Chairperson's Report 1999-2000 3. Restitution
 

The debtor management computer system canvassed in last year’s report is in the final stages of development and is scheduled to become operational from October 2000. It is expected that this will improve compliance with restitution orders and arrangements and will enable better control of defendant’s time to pay instalment programs and lead to an improvement in the level of recovery.

3.1 Registration of charge on land.

Amendments to the Act which commenced on 15 February 1999 have enabled the Director to apply to the Registrar General to register a restitution order in relation to property owned by the defendant (including land jointly held).

In the year under review the Director has made 7 applications for registration of restitution orders and this action has resulted in one full recovery of restitution of $68,000. Two other matters where the defendants are seeking to dispose of property are currently in the hands of the Crown Solicitor.

3.2 Restraining orders.

The same amendments introduced the ability of the Director to apply for a restraining order on the property of a person charged or convicted of an offence, which involved an act of violence, for which an award of compensation might be made. The intent of the legislation is to prevent a defendant from disposing of property to avoid subsequent payment of restitution.

Since its introduction, the Director has reviewed 54 matters referred by either the NSW Police Service or the Office of the Director of Public Prosecutions, for consideration of an application for a restraining order. Of these referrals, 32 matters have been referred to the Crown Solicitor for advice and/or action. Of these, 9 orders have been made by the Supreme Court and applications are pending in 19 other matters. The remaining 4 have been discontinued.

The consideration of 8 other matters has arisen as a result of information from police or victims in matters already before the Tribunal. In one of those matters there appeared to be a suggestion that property had been transferred under suspicious circumstances from a husband to his wife through consent orders filed with the Family Court on the “separation” of the parties. Anecdotal evidence suggested that the parties had not in fact separated. In another matter property had been transferred to a family member in consideration of $1 following a family member being charged with sexual assault. This transfer will be challenged in court.

A similar transfer of property for $1 occurred in the case of Anthony George Reid referred to in earlier reports. That case received some publicity and resulted in the amendments to the Act outlined above, empowering the Director to seek a charge on property and restraining orders.

Restitution action against Reid was concluded in March 2000 when the Tribunal handed down judgment. Reid was found to be liable for restitution in only one of the 8 matters in which awards of compensation had been made and an order for restitution was made in the sum of $10,000 notwithstanding that the awards made totalled in excess of that sum. The $10,000 was paid in full in May 2000. The decision in Reid has not been the subject of appeal by the Crown. The Supreme Court proceedings to overturn the transfer of his property was settled by consent.

The Reid decision turned on section 49 which provides that the Tribunal may confirm a provisional order made under section 46 if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. If the Tribunal is not so satisfied it must discharge the provisional order.

The effect of the Reid decision may best be explained by example:

A victim claims compensation for a series of sexual assaults, which are related acts as defined in section 5(3) and are dealt with as constituting a single act of violence (section 5[4]). An award is made for this act of violence. Subsequently, the offender, being charged with multiple counts of sexual assault, is convicted on only one count and acquitted in relation to the others. It follows, therefore, that the offender has not been convicted of an offence arising substantially from the same facts in respect of which the award was made.

In this example, the Tribunal is obliged by virtue of section 49 to discharge the provisional order.

If restitution action is desired against an offender for a proportion of the award relating to the conviction, an amendment to the Act would be required.

3.3 Country sittings.

Restitution matters have always been dealt with in Sydney. However a sitting of the Tribunal was held in Tweed Heads where an appeal under the 1996 Act and restitution matters were heard. Where country sittings are arranged for appeals, endeavours are made to list restitution matters from convenient locations at the court where the appeal is listed.

3.4 Civil Enforcements Registry.

The Registry was established in accordance with section 54 of the Act to enable the enforcement of unpaid restitution orders in the Tribunal as opposed to the Local Court.

In the year 1999/2000 1,383 unpaid orders were registered as opposed to approximately 1,000 in the previous year. Enforcement action by way of examination summons (1,393 issued); writs of execution (27 issued) and garnishee orders (6 issued) ensued.

3.4.1 Repayments by victims.

Where a victim who has been awarded compensation, recovers money from another source in respect of the same injury, expenses or losses taken into account in the award, there is an obligation on the victim to advise the Tribunal. In these cases, every endeavour is made to obtain a refund of the amount of the award. There is considerable reluctance on the part of some victims to refund the amount of the award notwithstanding the form of conditions signed when payment was accepted.