Abouzeid v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2022-05-27

Background

The applicant made an application for administrative review of a restitution order made on 25 November 2021 by the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $5,000, being part of the amount of victims support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).

Award of victims support to the victim

On 28 February 2017, the victim signed an application for victims support under the Act, which alleged that he was the primary victim of an act of violence in the nature of an assault, which was perpetrated by the applicant on 28 January 2016. He alleged that he suffered both physical and psychological injuries as a result of the act of violence and claimed victims support in the nature of financial assistance for immediate needs and a recognition payment.

Order for restitution

Part 5 of the Act is concerned with the recovery of victims support payments from offenders. The object of that Part is set out in s 57: The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.
The statutory scheme gives the respondent a discretion to make an order for restitution against a person convicted of a relevant offence, either after a recognition payment or financial support has been paid to a victim of that offence or following approval of such a payment (see: s 59(1) of the Act).
"Relevant offence" is defined in s 58 of the Act, as follows: Relevant offence means the following (emphasis added): (a) An offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given. (Emphasis added) (b) Any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence, (c) An offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.
A restitution order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or if more than two (2) years have passed since the later of the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under s 40(6) of the Act.
In this matter, Court documents indicate that the applicant was charged with assault occasioning actual bodily harm to the victim and that he was convicted of that offence at Sutherland Local Court on 19 February 2019 and that he was convicted and sentenced to a term of imprisonment for a term of 9 months, commencing on "19 February 2019", to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentences) Act 1999 (NSW).
However, while the restitution order asserts the date of conviction as 22 February 2017, and the applicant concedes that he was convicted "on or about 22 February 2017", the JusticeLink records contained in the s 58 documents indicate that the matter was heard by Magistrate R Prowse and the conviction was entered on 19 February 2019.
In view of the findings made by the Assessors (Client Claims) and the applicant's concessions in this matter, I am satisfied that the reference to reference to "19 February 2019" in the JusticeLink records represents a data entry error.
On 6 September 2021, the respondent made an order for restitution against the applicant in the sum of $6,900, being the full amount of victims support that was approved for the victim. A copy of the order was posted to the applicant under cover of a letter from the respondent dated 6 September 2021. I am satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.
Section 62 of the Act gives a person against whom an order for restitution is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (see s 62(3) of the Act) and the objector bears the onus of proving their case (see s 62(4) of the Act).
On 5 October 2021, the applicant signed an objection to an order for restitution. He made submissions in support of his application as follows: 1. I object to this order being made against me. 2. I make this objection prior to the specified due date of 10 October 2021. Delay by the Victim's Services Commissioner 3. The order for restitution was based upon an incident which occurred on or about 28 January 2017. 4. the order notes that the victim lodged an application on or about 13 February 2017. 5. A review of the material provided, reveals: (a) Notice of decision dated 9 May 2017 - Application for financial assistance for immediate needs (denture expenses $1,900) - granted. (b) Notice of decision dated 16 June 2017 - application for financial assistance for economic loss with respect to loss of earnings - not approved (c) Notice of decision dated 15 November 2018 - recognition payment category C $5,000 - approved 6. The Commissioner took almost 2 years to determine the application (15 November 2018). 7. Upon making the decision on 15 November 2018, the Commissioner then took almost 3 years to notify the defendant of the determination. 8. These delays have caused the defendant disadvantage in terms of obtaining documentary evidence in order to properly and fully address the order for restitution and the objection. 9. On 20 September 2021, the defendant's solicitor emailed Victims Services requesting information relating to the order for restitution. 10. On 30 September 2021, Victims Services provided the defendant's solicitor with the following: … Specific objections 11. The defendant objects to an order for restitution in respect of: (a) the application for financial assistance for immediate needs (denture expenses $1,900) which was approved by a delegate of the Commissioner on 9 May 2017; and (b) the recognition payment under category C, which was approved by a delegate of the Commissioner on 15 November 2018. Financial assistance for immediate needs (denture expenses) … 13. On 30 September 2021, Victims Services provided the defendant with a copy of the said decision. Victims Services did not provide any supporting documentation to verify and/or substantial (sic) the actual cost(s) incurred by the victim and also, for the defendant to verify that the procedure/treatment was in relation to the incident. 14. In the criminal proceedings, the officer-in-charge - Senior Constable Richard Ray provided the defence with a copy of the victim's discharge summary from Liverpool Hospital dated 28 January 2016. A copy of that document is attached to these submissions. 15. The top of page 2 notes as follows (which is relevant to the victim's claim for denture treatment): "Normal mouth opening Nil loose teeth Contusion over lower lip R/side" 16. The objective clinical evidence is that as at 28 January 2016, when the victim was examined by a doctor at Liverpool Hospital, that there was no evidence of loose teeth or dental injuries. 17. From the discharge summary, it is clear that the victim sustained injuries resulting in a sore nose with swelling and a cut lip. 18. In the criminal proceedings, it was on that basis that the defence, the prosecution and the victim agreed on the agreed facts. 19. The agreed facts were tendered on sentencing on or about 22 February 2017, and that the victim sustained actual bodily harm consisting of: (a) A sore nose, and (b) Swollen lip with small cut. 20. The defence have requested a copy of the agreed facts which were tendered on sentence, but as at the date of these submissions, none have been received. Recognition payment - Category C - based on wrong category 21. On 15 November 2018, a delegate of the Commissioner approved a recognition payment of $5,000 to the victim, which was based on a 'category C' act of violence. 22. However, the defendant was not charged and was not convicted of any of the 'Category C' acts of violence. 23. the notice of decision dated 15 November 2018 notes the following: (a) Paragraph 10 - "…court information indicated that the offender was charged with 'assault occasioning actual bodily harm' and 'common assault' in relation to the subject incident … on 22 February 2017 … the offender was convicted of the charge of 'assault occasioning actual bodily harm'… (b) Paragraph 13 - "…the medical records, considered on the balance of probabilities, indicate that the applicant suffered an 'uncomplicated nasal bone fracture' and swelling and bruising to the nose and lip, as a result of the assault… I am satisfied that the physical injury sustained by the applicant, namely the nasal bone fracture, amounts to grievous bodily harm." 24. Section 35 defines the categories of recognition payment. Extracted here are categories C and D: … 25. The following is an extract of the 'recognition payments' published on the Victim's Services website: … 26. The defendant was charged with 'assault occasioning actual bodily harm' and the backup charge of 'common assault'. The defendant was convicted of the offence of 'assault occasioning actual bodily harm'. 27. The offence of assault occasioning actual bodily harm, falls under category D of "an assault (not resulting in grievous bodily harm)", of which the recognition payment of $1,500, and not the more serious category C of assault occasioning grievous bodily harm. 28. Further, it is appropriate to examine whether he injury of "uncomplicated nasal bone fracture" and swelling and bruising to the nose and lip (as identified in the order at paragraph 13) can support a finding / decision to amount to 'grievous bodily harm'. 29. Section 3 of the Victims Rights and Support Act 2013 does not define 'grievous bodily harm'. 30. Section 4(1) of the Crimes Act 1900, defines "grievous bodily harm" as follows: "Grievous bodily harm " includes: (a) the destruction (other than in the course of a medical procedure or a termination of a pregnancy in accordance with the Abortion Law Reform Act 2019) of the foetus of a pregnant woman, whether or not the woman suffers any other harm, and (b) any permanent or serious disfiguring of the person, and (c) any grievous bodily disease (n which case a reference to the infliction of grievous bodily harm includes a reference to causing a person to contract a grievous bodily disease). 31. At common law, the words "grievous bodily harm" are given their ordinary and natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331 at [137], [160]; Swan v R [2016] NSWCCA 79 at [54]-[63]. 32. It is submitted that for 'grievous bodily harm' to be established, there must be evidence that the applicant suffered an injury which satisfies the statutory definition in the Crimes Act and/or at common law. 33. The medical evidence, indicates that the applicant suffered an "uncomplicated nasal bone fracture" and swelling and bruising to the nose and lip. 34. This evidence does not, in our submission, satisfy the statutory definition of grievous bodily harm as defined in the Crimes Act 1900 as it is not permanent nor is there serious disfiguring. 35. Similarly, the evidence does not, in our submission, satisfy the common law definition of grievous bodily harm, as expounded in the cases of Smith, Haoui and Swan (supra). 36. In our submission, the evidence of the injuries sustained by the applicant does not satisfy the statutory nor common law definition of grievous bodily harm. 37. Therefore, the decision of the delegate of the Commissioner is not sound as the evidence does not meet the statutory definition nor the nor common law definition of grievous bodily harm and should therefore be set aside and overturned. Objective assessment of the victim's injuries 38. The agreed facts, which were agreed between each of the defendant, the police and the victim, and tendered on sentencing on or about 22 February 2017, are that the victim sustained actual bodily harm consisting of: (a) a sore nose, and (b) Swollen lip with small cut. 39. An objective assessment of these injuries is that the injuries suffered by the victim are in the lower end of objective seriousness for an offence of OAABH. Category D recognition payment 40. It is conceded by the defendant, that the evidence of the injuries suffered by the applicant, does satisfy the section 35(4) category D of "an assault (not resulting in grievous bodily harm)." Therefore, the defendant would submit to an order for the payment under category D - namely an order for restitution under category D in the amount of $1,500.
On 25 November 2021, an Assessor issued a Notice of Determination of Objection under s 65 of the Act. The assessor varied the restitution order and reduced it to $5,000, by deleting the amount that was approved for financial assistance for immediate needs (dental treatment) for the victim. In response to the applicant's objections, the Assessor stated, relevantly: … 18. It is important to point out that the restitution process, carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a 'civil' process and arise from the giving of victims support. 19. Under the Act, if a person has been convicted of a relevant offence, restitution can be sought by Victims Services to recover that money from the offender. The offender may therefore be ordered to pay back all or sum of the victims support payment. 20. I have carefully considered the correspondence that Mr Abouzeid has provided in support of his objection raised to the restitution order made against him. Firstly, Mr Abouzeid objects on the basis that the restitution order was served out of time, and that as a result of the delay, he was not afforded the opportunity to properly collate evidence in response. 21. Section 59(2)(a) of the Victims Rights and Support Act 2013 states that an order cannot be made if more than 2 years have elapsed since, whatever was the later date of either the date on which the person was convicted of a relevant offence; or the expiry of time in which a claim could be made under section 40 of the Act. 22. The above provision has to be read in conjunction with section 40(6) of the Act which provides that claims may continue to be made up to a maximum of 5 years from the date the initial application is submitted. In this instance, the victim lodged the claim on 13 February 2017. In accordance with section 40, the victim has until 13 February 2022 to continue to make claims under the application. 23. Furthermore, returning to section 59(2)(a) of the Act, the final date for which an Order could legally be issued would therefore be 11 July 2024 being another two years from the initial five-year period. 24. As the Order was issued to the defendant before 13 February 2022, it was issued within the legislated time frame. 25. Secondly, Mr Abouzeid objects to approval of dentures to the victim, stating that available medical evidence does not support injury to the victim's teeth. I have carefully considered Mr Abouzeid's objection and agree to revoke this part of the restitution amount, that is, I will deduct $1,900 from the final order amount. 26. Finally, Mr Abouzeid contends that the Assessor approved the incorrect category of recognition payment to the victim in this matter. He argues that he should only be liable for a category D payment of $1,500 since he was not charged or convicted on the offence "grievous bodily harm". 27. In terms of my role in determining restitution, I am not in the position to overturn the findings of the Assessor in the original decision. Nor can the defendant ask me to 'go behind' that decision-maker's evidence or to call into question their reasoning or reliability. 28. However, the findings of the Assessor in categorising the recognition payment payable to a victim of an act of violence do not necessarily mean that strict adherence must be made to match a charge in the Crimes Act 1900 (NSW) or a similar statute with the wording of what comprises the various recognition payment categories in the Victims Rights and Support Act 2013. 29. The most important consideration for the Assessor is to appropriately approve the correct category of recognition payment to a victim based on an assessment of the violence endured and the nature and extent of the injuries sustained. In this case, the victim suffered a number of physical and psychological injuries including a nasal deformity and a "likely uncomplicated nasal bone fracture," thus not an insignificant injury. I therefore accept that the original decision was based on evidence which verifies that the nature and scope of the victim's injuries amount to grievous bodily harm. 30. Whilst I have taken into account Mr Abouzeid's submissions raised in the objection, overall, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the act, less $1,900 as discussed above at paragraph 24. 31. For the foregoing reasons, I make the following determination and issue the following notice to the defendant under section 70B of the Act: …
I note that the Assessor's order required the applicant to pay the restitution sum by 22 February 2022.
I further note that a copy of the determination of objection was served on the applicant under cover of a letter from the respondent dated 25 November 2021 and I am satisfied that this was served as required by s 65 of the Act.

Application for Administrative Review

The powers of the Tribunal upon review are set out in s 67 of the Act as follows: (1) On an administrative review, the Tribunal may: (a) confirm, vary or reverse the original decision the subject of review, and (b) make any other orders it thinks fit. (2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (3) The Tribunal may confirm a provisional order made under Section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision. (4) The Tribunal may confirm a provisional order made under section 60 if satisfied that: (a) a person against whom a provisional order has been made has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and (b) the applicant was a party to the scheme and obtained property under the scheme without giving sufficient consideration. If the Tribunal is not so satisfied, it must reverse the original decision.
On 2 February 2022, the applicant filed an application for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) in accordance with s 66 of the Act. That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection (see: s 66(2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: s 66(3)).
The application set out the following grounds: The incorrect category of recognition payment was applied by Victims Services. The Commissioner also overlooked the signed agreed facts tendered in the Local Court emailed to Victims Services.
The application also stated that the applicant was notified of the determination of the objection on 3 December 2021 and that the application was lodged late because his family was in isolation due to COVID-19.
The application came before me for a Directions hearing on 18 March 2022, when the applicant appeared in person and Mr M Ting, Victims Services, appeared for the respondent. I directed the respondent to file and serve its bundle of documents under s 58 of the ADR Act by 8 April 2022 and to file and serve its summary of legal arguments by 22 April 2022. I listed the matter for hearing on 27 May 2022 and granted both parties leave to appear by telephone.
However, on 19 April 2022, Senior Member McAteer issued an order that the applicant file and serve any evidence on which he relies on or before 15 April 2022.
At the hearing on 27 May 2022, the applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent.
I noted that the respondent had not filed any further evidence in accordance with the order made by McAteer SM on 19 April 2022.

Applicant's submissions

The applicant maintained his argument (made upon objection) that the applicant should have been approved only a category D recognition payment in the sum of $1,500. However, he also stated that he does not believe that a category C recognition payment is appropriate because that effectively categorises him "as a rapist", as most of the acts of violence described in category C are of a sexual nature, and that he feels "unfairly treated" as a result.
The applicant said that he otherwise relied on his written submissions regarding the objection.

Respondent's submissions

The respondent submitted, relevantly, that an assessor is not restricted by the terms of a charge or conviction and determines the relevant category of recognition based on the medical evidence and material before the decision maker on the balance of probabilities. This approach is consistent with the approach taken by the Tribunal in exercising its administrative review jurisdiction of decisions concerning recognition payments: BQG v Commissioner of Victims Rights [2015] NSWCATAD 63; EGM v Commissioner of Victims Rights [2020] NSWCATAD 181.
Further, while the applicant seeks to have the decisions of the assessor set aside and overturned, the Tribunal lacks jurisdiction to review approvals of victims support to the victim: Tran v Commissioner of Victims Rights [2021] NSWCATAD 43 at [36].
The respondent argued that the applicant was convicted of a relevant offence, as defined in s 58 of the Act, namely: relevant offence means any of the following - (a) an offence in respect of which an act of violence or act of modern slavery (whether or not a series of related acts) is found to have been committed, (b) an offence for or in respect of which victims support is given under this Act, (c) any other offence if an offence referred to in paragraph (a) or (b) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence.
The respondent argued that the offence for which the applicant was convicted on 22 February 2017 was a "relevant offence" as it was an offence for or in respect of which victims support was given under the Act. This is consistent with the findings in the matter of Hawker v Commissioner of Victims Rights [2017] NSWCATAD 381 and Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44. In each of those matters, the Tribunal found that the applicant was convicted of a relevant offence in circumstances where the victim was approved a category C recognition payment for an assault resulting in grievous bodily harm, and the applicant was convicted of assault occasioning actual bodily harm/common assault.
The respondent submitted that the restitution order was issued within the time permitted by s 59(2)(a) of the Act, namely 7 years from the date of the application for victims support.
The respondent argued that the applicant had not raised financial hardship as a ground for reduction of the restitution order and that the matters raised by the applicant do not warrant a further reduction in the restitution sum under s 69 of the Act.
Accordingly, the respondent argued that the correct and preferable decision is for the Tribunal to: 1. confirm the original decision under s 67(1) of the Act without variations; and 2. confirm the order for restitution under s 67(2A) in the sum of $5,000.

Applicant's submissions in reply

In reply, the applicant maintained his argument that a category D payment only should have been received.
The Tribunal noted that based on his written submissions, the medical evidence that was available to the Local Court differed to that before the Assessor when victims support was approved for the victim. I confirmed that the Tribunal has no power to look behind the approval of victims support, but in the event that it did have that power, the medical evidence that was before the assessor, which has been provided to the Tribunal on a confidential basis, supports a finding that the victim suffered grievous bodily harm as a result of the act of violence.
The applicant then made a statement to the effect - "Well I can see what order you are going to make. I want to rely on financial hardship."
The Tribunal replied to the effect that the applicant had every opportunity to raise the issue of financial hardship between 2 February 2022 (when he filed the current application) until 15 April 2022 (the last date on which McAteer SM ordered him to file and serve evidence that he relied upon) and he had not done so.
Accordingly, the Tribunal refused to grant the applicant leave to amend his application to raise financial hardship as a ground of administrative review.

Consideration

Based on a consideration of the available evidence, I am reasonably satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.
I am satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.
I am further satisfied that in approving a recognition payment for a victim in respect of an act of violence, an Assessor is not restricted to the nature of the charge/s with respect to which the perpetrator was convicted. I accept the respondent's statement (in the determination of objection) that the most important consideration for the Assessor is to appropriately approve the correct category of recognition payment based on an assessment of the violence endured and the nature and extent of the injuries sustained.
In this matter, the evidence before the Assessor indicated that the victim suffered a nasal fracture which was "likely uncomplicated", a nasal deformity and a psychological injury. On that basis, I am satisfied that the medical evidence verifies that the nature and scope of the victim's injuries amount to grievous bodily harm as defined at common law.
Accordingly, I am satisfied that the correct and preferable decision is to confirm the restitution order dated 6 September 2021 pursuant to s 67(1)(a) of the Act, and to vary the order as follows: 1. The restitution sum is reduced to $5,000 under s 67(2A) of the Act; and 2. The restitution sum is payable within 90 days of the date of this decision.

Order

Therefore, I make the following orders: 1. Pursuant to s 67(1)(a) of the Victims Rights and Support Act 2013 (NSW), the restitution order made by the respondent on 6 September 2021 is confirmed. 2. However, the restitution order is varied as follows: 1. The restitution sum is reduced to $5,000 pursuant to s 67(2A) of the Act; and 2. The restitution sum is payable within 90 days of the date of this decision.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 June 2022

Civil and Administrative Decisions Tribunal Act 2013(NSW)

Crimes (Sentencing and Procedure) Act 1999(NSW)

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