Australian Capital Territory v Shaor
[2017] ACTMC 1
•8 February 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Australian Capital Territory v Shaor
Citation: [2017] ACTMC 1 Hearing Date(s): 27 October 2015
DecisionDate: 8 February 2017
Before: Magistrate Morrison
Decision: See [117] – [118]; [120] Category: Principal Judgment
Catchwords:
CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT) – decision making criteria to be applied in deciding objection.
Legislation Cited:
Court Procedures Rules 2006 (ACT)
Criminal Justice Act 1972 (UK)
Evidence Act 2011 (ACT), s 140
Evidence Act 1995 (NSW)
Legislation Act 2001 (ACT), s 84, 139, 141
Limitation Act 1985 (ACT), s 14
Sentencing Act 1991 (Vic), s 85B
Victims Compensation Act 1987 (NSW), s 47
Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 10, 27, 31, 28, 54, 55, 57, 59
Victims of Crime (Financial Assistance) Act 2016
Victims Support and Rehabilitation Act 1996 (NSW), s 77F
Victims Rights and Support Act 2013 (NSW), s 69Cases Cited:
ACT v McDowall [2017] ACTMC 6
ACT v Young [2017] ACTMC 3
Australian Securities and Investments Commission v Hellicar [2012] HCA 17
Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 696
Connor v The Queen [2005] NSWCCA 431
Davies v Taylor (1997) 7 Tas R 265
Kabir v Commissioner of Victim’s Rights [2015] NSWCATAD 35
Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131
R v Mark Bradburn (1973) 57 Cr App R 948
RK v Mirik and Mirik [2009] VSC 14
Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90
Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148
Sutton v Victims Compensation Tribunal [2013] NSWSC 52
Vlahov v Federal Commissioner of Taxation (1993) 93 ATC 4501Parties: Australian Capital Territory (Applicant)
Luay Shaor (Objector)Representation: Counsel
Ms E Sherman (Applicant)
Ms S Gasser (Objector)Solicitors
ACT Government Solicitor (Applicant)
Legal Aid ACT (Objector)File Number: AP 77 of 2014 MAGISTRATE MORRISON:
1In this matter, the Territory made an application under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) for the restitution to the Territory of the amount of a final award made under Part 2 of that Act. A provisional order was duly made by the Registrar.
2The provisional order was served on the offender. The offender has filed a notice of objection under s55.
3This matter came before me in the civil motions list at the same time as a number of other objections made under s55 by different offenders. In each case the ACT Government Solicitor represented the Territory. Several of the objectors were represented by the Legal Aid Office.
4In the course of preliminary submissions I was told that there was no superior court authority in this jurisdiction on the question of the principles to be applied to the exercise of the discretion to confirm or vary an order as provided for in s57. I was referred to two decisions of this Court, but it was apparent that those decisions were not made in the context of comprehensive submissions having been made about the principles to be applied.
5Against that background I invited the Territory and the Legal Aid Office on behalf of its several objectors to make written submissions on the questions of principle identified with reference to jurisprudence in other jurisdictions to the extent that it was relevant. I also received evidence and submissions on this objection and the several other objections where the objectors are represented by the Legal Aid Office. In addition I have had the benefit of written submissions (addressing the question of the principles to be applied) which were filed on behalf of other objectors represented by private legal practitioners.
6Since the first application was heard several later applications involving different objectors have also been heard and submissions made on the circumstances relevant to them.
7Without objection from the parties in each case I dealt with the objections as if they were applications for the purposes of the Court Procedures Rules 2006 (ACT) with evidence received by affidavit and the deponents available for cross examination where that was required.
8The procedure adopted was directed to setting out in a comprehensive decision some guidelines on the approach to be adopted and the decision-making criteria to be applied in deciding an objection hearing under the Act. Such a decision would be useful in determining future applications.
9Since the first application was heard however the ACT parliament has passed the Victims of Crime (Financial Assistance) Act 2016, (“New Act”) and repealed the Victims of Crime (Financial Assistance) Act 1983 (“Current Act”), in both cases with effect from 1 July 2016. The arrangements for recovery from offenders of amounts paid to victims are materially different under the New Act.
10The transitional provisions of the New Act (in Part 20) do not expressly deal with the continuation of proceedings such as the hearing of the current objections, but s84 of the Legislation Act 2001 (ACT) permits the completion of a “proceeding ...... in relation to an existing right, privilege or liability ...... as if the repeal ...... had not happened”.
11It follows that the current objections are to be determined on the basis of the Current Act but that the utility of any principles determined to apply will be short lived.
12It is convenient to start by referring to the scheme of the legislation, meaning the Current Act.
13The Current Act is expressed to be one “relating to financial assistance for victims of crime and certain other people”.
14The Current Act defines what constitutes a criminal injury and who is a primary victim. Division 2.1 deals with the eligibility of a primary victim to make application for financial assistance. There are limits on the amount which can be awarded and the consequences for which it can be awarded. There are exceptions in the case of some potential applications and pre-conditions in others.
15Divisions 2.2 and 2.3 deal with the eligibility of what are defined as related victims and eligible property owners.
16Division 3.1 confers jurisdiction on the Magistrates Court for the purposes of the Current Act and sets out what is required by way of application for assistance. The Registrar is required to forward a copy of every application to the government solicitor and the Territory has a right of appearance in a proceeding on an application (ss 27(4) and 28).
17The Current Act does not provide for the person whose conduct gives rise to the claim (the offender) to be served with the application or to have any right of appearance.
18Division 3.2 requires the Court, in deciding an application, to take into account the matters set out in section 31(2).
19Divisions 3.3 and 3.4 deal with what are described as set-offs. Some of the matters appearing under these headings are not properly set-offs but rather bases for a reduction in an award.
20Division 3.5 imposes the obligation on the Territory to pay the amount of the financial assistance awarded. The Registrar is obliged to provide a copy of any order made to applicant, to any trustee and to the government solicitor, but not to the offender.
21Part 4 of the Current Act deals with the recovery of financial assistance. Division 4.2 deals with recovery from an assisted person where, e.g., he or she has recovered damages for the relevant criminal injury in addition to the financial assistance received.
22Division 4.3 deals with recovery from offenders. If a person is convicted of a related crime before or after a financial award is made the Registrar may make a provisional recovery order for the restitution of the amount of the award to the Territory by the person convicted (s54(1)).
23Application for a provisional order must be made by the Territory within 2 years of the making of a final award (s54(3)).
24Notice of the making of a provisional order must be served on the convicted person (s54(4)).
25The Current Act does not deal in detail with the process of the making of a provisional order. Section 54(1) uses the expression “... the Registrar may make a provisional order ......”. There is an argument that the section imposes an obligation on the Registrar despite the use of the permissive “may” but that is not something I need to decide.
26The Registrar must serve notice of the making of a provisional order on the convicted person. (s54(5)).
27An offender may file a notice of objection to the provisional recovery order setting out the grounds on which the offender intends to rely.
28The Court is to conduct a hearing to decide whether a provisional order should be confirmed (s57(1)), and if an order is confirmed, may reduce the amount to be paid under it having regard to (s59(1)):
(a)the financial means of the defendant; and
(b)any other matters that are, in the opinion of the court, relevant to the decision.
29Against that background of the scheme of the Current Act, it is possible to identify a number of questions about the decision making criteria to be applied at a hearing. They are (with limited exceptions) common to all of the objections heard. Those questions are:
Question 1:
Must an objector demonstrate “special or exceptional circumstances” before the Court should do anything other than confirm a provisional order in the full amount of that order? As a related question – does confirmation of a provisional order in its full amount best promote the purpose and underlying object of the Act?
Question 2:
What is the significance of
(a)the inability of an objector to pay the full amount of a provisional order immediately; and
(b)an assessment of an objector’s prospects of employment in the future?
Question 3:
What are relevant “other matters” to be taken into account in deciding an objection?
Question 4:
Where does the onus of proof lay?
30The questions posed are answered, at least to the extent that it is possible to do so, in this decision.
31I was not referred to any Supreme Court decision in this jurisdiction guiding the application of s57. I was referred to two decisions of this Court, referred to in the Territory’s submissions in this way:
In ACT v Troy Michael White (21 May 2013) Special Magistrate Lunney found that, in circumstances where the future financial circumstances of the respondent is unknown, the appropriate decision was to confirm the provisional order in its full amount.
Furthermore, in a recent decision of Chief Magistrate Walker dated 4 March 2014 in the matter ACT v Mark Smith (APP 83 of 2013), her Honour decided that where the sole grounds for objecting to a provisional order are financial difficulty, the respondent would need to prove extenuating circumstances exited to satisfy the court that reducing the amount payable is justified. Her Honour further commented that, without the respondent’s circumstances coming into a category out of the ordinary circumstances of persons whom criminal injury compensation restitution orders are made against, it was not appropriate for her to reduce or vary the order for restitution.
32I invited and received submissions on the significance of any relevant “material not forming part of the Act” for the purposes of section 141 of the Legislation Act 2001 (ACT). The material is not helpful.
33I was also referred to authorities in other jurisdictions on different schemes for victim compensation, as well as some dealing with the approach (again in other jurisdictions) to the making of reparation orders in criminal proceedings.
34Not all of those authorities were useful. I refer later to those which were.
35I turn to the questions identified above.
36Question 1:
Must an objector demonstrate “special or exceptional circumstances” before the Court should do anything other than confirm a provisional order in the full amount of that order? As a related question, does confirmation of a provisional order in its full amount best promote the purpose and underlying object of the Act?
37The Territory submission that an objector must demonstrate “special or exceptional circumstances” must be rejected for reasons which are straightforward. Sections 57 and 59 confer a broad discretion. To construe the Act as restricting its exercise in a particular way to special or exceptional circumstances is to impose a restriction not expressed in the words of the section or required by the context or the purpose of the Act. The submission is rejected.
38In a similar vein, the submission that confirmation of a provisional order in its full amount best promotes the purpose and underlying object of the Act seeks to invoke the application of s139 of the Legislation Act 2001. To construe the legislation in that way is to permit the exercise of “working out the meaning of an Act” to give preference to an interpretation which is at odds with the express words used in the Act. That submission must also be rejected.
39Question 2:
What is the significance of:
(a) the inability of an objector to pay the full amount of a provisional order immediately; and
(b) an assessment of an objector’s prospects of employment in the future?
40The submissions on this question refer to several decisions in other jurisdictions.
41In Kabir v Commissioner of Victim’s Rights [2015] NSWCATAD 35 Senior Tribunal Member Riordan referred to a decision of Studdert J in Allen Brian Connor v The Queen [2005] NSWCCA 431. In Connor the NSWCCA was dealing with an appeal against sentence including against a compensation order made by the trial judge under the Victims Support and Rehabilitation Act 1996 (NSW) which was repealed by the Victims Rights and Support Act 2013 (NSW). The appellant had been ordered to pay compensation of about $3,500.00 to a golf club for money stolen and property damaged, the order having been made at the time of sentencing the appellant for five offences of aggravated break, enter and steal. Importantly, the legislation authorising the making of the order identified the relevant factors to be taken into account in these terms:
In determining whether or not to give a direction for compensation, and in determining the sum to be paid under such a direction, the court must have regard to:
(a) any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person that directly or indirectly contributed to the loss sustained by the aggrieved person, and
(b) any amount that has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted, and
(c) such other matters as it considers relevant.
42In Connor, Studdert J’s comments (with which McClellan CJ at common law and James J agreed) about the scheme of the then NSW legislation included the following:
(i) the purpose of the statutory scheme is to compensate victims;
(ii) .........
(iii) the asserted impecuniosity of an offender against whom a direction is sought pursuant to s 77B of the Victims Act ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender’s impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false.
43Two important points can be made about the decision in Connor. The first is that the NSW legislation contained no equivalent to s59(1) of the Current Act – that is the section expressly requiring a court to have regard to the financial means of the defendant. The second is that Studdert J was dealing with the making of a recovery order against a defendant in favour of the victim, and not recovery from the offender after payment to a victim under a statutory scheme. (Section 77F(4) of the then NSW Act expressly provided that “A direction for compensation may only be enforced in accordance with this section and any amount not paid is not payable from any public money.”)
44Studdert J’s observations about the potentially temporary nature of an offender’s impecuniosity and the possibility for change in financial position through rehabilitation and hard work or good fortune are self evidently correct. The differences between the relevant legislative schemes however (especially the absence of an equivalent to section 59(1)(a) of the Current Act) are such that the decision in Connor is not persuasive authority for the broad proposition that impecuniosity is not a relevant consideration in dealing with objections under the Current Act.
45As noted above the NSW legislation under consideration in Connor was repealed by the Victims Rights and Support Act 2013. The scheme established by the latter includes provision for the Commissioner of Victims Rights to make a provisional order for restitution by an offender of an amount of financial support or a recognition payment received by a victim. The Act goes on to provide for an objection by an offender and an appeal to an administrative review tribunal from a decision on the objection. The Act provides (vide s69(1)) in terms relevantly identical to s59(1) of the Current Act that the tribunal may reduce the amount to be paid under a provisional order it confirms having regard to:
(a) the financial means of the defendant, and
(b) such other matters as are, in the opinion of the Tribunal, relevant to the determination.
46In written submissions the Territory points out that in Kabir v Commissioner of Victims Rights [2015] NSWCATAD 35 Senior Member Riordan was dealing with the recovery provisions of that NSW scheme and referred with apparent approval to the decision in Connor.
47In Kabir the NSW Civil and Administrative Tribunal was dealing with an objection to a provisional recovery order. The circumstances before the Tribunal however were exceptional. The offender was a young man with qualifications as an accountant and who presented at hearing as being intelligent, articulate and business savvy. He filed (but only after being directed to do so by the Tribunal) a statement of financial circumstances asserting limited income and modest assets but none of what he asserted was supported by other documentary evidence and the absence of any other evidence was unexplained. Senior Member Riordan concluded that he was “not satisfied that any financial impecuniosity that (the offender) may currently be suffering is anything other than temporary in nature”.
48The circumstances in Kabir clearly supported the conclusion reached by the Tribunal but the unusual facts do mean that the decision is not persuasive authority for the broad proposition that impecuniosity is not a relevant consideration.
49A commonsense approach to the interpretation of s59 supports a conclusion that the inability of an objector to pay the full amount of a provisional order immediately is not of itself a bar to confirming a provisional order. An objector’s prospects of future employment (or indeed access to any other source of funds from which an order may be satisfied) are logically a relevant consideration. To construe the section otherwise – that is by confining the relevant considerations to an offender’s financial means at the point in time of the making of the order – is to adopt an artificially narrow approach not expressed in the words of the section or required by context or the purpose of the Act.
50It is useful at this point to refer to two other decisions mentioned in submissions from the Legal Aid Office.
51In R v Mark Bradburn (1973) 57 Cr App R 948 the English Court of Criminal Appeal was dealing with an appeal by an offender against his sentence for two offences of burglary. The appeal was limited to that part of the sentence comprising compensation orders in favour of the victims. The terms of the Criminal Justice Act 1972 (UK), which authorised the making of compensation orders, required the Court to have regard to the means of an offender so far as they appear or are known to the Court.
52In delivering the judgment of the Court, the Lord Chief Justice said this:
Accordingly when making a compensation order the Court is not solely concerned with the injury to the victim or the amount which he requires to be compensated, but has to have regard also to the means of the defendant who will be made the subject of the order. It must be borne in mind, of course, that an order under this section does not deprive the injured person of his civil rights and he can always sue in the civil court if he wants to. It provides a quick and easy method of making some compensation in appropriate cases. What sort of view can the Court take when it has regard to this man’s means? This man’s means in a sense are non‑existent. He is dependent on social security. Does that mean that no order should be made against him? We think not. 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. It is not right to restrict compensation orders to cases where the defendant can easily pay. There are good moral reasons for making compensation orders which will in a measure hurt the defendant’s pocket and act to remind him of what he has done. But the Court must try to steer a common sense path through those various considerations and come up with a solution which satisfies them. We do not propose today to attempt any specific criterion in terms of amounts which are appropriate in a particular case, but 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.
53The scheme under consideration in Bradburn involved the making of an order for payment directly to the victim as part of the sentencing process. The observations about the preservation of a victim’s right to recover in civil proceedings do not apply in the matters before me. I refer to that aspect of the considerations later. In addition, the observations about “good moral reasons for making compensation orders” and “hurt(ing) the defendant’s pocket and act(ing) to remind him of what he has done” are more apt in sentencing considerations then in those before me.
54The English Court of Criminal Appeal set aside the order which would have required 4 years to discharge and substituted an order which would be discharged by regular payments over 1 year.
55No authority was referred to by the Court for its determination that “a compensation order which requires as long as four years for its fulfilment........ is being stretched out to what will generally be an unreasonably long period”. The Court expressed itself in terms of a general proposition that it was “much better that these orders should be sharp in their effect rather than protracted”.
56The order under consideration in Bradburn was one made as part of sentencing proceedings. Whilst the Court did not expressly say so, it may be that the view taken of the length of the operation of a compensation order was guided in part by sentencing-type considerations.
57The Legal Aid Office also referred in submissions to the decision in Vlahov v Federal Commissioner of Taxation (1993) 93 ATC 4501. In Vlahov the Full Court of the Supreme Court of Western Australia dealt with an appeal against a decision of a magistrate making a reparation order in favour of the Commissioner in an amount of $131,939.09 – that representing unpaid tax by corporate taxpayers of which the defendant was a director. The order was made as part of sentencing proceedings against the director as a person concerned in the management of the two companies.
58The Full Court concluded that it was appropriate to have regard to the personal circumstances and means of the offender despite the absence of any express statutory direction to that effect. Against that background and having reached the conclusion that the offender had no present ability to pay the compensation ordered the Court set aside the reparation order (and reduced the fine which had been ordered to be paid). In his reasons his Honour White J made these observations:
It is clear that the amount of the reparation orders (namely $20,136.33 in the case of Chertsey Pty Ltd and $111,802.73 in the case of Timeworth Pty Ltd) far exceeded what the appellant could reasonably be expected to pay. Notwithstanding the comment in Mark Bradburn which I have set out above, each case must be dealt with on its merits and the financial position of the appellant, which I have described above, precludes any reasonable prospect of his being able to pay any part of the reparation ordered within a reasonable period. Even fixing a much-reduced figure of reparation would not result in achieving payment within a reasonable period.
In my view, the reparation orders should be set aside and the respondent left to pursue his civil remedies if he so decides.
59The Legal Aid Office submits that, on the basis of the reasoning applied in the decisions of Bradburn and Valahov the Court should “order an amount of restitution which reflects the financial means of the defendant being able to pay that amount within a reasonable period”.
60An obvious difference between the schemes under which the decisions in Bradburn and Valahov were made and the Current Act is the continuing right of the “victim” in each case to bring civil action to recover amounts claimed. No such right exists for the benefit of the Territory outside the enforcement of the provisional order which is the subject of the objection. That right to pursue civil remedies is a point remarked upon in Bradburn and Valahov, and indeed almost all of the cases to which I was referred where the order under consideration was made as part of the sentencing process.
61The question which is raised for present purposes is whether and how that consideration (that is that the Territory does not otherwise have any civil right of recovery against a defendant) affects the principles to be applied to determining objections under the Current Act.
62If the Territory retained a civil right of recovery independently of the processes of the Current Act (such as exists for the benefit of a victim when a reparation order is made on sentence) it would be entitled to bring ordinary civil recovery proceedings at some later stage. Considerations of the defendant’s ability to pay would be irrelevant to the entry of judgment in favour of the Territory, assuming liability to pay was established. Such considerations would be relevant in a practical sense to the decision making of the Territory about enforcement procedures, but they would largely be considerations for the Territory rather than the Court. Additionally, s14 of the Limitation Act 1985 (ACT) allows enforcement action within a period of 12 years, usually calculated from the time of entry of the judgment, so that the Territory would have a significant period of time over which to investigate and analyse a defendant’s ability to pay and any change in it.
63Those observations about what might otherwise be the Territory’s rights must however be viewed against the background of the express provisions of s59(1). The legislature must be taken to have been aware that the provisional order and objection process provided for in Part 4 involved a departure from the ordinary civil debt recovery processes and indeed that it represented the Territory’s only avenue of recovery from offenders of amounts paid to victims by way of financial assistance. That process includes the express direction to this Court that it have regard to, amongst other things, the financial means of the defendant.
64I would not go so far as to say that the unavailability to the Territory of ordinary civil recovery processes is an irrelevant consideration, but against the background just referred to, placing too great an emphasis upon it would be flying in the face of the clear legislative intent embodied in s59(1).
65In the end result, and whilst of course recognising that every case must be decided on its merits on the basis of the evidence presented to the Court, there is much to recommend the approach adopted by the English Court of Appeal in Bradburn that orders be sharp in their effect rather than protracted. In other words, an order should not require repayment of an amount which necessitates a repayment arrangement extending over an unreasonably protracted period of time.
66What is an unreasonably protracted period of time calls for consideration of both present and future financial means and needs. I would not however commit to a conclusion that a repayment period of 4 years is too long in every case.
67The assessment of evidence of financial means and needs may be made difficult by lack of precision in the evidence presented to the court. That does not necessary indicate an attempt at deception on the part of the person providing the information. Many people genuinely have difficulty in accounting for their present spending and in estimating future expenses, an exercise made more difficult because the future for some involves significant uncertainty.
68An objector cannot be expected to live a life of penury to satisfy a restitution order, but the decision upon whether he or she can afford some repayment of what has been paid by the ACT taxpayer to compensate for his or her crime calls for careful scrutiny of an objectors circumstances.
69It can be difficult for the Territory to test all of the evidence of present and future expenses without descending into the minutiae. Without wanting to detract from what I have already said about the court’s decision being based upon the evidence, not to recognise the temptation for an objector to be somewhat generous in their estimates of their expenses would be to deny what is the reality of a feature of human behaviour.
70In the final analysis some allowance must be made for the exigencies of life, both positive and negative, and for the reality that even persons with limited income, can usually through reasonable thrift and re-allocation of spending priorities, manage some contribution to repayments required of them.
71For the sake of completeness, I also mention here that in the decision in the matter of Australian Capital Territory v McDowall [2017] ACTMC 6, I have considered circumstances where an objector has financial means by way accumulated assets but with limited future earning capacity.
72I concluded in that decision that “... 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”.
73Question 3:
What are relevant “other matters” to be taken into account in deciding an objection?
74Of necessity these reasons deal only with the specific matters which were the subject of submissions. No attempt is made to exhaustively catalogue what might be properly taken into account in the exercise of the discretion in s59.
75In Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148, the Court was dealing with an appeal from an order for restitution against an offender under s47 of the Victims Compensation Act 1987 (NSW). The relevant legislation provided that, if the Tribunal made an order for restitution, then the amount ordered to be paid was to be fixed having regard to, amongst other things “.... the financial means of the defendant”. On the evidence before the Court it was apparent that the magistrate dealing with the application had not taken into account the defendants financial means. The Court set aside the order and undertook the exercise of reconsidering the application on its merits.
76In deciding the application, the Court was influenced by the evidence of the defendant’s state of health. O’Keefe J expressed his considerations in these terms:
However, there is another matter which was, in the circumstances of the case, one to which the magistrate was required to have regard but to which he failed to have regard, namely, the state of health of the plaintiff. That state was relevant to the capacity of the plaintiff to earn and to the likely level of expenditure to which he may be put as his HIV condition continued or progressed. The state of health of a person against whom an order for restitution is sought may be a matter relevant to the determination within the meaning of that phrase as used in s.47(2)(d) of the Act. Whether it is or not will depend upon the circumstances of the case but in the present case there can be no doubt that it was a relevant, indeed significant, consideration to which regard should have been had. Regard was not had to it and for that additional reason I am of opinion that the exercise of the magistrate miscarried and his decision should be set aside.
77I note that, on the basis of the facts which were before him, O’Keefe J concluded that the offender’s state of health was relevant to both his capacity to earn and to his likely level of expenditure in connection with the condition from which he suffered. Against that background his reasoning that the offender’s state of health was a relevant consideration is logically linked to consideration of financial means and is persuasive.
78Another submission made by the Legal Aid Office refers to that part of the decision in Kabir (referred to earlier) which sets out the original decision of the Commissioner’s delegate on the applicant’s objection. It is in these terms:
On 26 March 2015, the Commissioner’s Delegate confirmed the applicant’s liability, but reduced the amount payable under the order to $5,000.00 to be paid forthwith on the basis that the Applicant had pleaded guilty in the criminal proceedings.
79That part of the Delegate’s determination was not the subject of appeal or cross-appeal and is not otherwise mentioned in the reasons of Senior Member Riordan. The Legal Aid Office submissions go on to press, somewhat lightly, that it “appears that the fact that the defendant pleaded guilty may be a relevant “other matter” which the Court may take into consideration in deciding whether to reduce the amount of restitution”.
80No reasons appear in the reported decision in Kabir for that aspect of the delegate’s original decision. It is not the subject of any analysis by Senior Member Riordan and the context in which the comment referred to appears does not indicate implied approval.
81It is generally accepted that an offender’s plea of guilty is relevant in sentencing for a number of reasons. One of those is its utilitarian value in the saving in time and costs to police, prosecution services and the Court. Another is that doing so spares the victim the stress and anxiety of giving evidence at a defended criminal hearing or trial. Those consequences of the entry of a plea of guilty can thus be seen to demonstrate remorse and do have some benefit to the State and to a victim. They are properly taken into account in sentencing and usually result in some reduction in sentence.
82The fact that an offender may have entered a plea of guilty generally plays no part however in the assessment of the amount of financial assistance awarded to a victim. The nature of the scheme is such that very modest limits are imposed on the amount of financial assistance available. Amounts awarded are almost invariably less, and usually significantly less, than what would be an assessment of damages at large for the same injury.
83It is perhaps possible that a claim for special assistance under s10(1)(d), (e) or (f) of the Current Act might include an amount by way of compensation for psychological effects on a victim of having to re-live an incident in giving evidence at a hearing, but such an outcome would only occur when an offender had pleaded not guilty. Given the basis upon which compensation is assessed and the point in time at which it is assessed under the Current Act it is difficult to see any logical basis for the entry of a plea of guilty by a defendant to play any part in consideration of recovery from an offender and no reasons for doing so are set out in the submission. I reject the submission that the entry of a plea of guilty is a relevant “other matter” for consideration under s59(1).
84Another submission made by the Legal Aid Office referred to the decision in Mordaunt v The Assessor, Victims Services and Anor [2007] NSWSC 1131. The decision is referred to in support of a submission that relevant considerations include “whether the nature of the relevant violent crime is relatively minor”.
85In Mordaunt Hoeben J dealt with an appeal from a decision of the NSW Victims Compensation Tribunal which made an order for restitution against Mr Mordaunt. Mr Mordaunt had been convicted of what would be described in this jurisdiction as a family violence assault. The victim, his former partner, applied for payment of an amount of compensation to be assessed under the scheme established under the Victims Support and Rehabilitation Act 1996 (NSW).
86On the basis of the comments which appear in the reasons for the decision under appeal, the structure of the scheme for the assessment of compensation is unusual. It is relevantly described in the decision in these terms:
“For the compensable injury of domestic violence there is a range of compensation available, that is from $7500 to $10000 and the end result being that the assessor awarded a sum of $9000 for that compensable injury of domestic violence.”
87I describe the nature of the scheme as unusual because of the suggestion of a minimum award of $7,500.00. It may be that, properly understood, the scheme was not one providing for a minimum award but rather a bar on recovery of damages of less than $7,500.00, but nothing turns on that for present purposes.
88The original decision maker, Mr Cleary LCM, made some observations about the compensation awarded to the victim by the assessor in these terms:
Now I acknowledge that the defendant has difficulty in accepting that compensation of this amount in the range of $7500 to $10000 should be considered as compensation for such an offence where he merely pushed his wife, former wife I should say, over a coffee table. And I would think that many would probably regard it as being extravagant also. But nevertheless the legislation has seen fit to allow an award in that range, $7500 to $10000, where an act of violence is established and a determination results in respect of the compensable injury of domestic violence.
89Mr Cleary LCM went on in his reasons to say:
So that in the end, Mr Mordaunt, it is my intention to reduce the amount of the order which I have now varied to $8250, having regard to the comparatively minor nature of the incident of assault which occurred on 28 November 2001 which resulted in minor injuries. I have regard to the limited means by reason of the fact that you receive a Centrelink payment. And I have regard to your state of health and you obviously have medical problems.
90That aspect of the decision by Mr Cleary LCM was not the subject of any analysis by Hoeben J.
91The decision at first instance in Mordaunt can be distinguished on the basis of the peculiarities of the particular compensation assessment scheme under that legislation. It is apparent that those peculiarities influenced the decision. They are not relevant to considerations under the scheme in the Territory. I reject the submission that relevant considerations include “whether the nature of the relevant crime is comparatively minor”.
92Another decision referred to in submissions is that of Sutton v Victims Compensation Tribunal [2013] NSWSC 52. The decision is referred to in support of a submission that relevant considerations include “whether the amount of financial assistance which was given to the assisted person was proper”.
93In Sutton Harrison AsJ was dealing with an appeal from a decision of Lulham LCM as chairman of the Victims Compensation Tribunal. The circumstances before Lulham LCM were unusual. Mr Sutton had been convicted of maliciously wounding the victim Mr Cartwright. Mr Cartwright had received two stab wounds to the chest, resulting in bilateral pneumothoraces causing each lung to collapse. He was awarded statutory compensation of $33,000.00 under the Victims Support and Rehabilitation Act 1996 (NSW). He appealed against the award. In the course of the hearing of the appeal evidence came to light of a pre-existing psychological condition indicating that Mr Cartwright was already severely disabled at the time of the act of violence. It was determined at the appeal that the assessment of compensation ought to be reduced to take into account the pre-existing psychological condition. The Tribunal indicated that a reduction of even 10% would result in the applicant losing more than could be gained from pursuing the appeal. Mr Cartwright was given the option to withdraw his appeal and he did so.
94It was against that background that Lulham LCM’s comments included the following:
As is frequently the position in restitution hearings there is far more evidence before the Tribunal as to the background to the dispute and as to the dispute itself. I consider that even on the evidence available to the assessor that a fifty per cent reduction in the award for the psychological injury was in order and that would have reduced the award for psychological injury to $16,500. I take that into account the further evidence presented in Mr Willow's [Mr Weller's] submissions. I also take into account the appellant's health and financial position. It is an unusual matter. There is no doubt the stabbing took place.
95His Honour Lulham LCM went on to confirm the provisional order for restitution but reduced the amount to $8000 payable by instalments of $20 per month. That is he reduced the order for restitution by the sum of $25,880.
96The appeal before Harrison AsJ was against that order for restitution.
97That part of the reasons of Lulham LCM which is relevant for present purposes is not the subject of any analysis by Harrison AsJ.
98As Lulham LCM himself acknowledged, the circumstances before him were unusual. It is fair to describe them as involving there being evidence before him that the assessment of compensation which had been made was, on its face, excessive – in the sense of being in excess of the amount properly payable under the scheme. Those are not the circumstances in any matter before me. To the extent that the decision in Sutton is authority for any statement of principle it is overstating the effect of it to suggest that it requires, in ordinary circumstances, consideration of whether the amount of compensation payable to a victim was proper.
99It is convenient at this point in these reasons to also mention the decision of the Victorian Court of Appeal in Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90.
100In Kelly, the Court was dealing with an appeal from orders made by a sentencing judge in the County Court under s85B of the Sentencing Act 1991 (Vic). The Appellant had been convicted of offences of child sexual abuse against four child relatives based on historical evidence. Orders were made requiring the payment of significant amounts – some $375,000.00. In submissions on compensation, all parties adopted a position that compensation should be discounted by 25%. That submission was based on the parties’ interpretation of what was said in RK v Mirik and Mirik [2009] VSC 14.
101In Mirik Bell J had made orders for compensation under s85B of the Sentencing Act 1991 (Vic). In doing so, His Honour had discounted the amounts he would otherwise have awarded by 25%. His Honour contrasted the scrutiny to which claims in civil proceedings are subject with the less rigorous process involved in a claim for compensation under s85B of the Sentencing Act. His Honour’s reasons for doing so appear in these terms:
153 In crimes compensation proceedings, offenders do not have the assistance of “mechanisms such as pleadings, discovery and interrogatories, which are available in civil proceedings.”[210] For want of the kind of detailed forensic and judicial examination that is available in civil proceedings, there exists a potential for compensation orders to be made against offenders when they shouldn’t or in amounts that exceed the victim’s correct entitlement. That potential exists in practically every case, and I should guard against it happening here. The offenders have not had the opportunity to test the claims of the victim as fully as they could in ordinary civil proceedings. It is important that injustice is not done to offenders by making assessments of compensation that overshoot the mark. Doing justice by victims can’t be at the expense of doing injustice to offenders. The victim’s right to bring civil proceedings for “any expense or other matter” not satisfied by an order of compensation is not affected by an order under s 85B(1),[211] so any undershoot can be recovered. The offender is in the obverse position.
154 The court has a discretion under s 85B(1) to order the offender to pay compensation “of such amount as the court thinks fit”. This encompasses a discretion to determine that the amount of compensation will be less than full compensation. By this means the courts can give the victim an appropriate measure of justice without running the risk of doing injustice to the offender. This is a different discretion to the one specified in s 85H(1) to take the financial circumstances of the offender into account. In deciding to order less than full compensation, the court can take into account the limited extent to which the offender has been able to test the claims of the victim in the proceedings under ss 85A-M. It can reduce the amount that it may have ordered had those claims been fully tested to avoid over-compensating the victim. Of course, the court can order what it considers to be full compensation if it thinks it has a satisfactory evidentiary basis for doing so.
155 The offenders in the present case have not had the opportunity, by civil trial procedures, fully to test the victim’s claim. But the evidence and admissible materials satisfy me that the victim has substantially established his claim. To avoid overshooting, however, I will reduce the compensation down to 75 per cent of my general assessment of what full compensation might conceivably have been.
102In Kelly, the material before the Court of Appeal suggested that a practice had developed in the County Court of applying a 25% discount on the basis of the reasoning in Mirik. The Court of Appeal held that Mirik was not authority for the proposition that in all cases a discount of 25% or any other figure should be applied. There is no basis for applying a discount in proceedings on an objection in this jurisdiction under the Current Act on the basis of Mirik reasoning.
103Question 4:
Where does the onus of proof lay?
104In Connor (referred to earlier) Studdert J comments on the possibility that an offender’s alleged impecuniosity may be false. I infer that the proceedings at first instance did not involve presentation of evidence of the offender’s financial circumstances under circumstances where that evidence could be tested. That would be unsurprising given that the order under consideration had been made as part of sentencing proceedings.
105The process for the hearing of an objection under the Current Act allows for a more structured approach to assessment of financial circumstances than would ordinarily take place in sentencing proceedings. The Current Act does not expressly deal with the question of the onus of proof. However the words of s59 – empowering but not requiring a court to reduce the amount of an order having regard to the financial means of an offender – and the structure of the process – involving proceedings initiated by an offender by way of objection to a provisional order - both point logically to the offender bearing the onus of establishing that his or her financial means (or relevant other matters) form a proper basis for a decision to reduce the amount otherwise payable under the provisional order. Such an approach is consistent with that taken to the making of reparation orders in decisions such as Davies v Taylor (1997) 7 Tas R 265.
106Another point to be made at this juncture is about the evidence required to meet the standard of proof. The hearing of an objection is a civil proceeding to which the Evidence Act 2011 (ACT) applies. By virtue of s140 of the Act the standard of proof is on the balance of probabilities.
107Section 140 goes on to set out a non-exhaustive list of matters a court may take into account in deciding whether it is satisfied that a case is so proved. Other considerations may be relevant.
108In Kabir (referred to earlier) Senior Member Riordan concluded that the evidence before him of alleged impecuniosity was in the nature of “bare assertions”. He referred to the decision in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63; 98 ER 696 as authority for the principle which he stated as “evidence is to be weighed according to the capacity of a party to adduce it”. It is a principle which has been applied by the High Court in considering that provision of the Evidence Act 1995 (NSW) which is identical to s140 in this jurisdiction – see Australian Securities and Investments Commission v Hellicar [2012] HCA 17.
109Application of that principle would ordinarily require an objector to put before the Court evidence of limited financial means comprising something more than his or her mere assertions to that effect.
110Having reached the conclusions referred to above on the matters of principle argued before me, I turn to the facts in this case.
111The provisional order made against Mr Shaor required payment of an amount of $24,901.18. Mr Shaor filed an affidavit setting out some information about his financial circumstances. In addition he gave sworn evidence and was cross examined.
112Mr Shaor had a history of work as a house painter although he was at the time of hearing the objection in receipt of a Centrelink pension. Several aspects of the evidence on Mr Shaor’s objection call for comment.
113The first is that Mr Shaor said that he is undertaking a course of study at the Canberra Institute of Technology designed to put in him a position where he can obtain a building licence. The effect of his testimony was, however, that there were many reasons why he would not be able to obtain a licence even after having completed the course. His response to the obvious question about why he would undertake the course if that was the case was not satisfactorily answered.
114Next is the unusual evidence given by Mr Shaor about the transaction by which he disposed of his motor vehicle. The transfer of registration form disclosed a value of $6,000.00. As I understood his testimony, Mr Shaor said that he received no monies on sale. Rather, according to Mr Shaor, the consideration passed by way of the acquirer taking the vehicle in satisfaction of debts in that amount otherwise payable by Mr Shaor. Mr Shaor said that the debt was accumulated by way of borrowings in small amounts from the acquirer over a period of time. Mr Shaor was unable to name the acquirer, saying only that it was a person he had met through a church. His account of those events is implausible, and his testimony generally on the subject of his knowledge of the value of the vehicle lacked credibility.
115In addition Mr Shaor accepted in his evidence that his account at a business called “Paint Place” had been used for the acquisition of paint, notwithstanding his insistence that he was not working as a painter. No evidence other than Mr Shaor’s own testimony supports his assertion that the paint was acquired for a friend.
116My ultimate conclusion is that Mr Shaor has not been truthful in his testimony about his income and his dealings with his motor vehicle. That conclusion also applies to his affidavit insofar as it touches on those matters. There is no other evidence before the Court upon which a finding as to Mr Shaor’s income and assets could be made.
117Having reached that conclusion about what is crucial evidence before the Court, and bearing in mind that Mr Shaor bears the onus of persuading the Court that his circumstances warrant either not confirming the provisional order or reducing it, it follows that Mr Shaor’s objection must fail.
118I confirm the provisional order in the amount of $24,901.18.
119A preliminary point was raised by the Territory at the hearing of the objection. It raises a question as to the power of the Court to extend the time within which an objection may be lodged. The Territory argued that no power exists to extend the time, but that, if the court determined that it did have such a power then the Territory did not object to an extension.
120In my decision in the matter of ACT v Young [2017] ACTMC 3, I have concluded, in circumstances which are relevantly identical, that no extension of time is required. I rely upon the reasons given there without repeating them here. Given the conclusion I have reached on the merits of the objection in Mr Shaor’s case, the outcome of the extension application is, in any event, moot.
I certify that the preceding one hundred and twenty (120) 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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