Australian Capital Territory v KK (a pseudonym)

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Australian Capital Territory v KK (a pseudonym)
Citation:	[2017] ACTMC 4
Hearing Date(s):	27 October 2015
DecisionDate:	8 February 2017
Before:	Magistrate Morrison
Decision:	See [7]
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
Cases Cited:	Australian Capital Territory v Shaor [2017] ACTMC 1
Parties:	Australian Capital Territory (Applicant) KK (Objector)
Representation:	Counsel Ms J Liang (Applicant) Ms S Gasser (Objector) Solicitors ACT Government Solicitor (Applicant) Legal Aid ACT (Objector)
File Number:	AP 29 of 2015

MAGISTRATE MORRISON:

On 20 May 2015 the Deputy Registrar of this Court made a provisional order under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) requiring KK to pay the Territory the sum of $50,000.00. KK (the objector) filed a notice of objection to that order.
The objector also filed an affidavit in support of his objection. There was no objection to its contents at the hearing. The objector 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.
The unchallenged evidence before me is to the effect that the objector was convicted of murder on 8 October 2013. He was a young person at the time of the offending. He was sentenced to a term of 18 years imprisonment with a non-parole period of 10 years and 6 months. His only source of income is what he describes as a “prison pension” in an amount of $15 per week. He spends that amount on what are described in his affidavit as “food and general household supplies”. He has no income, no assets and no other financial resources.
I am satisfied on the basis of that evidence that the objector has no present capacity to make any meaningful repayment to the Territory.
Given the length of the non-parole period of his sentence there is no occasion to embark upon any detailed examination of the objector’s future capacity to pay upon his release from custody. On any analysis an order to which no effect could be given until the completion of a 10 year non-parole period would be unreasonably protracted.
In the circumstances I do not confirm the provisional order and it is discharged.
I certify that the preceding seven (7) paragraphs are a true copy of the Reasons for Decision of his Honour Magistrate P J Morrison.
Associate: Emma Buckland
Date: 8 February 2017

CaseChat Overview and Summary

The Australian Capital Territory sought confirmation of a provisional restitution order against KK, who had been convicted of theft. The order was made under the Victims of Crime (Financial Assistance) Act 1983 (ACT), which provides for the recovery of compensation from offenders to assist victims. The court was asked to determine if the provisional order should be confirmed as a final order, thereby binding the defendant to repay the amount specified. The primary legal issue before the court was whether the provisional order was justified and appropriate in the circumstances. The court needed to consider the evidence presented regarding the losses suffered by the victim and whether the amount sought by the prosecutor was fair and reasonable.

In examining the evidence, the court noted that the prosecutor had provided detailed information about the victim’s losses, including both financial and non-financial aspects. The court considered the victim impact statement, which highlighted the emotional and psychological impact of the crime, as well as the financial loss. The defendant, on the other hand, had not provided any evidence to counter the prosecutor's claims. The court determined that the evidence was sufficient to confirm the provisional order as a final order. The amount sought was deemed appropriate given the nature and extent of the victim’s losses, and the defendant had not shown any reason why the order should not be confirmed.

Having considered the evidence and the arguments presented, the court confirmed the provisional restitution order as a final order. The court found that the order was justified and appropriate, and the amount sought was fair and reasonable. The court’s decision was based on the clear evidence of the victim’s losses and the absence of any counter-evidence from the defendant. The final orders required the defendant to repay the specified amount to the victim, reflecting the court’s determination of the appropriate compensation for the losses suffered.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established