FYF v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2023-12-08|Before: Cavanagh J

Background

These proceedings relate to an application for victims support in the form of counselling and a recognition payment lodged by the applicant known by the pseudonym FYF 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 26 March 2020. FYF alleged that she was a family victim of an act of violence in the nature of a homicide that occurred at Cartwright, in New South Wales, on 17 December 2019. The primary victim was FYF's mother.
I note that the incident was reported to Police and that the alleged offender was charged with murder, but that he was ultimately acquitted of that charge.

Decision at First Instance

On 1 March 2023, an Assessor (Client Claims) issued a Notice of Decision in relation to the application for victims support and determined that FYF was not eligible for a recognition payment as s 44(1) of the Act applied to the act of violence. The application was therefore dismissed.
The Assessor stated, relevantly: 10. As a result of that investigation the alleged offender was charged with (the primary victim's) murder. The criminal actions of the alleged offender have now been concluded by the NSW Supreme Court. That matter can be found under case citation R v Russell [2023] NSWSC 90, which was heard before HH Justice Cavanagh on dates 29 July 2022 and 15 December 2022, respectively. The judgment dated 15 February 2023 confirms that on 19 December 2019, the offender "ER" was charged with the double murder of Mr Damien Leigh Roach and (the primary victim). 11. In relation to those charges, the offender entered pleas of not guilty to both counts of murder. On 6 May 2022, the jury returned a verdict of not guilty of murder but guilty of manslaughter in respect of Mr Roach, and not guilty in respect of (the primary victim). The only basis on which the jury could have reached those verdicts is that the jury was satisfied that:

Internal Review

On 26 May 2023, Legal Aid NSW submitted a request for internal review to the respondent on behalf of FYF.
On 31 May 2023, Legal Aid NSW made submissions to the respondent in support of the request for internal review, including the following: 2. (the primary victim's) childhood 2.1 (FYF's) father (name provided) tells me that (the primary victim) had a very difficult childhood. He tells me that: 2.1.1 (The primary victim) was subjected to severe physical abuse during her childhood. At times she suffered broken bones from being assaulted by her mother. She also suffered emotional abuse from her mother, apparently being threatened with violence, disengagement and abandonment. 2.1.2 Her mother had significant drug and alcohol issues throughout the pregnancy and following the birth of (the primary victim). It is presumed that (the primary victim) had Foetal Alcohol Spectrum Syndrome (FASD). 2.1.3 (The primary victim) was removed from her mother at any early age and lived with her grandmother. She was displaced from her extended family and suffered significant loss of her Aboriginal culture. 2.1.4 (The primary victim) had a very disrupted schooling. She did not attend school regularly and upon leaving school was unable to obtain any work and was reliant on Centrelink benefits. 2.1.5 When (the primary victim) met (FYF's father), they began to live a stable life raising their child (FYF). However, (the primary victim) continued to struggle with issues from her childhood which placed a strain on their relationship. At the time of her death (the primary victim) and (FYF's father) had reconciled and were baring for both (FYF) and (FYF's sister). 3. Bugmy Bar Book 3.1 The impact of (the primary victim's) childhood is a relevant consideration into the events preceding her death. The Bugmy Bar Book is used by legal practitioners to highlight the impacts of experience of disadvantage of Aboriginal people. For (the primary victim), the following are relevant considerations: 3.1.1 Childhood exposure to Domestic and Family Violence The cumulative effects of long-term exposure to violence might result in an inability to regulate emotion, and cognitive and behavioural developmental delays. 3.1.2 Fetal (sic) Alcohol Spectrum Disorders Brain damage from prenatal exposure to alcohol can increase involvement in criminal activity due to the following characteristics of FASD: - lack of impulse control; - trouble identifying future consequences of current behaviour; - difficulty planning and connecting case (sic) and effect; Difficulty empathising with others and taking responsibility for actions; - difficulty relaying gratification of making good judgments; - a tendency towards explosive episodes; and - vulnerability to social influences such as peer pressure. 3.1.3 Interrupted School Attendance and Suspension - Interrupting a student's schooling can lead to lowered educational and employment outcomes. Diminished educational outcomes are a predictor for future contact with the criminal justice system. - Low educational engagement (both a symptom and a cause of suspension) has been linked to poor health and wellbeing outcomes. - Exclusion from the supervisory context of a school can reinforce existing feelings of marginalisation, particularly in students who are already experiencing challenges at school due to other underlying issues. 3.1.4 Cultural Dispossession Experienced by Aboriginal and Torres Strait Islander Peoples - Cultural dispossession should be understood within the context of while colonial-settler history. The colonial experience in Australia has impacted Aboriginal culture, in particular 'language, land, resources, political autonomy, religious freedom and, often, personal autonomy' that may have a direct and adverse impact on Aboriginal people's health, as well as social and economic wellbeing.
Legal Aid NSW argued that the respondent should not just look at the jury's finding and that the Court observed that there was a substantial dispute between the parties regarding the circumstances in which the offender stabbed Mr Roach, which led to uncertainty as to the exact sequence of events that led to the deaths. The judgment also indicates that (the primary victim) witnessed the offender stab her friend (Mr Roach) and saw him bleeding from multiple stab wounds. She also saw the offender holding the weapon and she then picked up a weapon of opportunity and attempted to attack the offender. When she reacted, the offender quickly killed her. They also stated: 4.5 (the primary victim) was confronted by a person who had just killed Mr Roach and was then approaching her with the same knife that had killed her partner. In the decision at 41, it was stated that "it is perhaps difficult to reconcile the differing verdicts in response of (the primary victim) and Mr Roach in circumstances which, on the Crown case, they were both stabbed by the offender". In his Honour's judgment, it is apparent that the verdicts had an appearance of unexpectedness, with some uncertainty as to why in an event such as this, two different verdicts were found… 5.3 Her actions may have contributed to her death, but it cannot reasonably, on the facts of the case, be held that her death was solely caused by her own actions. Indeed, it is arguable that it was the actions of the defendant in killing Mr Roach that led directly to the death of (the primary victim). It is in this context that the defendant was found not guilty by way of self-defence. For the Commissioner to not take regard of all of the circumstances is to not take in all the facts of the case. 5.4 Whilst the Commissioner must have regard to the behaviour of the primary victim, that does not mandate a refusal of the application. It is important that the Commissioner weighs up all the available evidence, and not just relying on the decision. Even if the Commissioner found that (the primary victim) and the defendant contributed equally to the act of violence, this does not justify the decision to decline any recognition payment. When looking at the outcome, (the primary victim) was killed, whilst it appears as though the defendant did not suffer any injuries as he disarmed her before she could hurt him…
Legal Aid NSW argued that s 44(1) of the Act does not state that if there are contributing factors, then an award must not be given. Rather, it states that the application may be refused or that the amount of victims support that is approved may be reduced. In this matter, the contributing factors are not sufficient to deny any approval of victims support.
Legal Aid NSW also argued that the Act is beneficial legislation and that it should be interpreted beneficially.
On 14 July 2023, a Senior Assessor issued a Notice of Review decision, which found that FYF was a family victim of an act of violence. However, a recognition payment was not approved by reason of s 44(1) of the Act.
I note that the respondent emailed a copy of the Review Decision to Legal Aid NSW on 14 July 2023. I am therefore satisfied that the decision was served in accordance with the requirements of the Act.

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.
11 August 2023 (I note that the date received stamp incorrectly states "2022"), the Tribunal received the current application for administrative review, which sought a review of the Senior Assessor's decision dated 14 July 2023 on the following grounds: (FYF) is eligible for a category A recognition payment on the basis that (the primary victim)'s actions did not entirely cause her death; and that consideration should be given to (her) childhood, attitude and disposition.
On 1 September 2023, Senior Member McAteer conducted a directions hearing. Ms Cavanagh appeared for the applicant and Ms P Srikanth appeared for the respondent. The Senior Member made an order under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), prohibiting the publication or broadcast of FYF's name. He ordered the respondent to file and serve documents under s 58 of the ADR Act by 22 September 2023. He directed the applicant to file and serve evidence and submissions by 13 October 2023 and the respondent to respond by 27 October 2023. He granted leave to the respondent to issue a summons to the Commissioner of Police. He ordered that this matter be heard with two other matters (2023/00256029 and 2023/00256070). He listed the matter for an in-person hearing on 10 November 2023.
However, on 9 November 2023, Senior Member Mulvey amended the timetable and he vacated the hearing on 10 November 2023. Instead, he listed the matter for hearing on 8 December 2023.
On 7 December 2023, Principal Member Simon granted the parties to appear at the hearing by way of AVL.

The Hearing

The matter came before me for hearing on 8 December 2023. Ms Cavanagh appeared for FYF and Mr M Ting, Victims Services, appeared for the respondent.
Both parties had filed written submissions, which I have summarised as follows:

Applicant's submissions

Ms Cavanagh argued to the effect that the respondent should have regard to all of the facts of the case (the criminal proceedings) and that the primary victim's contribution to her death was her action of picking up an axe and launching at the offender. However, this did not occur in isolation and she had just witnessed the killing of Mr Roach and was confronted with a scene of extreme violence. In any event, the Supreme Court did not find that the primary victim's death was solely caused by her own actions.
Ms Cavanagh relied upon the decision in CVP v Commissioner of Victims Rights [2017] NSWCATAD 90 (CVP), in which the Tribunal found that the Senior Assessor erred in determining issues under s 44(1) based upon a comparison of the injuries suffered by CVP and the alleged perpetrator: It is fortunate that CVP did not suffer any significant injuries as a result of the assault, but he failed to understand how the degree of injury suffered is relevant to the determination of whether there (sic) any of the matters set out in s 44 of the Act exist, and if so, the impact of their existence upon the application for victims support. Even if the Senior Assessor's decision that CVP and the alleged perpetrator had contributed equally to the act of violence, in my view this did not justify the decision to decline to approve any award of victims support on behalf of CVP.
Further, in Victims Compensation Fund Corp v Lynch [2012] NSWCA 273 (Lynch), the Court of Appeal considered whether the applicant who had engaged in criminal activity and directly or indirectly contributed to the injury, should be entitled to a victims support payment. At [26] Meagher JA held: In the language of s 30(1)(a) the relevant connection is that the behaviour "directly or indirectly contributed to the injury". What is required is a causal connection. The use of "contributed" indicates that the behaviour does not have to be the only or a principal cause of the injury. The requirement that the behaviour "directly or indirectly" contribute means that it does not have to operate directly to produce the injury, but may be involved at some earlier point in the chain of causation. Whether there is such a causal connection obviously depends upon the circumstances of each case.
After adopting the submissions made by Legal Aid NSW, Ms Cavanagh concluded to the effect that the primary victim's behaviour does not mandate a refusal to approve victims support.

Respondent's submissions

The respondent filed written submissions on 6 December 2023. After setting out the relevant provisions of the Act, the respondent addressed s 44(1) of the Act as follows: 21. In considering the circumstances of this matter, it is relevant to note: (a) ER was found not guilty of murder as he was acting in self-defence; (b) (The primary victim) had high levels of methylamphetamine in her system which may have suggested she was a regular user of the drug and may have been behaving erratically at the time of the events leading to their deaths; (c) (The primary victim) did not live in the unit block where the act of violence occurred but had gone there with Mr Roach armed with a rake and axe or hatchet to see Mr Hargraves and perhaps collect money from him, possibly in respect of a drug debt; (d) ER lived within the unit block and was approached by Mr Roach in his unit to make enquiries as to the location of Mr Hargraves. During this interaction, Mr Roach struck ER; (e) Mr Roach later returned and confronted ER within his own apartment armed with a hatchet. ER was in the bathroom attending to the wound inflicted upon him by Mr Roach and armed himself with a knife. ER observed Mr Roach holding a hatchet in one hand and a rake in the other and believing that he needed to defend himself, he hit Mr Roach with four quick blows, all whilst holding a knife in his hand; (f) ER followed Mr Roach down the stairs at which time he came in contact with (the primary victim); (g) (The primary victim) picked up the axe and came at ER, as she was reaching for the perpetrator with the axe, she was stabbed by the perpetrator. The perpetrator have evidence that this was pure reflex.
Section 44(1) of the Act reflects the former s 30(1) of the now repealed Victims Support and Rehabilitation Act 1996 (NSW) (the Old Act), which was considered by the Court of Appeal in Lynch.
The respondent also referred to the decision of the High Court in Victims Compensation Fund Corporation v Brown [2003] HCA 45, as authority for the proposition that while the Act is beneficial legislation, it does not follow that the payment of victims support is contemplated for every act of violence.
The respondent concluded that the correct and preferable decision is to affirm the decision of the Senior Assessor.

Relevant legislation

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.
Section 20(1) of the Act defines "primary victim" as follows: A primary victim of an act of violence or act of modern slavery is a person who is injured, or dies, as a direct result of that act…
Section 22 of the Act defines "family victim" as follows: (1) A family victim of an act of violence is a person who is, at the time that act is committed, a member of the immediate family of a primary victim of that act who has died as a direct result of that act. (2) It is immaterial whether or not the person suffers an injury in connection with the act of violence or death. (3) A member of the immediate family of a primary victim is - (a) the victim's spouse, or (b) the victim's de facto partner who has cohabited with the victim for at least 2 years, or (c) a parent, guardian or step-parent of the victim, or (d) a child or step-child of the victim or some other child of whom the victim is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim. Note - "De facto partner" is defined in section 21C of the Interpretation Act 1987.
Section 29(3) of the Act provides: Composition of support - family victims … (3) In addition, if a recognition payment is payable under this Part in respect of the relevant act of violence, each family member who is a parent, step-parent or guardian or a dependent family member is eligible to be given that recognition payment. (4) A family victim is a dependent family member for the purposes of this section if - (a) the person was financially dependent on the primary victim at the relevant time, or (b) the person is a child of the primary victim born after the death of the victim where, had the child been born in the victim's lifetime, the child would have been a financially dependent family member of the victim by virtue of paragraph (a).
Section 36 of the Act provides, relevantly: Recognition payments (1) Recognition payments are payable as follows - (a) a category A recognition payment of an amount prescribed by the regulations is payable - (i) to each family victim (other than a child referred to in subparagraph (ii)) who, immediately before the death of a primary victim as a result of an act of violence or act of modern slavery described in section 35 (1), was financially dependent on the primary victim, and (ii) to each child of a primary victim who, immediately before the death of the primary victim as a result of an act of violence or act of modern slavery described in section 35 (1), was under the age of 18 years, (b) a category A recognition payment of an amount prescribed by the regulations is payable to the following who were not, immediately before the death of the primary victim concerned, financially dependent on a primary victim who died as a result of an act of violence or act of modern slavery described in section 35 (1) - (i) a parent, step-parent or guardian of the primary victim, (ii) any person who, immediately before the death of the primary victim, was the victim's spouse or de facto partner as referred to in section 22 (3) (b),…
Clause 14 of the Victims Rights and Support Regulation 2019 (NSW) (the Regulation) provides, relevantly: Recognition payments The following are the prescribed amounts of recognition payment for the purposes of section 36 of the Act - (a) for a category A recognition payment referred to in section 36(1)(a) of the Act - $15,000, (b) for a category A recognition payment referred to in section 36(1)(b) of the Act - $7,500, …
Section 44 of the Act provides, relevantly: Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment (1) 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, the Commissioner must have regard to the following - (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, (b), (c) (Repealed) (d) whether the victim participated in the commission of the act of violence or act of modern slavery, encouraged another person to commit the act of violence or act of modern slavery or otherwise gave assistance to any person by whom the act of violence or act of modern slavery 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 act of modern slavery or in the arrest or prosecution of any person by whom the act of violence or act of modern slavery 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 or act of modern slavery was committed, (g) such other matters as the Commissioner considers relevant.
I am satisfied on the evidence before me that the deceased was the primary victim of an act of violence that occurred on 17 February 2019, which resulted in her death.
It follows that I am satisfied that FYF is a family victim as defined by s 22(1)(a) as she is a child of the deceased primary victim.
Therefore, subject to consideration of relevant factors under s 44(1) of the Act, FYF is eligible for a category A recognition payment under s 36(1)(a)(i) of the Act. Clause 14(a) of the Regulation provides for a recognition payment in the sum of $15,000.

Section 44 of the Act

The evidence before me clearly indicates that the primary victim's actions directly and/or indirectly contributed to her death. It is therefore necessary to consider whether the terms of s 44(1) of the Act support a decision to either refuse to approve victims support or to reduce the amount of victims support that is approved.
In my view, the facts of this matter do not justify a decision to refuse to approve any recognition payment for FYF. However, they do support a decision to reduce the amount of the recognition payment that is approved, because they support a finding that the primary victim's behaviour in accompanying Mr Roche to the scene of the act of violence, and her reaction to his violent death (arming herself with an axe and launching herself at the offender) contributed both directly and indirectly to her death.
In the exercise of my discretion, I consider that it is appropriate to reduce the amount of the recognition payment for which FYF is otherwise eligible by 60% pursuant to s 44(1) of the Act.
Accordingly, the correct and preferable decision is to set aside the decision of the Senior Assessor dated 14 July 2023 pursuant to s 63(3)(c) of the Act and to make the following decision in substitution: 1. FYF is eligible for a category A recognition payment. 2. The amount of the recognition payment is reduced by 60% pursuant to s 44 of the Act; 3. A recognition payment of $6,000 is approved.

Orders

I make the following orders: 1. The decision of the Senior Assessor dated 14 July 2023 is set aside. 2. I approve a recognition payment in the sum of $6,000.

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: 08 January 2024

Victims Support and Rehabilitation Act 1996(NSW)

At a glance

Court

Decision date

Before

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (5)