Chenery v Commissioner of Victims Rights

Order for restitution

1. 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.
2. 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).
3. "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.
4. 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.
5. In this matter, Court documents indicate that the Applicant was charged with a number of offences in relation to his conduct towards the victim during the relevant period of time. He was charged with "common assault" in respect of the incident on 29 May 2016 and on 7 October 2016, he was convicted of common assault (domestic violence) in Newcastle Local Court. He was placed on a good behaviour bond under s 9(1) of the Crimes (Sentencing and Procedure) Act 1999 for a period of 3 years and he was ordered to attend for counselling, educational development, drug or alcohol rehabilitation and to report to Community Corrections.
6. On 15 July 2021, the Respondent made an order for restitution against the Applicant in the sum of $12,053.45, being the full amount of victims support that was approved for the victim.
7. A copy of the restitution order was posted to the Applicant under cover of a letter from the Respondent dated 15 July 2021. I am satisfied that the restitution order was served on the Applicant as required by s 61 of the Act.
8. Section 62 of the Act gives a person upon whom a restitution order 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).
9. On 28 July 2021, the Applicant sent an email to the Respondent, in which he objected to the restitution order as follows: …My objection regarding this order for restitution revolves around several issues. One being the date of the assault, the assault occurred on the 29/05/2016 but the documentation sent to me on the order for restitution states it was on the 7/10/2016, is the order based on the date of the incident or the date I was charged? I would also like to note as part of my objection that the assault that occurred was an act of violence on my behalf when I was not in sound mind, I had received diagnosis of several mental health disorders and I was affected by prescription mind altering medications and illicit drugs. To my memory the act that occurred was, I threw a plastic chair at the victim and in that there were no injuries to the victim which leads me to object to her claim of financial assistance for economic loss or immediate need. The victim and I had a very violent drug fuelled relationship and it wasn't just myself who was violent which caused me severe trauma and in my attached documentation you will see that it actually caused me to open up about this to mental health professionals. Attached are 2 reports made months on either side of this incident and in these reports it will state that I was under severe stress surrounding my relationship with the victim, drug use and mental health disorders, which caused me to be admitted to mental health facilities. In the reports you will also see that I was highly medicated with several different mind altering medications which mixed with the drugs and mental health problems did not allow me to act in a very good manner. I would also like to note that due to my extensive mental health history which even though is in a completely different place now, I am still actively seeking medical attention for, that I have been placed on a Disability Support Pension therefore paying this order for restitution is not something that is within reasonable range for me. I would also like to question as to why this has taken 3 years to be sent to me considering the payments were paid to the victim on the 23/05/2018 and I have only just received the letter on the 15/07/2021? Due to all these factors I would like to object and would appreciate for you to consider the evidence attached surrounding my objection…

Determination of objection

1. On 11 August 2021, the Respondent's delegate determined the Objection, decided that the Applicant was convicted of a relevant offence and confirmed the restitution order, which was to be paid in full by 8 November 2021. The delegate's reasons included: … The defendant was convicted of an offence 12. The Court documents indicate that the defendant was arrested and charged in relation to an incident of assault against his then partner which occurred on 29 May 2016. This incident resulted in the victim sustaining both physical and psychological injuries consistent with the offence and this was the basis for victims support being approved…
2. The Respondent's delegate noted that the Applicant was convicted of common assault (DV) on 7 October 2016 at Newcastle Local Court and was placed on a 3-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, and stated, relevantly: Grounds of objection, submissions and evidence in support 14. I have read the submissions and documents constituting the defendant's Notice of Objection. I have carefully considered the evidence, and will briefly outline the objections below: a. Mr Chenery is querying whether or not the order for restitution was issued within the relevant timeframes given the assault occurred in May 2016, several years ago. In addition, the victim received payment in May 201`8 however the restitution order was issued in July 2021. b. At the time of the assault and prior to it occurring, Mr Chenery was suffering from mental health issues and also drug use which he believes contributed to his violent conduct. c. He further alleges that both parties engaged in violent conduct towards each other during the course of their relationship. d. Mr Chenery claims that there was no injury sustained by the victim as a result of the assault and the victim should not have received victims support payment. e. As a result of extensive mental health issues, Mr Chenery is now in receipt of a disability support pension and is unable to afford payment of the amount noted in the order for restitution. 15. The defendant has submitted several documents from Hunter New England Mental Health Service to support the reasons for his objection to the order for restitution. Consideration Should the order the confirmed, either with or without variation? 16. Based on the evidence, the defendant was convicted of an offence in respect of which victims support was approved. 17. That is, the victim was approved victims support related to an act of violence occurring between 29 August 2914 and 29 May 2016. The defendant was convicted of a relevant offence as per section 58 of the Act, in that the offence for which they were convicted gave rise to an approval for victims support. The facts underlying the conviction and the facts underlying the approval of victims support involve an offence of the same nature, against the same person, at the same time, by the same offender. 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 some of the victims support payment. Order for restitution being lodged outside of time limits 20. I have carefully considered the objections raised by Mr Chenery and note that in relation to the query about the timeframe for the order of restitution being issued in relation to the criminal court conviction, it has occurred within relevant legislated timeframes. 21. Under section 59(2)(a) of the Victims Sights and Support Act 2013, an order for restitution cannot be made if more than 2 years have elapsed since, whichever was the later date of either the date on which the person was convicted of the relevant offence; or the expiry of time in which a claim could be made under section 40 of the Act (section 40(6) of the Act provides that claims may continue to be made up to a maximum of 5 yeas from the date the initial application is submitted). 22. In this instance, the victim lodged a claim on 21 October 2016. 23. In accordance with section 40, the victim had five years from the date of application to make a claim. Therefore the final date for which she could make a claim would be 20 October 2021. 24. In accordance with section 59(2)(a), the final date for which an order for restitution could be legally issued would therefore be 20 October 2023 (being another two years from the initial five year period). Given this date has yet to be reached, Mr Chenery can clearly identify that the order was issued within the timeframe related to the application lodgement and expiry, as opposed to the date of his relevant criminal conviction. Mental health and substance abuse issues for Mr Chenery 25. As mentioned, I have several documents provided by the Hunter New England Mental Health Service which are dated between April and June 2016; the same timeframe of the offence being committed. These documents confirm that Mr Chenery was diagnosed as suffering from Bipolar Disorder, Attention Deficit Disorder and Substance Abuse Disorder at the time. 26. One of the documents includes case notes from a treating practitioner which details that in June 2016, several weeks after the offence occurred, Mr Chenery was remorseful and apologetic for the domestic violence he had perpetrated against multiple previous partners. 27. It is reasonable to see that there may be a link between unmanaged mental health issues and illicit substance misuse and the violence however this does not excuse the violent behaviour committed by Mr Chenery. Mr Chenery's claim that both he and the victim displayed violent conduct 28. In relation to the allegations of the victim also displaying violent conduct, I wish to remind Mr Chenery that he was convicted in the criminal court of committing a physical assault of the victim. He had the opportunity to discuss any mitigating circumstances during the criminal court proceedings and I cannot revisit those proceedings in this decision… Mr Chenery's claim that the victim did not sustain physical injury as a result of the assault 29. Mr Chenery has also stated that the victim did not sustain physical injuries during the assault. I am unable to go behind the decision of the Assessor who determined the victim's claim however can confirm that the Assessor confirmed that both physical and psychological injury was established using evidence from relevant medical practitioners in addition to the criminal convictions of Mr Chenery. On this basis, the giving of victims support was approved. Mr Chenery's claim of financial hardship 30. I note that Mr Chenery has alleged that he has no means to pay the restitution debt. I have no evidence before me to demonstrate his current financial situation and am therefore unable to confirm he is experiencing financial hardship. 31. Overall, I am of the view that the restitution order should be confirmed under the provision of section 64 of the Act…
3. A copy of the determination of the objection was served upon the Applicant by post under cover of a letter from the Respondent dated 11 August 2021. I am satisfied that the document was properly served upon him and, while the date of positing is not indicted in the Respondent's documents, the Applicant clearly received it as he attached a copy to his current Application.

Application for Administrative Review

1. The powers of the Tribunal upon administrative review are set out in s 67 of the Act, relevantly, 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. … (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…
2. On 18 August 2021, the Tribunal received an Application for Administrative Review dated 18 August 2021, which sought review of the decision made by the Respondent's delegate on the following grounds: I am seeking review on this decision based on financial hardship and the fact I feel that my supporting documentation that I supplied to my initial objection didn't get taken into consideration. At the time of the incident stated in the restitution I was undergoing diagnosis of bipolar disorder, depression, anxiety and several other mental health illnesses. I am still undergoing regular care for these illnesses and still taking regular medications for these illnesses. My only income is a Centrelink disability support pension, I have no assets I can sell, no money left over at the end of my pay fortnight to pay any form of repayments.
3. I am satisfied that the current application was lodged within 60 days of the Applicant receiving the determination of the objection from the Respondent.
4. The matter came before me for directions on 1 October 2021. The Applicant was self-represented and Ms K Douch of victims Services appeared for the Respondent. I ordered the Applicant to file and serve any evidence upon which he relied including an Affidavit of Financial Circumstances by 19 November 2021 and I ordered the Respondent to file and serve a summary of legal arguments by 26 November 2021.
5. The matter came before me for hearing on 17 December 2021. The Applicant was self-represented and Ms Douch appeared for the Respondent. Owing to the current Covid-19 Pandemic, the hearing was conducted in a virtual hearing room.

Applicant's evidence and submissions

1. When the hearing commenced, I noted that the Applicant had not filed any further evidence in support of his application. However, Ms Douch stated that the Respondent had received an Affidavit of Financial Circumstances from the Applicant and she undertook to send it to the Tribunal urgently by way of email.
2. I subsequently received a copy of the Affidavit of Financial Circumstances from Ms Douch, which the Applicant signed on 23 November 2021. This was admitted into evidence.
3. I note that in the affidavit, the Applicant maintained that he has no capacity to pay any part of the restitution debt. He asserted that he receives $2,130 per month from Centrelink and that his liabilities also total that amount per month, comprising $600 for rent, $30 for telephone, $600 for food and groceries, $200 for fares and petrol, $70 for motor vehicle expenses and $630 for "other expenditure" (comprising $120 for medication/pharmaceutical costs, $150 for storage fees, $70 for internet fees, $60 for pet food, $80 for legal fees, $100 for physiotherapy and $50 for Nappies for a newborn child). He disclosed total savings of $273, but he did not disclose that he owns a motor vehicle with respect to which he claims motor vehicle expenses and petrol.
4. The Applicant did not attach any documentary evidence to verify his alleged liabilities and while the Tribunal attempted to clarify these liabilities with the Applicant, he proved to be generally unhelpful The Tribunal was only able to ascertain that the Applicant currently lives with his Mother, they each pay $600 per month for rent and that the "storage fees" that he pays are for items that are in his Grandmother's name. He stated that he did not lodge any evidence to verify his liabilities because he has a newborn baby with his ex-Girlfriend (for whom he buys nappies).
5. Otherwise, I note that the Applicant maintained his view that he does not consider that himself responsible for the act of violence that is the subject of the restitution debt because he was not mentally stable at the time it occurred.
6. Ms Douch relied upon written submissions filed on 26 November 2021, which provided, relevantly: 7. It is well established that the Tribunal does not have power to look behind a conviction recorded by a Court and it cannot, in the course of administrative review of a restitution order, review the Commissioner's decision to approve victims support for the victim. … The original decision and restitution order should be confirmed 10. As the applicant has been convicted of a relevant offence and the conditions set out in s 59 of the Act have been satisfied, the original decision and the restitution order should be confirmed without variation pursuant to section 67 of the Act. … Financial circumstances of the Applicant and grounds for review 19. The applicant submitted an affidavit of financial circumstances dated 23 November 2021. In that affidavit the applicant states that he is currently unemployed and earns $2130 a month (via a disability support pension). The applicant submits that his expenses currently equal his income each month. In his affidavit, the applicant has not listed any assets and notes that he has $273 in a bank account… Section 69 reduction 21. In Kabir v Commissioner of Victims Rights [2017] NSWCATAD 172, Senior Member Riordan referred to the following passage in the matter of Conner v R [2005] NSWCCA 431 at [41]: …asserted impecuniosity of an offender against whom a direction is sought… ought not ordinarily be regarded as a reason for declining to make a direction… An offender's impecuniosity may be temporary. His financial position may change though rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false… 22. In circumstances where the affidavit of financial circumstances was not before the assessor, the respondent submits that a reduction of the restitution order may be appropriate. However, it is relevant to note that the applicant's expenses may change (or be amended to facilitate payment of the restitution debt) and the applicant's financial position may change in the future (noting he is 31 years old). It is also relevant to note that information in relation to the income of the applicant's partner and/or any joint expenses (f applicable) has not been provided. 23. In consideration of the above and the size of the restitution debt, balanced against the general public interest in victims support being recovered through restitution, the Respondent submits that the restitution order should be confirmed but reduced by a maximum of 30% to take into account the applicant's current financial position. A reduction of $30% would reduce the restitution debt to $8,437.40. 24. While the affidavit of financial circumstances indicates that the applicant may not currently have capacity to pay the restitution debt in full, if the order is confirmed and the debt not received by the due date, the debt will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996. Following this transfer, the applicant can raise his financial circumstances and request a payment plan with State Revenue directly. Any such request will be considered by NSW Revenue and not Victims Services. In this regard, we note that Victims Services is unable to administer payment plans internally.
7. In oral submissions, Ms Douch stated that it would be appropriate to allow an extension of time before the Respondent refers the matter to Revenue NSW for enforcement and that time for payment should be extended until 21 June 2022.

Consideration

1. The Respondent's discretion under s 59(1) of the Act to make a restitution order is dependent on the person against whom the order is being made being convicted of a relevant offence.
2. The definition of relevant offence makes it clear that the conviction has to relate to the Act of violence concerning which payment is made. This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that the person from whom recovery is sought must have been convicted of the offence arising from the Act of violence for which statutory compensation (or a recognition payment) has 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 such acts of violence.
3. In this matter, the restitution order alleged that the Applicant was convicted of a relevant offence by the Newcastle Local Court on 7 October 2016, when he was convicted of a common assault upon the victim that occurred on 29 May 2016.
4. The decisions of Clow v Commissioner of Victims Rights [2017] NSWCATAD 40, Xiang v Commissioner of Victims Rights [2017] NSWCATAD 316 and Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172 are authority for the proposition that this Tribunal has no power to look behind the conviction in determining an administrative review of a restitution order.
5. Based upon the available evidence, and the findings made by Newcastle Local Court on 7 October 2016 in particular, I am satisfied that the Applicant was convicted of a relevant offence for the purposes of s 59(1) of the Act. This Tribunal has no power to look behind that conviction.
6. While the Applicant submitted to the effect that the victim was not eligible for victims support because she did not suffer any injury, the Tribunal lacks jurisdiction to review the Respondent's decision to approve victims support for the victim.
7. While I note the Applicant's argument to the effect that he was suffering from mental health issues and illicit drug use, which contributed to his violent conduct towards the victim and that both he and the victim engaged in violent conduct towards each other, those matters are not relevant to the determination of the current application.
8. While the Applicant clearly feels aggrieved by the Respondent's decisions to approve victims support for the victim, and he asserts that he has no capacity to pay any part of the restitution debt, there is no evidence before me that verifies his current alleged liabilities. I regard it as significant that while the Applicant asserted that he has no assets that he could sell in order to meet payment of the restitution debt, he claimed motor vehicle expenses of $70 per month and $200 per month for fares and petrol, while not disclosing that he owns any motor vehicle in his affidavit of financial circumstances.
9. While I accept that the Applicant currently receives a disability support pension from Centrelink, for the reasons discussed above I am not satisfied that he currently has no capacity to meet payment of the restitution order.
10. Nevertheless, the Respondent has submitted that a reduction of 30% should be made to allow for the Applicant's current financial circumstances and while Ms Douch did not provide any specific reasons for that submission during the hearing, given the fact that the Applicant is currently receiving Centrelink benefits, I am satisfied that such a reduction is appropriate in the circumstances of the matter. Accordingly, I reduce the restitution debt to $8,437.40.

Order

1. I make the following orders: 1. Pursuant to s 67(1) of the Act, I confirm the original decision dated 16 July 2021. 2. Pursuant to s 67(2A) of the Act, I confirm the restitution order. 3. However, I reduce the amount payable under the restitution order to $8,347.40 pursuant to s 69 of the Act and I extend the time for payment to 21 June 2022.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 05 January 2022