GFI v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2024-05-10

Background

These proceedings relate to an application for victims support under the Victims Rights and Support Act 2013 (NSW) (the Act) in the form of a recognition payment and financial assistance lodged by the applicant, who is known by the pseudonym "GFI", initially before the Commissioner of Victims Rights ("the respondent"). The application was lodged on 25 August 2023.
The applicant alleged that she was the victim of an act of violence in the nature of sexual touching that occurred over a period of time from 1 July 2023 to 23 July 2023 at Wollongong in New South Wales, as follows: The first instance was just a DoorDash driver being creepy coming to my house after dropping off my order 20 mins later and trying to hug me. The second offence the same delivery driver dropped my stuff off and called up a second time again saying something was forgotten and he come to my door and asked me for water. I asked him to wait there and I would get some. I turned around and he was in my house walking around and handled a knife on my bench and grabbed my boobs and butt and tried to take my jacket off and zipped it down leaving me exposed and refused to get out of my house and kept trying to get in my pants and was saying he wanted to make magic (his words) with me and he only left once my dog started getting aggressive as I was crying to begging him to leave, he waited outside my door for a while and watched me from the window without me realising and then left 10 minutes later after standing there and I realised he was watching me from the window in the foyer that looks into my apartment.
The applicant alleged that she suffered both physical and psychological injuries as a result of the act of violence and that the matters were reported to Police.

Internal review

On 19 September 2023, GFI applied for an internal review of the Assessor's decision on the grounds that she provided Police with more details and the perpetrator was being charged with sexual assault. She requested a category C recognition payment. She requested reconsideration of her claim for financial assistance for immediate needs and stated that she had lost her employment due to the stress of this incident.
On 2 January 2024, a Senior Assessor issued a Notice of Review Decision under the Act, which affirmed a decision to award a category D recognition payment in the sum of $1,500. The Senior Assessor stated, relevantly: What category of recognition payment is applicable to (GFI) in relation to this claim? 15. Given that this claim relates to sexual violence that includes sexual touching there are two relevant categories of recognition payment which may apply. The highest category relates to an incident of sexual touching that is one of a series of related acts (Category B in the amount of $10,000). The other category for a single incident of sexual touching or a sexual act (category D payment in the amount of $1,500). 16. Whilst the offender of the violence has been charged with two counts of sexually tough another person without consent, these both occurred in the course of the same incident in which the offender was at the residence of (CFI's) residence. I have no information before me to indicate that they should be considered as separate incidents and therefore would be a series of related acts. 17. Furthermore, I do not have information to indicate that the violence perpetrated against (GFI) would be considered to be a sexual assault. An addition statement has been provided in support of the formal statements being made by (CFI) to Police on 16 October 2023 however the disclosure of the behaviour of the offender in touching her breasts and buttocks are both to be considered as sexual touching. 18. The other reasons which may allow me to elevate a recognition payment category for sexually based violence relate specifically to sexual violence towards a child or a sexual assault as opposed to an incident of sexual touching.
I note that a copy of this Notice of Decision was emailed to GFI under cover of a letter from the respondent dated 2 January 2024. I am therefore satisfied that the decision was served as required by 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.
On 2 February 2024, GFI filed the current application for administrative review, which sought a review of the respondent's decision on the following grounds: I believe I fall in a category above what I was deemed by VS. Legal Aid handled the review but they failed to provide what I asked them to so the original decision was upheld. I would like the opportunity to provide my further evidence and statements.
The matter came before Senior Member McAteer for directions on 1 March 2024. The applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member made a non-publication order regarding the name of the applicant under s 64(1)(a) of the Civil and Administrative tribunal Act 2013 (NSW) (the NCAT Act). He extended to time for filing the current application to the date it was filed under s 41 of the NCAT Act; he ordered the respondent to file and serve documents under s 58 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) by 7 March 2024; he ordered the applicant to file and serve any further evidence by 5 April 2024; and he ordered the respondent to file and serve written submissions by 9 April 2024. He listed the mater for hearing on 10 May 2024.

The hearing

The matter came before me for hearing on 10 May 2024. The applicant appeared in person and Ms Douch appeared for the respondent.

Applicant's case

On 9 May 2024, the applicant sent an email to the Tribunal and the respondent, which was in the following terms: Hi I would like to appear via video link, we have a funeral tomorrow that we need to attend so attending via video link would be helpful and I have also attached my personal statement I spoke to someone on the phone who advised I would just need to email you guys a copy of my personal statement using tomorrow and also post which I have done. Please find below. My name is (GFI) and in July last year a delivery driver entered my home uninvited and sexually assaulted me using a knife to threaten me, unprovoked. I would like you to know that this has been written in the final hour, as having to relive this by putting it in writing has been very emotional for me. Now I don't want to call this my statement but I will call it my story. My story has very deeply traumatised me and still to this day affects me in many aspects of my life. I have sought out counselling and other methods of coping and trying to move past the events that occurred, however it haunts me every single day. The impact of the violent sexual assault perpetrated against me by this stranger is profound and enduring. The trauma inflicted upon me has shattered my sense of security, leaving me in a constant state of fear and vulnerability. The violation of my body and autonomy has left scars that extend far beyond the physical realm, infiltrating every aspect of my being. Every day is a battle to navigate the overwhelming emotions of pain, anger, and profound betrayal. The memories of that horrific experience haunt my every moment, invading my whole life. The aftermath of the assault has robbed me of my sense of self-worth and trust in others, leaving me struggling to rebuild a shattered sense of identity. The simplest tasks now feel like insurmountable challenges, as I grapple with overwhelming anxiety and very dark and lonely depression. I cannot walk alone without looking over my shoulder, I get anxiety going to do simple tasks and I unfortunately do not remember what it is like to feel safe in a room where I am not complete me. I find myself always making sure I know my exit strategies before I enter anywhere unfamiliar and I always try to have my back against a wall. I isolated myself for a very long time after the incident because I couldn't bring myself to trust anyone and I am still struggling with this and it is very lonely and depressing. When this sexual assault happened I had just got the job of a lifetime, offering great opportunities with a fantastic income. I was so excited about it and it was everything I had been waiting for. The job was in Sydney which required me to be in the city a couple of days a week and also on site in stores that were in major shopping centres regularly as well, due to the trauma and deep fear instilled in me by this disgusting act I was unable to focus on my new job and I was unable to continue because I couldn't travel alone on the train, I couldn't walk through a shopping centre and be mentally present. I couldn't function properly mentally which impacted my physical health which led to me losing this opportunity. I was then forced to live in the place this occurred and struggle to make ends meet which added an extra layer of stress and anxiety as a direct result of the sexual assault I experienced. I have recently been able to move back to my family home which has given me some security however as I have had to do this it has taken my independence. I would like to mention that this man had not once but twice made an attempt to come back to my house and whilst the first time was a sexual touching experience he still came to my home after delivering my order and hugged me but the second time was nothing short of a violent sexual assault and the following are the events that occurred on this day that I will never forget… The man delivered my order and 20 minutes go by and he once again comes back and tells me he forgot to give me something. I take him at his word and at my door he starts panting like a dog saying he needs water, being the kind human being I am I say okay you wait right here and I will go and grab you a glass of water I turn my back walk to my kitchen grab a glass fill it with water and turn around to discover this man is standing in my living room and not at the door where I asked him to wait, it was at this point I started to feel very uneasy however I give him the glass and he drinks it so fast he sills half down himself and says I need more and walks into my kitchen and helps himself it is at this point he decided to pick up a large knife I had on the counter and say this is a big knife for a little girl and walks towards me. This was the moment I feared for my life, there was a man in my house as a single 28 year old female who lives alone, fearing for my life is the only way I can describe that feeling I felt. I ask him to leave very nicely and tried to play it off like I wasn't scared when really I had never been so scared in my life and that coming from me is a huge statement because just a couple of years before I found myself in 2 major brain surgeries and 3 major spinal surgeries with health problems that were very serious and I thought I was scared then, however in this moment I knew what fear was. This man then violently had me against my own wall of my hallway whilst he unzipped my jacket and aggressively grabbed my breast, it hurt it was done with such violence and like I was filled with hate, however I did not know this man and so I found myself wondering what I did wrong? Why me? I'm a good person aren't I? Did I ask for this? Did I allow this to happen? Was this my fault? Did I do something to this man to make him think it was okay to attack me in such as way in my own home? The answer is no, I know this now but in that moment all I could think was, I'm going to be raped. I was able to duck and weave my way out of his violent grasp and tried once more to get him to leave at this point with tears streaming down my face and pleading with him to just leave, he decided instead of leaving he would back me into my bedroom he walked into me so I had nowhere else to go mut my bedroom whilst saying things like, "I've always wondered what the inside of this looks like" and "I want to make magic happen, let's make magic" "You will love it let's make magic". I cried hysterically, I couldn't catch my breath to even scream or plead with this man anymore, all I knew in that moment was, this man is going to rape me and when he is done he will use the knife he threatened me with to kill me. It wasn't until I so much hyperventilating so bad my do, my beautiful little dog who I got after being sick and knows me better than anything or anyone knew something was not okay and started getting very aggressive and marking and him being taken back by this allowed me to catch a breath and get back up on my feet and say if you don't leave he is going to attack you, he doesn't act like this so someone is going to hear and know something is wrong you need to go and he eventually believed this and started to back out of my room where I was able to force my front door shir, however he did not leave, he stood outside a window in the corridor of my apartment building that overlooks my balcony and into my living room and he stood there staring in like he was plotting his next move or admiring the mess he had made of me. I do not know how long he was therefore for as I realised he was there I moved out of sight. The incident was deemed sexual touching. I beg to differ!!!! In light of the recent events at Bondi Junction recently this had stirred up a whole wave of emotions for me because yes this man entered a shopping centre with a knife threatened many and killed many all women except one, all innocent women who did nothing wrong, just like me. The same horrible fate could have been my fate also very easily however this man who had a knife on me not only wanted to be violent but he wanted to rape me first. The violence women are facing right now is at an all-time high, in Australia a woman is killed by a man every 4 days. Women are not safe going for a morning run, being in a shopping mall on a Saturday afternoon, or taking their child to regular after school activities, or even in the car park of our local shopping centres. Women are no even safe enough to order groceries to be delivered to their homes. In conclusion, the scars left by this heinous act may never fully heal, but through this statement, I refuse to be defined by the trauma inflicted upon me. I stand resilient, empowered by the support of my loved ones and the strength within myself. While justice and the correct recognition may not erase the pain, it serve as a beacon of hope for a future where such atrocities are eradicated, and victims find solace in their voices being heard. I would hope for a future that a system as broken as this one sees victims being the priority and being the ones who are protected and heard throughout this process, because the system of categorising such disgusting acts of violence and assault through the channels it currently does is not okay and it's not enough and it hurts us more than you realise. Though I may carry the weight of this experience, I am not broken. I am a survivor, and I will continue to reclaim my sense of safety, dignity and peace. I will see to fight another day and I will do anything I can to ensure that this system doesn't allow these acts of violence to be dealt with in such a cold and dangerous manner, I ask that you see this crime for what it was, a serious violent sexual assault. Whilst I shouldn't have had to make it to this point to be recognised as such I stand tall and with my life but so incredibly broken and let down by this system.
The respondent did not object to the admission of this statement.
The applicant also made oral submissions and she described the detrimental impact that the act of violence have had on her physical and psychological health. In response to questioning from the Tribunal, she stated that her GP had trialled different anti-depressant medications, all of which produced adverse reactions. As a result, she continues to undergo counselling with a psychologist, but she is not prescribed any medical for her psychological injury.

Respondent's case

The respondent filed written submissions on 19 April 2024, which pre-dates the applicant's statement dated 9 May 2024. I have summarised these submissions as follows.
For the purposes of a recognition payment, s 34 of the Act defines sexual assault as having the meaning in paras (a), (b), (c) or (e) of the definition of sexual assault and domestic violence in s 19(8) of the Act. These provisions include sexual intercourse without consent, self-manipulation or participation with a child with reference to definitions in the Crimes Act 1900 (NSW) (Crimes Act).
The respondent argued that the act of violence falls within the definition of sexual touching, but does not give rise to a sexual assault as it did not involve sexual intercourse or self-manipulation as defined in the Crimes Act. Therefore, to be eligible for a category C recognition payment, the conduct must be categorised as either: (1) an attempted sexual assault resulting in serious bodily injury; or (2) an assault resulting in grievous bodily harm.
As to the meaning of "serious bodily injury", the respondent argued that this involves a higher threshold than actual bodily harm and noted that in Shu Qiang Li v R [2005] NSWCCA 442, the Court stated: 45. A further matter is that, if the victim had been injured psychologically in a very serious way, going beyond merely transient emotions, feelings and states of mind, that would be likely to have amounted to "actual bodily harm" (See R V Lardner, unreported, NSWCCA, 10 September 1998).
In BDJ v Victims Compensation Fund Corporation (No 2) [2014] NSWCATAD 187, the Tribunal considered the meaning of serious bodily injury and held, relevantly: 41. The Macquarie Dictionary (3rd Edition) relevantly defines serious as: 'of grave aspect, giving cause for apprehension; critical: a serious illness,' . The Australia Concise Oxford Dictionary (3rd Edition) relevantly defines serious as: 'not slight or negligible (a serious injury; a serious offence). 42. Having regard to the 16 years of cases dealing with victims compensation under the old Act, it is clear that the Category 3 sexual assault provisions were to deal with the most serious matters. Usually a category 3 award involving serious bodily injury, arises in an instance where an offender injures the victim in such a way so as to either disable the victim (long or medium term), or where the sole sexual assault or unlawful sexual intercourse, is accompanied by the most violent of assaults. The Category 3 provisions tend towards matters at the extreme end of the spectrum concerning an incident, or a prolonged abuse over many days, weeks months or years constituting a pattern. Other provisions recognise aggravating circumstances such as an assault in company, involving use of an offensive weapon etc. 43. I have considered the charges that the offender was breached with, the proof material associated with those charges in the criminal context, the lack of any medical evidence to establish the fracture and other claimed significant injuries, and the general meaning of the word 'serious', when considered in the context of the old Act. As a result I am not satisfied that the actions of the offender resulted in the infliction of serious bodily injury on BDJ during the course of the digital penetrations constituting unlawful sexual intercourse/sexual assault.
In relation to the meaning of "grievous bodily harm", the respondent referred to the commentary of Beazley JA (as her Honour then was) in Haoui v Regina [2008] NSWCCA 209: 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"
The respondent referred to a number of decisions of the Tribunal in relation to whether a psychological injury constituted grievous bodily harm, namely: 1. In BXB v Commissioner of Victims Rights [2015] NSWCATAD 173, there was evidence that the applicant was undergoing counselling and treatment by way of prescription medicine. However, despite noting that the impact of the act of violence was quite devastating, the Tribunal did not find grievous bodily harm in the absence of a psychological report from a clinical psychologist or a psychiatrist's report that established: (a) a serious psychological or psychiatric condition; (b) that arose as a direct result of the violence; and (c) had a debilitating and serious long-term impact on the applicant. 2. In EMT v Commissioner of Victims Rights [2021] NSWCATAD 39, despite the treating GP diagnosing post-traumatic stress disorder and prescribing medication for anxiety, neither the psychologist nor the mental health social worker formally diagnosed PTSD. The Tribunal was not satisfied that the evidence provided a safe climate for accepting a diagnosis of PTSD as a result of the act of violence. Further, the Tribunal was not satisfied that the psychological injury could properly be considered a "really serious injury" and approved a category D recognition payment. 3. In CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, the Tribunal accepted that the act of violence had a significant impact upon the applicant and that the applicant required psychological treatment for her depressive disorder and symptoms of post-traumatic stress. However, there was no evidence before the Tribunal that supported a finding that the applicant's condition required either treatment by a specialist psychiatrist or medication. It was further noted that the treating psychologist referred symptoms of post-traumatic stress, but did not formally diagnose a post-traumatic stress disorder. Further, based on the available evidence, the Tribunal was not satisfied that the applicant's injury could be considered "really serious" and approved a category D payment. 4. In FNA v Commissioner of Victims Rights [2022] NSWCATAD 388, the Tribunal considered whether the applicant had suffered grievous bodily harm for the purpose of considering an extension of time. In that matter, the applicant suffered two lost teeth and had been diagnosed with an adjustment disorder by his GP. In relation to the latter, there was no evidence that the applicant either required or had received any treatment from either a psychologist or a psychiatrist. The Tribunal was not satisfied that the available evidence provided a safe climate for finding that the applicant had suffered grievous bodily harm.
The respondent noted that the applicant relied upon a Certificate of Injury that was prepared by her GP following a telehealth appointment on 9 August 2023. The doctor referred to the incident on 23 July 2023 and stated that the applicant was very anxious, was not leaving the house and was suffering poor sleep. The GP provisionally diagnosed PTSD, Anxiety and Phobia and referred the applicant to a psychologist.
The respondent argued that the available medical evidence was insufficient to demonstrate that the act of violence resulted in serious bodily injury or grievous bodily harm.
The respondent conceded that there are no relevant factors under s 44 of the Act.
The respondent concluded that the Senior Assessor's decision should be affirmed.

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.
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…
The onus is on GFI to prove the allegation that she was the primary victim of an act of violence that was perpetrated by the offender on the balance of probabilities and that she suffered injury as a result.
Based on the evidence before me, I am satisfied that GFI was a primary victim of an act of violence in the nature of an attempted sexual assault that directly resulted in a psychological injury (PTSD, Anxiety and Phobia) and that this condition continues to have debilitating effects upon her. In particular, she is unable to work and requires ongoing support from her GP and regular counselling by her treating psychologist.
In making this finding, I was greatly impressed by the applicant's candour and forthrightness in making her oral submissions at the hearing. The respondent did not have the advantage of the applicant's further statement dated 9 May 2023 when the review decision was made.

Recognition payment

In determining the appropriate category of recognition payment, I have applied the principles discussed by Beazley JA (as her Honour then was) in Haoui. Having done so, I am satisfied that the attempted sexual assault on 23 July 2023 resulted in serious bodily injury.

Conclusion

I am satisfied that the applicant was the victim of an attempted sexual assault that resulted in serious bodily injury and that she is therefore eligible for a category C recognition payment under s 35(3)(b) of the Act.
I am also satisfied that there are no relevant factors under s 44 of the Act that justify either the withholding of victims support or a reduction in the amount of support approved.

Orders

The decision of the Senior Assessor dated 2 January 2024 is set aside and I make the following order by way of substitution.
The applicant is eligible for a category C recognition payment in the sum of $5,000.00.

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: 16 May 2024

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (6)

Cases Cited (9)