Australian Capital Territory v Taylor
[2017] ACTMC 2
•8 February 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Australian Capital Territory v Taylor |
| Citation: | [2017] ACTMC 2 |
| Hearing Date(s): | 24 November 2015 & 3 February 2016 |
| DecisionDate: | 8 February 2017 |
| Before: | Magistrate Morrison |
| Decision: | See [16] – [17] |
| 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), s 54, 59 |
Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 |
| Parties: | Australian Capital Territory (Applicant) |
| Representation: | Counsel Solicitors |
| File Number: | AP 34 & 57 of 2015 |
MAGISTRATE MORRISON:
On 8 May 2015, in the proceedings which are numbered AP 34 of 2015, the Deputy Registrar of this Court made a provisional order under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) requiring Liam Taylor to pay the Territory the sum of $40,770.00. I refer to it as the first provisional order. Mr Taylor filed a notice of objection to that order, annexed to which were copies of various documents relevant to his financial circumstances.
In proceedings AP 57 of 2015 the Deputy Registrar made a provisional order on 6 August 2015 requiring payment of $1,308.05. I refer to it as the second provisional order. Mr Taylor filed a notice of objection to that order also which again annexed material relevant to his financial circumstances.
The objections were heard together. Mr Taylor did not have legal representation.
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.
Some documents had been subpoenaed by the Territory. Some difficulties arose around production of the documents requiring the hearing of the objection to be adjourned.
Mr Taylor gave sworn testimony at the hearing and was cross examined. He produced certain documents comprising a bank certificate to the effect that he had a credit card debt of some $3,200.00 odd dollars and a letter from a doctor that he was affected by an un-named medical condition for which he was prescribed a particular drug. No further detail was provided in that letter.
The contents of what became Exhibit C included an income statement from Centrelink. Mr Taylor was in receipt of a disability support pension. Exhibit C demonstrates that he receives payments of $988.60 per fortnight from the public purse. That includes his basic pension, rent assistance and what are described as an energy supplement and a pension supplement.
From that income there are several deductions including for child support and repayments of some amounts to be repaid to Centrelink.
Mr Taylor was asked why he was in receipt of a disability support pension. He said “I suffer from depression, anxiety, trauma and dangerously high blood pressure. I have times where I can be walking along and then all of a sudden I’ll just faint and collapse because of all the stuff that’s happened”.
Mr Taylor went on to say that he was in employment before the Court proceedings. I infer that he meant the original criminal proceedings which resulted in the conviction upon which the provisional orders are based. He said that he held a driver’s licence and that his medical condition did not prevent him from driving. He said that he intended to seek employment again but that would probably not be for another two years. That evidence was given at the first part of the hearing on 24 November 2015. The matter of future employment was not the subject of any further or other evidence at the resumed hearing on 3 February 2016.
The cross examination of Mr Taylor went to various debits which appeared in his bank records. They involved expenditure in a range of areas which Ms Sherman described as discretionary expenses, including such things as cigarettes and tobacco, eating out, Chrisco hampers, a mobile phone, and Foxtel. Some of them had been discontinued but, on the other hand, Mr Taylor had also, between the first and second hearing dates, moved to new accommodation for which he said that he paid a higher rent. The only evidence of the amount he paid at the new premises came from his own testimony – it was not supported by any lease or other agreement or documentary evidence. Mr Taylor’s reasons for relocating to new and what he said were more expensive premises – out of the city area – despite his ongoing need for medical and other supports – were not convincing.
Mr Taylor protested on several occasions while giving evidence that he had no money. As part of one such response he said “I want to rehabilitate, in other words in the eyes of society and the community, and it just seems every time I try and do something right to move forward, I either get stabbed in the back by the government, or I get stabbed in the back by people who just say “You’re doing the wrong thing”. In response to a question from me Mr Taylor said that he regarded the recovery proceedings by the Territory as being stabbed in the back by the government. He did however concede that it would be possible by trimming some expenses to free up money to make some repayment to the Territory. He said he would be able to pay $60 per fortnight.
Two areas fall for consideration in determining Mr Taylor’s objection. They are his present capacity to make some repayment from what he receives by way of pension benefits. The second is his capacity to obtain employment in the foreseeable future and therefore make some repayment or additional repayment then.
As to the first of those considerations I am not persuaded that Mr Taylor does not have capacity to make some repayment contributions now. He accepts as much himself. He is not expected to live a life of penury but I am satisfied that with reasonable thrift and some reallocation of spending priorities he is able to afford some repayment of what has been paid by the ACT taxpayer to compensate for his crime.
As to the second of those considerations, it is not possible to predict with any confidence whether Mr Taylor will or will not be able to obtain paying employment. The onus of establishing that his financial circumstances are an appropriate basis for not confirming or varying the provisional order falls on Mr Taylor. I acknowledge that he is currently in receipt of a disability support pension but, on the basis of the evidence, I am not persuaded that will be a permanent arrangement. There is uncertainty around the timing and success of any attempt to return to paid employment, but the evidence does not persuade me that he is unlikely to do so within a reasonable period.
Having regard to all of the above I have determined that the provisional orders should be confirmed but not in their full amounts. I do not see any utility in apportioning the amount to be recovered from Mr Taylor between the two provisional orders.
The first provisional order is varied by reducing the amount to be recovered to $10,000.00. I do not confirm the second provisional order and it is discharged.
The Territory and Mr Taylor may enter into an arrangement about time for payment of the first order under s59 of the Victims of Crime (Financial Assistance) Act 1983.
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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