Australian Capital Territory v Tuita
[2017] ACTMC 7
•8 February 2017
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Australian Capital Territory v Tuita |
| Citation: | [2017] ACTMC 7 |
| Hearing Date(s): | 17 August 2016 |
| DecisionDate: | 8 February 2017 |
| Before: | Magistrate Morrison |
| Decision: | See [11] – [13] |
| 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), ss 54, 59 |
Cases Cited: | Australian Capital Territory v Shaor [2017] ACTMC 1 |
| Parties: | Australian Capital Territory (Applicant) |
| Representation: | Counsel Solicitors |
| File Number: | AP 75 of 2015 |
MAGISTRATE MORRISON:
On 15 October 2015 the Deputy Registrar of this Court made a provisional order under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) (“Current Act”) requiring Sioeli Tuita to pay the Territory the sum of $45,000.00. Mr Tuita filed a notice of objection to that order.
Mr Tuita filed two affidavits in support of his objection. There was no objection to the contents of them at the hearing. I also permitted Mr Tuita to put into evidence a letter he had written for presentation to the Court. It became Exhibit A. Mr Tuita 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.
In that decision I also dealt with the effect of the repeal of the Current Act.
Mr Tuita was at the time of hearing the objection serving a term of imprisonment for an offence of sexual intercourse without consent. His non-parole period has recently expired and it may be that he has now been released on parole. The balance term is 15 months.
The evidence establishes that the Objector has no means to pay any amount towards compensation recovery during the period of his incarceration. So much is accepted by the Territory. The submissions made by the Territory are to the effect that the Objector is a young man and that he is likely to have improved financial capacity upon his release.
The Objector’s evidence, and it is supported by that of his father, includes reference to his mother having suffered a stroke and the need for him to assist his father in care for his mother. The family’s position is a very unfortunate one, but the evidence does not go so far as to suggest that Mr Tuita would be unable to obtain employment because of the need to help his father in that role.
As to the Objector’s future prospects, as I understand the evidence, he was 19 years of age at the time of the offending and will be 21 years of age now. He was in fact completing year 12 at the time of offending and did not complete his year 12 studies. He lived at home with his parents and had employment for only a brief period of about one month in what I infer to be the capacity of an unskilled labourer. Unsurprisingly for a young man of that age he has no assets. As a matter of common sense the Objector’s employment prospects will be hampered because he did not complete year 12, by his criminal conviction and by his lack of meaningful experience in any form of employment. His employment prospects will not be assisted by the fact that an employer would be required to pay wages for a 21 year old with no experience.
The letter from Mr Tuita suggests that he is determined to better himself and to have a positive future. The current economic climate in Australia is such that a young man in Mr Tuita’s circumstances is likely to find it difficult to gain employment even without the added burden of a criminal conviction. Nevertheless there is no evidence to suggest that he is not able bodied or incapable of performing unskilled work.
Mr Tuita suggests that he would try to afford repayments of $20 per week once released from the AMC. I infer that he calculates that amount by reference to what he expects his Centrelink benefit to be.
I find that Mr Tuita has no present capacity to pay any amount towards compensation recovery and that his capacity to do so in the future is likely to be limited. I do not accept that the order should be discharged, but it should be varied to take into account my conclusion about Mr Tuita’s limited future capacity.
In the circumstances the provisional order is to be confirmed but in a lesser amount. I vary the order by reducing the amount to be recovered to $4,000.00.
I assess that as being an amount which Mr Tuita will, with reasonable effort, be capable of repaying under an arrangement with the Territory about time for payment which is envisaged in s59 of the Current Act. I do also order that the amount is not payable until such time as Mr Tuita is released from custody.
I certify that the preceding thirteen (13) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Emma Buckland
Date: 8 February 2017
0