who illegally used his mother’s car and damaged it in doing so.  However, in that instance the damage was held to be a foreseeable result of the illegal use of the vehicle by a 14 year old driver, which was a joint enterprise in which the defendant passenger was a participant and so liable as a joint tortfeasor.  White J. observed (50 S.A.S.R. 450, 452) that illegally using a car might also attract liability for the tort of conversion; for example, if there was an intention to abandon or destroy the vehicle, or strip it of parts.

In the present case Jarrett appears clearly enough to have converted the vehicle.   By painting the bumper bars, even if he did nothing else, he manifested an intention to act in a way that was inconsistent with the owner’s rights.  It is another and different question whether the applicant also converted the car by allowing himself to be driven in it once he knew it had been taken and tampered with by Jarrett without the owner’s consent; but the damage for which the applicant was required to compensate the owner was not, so far as the material goes, caused by or while the applicant was using the car as a passenger; and there is no evidence to suggest that he participated in Jarrett’s acts of taking or tampering with it or altering its condition.  In these circumstances, it is not possible to regard the applicant as incurring civil liability as joint tortfeasor with Jarrett for the damage or loss caused by taking and interfering with the car.  The applicant is therefore liable under s. 35(1)(b) only for so much of the loss or damage as was sustained in the course of, or in connection with, the offence of unlawful use which he himself committed.  On the material in the record, no such damage was sustained.

With this in mind, it is necessary to return to the matter of leave to appeal in the present case.  Although I have at times referred to an order for compensation against the applicant, the only order made was, as I have already pointed out, an order for the discharge of the applicant on his entering into a recognisance or bond containing conditions of which (iii) was that he pay compensation to or for the complainant.  It is, in my opinion, not competent for the applicant to have that condition eliminated from the recognisance he executed by appealing only against the condition. A recognisance without that condition creates an obligation that is different from a recognisance with such a condition.  On any view, it would not be the recognisance into which the applicant entered.

The right to apply for leave to appeal against sentence derives from s. 668D(c) in chap. 67 of the Criminal Code, which permits the institution of an appeal with the leave of this Court against a sentence passed on conviction, read in conjunction with s. 408B and s. 673 of the Code.  The applicant here was discharged without conviction.  Standing by itself, that might have had the consequence that there was nothing against which the applicant was entitled to appeal: see R. v. Robinson (1986) 60 A.L.J.R. 580, 583, approving on this point R. v. Beldan, ex p. Attorney-General [1986] 2 Qd.R. 179.  Since then, however, the word “sentence” has been redefined in s. 5 of the Penalties and Sentences Act 1992 to mean a penalty or imprisonment imposed “or any other order made by a court after an offender is convicted, whether or not a conviction is recorded”.  By s. 7 of that Act, a sentence under that Act is, for the purpose of chap.67 of the Criminal Code, taken to be a sentence imposed on conviction whether or not a conviction is recorded.  That is doubtless sufficient to dispose of the difficulty that arose in R. v. Robinson, but it does not confer a right to appeal, or to seek leave to appeal, against condition (iii) of the order made in the present case. That can be achieved only by treating the appeal in the present case as being directed against the order that the applicant be discharged on the particular condition now complained of.

Condition (iii) can be eliminated by allowing an appeal against the order discharging the applicant, and doing so on the ground that the order went beyond the jurisdiction conferred by ss. 19(1) and 19(3) of the Act, read with s. 35(1)(b).  It would also be necessary for this Court to set aside that order, and to exercise the sentencing discretion again.  If that were done, it may be that the applicant would, in the end, once more be discharged on his entering into a further recognisance on conditions that presumably would include condition (i) and (ii), but not (iii), of the order originally made.  That course might be adopted in this Court but for the inconvenience that it will entail.  The applicant will first have to be brought to this Court to execute the new recognisance; if he then contravenes a condition of that recognisance, it will be necessary to call on and deal with him in this Court. Section 20(1) contemplates that proceedings on such a contravention may be taken only in the court which made the order under s. 19(1)(b) or a court “of like jurisdiction”.  It would not in that event be possible to call on him in the magistrates court at Beenleigh because it is not a court of like jurisdiction with this Court.

On the whole, therefore, it seems to me to be preferable, on setting aside the order discharging the applicant, to remit or return the matter to the magistrates court at Beenleigh to conduct the sentence hearing afresh and otherwise to proceed according to law upon the applicant’s existing plea of guilty to the offence charged.  See R. v. T. [1995] 2 Qd.R. 192.  It would, of course, be open to the magistrate who conducts that hearing to receive further statements or evidence to show whether or not the applicant was a joint participant with Jarrett in unlawfully taking and using the car and ought reasonably to have foreseen that loss or damage might ensue.

Before parting with the matter, a comment on the procedure to be followed is apposite.  When the application first came before this Court, it emerged that Mr Papich, who has an obvious interest in retaining the compensation condition in his favour, had not been given notice of the application for leave to appeal against sentence. Rule 10 of O.IX of the Criminal Practice Rules of 1900 contains a provision enabling a person in whose favour a restitution order has been made to appear with leave on an appeal to this court; but it applies only to an appeal against conviction where a restitution order has been made: cf. R. v. Beldan [1986] 2 Qd.R. 179, 196.  Nevertheless, according to ordinary principles of natural justice, Mr Papich is entitled to an opportunity to be heard before the order incorporating the compensation condition in his favour is set aside in this Court.

The application was thereupon adjourned to enable Mr Papich to be served with notice of the application. That having been done, Mr Papich sent a letter dated 18 March 1997 in which he politely explained that he was prevented from appearing before the Court on the appointed day for hearing.  The letter goes on to recount some of the personal loss and inconvenience to which he has been put by being deprived of his car (which he is still paying for) and having it damaged, as well as losing certain property of sentimental value apparently taken from the vehicle.  It is plain from his letter that Mr Papich opposes the application to remove the compensation condition in his favour.  That, one would expect, would be the natural response of most members of the community who have suffered by the criminal conduct of another.

For the reasons given, I consider that in law the compensation condition, or the order under which it was made, cannot, having regard to the material available to the magistrate, be allowed to stand.  I am bound to say, however, that it comes as a surprise to discover that scarce legal aid funds are being expended on behalf of a self-confessed offender in order to deprive the innocent victim (who is not legally aided) of the benefit of the condition in his favour for the loss he has suffered, the more so because it is not a form of punishment but a species of civil compensation and one to which s. 14 of the Act gives particular statutory preference.  The overall cost to the community of achieving that result in this instance must, it may fairly be surmised, by now have exceeded by a considerable margin the amount of compensation in issue on this application.  Having said that, our duty in this case is clear.

The application must be granted and the appeal allowed.  The order discharging the applicant, and, with it the recognisance, must be set aside.  The proceedings must be returned to the magistrates court at Beenleigh to proceed according to law.

REASONS FOR JUDGMENT - WHITE J

Judgment delivered 18 April 1997

The charge preferred, the state of the evidence and the magistrate's failure to record his rejection of the applicant's version of events in so far as it related to what had been done to the car and the ambit of s. 35 of the Penalties and Sentences Act 1992 together suggest that there was not a sufficient basis for the magistrate to make the order for compensation which he did.  I agree with the orders proposed by McPherson JA and with his Honour's reasons for those orders.