Case background

When our client was a juvenile he was charged with a number of very serious sexual offences, including Aggravated Sexual Assault, Aggravated Act of Indecency and Aggravated Indecent Assault. During these criminal proceedings our client was represented by Phillip Gibson, Accredited Criminal Law Specialist and Partner at Nyman Gibson Miralis.

Mr Gibson was able to successfully negotiate with the DPP in relation to the charges and agreed facts were prepared. Following these negotiations our client pleaded guilty to one count of Aggravated Act of Indecency, a much less serious offence, though still carrying potentially severe penalties, including lengthy imprisonment. The successful charge negotiations meant that our client was able to be sentenced in the Children’s Court, not the District Court.

On sentence our client was ultimately discharged on condition that he enter into a good behaviour bond for 12 months under the provisions of section 33(1)(a)(ii) Children (Criminal Proceedings) Act 1987 (NSW). No conviction was recorded against him. This was an excellent result and at the time our client was ecstatic not to have a conviction against his name.

 

Provisional order for restitution

Despite staying out of trouble and not coming to the attention of police again, 4 years after being sentenced our client received a Provisional Order for Restitution in the amount of $35,000. This was because the victim in the matter had lodged an application for and had been awarded $35,000 statutory compensation.

 

Notice of objection to a provisional order for restitution

Our client contacted our Accredited Criminal Law Specialist and Partner at Nyman Gibson Miralis for assistance. In accordance with section 47 of the Victim Support and Rehabilitation Act 1996 a Notice of Objection to the Provisional Order for Restitution was completed, stating the grounds of the objection on which our client intended to rely. This was filed with the Victims Compensation Tribunal within the stipulated timeframe of 28 days.

 

Matter listed for restitution hearing

The matter was listed for Restitution Hearing and our client was asked to complete an Affidavit of Financial Circumstances in case the Provisional Order was ultimately confirmed.

 

Thorough preparation

One of our solicitors took carriage of the matter. She requested a number of financial documents from the client and reviewed these closely. She then met with the client to obtain further information. She then prepared documentation relating to our client’s financial circumstances including:

  • Net monthly wage
  • Monthly expenditure
  • Assets
  • Debts

In addition to this a detailed supporting Affidavit was prepared highlighting the following relevant factors:

  • Our client’s age at the time of the offence
  • At the date of the restitution proceedings he was in his early 20’s.
  • Our client’s criminal liability was less than his two co-offenders, who were both sentenced to much more serious offences for their role in the offence
  • Our client earned approximately $640 per week
  • He lived largely week-by-week and budgeted as best as he could
  • He had no substantial assets and less than $2,500 in savings

 

Successful negotiations

Prior to the Restitution Hearing these documents were forwarded to the Tribunal, along with a formal offer to pay a reduced lump sum amount. By negotiation, the need for a Restitution Hearing was avoided and the amount of restitution was reduced significantly. Our client ultimately agreed to pay a lump sum within 28 days. The reduction achieved was by more than $30,000, which equates to a significant reduction of more than 90% off the initial amount sought.

Our client was incredibly happy. Had he been required to pay the full amount he would have started his adult life with crippling debts which would have taken him years to pay off. Instead, he was able to pay an amount which, although depleting his savings significantly, left him with no continuing debt. Given his young age at the commission of the offence, he is finally now able to put his past behind him and move forward with his life. Experience and thorough preparation were undoubtedly key factors in achieving such a good result.

 

Why you need expert advice and representation

Restitution proceedings are incredibly stressful. If a Notice of Objection is not filed within 28 days of receiving it, the Tribunal may confirm the Provisional Order for Restitution without conducting a hearing. In this case, it would have resulted in our client owing $35,000. This can be potentially devastating for anyone, but especially someone who has only just started their adult working life.

Restitution matters require the expertise of an accredited specialist in criminal law, or at least someone competent and skilled in criminal defence work. If you have received a Provisional Order for Restitution it is essential that you act fast and retain a criminal lawyer who understands the restitution process and is aware of your obligations and rights. Expertise is needed to successfully negotiate the amount of restitution sought, based on the specific circumstances of your matter. Should negotiations not be successful, you need someone who can adequately prepare and run a Restitution Hearing to challenge the validity of the compensation amount and highlight your personal and financial circumstances. We offered our client a fixed fee so that he knew precisely what his legal costs would be and gave an undertaking that should the amount of restitution not be reduced by this amount he would not have to pay any legal fees.

We have expertise in and are passionate about restitution matters. We will leave no stone unturned in the quest to reduce the amount of restitution sought, and will prepare your case thoroughly in case negotiations are not successful and a hearing takes place.

 

Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.