Tribunal's decision at first instance
- At para 18 of its decision, the Tribunal referred to BGF's conviction that it determined was relevant to the Restitution Order that was the subject of the Application for Administrative Review. The Tribunal found that BGF was convicted of 'two counts of assault occasioning actual bodily harm of his wife [the victim] at Lakemba at 12pm on 6 July 2008.' In relation to the statutory compensation that the victim sought, and which was awarded to her, the Tribunal stated:
19 BGF's wife made two applications for statutory compensation under the old Act. The assessor who considered them described them thus:
Application 145962 relates to a series of incidents that took place between April 2004 and the 7th July 2008. All incidents relate to domestic violence perpetrated upon the applicant by the offender at premises in Lakemba. Police and court records have been obtained for the subject period. I note the offender was convicted of assault occasioning actual bodily harm. I also note apprehended violence orders made for the applicant's protection.
Application 145797 relates to an incident that took place on the 9th September 2008. The applicant was in a park in Petersham when she was set upon by two men that were associates of the offender. The applicant was assaulted and she was threatened that worse was to come if she did not drop apprehended violence proceedings against the offender. I have read the police report concerning this incident and I also note solicitor's submissions concerning breach of an apprehended violence order.
20 The compensation assessor considered that the act of violence in September 2008 was domestic violence related. He considered that it was an attempt by BGF to intimidate his ex-wife into withdrawing domestic violence proceedings against him. As a consequence, he considered all the acts of violence to be related and treated them as such under s 5 of the old Act …
21 Based on the act of violence constituted by these related offences the compensation assessor awarded BGF compensation for domestic violence on application 145962 and dismissed the related claim on application 145797.
22 The compensation assessor's determination was appealed to the Victims Compensation Tribunal. The Tribunal set aside the determination. The Tribunal found that the two counts of assault occasioning actual bodily of which BGF was convicted constituted a series of related acts which should be treated as related acts. The Tribunal considered that included in this series were a series of alleged assaults committed during the marriage.
23 With respect to the other claim no 145762 the Tribunal found:
12. In that claim the appellant relies upon an assault which occurred on 9 September 2008. At that time the perpetrator in this matter was on bail in relation to the assault on 6 July 2008 and an interim ADVO order had been made against him. On 9 September 2008 the appellant met a counsellor in Petersham Park. The counsellor left. The appellant then went to the toilet. She was then severely assaulted by two or three men who during the assault made comments such as; "Drop the AVO against your husband, you're a slut for not wearing your hijab, go back to your husband." The police were contacted and made very extensive enquiries. They made arrangements for the appellant to be moved to a new, undisclosed location. The police were satisfied that the assault was carried out at the request and direction of the perpetrator but could not charge Him because of the lack of evidence.
13. I am satisfied that, in those circumstances, the assault by the two men established a domestic violence offence against the perpetrator as, on the balance of probabilities, I am satisfied that he could be charged as an accessory before the fact in relation to the assault.
14. The Compensation Assessor found the act of violence in this matter, based largely on assaults by the perpetrator from April 2004 to 7 July 2008, to be related to the act of violence in claim no. 145962 being the assault by the two men. Whilst I agree that the two acts of violence may be found to be related pursuant to the terms of s.5 (3) of the Act, I am satisfied that this is a matter to which s.5 (3A) applies. That section provides as follows:
…
15. In my view, the use by the perpetrator of two men to seriously assault the appellant at a time when the perpetrator was subject to charges of occasioning actual bodily harm and against whom an interim apprehended domestic violence order had been made including the mandatory order that he was not to assault the appellant does establish very serious and completely different criminal behaviour by the perpetrator which, in my view, establishes "particular circumstances" in relation to that act of violence which requires that the two acts of violence "ought not to be treated as related acts" pursuant to s.5(3A) of the Act.
16. I find the two acts of violence ought not to be treated as related acts and I proceed with the determination of this claim on that basis.
24 The Tribunal went on to find that the victim had sustained a category 2 chronic psychological/psychological disorder that is severely disabling. In the course of doing so the Tribunal made the following findings, at [27]:
27. Psychologist Somerville was of the opinion that such disorders were caused as a result of the domestic violence relied upon in this matter and also the assault on 9 September 2008. I am satisfied that, clearly, the major contributing cause of the appellant's psychological disorders was the acts constituting domestic violence inflicted upon her by the perpetrator during their marriage. I am satisfied that the psychological disorders are chronic in the sense of long term.
25 The Tribunal fixed the statutory compensation payable at $40,000, from which it deducted one-quarter on account of the victims' pre-existing mental health concerns.
- As to whether BGF had been convicted of a relevant offence, the Tribunal stated:
26 The compensation that the Commissioner seeks to recover from BGF relates to that paid to the victim with respect to the two separate and distinct claims for separate and distinct acts of violence within the meaning of s 5. BGF has been convicted of the act of violence which were included in one of those claims and for which he was convicted of two counts of assault occasioning actual bodily harm.
- However, the Tribunal found that 'BGF has not been charged or convicted of any offence relating to the events that occurred when the victim was assaulted by persons unknown in September 2008.' It stated (relevantly):
28 The statutory compensation paid to BGF was not apportioned as between those two claims. The issue that then arises is whether the compensation which the Commissioner requires restitution for is with respect to a relevant offence committed by BGF, or can include acts of violence that constitute offences he has not been convicted of?
29 The Commissioner submitted that part (c) of the definition of relevant offence in s 58 is applicable. This says relevant offence means, among other things:
(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.
30 Section 19 (4) mirrors s 5(3) of the old Act and provides -
…
31 The Commissioner said that in determining whether or not a relevant offence has been committed by BGF one should:
1) Determine the nature of the act of violence upon which the giving of support was based, with reference to all of the material before the original decision-maker, and if the act of violence consisted of invariably particular reference to the date or dates of the incidents alleged in the application and evidenced by material on file will be of assistance. Other matters may relate to any ongoing relationship between the victim and offender, the nature of the offences alleged and particularly any offences which may stand out so as to warrant a finding of being exceptional or outside of the incidents comprising the remainder of the act of violence.
2) Following identification of what the act of violence, being a series of (two or more) incidents that for any reason are considered related, consisted of, it is submitted the question becomes: Is the offence for which the applicant is convicted one that falls within the subset of offences that were accepted by the decision-maker as forming the series of related acts (as found in task 1, above)?
32 Applying that to the circumstances of BGF's case the Commissioner submitted BGF had been convicted of two of a series of related acts of violence perpetrated by him against the victim from 2004 to 2008. A finding that BGF had been convicted of one or more offence "within a series of related acts (being two or more acts that have been related for any reason by the Tribunal)" was said to lead to a compelling conclusion that a relevant offence had been committed.
33 I have considerable difficulty with this proposition. The reasoning would lead to the Commissioner being authorised to recover compensation paid to a victim from persons who have not been convicted of the offence(s) that gave rise to that payment, provided the Commissioner, or the Tribunal on review, is satisfied that the person was convicted of a related offence within the meaning of s 19 (4). In my opinion this is not what s 59 (1) authorises the Commissioner to do. It is also contrary to the stated object of part 5 of the [New Act].
34. The Commissioner's discretion under s 59 (1) [of the New Act] to make a provisional order is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of related offence makes it clear, whether or not one is considering one act of violence or a series of related acts, that the conviction has to relate to the act of violence (or series of acts of violence) concerning which payment is made. It does not allow the recovery of compensation for acts of violence that the person, from whom recovery is sought, has not been convicted of.
35 With respect to related acts it is a precondition to a provisional order being made that the Commissioner is satisfied (a) that payment to the victim has been made or approved with respect to identified and related acts of violence (b) that the person from whom recovery is sought has been convicted of an offence involving one of more of those acts.
36 This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that persons from whom recovery is sought must have been convicted of the offences arising from the acts of violence for which statutory compensation (or recognition payments) have been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to each such act of violence.
- The Tribunal discussed the VCT's decision and commented:
39 The VCT was also satisfied that the assault on the victim by two strangers in September 2008 was arranged and instigated by BGF and that BGF was an accessory to that assault. However, the VCT expressly found that that act of violence was not related to the other assaults committed by BGF. Given that finding it was not open to the Commissioner when considering making a recovery order to treat the acts of violence that the VCT had expressly found not to be related, to be related for the purposes of recovery.
40. The VCT went onto award the victim compensation with respect to both claims, with no attempt to distinguish between the compensation awarded with respect to each claim. The compensation was therefore awarded, without apportionment, with respect to:
- A series of related acts of violence that occurred between 2004 and 2008 which included two assaults that BGF had been convicted of in July 2008; and
- An unrelated act of violence involving the assault that occurred in September 2008.
It was open to the VCT to assess compensation payable with respect to each of the victim's claim separately.
- The Tribunal determined that the compensation that the Respondent sought to recover from BGF was not a payment made with respect to a relevant offence in relation to which he had been convicted. Rather, it related to a series of acts, only some of which were related acts, and that he had only been convicted with respect to 2 of those acts of violence. On that basis, it was not satisfied that BGF had been convicted of a relevant offence, or that restitution was sought for compensation paid to the victim with respect to a relevant offence.