Wednesday, October 12, 2011

Compensation orders: LSB v Werden [2011] VSC 74

I'm involved in a compensation order application for damage to property in respect of a criminal proceeding. This is a quasi civil remedy which is available after a finding of guilt in a criminal proceeding. s86 of the Sentencing Act 1991 (Vic) is the relevant provision concerning compensation for property damage, which provides as follows at s86(1):
(1) If a court finds a person guilty of, or convicts a person of, an offence it may, on the application of a person suffering loss or destruction of, or damage to, property as a result of the offence, order the offender to pay any compensation for the loss, destruction or damage (not exceeding the value of the property lost, destroyed or damaged) that the court thinks fit.
The matter of LSB v Werden [2011] VSC 74 was an application by the LSB under s86 for compensation in respect of defalcations by a solicitor found guilty of theft and obtaining financial advantage by deception. The application was before Beach J in the Supreme Court of Victoria. 

The application for compensation was made at least 2.5 years after the finding of guilt, and the defendant submitted the LSB was out of time as an application must be made 'as soon as practicable after the offender is found guilty, or convicted, of the offence' (at s86(5)). The LSB justified its delay by saying that at the time of the finding of guilt, the defendant did not appear to have any assets, and it was the LSB's policy not to pursue compensation in those circumstances. The defendant succeeded in its submission that the LSB was out of time. 

Click 'read more' below for extracts and a discussion of the case.

In LSB v Werden, Beach J discussed the meaning of the term 'as soon as practicable' in the context of s86 applications and also discussed the nature of s86 applications, at [63] to [65]:
63 In R v Monks,[25] Evans J had to consider s 68(4) of the Sentencing Act 1997 (Tas). Section 68(4) provided that an application for compensation had to be made “as soon as practicable after the offender is found guilty or convicted of an offence”. His Honour adopted a passage of Bryson J’s judgment in Vision Nominees Pty Ltd v Pangea Resources Limited[26] to the effect that the range of facts and circumstances which can bear on what is practicable is a wide range and a requirement to do something as soon as practicable is neither a requirement to do something as soon as possible, nor in the least time which can be arranged. His Honour then said:[27] 
“Time should be allowed to address any matters which warranted attention before the making of the application including the lapse of some time, provided it was a short time, in the course of that process: Richards v Schutt (1978) 18 SASR 421 at 425 and Magain v Roberts (1991) 14 MVR 313 at 320.” 
64 In the circumstances disclosed in Monks, Evans J considered that an application made 2½ months after conviction was not made as soon as practicable after the offender had been found guilty. Each case must, of course, be considered on its merits. However, in my view, the period of in excess of 2½ years in the present case is excessive, and does not meet the as soon as practicable test. The fact that the circumstances might have disclosed that the defendant was impecunious at the time he pleaded guilty does not justify an applicant under s 86 waiting some indefinite period for assets to be uncovered, before then bringing an application under s 86. There is no basis for any conclusion other than that it was practicable for the plaintiff in this case to make an application under s 86 within a matter of weeks of the defendant’s conviction and sentencing. 
65 Section 86 is a provision designed to enable a summary recovery of compensation.[28] Its purpose is to enable awards of compensation to victims of crime in relatively clear and non-complex cases, and not to bog down the criminal list in longer compensation claims.[29] Further, s 86(10) provides that nothing in s 86 takes away from, or affects a right to recover damages or to be indemnified against any loss as a result of the offence. These considerations provide further grounds for rejecting the notion that an application for compensation under s 86 might be brought years after the offender has been convicted and sentenced – even if the delay is capable of explanation. The central question remains: “Was the application made as soon as practicable?”. The answer in this case is “No”. 
LSB v Werden appears to be one of the latest decisions dealing with s86 applications. It is important because s86 was recently amended (see [58]) to remove a 6 month limitation period between the finding of guilt and the application for compensation, and it is one of the only recent cases dealing with the legislation with the sole limitation 'as soon as practicable'.

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