Australian Capital Territory v Kristaps Fridemanis
[2017] ACTMC 13
•12 July 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Australian Capital Territory v Kristaps Fridemanis |
| Citation: | [2017] ACTMC 13 |
| Hearing Date: | 28 June 2017 |
| Decision Date: | 12 July 2017 |
| Before: | Magistrate Theakston |
| Decision: | The provisional order of 16 December 2016 is not confirmed |
| and it is discharged. | |
| Category: | Principal Judgment |
| Catchwords: | CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) |
| Legislation Cited: | Victims of Crime (Financial Assistance) Act 1983 (ACT) (Repealed) Victims of Crime (Financial Assistance) Act 2016 (ACT) Sentencing Act 1991 (Vic) Victims Support and Rehabilitation Act 1996 (NSW) Criminal Code 2002 (ACT) Legislation Act 2001(ACT) |
| Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 R v Mark Bradburn (1973) 57 Cr App R 948 RK v Mirik and Mirik [2009] VSC 14 Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131 |
| Text Cited: | Explanatory Memorandum, Victims of Crime (Financial Assistance) (Amendment) Bill 1998 (ACT) |
| Parties: | Australian Capital Territory (Applicant) Kristaps Fridemanis (Objector) |
| Representation: | Counsel Ms E Sherman (Applicant) Mr A Byrnes (Objector) |
| Solicitors ACT Government Solicitor (Applicant) Capital Lawyers (Objector) | |
| File Number: | AP 75 of 2016 |
Magistrate Theakston:
Situation
1. Kristaps Fridemanis was convicted of causing grievous bodily harm to Peter Carbone. Mr Carbone was awarded $30,037 for special assistance and reimbursement of expenses under the Victims of Crime (Financial Assistance) Act 1983 (the 1983 Act). The Australian Capital Territory has obtained a provisional order for restitution of that amount from Mr Fridemanis to the Territory. Mr Fridemanis has objected to the order. This is the judgment from the hearing of that objection.
2. It was common ground that Mr Fridemanis was convicted of the above offence, and Mr Carbone was awarded the above amount. It was submitted on Mr Fridemanis’ behalf that the order should not be confirmed, or in the alternative if confirmed by this court, varied by reducing the amount to be paid. The following two grounds were argued at hearing in support of those outcomes:
(a) the award should not have been made, and (b) Mr Fridemanis’ limited financial means. 3. Two other grounds were raised earlier by Mr Fridemanis of not knowing the basis of the award and not being guilty of the offence. Those grounds were not pressed at the hearing.
4. For the purpose of completeness I note that s 201 of the recent Victims of Crime (Financial Assistance) Act 2016 preserves the restitution arrangements available under the 1983 Act for the matter before the court.
5. Before I address the above two grounds and the question whether either or both justify the court not confirming the order, or reducing the amount payable under the order, I will first outline the facts and general legal principles applicable to the matter.
| Facts |
6. The facts in this matter can be summarised as follows.
(a)
On 1 October 2013 Mr Carbone was in possession of approximately 500 grams of cannabis, $3,900 in Australian currency, clip seal bags and a set of digital scales located within his home for the purpose of sale of cannabis to others.
(b)
Police alleged that on 1 October 2013 Mr Fridemanis unlawfully entered Mr Carbone’s home for the purpose of obtaining money. Mr Carbone arrived home and Mr Fridemanis approached Mr Carbone with a knife. A physical altercation ensured and both men ended up on the ground. Mr Fridemanis stabbed Mr Carbone in the leg. Mr Carbone suffered a serious injury.
(c)
On 27 October 2015 Mr Fridemanis was convicted the offences of aggravated burglary and cause grievous bodily harm, and was sentenced.
(d)
On 24 November 2015, Mr Carbone was convicted of the offences of traffic in cannabis and unlawful possession of stolen property (currency), and was sentenced.
(e)
On 14 November 2016 and by consent, the court awarded Mr Carbone $30,037 special assistance and reimbursement of expenses under the 1983 Act.
(f)
On 16 December 2016 a Deputy Registrar of this court made a provisional order for restitution against Mr Fridemanis in the amount of $30,037.
(g)
Mr Fridemanis has subsequently, and within the extended time allowed by the court, objected to the provisional order.
Principles
7. The relevant provisions of the 1983 Act are ss 57 and 59 which relevantly state:
57 Confirmation of provisional order – recovery proceedings in Magistrates Court
(1) If the defendant files a notice of objection to a provisional order for restitution within 28 days after notice of the provisional order was duly served on the defendant, the Magistrates Court must conduct a hearing to decide whether the provisional order should be confirmed.
(2) The Magistrates Court may confirm a provisional order for restitution in relation to a final award if satisfied that the defendant has been convicted of a related crime.
(3) The Magistrates Court may vary a provisional order for restitution that it
confirms.
...
59 Confirmed order for restitution
(1) The Magistrates Court may, when it confirms a provisional order for restitution, reduce the amount to be paid under the provisional order having regard to-
(a) the financial means of the defendant; and (b)
any other matters that are, in the opinion of the court, relevant to the decision.
...
8. In Australian Capital Territory v Shaor [2017] ACTMC 1, Magistrate Morrison undertook an analysis of the available authorities and distilled a number of principles applicable to the above discretions, which I respectfully adopt. They include:
(a)
The onus of proof is on the objector to the standard of on the balance of probabilities.
(b)
The objector need not demonstrate special or exceptional circumstances before a court takes a course other than confirming the order in the full amount.
(c)
An objector’s inability to immediately pay the full amount is no bar to confirming a provisional order. The objector’s future prospects of employment and access to other funds are relevant considerations.
(d) Other relevant considerations may include:
(i) the objector’s health, including how it may impact upon a capacity to earn and require expenditure; and
(ii) in the unusual circumstances where on the face of the award, it was
excessive, that fact.
9. Magistrate Morrison also referred to the judgment of R v Mark Bradburn (1973) 57 Cr App R 948 which involved a sentencing discretion to make a compensation order that included the consideration of having regard to the means of the offender. In that matter the Lord Chief Justice said:
We think that as long as a man has his normal physical health and is, therefore, capable of earning something it is perfectly proper to make a compensation order against him although the amount may well be restricted by reason of the probability that his earnings will be comparatively small ... we would say that in general we think that a compensation order which requires as long as four years for its fulfilment, as is the case here, is being stretched out to what will generally be an unreasonably long period. It is generally much better that these orders should be sharp in their effect rather than protracted and we think that the making of this order involving four years for this purpose does err in principle and does require some intervention from us.
Shaor also included reference to the decisions of RK v Mirik and Mirik [2009] VSC 14 and Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131. In Mirik, Bell J noted a number of fundamental differences between civil claims and orders for compensation under the Sentencing Act 1991 (Vic). Unlike civil claims, an offender faced with the application for a compensation order did not have the benefit of mechanisms such as pleadings, discovery and interrogatories; the opportunity for detailed forensic and judicial examination of the claim; nor the opportunity to test the claim. Bell J observed there is a potential for compensation orders to be made where they should not be, or in excess of the amount that should be ordered.
Mordaunt was an appeal from the NSW Victims Compensation Tribunal that made an order of restitution against Mr Mordaunt under the Victims Support and Rehabilitation Act 1996 (NSW). At first instance Mr Cleary LCM reduced the amount payable by way of restitution due to the comparatively minor nature of the incident and injuries. That aspect of the decision at first instance was not subject to analysis on appeal.
12. The award and restitution arrangements under the 1983 Act involve an award being made in proceedings where the offender is not a party. The offender does not have the opportunity to be heard in relation to whether an award should be made, and if so, in what amount. The opportunity to be heard, only materialises when restitution is sought and the offender objects to the provisional order. That limitation, along with the limitations identified above in Mirik must be relevant considerations when exercising the broad discretion provided by s 59(1)(b) of the 1983 Act. As illustrated in Mordaunt, there may be cases were it would be appropriate to depart from the amount awarded when considering the amount for restitution due to the merits of the original award.
Should the provisional order be confirmed?
13. I am satisfied that that Mr Fridemanis was convicted of a related crime.
14. Section 12(2) of the 1983 Act prevents an award in certain circumstances. That provision reads:
The Magistrates Court must not award financial assistance to a primary victim if, at the time the criminal injury was sustained, the primary victim was engaged in the commission of a serious crime.
15. The expression ‘serious crime’ is defined broadly at s 52 and includes:
An offence against the Criminal Code, chapter 6 (Serious drug offences) other than section 618 (Cultivate controlled plant).
16. Chapter 6 of the Criminal Code 2002, includes the offence at s 603(8) of traffic in cannabis, of which Mr Carbone was convicted in November 2015. I note that the term ‘traffics’ includes possessing with the intention of selling the drug.
17. At the time of the incident when Mr Carbone arrived home and received the injury, he was in possession of the cannabis and had the intention of selling the same. It was submitted, on Mr Fridemanis’ behalf, that such circumstances triggered the exclusion described at s 12(2).
18. Applying the above definition of the term ‘traffics’ and the default fault elements provided at s 22 of the Criminal Code, the s 603(8) offence would have the following elements:
(a) possess a thing, (b) intend to possess the thing, (c) the thing is cannabis, (d) be reckless as to whether the thing is cannabis, and (e) intend to sell the thing.
19. The offence is completed as soon as each of those elements exists. The offence also continues so long as each of those elements continues to exist. For example, if the cannabis was knowingly obtained the week before and not touched for a week, but remained in the possession of a defendant, and the defendant maintained an intention to sell the cannabis, and the cannabis was then discovered, the offence would continue to be committed right up to the point of discovery. This is consistent with the conviction Mr Carbone received for the offence, which was particularised to have occurred on the day of discovery. For completeness, I note that Mr Carbone’s admissions during cross examination at Mr Fridemanis’ criminal hearing establish each of those elements as at the time he received his injury.
20. It is therefore clear that Mr Carbone was committing a serious crime at the time of his injury. In my view, nothing turns on the use within s 12(2) of the words ‘engaged in the commission of’.
21. The consequence of this is that the amount should not have been awarded to Mr Carbone. This result is a consequence of the plain meaning of the words used in s 12(2). The operation of that provision does not depend upon any causal link between Mr Carbone’s serious crime and the injury he suffered. For example, the provision does not require it to be established that the injury was caused, at least in part, by Mr Carbone engaging in the crime. That is to be distinguished from s 38 of the 1983 Act, which does require an assessment of causation for the purpose of reducing the amount of any special assistance due to an applicant’s engagement in a minor crime.
22. Further, the application of s 12(2) does not depend upon any value or moral judgment about culpability of Mr Carbone at the time of the injury, or the weighing of the relative criminality between Mr Carbone and Mr Fridemanis. Those assessments are simply not mentioned in the provision.
23. My attention was drawn to the Explanatory Memorandum for the Victims of Crime (Financial Assistance) (Amendment) Bill 1998. While I was not persuaded that I needed to resort to extrinsic material for the purpose of working out the meaning of s 12(2), as provided by the Legislation Act 2001, I note that the memorandum relevantly provides:
... financial assistance cannot be awarded to a primary victim where the injury to the primary victim occurs while he or she is involved in the commission of a ‘serious crime’. The term ‘serious crime’ is defined in section 2 and covers crimes involving harm to other persons and offences involving drugs or dishonesty. The purpose is to ensure that persons whose own illegal actions expose them to harm should not receive financial assistance from the Territory.
24. That statement uses the expression ‘expose them to harm’, rather than a more definitive statement of causation and this is consistent with the construction I have adopted above.
25. As the amount awarded to Mr Carbone was by consent, it is unclear on what basis the agreement for consent orders was reached. However, I note that the admissions made by Mr Carbone at Mr Fridemanis’ hearing were protected by an Evidence Act 2011, s 128 certificate and presumably could not be used as a defence to Mr Carbone’s application for financial assistance. Mr Carbone has no interest in the current matter before the court and therefore those admissions may be relied upon here.
26. From the above discussion of general principles, it is clear that the fact that the original award should not have been made is a relevant consideration for the exercise of the discretion about confirming or not confirming the provisional order. Mr Fridemanis’ liability to reimburse the Territory flows directly from the award that required the Territory to pay an amount to Mr Carbone. The Territory consented to the award. Mr Fridemanis was not a party to that proceeding. Mr Fridemanis’ objection to the provisional order for restitution is his first opportunity to be heard in relation to award.
27. The 1983 Act established a structured statutory scheme for the payment of financial assistance to victims of crime from the public purse and for the reimbursement of such payments from offenders. The scheme provides clear exceptions to the availability of such assistance. It follows that in circumstances where payments are made, but should not have been made, it would be appropriate to exercise the discretion not to confirm the provisional order requiring an offender to reimburse that amount.
28. Further, the exercise of the discretion in relation to the objection does not, of itself, effect Mr Carbone’s options in relation to making a civil claim.
Should the amount in the provisional order be reduced?
29. Having concluded the order should not be confirmed, it is not necessary for me to quantify precisely what amount, if any, the provisional order should be reduced. However, I will make some observations.
30. I note that the unchallenged evidence is that Mr Fridemanis has only very limited means while he is studying, has family financial responsibilities and has no assets that he could liquidate for the purposes of making payment. He has at least a further two years to go with his studies. He clearly anticipates some employment prospects at the end of his endeavours, notwithstanding his criminal convictions, or he would not be persevering with the study and the associated effort and sacrifice.
31. Notwithstanding his limited means, he could still make some contribution. However, I adopt with respect the principle in Bradburn that any order should be sharp in effect rather than protracted and not encumber Mr Fridemanis for an unreasonably prolonged period. Noting the provisional order is for the amount of $30,037, the application of the above principles would require a substantial reduction in the amount were the order to have been confirmed.
Order
32. Accordingly, the provisional order of 16 December 2016 is not confirmed and it is discharged.
I certify that the preceding thirty two [32] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston.
Associate: Taden Kelliher
Date: 12 July 2017
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