English v R [2015] NSWDC 374

District Court New South Wales

Medium Neutral Citation: English v R [2015] NSWDC 374 Hearing dates: 25 August 2015 Date of orders: 25 August 2015 Decision date: 25 August 2015 Jurisdiction: Criminal Before: Neilson DCJ Decision: Appeal allowed

The order for compensation made by George LCM sitting at Burwood Local Court on 13 March 2013 set aside

Appellant to pay compensation in the sum of $12,000. Catchwords: CRIMINAL LAW – Appeal against quantum of compensation order - Category: Principal judgment Parties: Allan James English (Appellant) Crown (Respondent) File Number(s): 2014/217725 Publication restriction: No Decision under appeal Court or tribunal: Local Court at Burwood Date of Decision: 13 March 2015 Before: George LCM File Number(s): 2014/217725

Judgment 1. HIS HONOUR: The only issue in this appeal is the quantum of the compensation which was ordered to be paid by Magistrate George sitting in the Local Court at Burwood on 13 March 2015. The notice of appeal clearly states this: "I am appealing in the quantum sum of the financial advantage obtained as found by Magistrate George". 1. In the course of submissions the learned Magistrate said on 22 January 2015 at p 47 commencing at line 42 this: "...I don't think his case is going to get any better and I don't like to hear it, but I certainly think that $12,000. The most essential part of all of this is that the arrangement has come to an end thanks to the police intervention, and that this man can hopefully get on with his life, such as it is. I assume he is still employed by the council but, as I say, I couldn't properly make a finding beyond the $12,000." 1. The person to whom the Magistrate was then referring was the complainant, [PM]. 2. The police had estimated that the amount of money obtained from [PM] by deception was $72,800. The victim himself assessed the sum of $50,000 but that was just a round figure and the complainant who suffered from an intellectual disability was clearly unable to provide any firm basis to justify his assessment of the moneys which had been obtained from him. The $12,000 to which the learned Magistrate was referring was a concession made by the appellant through his solicitor before the learned Magistrate, based on what the appellant himself had admitted when he gave an interview to the police which was electronically recorded. 3. When the matter went back before the learned Magistrate on 13 March 2015 the Magistrate said this: "A police estimate of $72,000 I do not believe is provable to the criminal standard. Mr Martin's estimate of $50,000, as I say, is probably because he thinks $50,000 sounds like a lot of money. You are prepared to acknowledge $10,000. In my view, on the balance of probabilities, $50,000 is closer to the mark; beyond reasonable doubt, $30,000 is a figure that you should pay." 1. No attempt was made by the Crown to establish the actual amount of money that the appellant received by means of deception from the complainant. The complainant's banking records were not put before the Court. The period of time over which the moneys were obtained was a matter of conjecture. It was anywhere between nine months and four years, perhaps more. It was posited on the pretence made by the appellant that the complainant had broken a car seat in a four-wheel drive vehicle whose colour the complainant was unable to recollect. It was later identified as being grey in colour. Evidence from Roads and Maritime Services indicated that the appellant's wife owned between 10 September 2010 and 16 September 2013 a silver Mazda panel van with windows, and between 31 May 2010 and 6 July 2009 a silver Ford Falcon sedan, and prior to that a white Holden Astra sedan. None of the vehicles to which the appellant had access fit within the description given by the complainant. 2. The actual amount actually obtained by the appellant has not been proved on the balance of probabilities, let alone beyond reasonable doubt. The most compensation that the appellant could be ordered to be paid was the amount of $12,000 which was conceded by his solicitor before the learned Magistrate based on concessions made by the appellant himself in his ERISP and, as the Magistrate rightly said on 22 January 2015, 'anything beyond that was a matter of conjecture'. 3. For those reasons I set aside the order for compensation made by Magistrate George sitting in Burwood Local Court on 13 March 2015. In lieu thereof, I order the appellant to pay compensation to [PM] in the sum of $12,000. 4. Any other orders sought? 5. NAIVIDI: No, your Honour. 6. FUNG: No, your Honour. 7. HIS HONOUR: Thank you.