Australian Capital Territory v McDowall
[2017] ACTMC 6
•8 February 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Australian Capital Territory v McDowall |
| Citation: | [2017] ACTMC 6 |
| Hearing Date(s): | 30 March 2016 |
| DecisionDate: | 8 February 2017 |
| Before: | Magistrate Morrison |
| Decision: | See [18] |
| Category: | Principal Judgment |
Catchwords: | CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) |
Legislation Cited: | Sentencing Act 1991 (Vic), s 85B |
Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 |
| Parties: | Australian Capital Territory (Applicant) |
| Representation: | Counsel Solicitors |
| File Number: | AP 81 & 82 of 2015 |
MAGISTRATE MORRISON:
On 16 October 2015 and 21 October 2015 the Deputy Registrar of this Court made provisional orders under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT); each order requiring Keith McDowall to pay the Territory the sum of $50,000.00. Mr McDowall filed a notice of objection to each order.
The objections were heard together. The evidence comprised 2 affidavits by Mr McDowall, and one by Ms Sherman, the lawyer representing the Territory, as well as an extract of the transcript of the sentencing proceedings for Mr McDowall. Mr McDowall was not required for cross examination and no other evidence was received at the hearing.
In my reasons for decision in the matter of Australian Capital Territory v Shaor [2017] ACTMC 1 published on 8 February 2017 I set out my conclusions on some of the decision making criteria to be applied in dealing with objections to provisional orders. I rely upon the conclusions reached on decision making criteria in those reasons without repeating them here.
Mr McDowall’s circumstances differ from those of most convicted persons who object to provisional orders, in that he has assets.
The main asset comprises his interest as sole proprietor of a residential unit in Victoria. Mr McDowall does not express any opinion as to its value in his affidavits and he was not required for cross examination to be asked what he believed its value to be. Mr McDowall’s affidavit of 15 March 2016 makes reference to a range of expenses and annexes some accounts. I note that one of them is for rates and that the rates notice refers to the property having what is described as a “capital improved value” of $235,000.00. There is no evidence before me as to the source of that assessment, when it was made or what relationship it bears to the property’s market value.
The affidavit filed by Ms Sherman indicates that a sale of the property in the year 2011 is recorded on some website as having taken place for a price of $241,200.00. The evidence does not demonstrate the source of the information available via that website. It is possible that the source is the public records maintained by the Victorian equivalent of a Valuer-General’s department. There is no evidence as to the value of the unit at the date of the hearing. In any event the submissions made on behalf of Mr McDowall were on the basis that the 2011 sale price referred to in Ms Sherman’s affidavit represented the present day value of the property, without Mr McDowall putting into evidence any evidence of value.
Other assets of Mr McDowall include a motor vehicle and credit balances in bank accounts totalling about $96,000.00. In submissions Mr Painter for Mr McDowall referred to assets with a total value of some $372,000.00. As I understand the submission, that figure assumes a present day value for the real property of $241,200.00.
The evidence before me demonstrates that Mr McDowall is 91 years of age. He does not enjoy good health. He is married and lives with his wife. She is described as being “effectively blind”. Mr McDowall provides care for her. He receives an age pension which includes a carer allowance for her.
The arguments made on behalf of Mr McDowall were to the effect that the requirement to have regard to his financial means “is not his financial means at this point in time”. I understood the submission to mean that it was necessary to have regard to Mr McDowall’s capacity to earn income and rebuild his assets in the future. Additionally it was submitted that confirmation of the provisional orders in their full amounts will “render Mr McDowall incapacitated into the future”.
I accept the submissions made on behalf of Mr McDowall to the extent they press that consideration of financial means for the purposes of s59 involves more than a mere accounting exercise of calculating the amount of income and the value of assets. The age, health and likely future income of an objector are relevant because they will affect, amongst other things, the likely financial needs of an objector into the future and the objector’s own capacity to meet those needs.
To that extent I accept the submission that “financial means” for the purpose of s59 includes looking to the future financial and other consequences for an objector required to make payment under an order. Clearly evidence demonstrating a present capacity to meet payment of an order but under circumstances where having to make that payment would be likely to impose material future hardship is relevant to the exercise of the discretion which is called for.
But the evidence relied upon in Mr McDowall’s case to support submissions about the impact on him of having to pay the full amount of the provisional orders does not support the submissions made on his behalf. In his affidavit, Mr McDowall listed living expenses which were joint expenses – that is the joint living expenses of Mr McDowall and his wife. It was conceded that Mr McDowall’s wife had an income but the amount of it was not disclosed. As a result the figures presented in the evidence do not represent the true position with the living expenses of the family unit comprising Mr McDowall and his wife. In addition, as I indicated in exchanges during submissions, there is no evidence as to how the current credit bank balances were accumulated and whether they were the result of Mr McDowall historically having an excess of income over expenses.
In the decision in the matter of Shaor I dealt with the onus borne by an objector to establish that his or her financial circumstances (or relevant other matters) form a proper basis for a decision to reduce the amount otherwise payable under the provisional order. Against the background of the evidence before me it is not possible to form a conclusion about the likely impact on Mr McDowall of having to pay the full amount of the provisional orders from his available cash assets. It follows that there is no evidentiary support for the submission that a requirement to pay the full amount of the provisional orders would result in Mr McDowall becoming a financial burden on the community or family members.
I was referred in submissions to the comments made by Miles CJ in sentencing Mr McDowall. His Honour had said this – “Reparation is inappropriate, in my view, having regard to the offender’s age (and) lack of income (not published in these reasons).”
Needless to say no compensation payments had been made to the victims from the public purse at the time of those comments. His Honour was not dealing with the hearing of an objection following the making of a provisional recovery order under the Current Act. I doubt that his Honour had before him any detailed information about Mr McDowall’s financial circumstances. And his Honour was not exercising the discretion required to be exercised having regard to the statutory imperatives set out in s59. The observations made by his Honour must be seen against that background.
His Honour did go on to make an order that the defendant pay reasonable expenses incurred by the victim’s mother “by reason of the child undergoing treatment or counselling, for any condition related to the offences against that child.” The evidence demonstrates that Mr McDowall has paid $7,000.00 pursuant to that order to the victim in the proceedings which are numbered AP 81 of 2015. The Territory does not argue strongly against reduction of the order sought in that matter to reflect that payment.
On my calculations orders requiring payments of $93,000.00 leaves the Objector with assets of approximately $279,000.00 with the amount ordered representing some 25% of the value of his assets. Whilst each case must be dealt with on its own facts (and the legislative scheme is different) I note that in Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90 the Victorian Court of Appeal did not regard as excessive an order under s85B of the Sentencing Act 1991 (Vic) requiring payment by a 60 year old of an amount representing 60% of his assets and leaving him with an asset pool of $300,000.
In the circumstances the provisional order in AP 82 of 2015 is confirmed in the full amount of $50,000.00. The order in AP 81 of 2015 is confirmed but is reduced to take into account monies already paid by Mr McDowall. I vary that order to reduce the amount to be recovered to $43,000.00.
I certify that the preceding eighteen (18) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Emma Buckland
Date: 8 February 2017
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