FGD v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2022-03-25

REASONS FOR DECISION

These proceedings relate to a claim for victims support and a recognition payment lodged by the applicant known by the pseudonym FGD initially before the Commissioner of Victims Rights ("the Respondent").
The application was lodged under the provisions of the Victims Rights and Support Act 2013 (NSW) (the Act) on 21 September 2020, and alleged that she was the primary victim of domestic/family violence that was committed over a period of 6 years until 15 July 2020 at Shortland, in New South Wales, and that she suffered a psychological injury as a result. The application claimed counselling and a recognition payment.
FGD asserted that she reported the act of violence to Police on 17 July 2020 and that the offender pleaded guilty to charges arising from the act of violence in Newcastle Local Court in November 2020.

Internal review

On 21 August 2021, FGD applied for an internal review of the Assessor's decision on the following grounds: I respectfully request if this recognition payment be amended to reflect the injuries that I do have and that I have sustained. It is a mistake. Please refer to the decision (number) made on 13/8/21, in your decision you write 7. Sufficient evidence, 8. Harm did cause impact t my health and wellbeing & 9. My injuries are long-standing and long term "series of events 2015-2021". May I now get you to kindly refer to your insp decision regarding (number). You route I have been the victim of non-fatal strangulation. Twice. Once I could not breathe once I told him to make it swift which worked and he let go but the time I could not breathe, my 12 year old at the time daughter was watching. I was on the ground and he was on top of me. I do believe I have exacerbated by C6 and C7 spinal injury that is long-standing please refer to the attachments. I have Cushing Syndrome which is trademark diagnostic tool being the fatty lump between the shoulders. I have recently been told of my options and life expectancy. In a way I feel blessed to have Cushing Syndrome because visually it is undeniably indisputable concrete confirmation of the insidious day and day out stresses and physical emotional finance psychological abuse that I sustained every single day. I have hypothalmus shrinkage and I lack confidence. I have to check things recheck them multiple times it is an OCD hypervigilant issue this issues to torment me every day there's something to remind me always. My two teenage children moved out of my premises because of (name) because of the way he was treating me my Stockholm Syndrome did not see his grip that he had on me he was trying to dumb me down so that I would not have the strength to leave him and he was near successful. I am extremely fearful of people I looked down at my phone or a (illegible) to be in my purse when I am neither I am sceptical and overly vigilant I believe that everyone will hurt me or harm.
In a covering email to the respondent dated 21 August 2021, FGD stated: Please find attached form my request for an internal review along with some additional evidence. Number 7 of your decision said there is sufficient evidence, still I've attached more. Number 8 said that it has harmed my health and well-being. With this in mind I believe it is a mistake and needs to be amended at your earliest convenience please. I have attached additional evidence to show you that the effects of the last 6 years are going to be with me the rest of my life. I respectfully request category b recognition, I have isolation to extremes being theres not one single person in Australia whatsoever. I have lost more than half of my hair, my skin is scarred for the rest of my life, I've near lost my life, suicidal in the past for the first time in my life. Unlucky for the smear campaigners I have Cushing syndrome and you'd have the characteristic diagnostic feature the fatty hump between my shoulders, it is starting to wreak havoc my face I appear sad I have a droopy eye. This was not present 5 years ago the harder I tried the more eggshells this person would layout unless you ever lived through this you will never be able to imagine it. I would plan conversation he's a dictator very evil if I said anything he would start yelling so that I learn to just give up. I'm reluctant to give my opinion anywhere now. I'm reluctant to start conversations or become involved in them. I do believe this decision is a mistake well I know it is according to what you wrote in the report however I respectfully request the B category again thank you for your service. Not only do I have to contend with the rest of my life you would be aware that once they lost control over their victim they try to control what others think meaning a smear campaign ensues… and my anxiety my depression which is been knew and when I feel this fair I want to quit and my PTSD I'm always looking for danger 24-hours a day. I have realistic nightmares. Ty for your careful consideration. I made this letter form the part of the form in the reasons thank you.
I note that FGD attached copies of articles on "Cushing Syndrome" and an article - "How Does Cortisol Affect Hair?", which appear to have been sourced from the internet.
On 29 September 2021, a Senior Assessor issued a Notice of Review Decision which determined that FGD was the primary victim of an act of violence and approved a category D recognition payment in the sum of $1,500. The Senior Assessor stated, relevantly: 11. Following domestic violence incidents that occurred in September and October 2014, an Apprehended Violence Order (AVO) was made for (FGD's) protection on 1 October 2014. Final orders were confirmed and extended, the last variation extending the order for a further 12 months to March 2016. A further AVO was made for (FGD's) protection on 14 February 2014 with final orders confirmed for a further period of 12 months on 18 November 2016. The most recent AVO was made on 3 March 2019. On 6 May 2021, the order was varied for a period of two years, continuing to December 2022 (number provided). 12. the grounds of the most recent AVO describe the domestic violence as follows: (FGD) has stated that the (offender) is frequently abusive, intimidating, aggressive and controlling towards her. His behaviour would occur three to four times a week, sometimes lasting for a number of days. She referred to these as "meltdowns". During these meltdowns she would feel scared of being assaulted by (the offender). His behaviour is so aggressive towards her. he would frequently stand so close to her that as he is standing close and yelling at her that his spit would hit her in the face. The latest meltdown has lasted for about a week. (The offender) displays classic DV cycle of violence behaviour. These meltdowns would occur for three to four weeks, and then he would become remorseful without any issues of intimidating behaviour occurring. This period would last for about three weeks before his behaviour devolves again into intimidation and aggression. 13. Information from the Courts also indicates that the offender was convicted of charges, including Stalk/Intimidate intend fest physical harm etc., contravene AVO and Common Assault, relating to incidents that occurred from 2015 to 2020. On 23 December 2020, the offender was sentenced to an Intensive Correction Order for a period of 18 months (number provided)… Recognition of the trauma suffered by (FGD) 14. On review, (FGD) seeks a higher category of recognition payment and has made the following submission… 20. I note from the grounds of review that (FGD) is seeking a category B recognition payment. As indicated above, to be eligible for a recognition payment under this category, the evidence must establish that the act of violence involved sexual violence. The description of the act of violence on the application, and the evidence discussed above, do not include an allegation of sexual violence. For this reason, a recognition payment under category B cannot be approved. 21. Category C includes a recognition payment for a primary victim of assault, causing grievous bodily harm. Grievous bodily harm is really serious harm, such as causing permanent disabling, debilitation or disfiguring of the victim. This can be established through the offences apparently committed during the act of violence or through medical evidence. Where grievous bodily harm is not established, an adult primary victim of assault is eligible for a category D recognition payment. 22. The information from the Courts, previously discussed, refers to a number of charges and convictions relating to domestic violence offences. The established offences do not however include reference to grievous or actual bodily harm. For this reason, I have considered the available medical evidence to determine if grievous bodily harm is established. 23. On review, (FGD) states that she has been diagnosed with Cushing syndrome, referring to the characteristic diagnostic feature, "the fatty hump between my shoulders". I have considered the extracts from the internet regarding this condition and the photographs provided, however no medical report or certificate has been submitted confirming the diagnosis or attributing this condition to the act of violence. 24. I have also considered the photographs of bruising provided and accept that these show injuries inflicted by the offender, however this evidence is not sufficient to establish grievous bodily harm relating to physical injury. 25. (FGD) has submitted evidence of psychological injury caused by the act of violence, supported by the certificate of injury from Dr (name provided), dated 31 May 2021. (The doctor's) certificate states that (FGD) reported ongoing physical violence, including non-fatal strangulation, from 2015 to 2020. (the doctor) makes a provisional diagnosis of anxiety ad PTSD and refers to symptoms including anxiety, panic, hypervigilance, and decreased concentration. 26. This evidence clearly establishes that the act of violence caused psychological injury to (FGD), amounting to actual bodily harm. However, I do not consider that the evidence is sufficient to establish that the psychological injury is consistent with a grievous degree of harm.
I note that a copy of the Review Decision was sent to FGD by email under cover of a letter from the respondent dated 29 September 2021.
On 30 October 2021, FGD sent a further email to the respondent, as follows: I guess less is more in this "third time lucky", I would describe it appeal to your better judgment. I think you are aware I have this Buffalo hump on the back of m neck it is from quarters or poisoning from continuous copious amounts pumping through my veins it is a fight or flight hormone it is only evidenced by this visual undeniable symptom then as the Stockholm syndrome if he changes the dogs water bowl it may as well be a diamond necklace when I ring police I don't give statements etc then there is the hypothalmus shrinkage. The love bombing the dictatorship more Stockholm for you he does have aspergers it is a disability but it's not he can control this this quite narcissistic PTSD forever damaged never to get over it that pituitary Buffalo hump type thing could be a tumor that is being investigated is evidenced in my blood I reiterated this is an appeal $1500 is laughable. Please excuse my bad attitude it's taken me to pushing 50 to finally stand up for myself. These attachments will help you with more than my sentences please see attachments. 21 April 2010 file reference no (provided) the victims compensation tribunal awarded me a compensable injury one $9,000 domestic violence I've attached that you my ex-husband was a well I can't even articulate it. This relationship I have lost more I have put more in I have had more taken from me constantly sunup to sundown X husband was primarily alcohol-induced this one is as long as he's awake he's a dictator. Vale deep loud tone every conversation public embarrassing meet me shutter I have not relaxed for 16 years not once not for a day dinner and help me with your $1500. Based on file reference number (provided) dated again I reiterate 21st April 2010 compensable injury domestic violence one my ex-husband (name) what's sunup to sundown at least my ex-husband went to work sometimes and I could have a tiny bit of reprisal. Appealing to your better judgment against the attachments respectfully yours (FGD). Speaking consideration would be appreciated I'm without a car for the first time in my life I have a 20-year-old dux but to young gorgeous delinquents that require me to drive them everywhere and because they seem too much in their short lives I do not like to tell these kids no their father has let them see the heart side of life I let them see the soft, yes I do have one dux, (name) high I add! The two youngest is reliant on me now without car temporarily because their father is still a lush frail 47 year old alcoholic. Speedy is greatly appreciated I know I can receive better I'll come with these better attachments and I'm apologising for not digging them out when I made my first attempt at a semi appeal it detect now is to find them I'll show you the pile of mess but I did it for you.
On 1 November 2021, the respondent sent an email to FGD, referring to her email dated 30 October 2021 and advising that if she disagreed with the Review Decision, she could contact this Tribunal to discuss external review rights.

Application for Administrative Review

This Tribunal's powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act), which provides: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
On 30 November 2021, FGD filed the current application, which sought a review of the decision dated 29 September 2021 on the following grounds: I have been awarded a category d I have provided evidence of a category c being my PTSD anxiety depression and hypervigilance that is rife. In the decision and the review it says that I'm a well-being has been affected ad it's accepted that it is in a series I had 6 ½ years multiple occasions of same and 2 pounds of strangulation. There are many other sub side effects remnants left from this relationship. It is established both by my medical report and by the decision maker and the review officer that grievous bodily harm was ascertained therefore I have met category C I am applying for category b there was a few instances of (rest of the grounds are not visible on the application).

Directions hearing

The matter came before me for directions on 21 January 2022. FGD appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I made an anonymisation order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act). The respondent had filed s 58 documents and I directed the respondent to file and serve a summary of its legal arguments by 11 February 2022. I directed FGD to file and serve any further evidence by 11 March 2022 and listed the matter for hearing on 25 March 2022.

The hearing

The matter came before me for hearing by telephone on 25 March 2022, at which FGD appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent.
FGD did not file any further evidence, but she advised the Tribunal that she is still receiving treatment for PTSD and anxiety and that her GP prescribes her Tramadol and Lithium medication. She has also seen a counsellor under a Mental Health Plan and she has applied to the respondent, separately, for counselling. She stated that prior to the act of violence that is the subject of the application for victims support, she had not been prescribed any anti-depressant medications. She had also been hospitalised at one stage at the Mater Hospital in Newcastle, in its Mental Health Unit, where she saw a psychiatrist.

Submissions

By way of oral submissions, FGD largely repeated the matters set out in her requests to the respondent for internal review and email dated 30 October 2021.
The respondent relied upon written submissions dated 9 February 2022.
With respect to the meaning of "grievous bodily harm", the respondent cited the decision in Haoui v Regina [2008] NSWCCA 209, in which Beazley JA (as her Honour then was) stated, relevantly: 137 The trial judge informed the jury that the third element of the offence, namely, that the impact caused "grievous bodily harm" was in dispute. His Honour directed the jury to look at "the seriousness of the injury that Mr Mousselamani suffered". The trial judge correctly directed the jury as to the meaning of "grievous bodily harm" and also directed them that this was a question of fact for their determination. His Honour informed the jury that the challenge was whether the injury amounted to "grievous bodily harm" which, he explained, "simply means really serious bodily injury". No challenge is made to this direction, although the adverbial qualification of "simply", should, in my view be avoided as it might be considered to downplay the seriousness of the injury for the purposes of the section. His Honour also directed the jury that it was a question of fact for their determination as to whether the injury amounted to "grievous bodily harm". His Honour pointed out that the injury did not need to be permanent, or long lasting, or life threatening. His Honour reiterated that "grievous bodily harm" meant that the injury was "a really serious one" 138 The question whether an injury amounts to "grievous bodily harm" has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the "middle third" of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43. 139 However, there are other injuries, which although "really serious injuries", are nonetheless less severe than those to which I have just referred. The fact that the concept of "grievous bodily harm" encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim's injuries were not "the worst case of grievous bodily harm", but were far from the low end of the range of injuries amounting to "grievous bodily harm". Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was "seriously injured", that he had suffered "significant injury", and where the offence was described as involving "gratuitous cruelty": Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim's cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12. … 141 In my opinion, the jury verdict that Mr Mousselamani suffered "grievous bodily harm" was an unreasonable one. The injury that he suffered was a fracture of the cheekbone. Dr Ho explained that the orbital floor fracture was necessarily coincidental with a fracture of the cheekbone. He said that the orbital floor fracture was minimal. The eye was not damaged and was 'red' for a short period. If the fracture had not been properly treated, it would have resulted in some ongoing disability, namely, a limitation of mouth opening and there would have been some cosmetic impact. However, it would be a matter of common experience that most, if not all, bony fractures, if not appropriately treated, would have some ongoing consequence. In this case, the treatment involved the insertion of a very small titanium plate to keep the bony prominence of the cheekbone elevated. The surgery required was not complicated and the period of recuperation was short.
The respondent argued that grievous bodily harm requires the injury to be a really serious one but does not require that the injury be permanent or that the consequences of the injury are long lasting or life threatening.
The respondent cited the decisions in BXB v Commissioner for Victims Rights [2015] NSWCATAD 173, EMT v Commissioner of Victims Rights [2021] NSWCATAD 39 and CZU v Commissioner of Victims Rights [2017] NSWCATA 240, in which the Tribunal held that the psychological injuries resulting from the acts of violence did not constitute grievous bodily harm. It argued that in this matter, the Certificate of Injury dated 31 May 2021 indicated a provisional diagnosis of anxiety and PTSD with symptoms of anxiety, panic, hypervigilance and decreased concentration, but there was no evidence that FGD had been prescribed medication or had been referred to a psychiatrist for treatment.
Otherwise the respondent argued that there is no medical evidence that supports a finding that FGD's Cushing syndrome arose as a direct consequence of the act of violence.
Accordingly, the respondent argued that the correct and preferable decision is to affirm the review decision.

Act of violence

Section 23(1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act. "Act of violence" is defined in s 19(1) of the Act as follows (relevantly): (1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons: (a) that has apparently occurred in the course of the commission of an offence, and (b) that has involved violent conduct against one or more persons, and (c) that has resulted in injury or death to one or more of those persons. (2) For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person's age or mental illness or impairment…
The onus is on FGD to prove the allegation that she was the victim of domestic violence perpetrated by the alleged offender on the balance of probabilities. Based upon the evidence before me, I am satisfied on the balance of probabilities that FGD is a primary victim of an act of violence that occurred over a period of time from 2015 to 2020 and that she suffered both physical injuries and a psychological injury as a direct result.

Recognition payment

It is necessary to determine the relevant category of recognition payment that FGD is eligible to receive as a result of her injuries.
In effect, s 35(3)(c) of the Act provides that a Category C recognition payment is available in respect of an act of violence involving assault resulting in grievous bodily harm. However, "grievous bodily harm" is not defined in the Act.
I have considered all of the evidence lodged with the Tribunal, including FGD's evidence that she has been prescribed medication for her psychological injury and has been treated by a psychologist and psychiatrist. Evidence of those matters was not before the respondent when the initial decision and review decision were made and the respondent's written submissions indicate that no such treatment occurred.
The respondent has quite properly cited the decision in Haoui regarding the meaning of "grievous bodily harm". That decision was cited with approval by the Court of Criminal Appeal in Am v R [2012] NSWCCA 203, in which Johnson J stated, relevantly: 70. It is an ingredient of a s.33 offence that the offender has inflicted grievous bodily harm. Section 4(1) Crimes Act 1900 defines "grievous bodily harm" to include any permanent or serious disfiguring of the person, the destruction of a foetus and any grievous bodily disease. At common law, the words "grievous bodily harm" are given their ordinary natural meaning. "Bodily harm" needs no explanation and "grievous" simply means "really serious": R v Overall (1993) 71 A Crim R 170 at 173; Haoui v R [2008] NSWCCA 209…
I accept the respondent's submission that there is no evidence that supports a finding that the Cushing Syndrome directly resulted from the act of violence. However, based upon the evidence that is before me, including FGD's evidence regarding the nature of her psychological symptoms, their duration and the need for ongoing treatment, I am satisfied that the act of violence resulted in "really serious injury" of a psychological nature and that it therefore resulted in grievous bodily harm.
It follows that I am satisfied that FGD is eligible for a category C recognition payment in the sum of $5,000 pursuant s 35(3)(c) of the Act and cl 14(d) of the Victims Rights and Support Regulation 2019 (NSW)(the Regulation).

Section 44 considerations

Section 44(1) of the Act provides that in determining whether or not to approve the giving of victims support and in determining the amount of financial support to be given or recognition payment to be made, I am required to have regard to the following matters: (a) any behaviour (including past criminal activity), attitude or disposition of the primary victim concerned that directly or indirectly contributed to the injury or death sustained by the victim, … (d) whether the victim participated in the commission of the act of violence, encouraged another person to commit the act of violence or otherwise gave assistance to any person by whom the act of violence was committed, (e) whether the victim has failed to provide reasonable assistance to any person or body duly engaged in the investigation of the act of violence or in the arrest or prosecution of any person by whom the act of violence was committed or alleged to have been committed, (f) whether the victim failed to take reasonable steps to mitigate the extent of the injury sustained by the victim, such as seeking appropriate medical advice or treatment, as soon as practicable after the act of violence was committed, (g) such other matters as the Commissioner considers relevant.
I am satisfied that there are no factors in this matter either support a decision to not approve the giving of victims support or to reduce the amount of victims support that should be given.

Order

I make the following orders: 1. The decision of the respondent dated 29 September 2021 is set aside and I make the following decision by way of substitution: 1. FGD is a primary victim of an act of violence on the balance of probabilities for the purposes of ss 19 and 20 of the Act. 2. FGD was the victim of domestic violence resulting in grievous bodily harm and is eligible for a category C recognition payment under s 35(3)(c) of the Act and cl 14(d) of the Regulation.

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

Amendments 11 April 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 (NSW) - The numbering of the orders of the cover-sheet was amended to reflect the orders reproduced at the end of the decision. 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: 11 April 2022

Civil and Administrative Decisions Tribunal Act 2013(NSW)

At a glance

Court

Decision date

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (13)

Cited By (2)