Hawker v Commissioner of Victims Rights - [2017] NSWCATAD 381 - NSWCATAD 2017 case summary — Zoe

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Hawker v Commissioner of Victims Rights

[2017] NSWCATAD 381

NCAT Administrative and Equal Opportunity|2017-09-29

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2017-09-29

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Background

On 26 April 2017, the applicant filed an application for administrative review of a restitution order made on 7 December 2016, by the delegate of the Commissioner of Victims Rights. That order required him to pay restitution of $4,000, by payments of $20 per month, for victims support that was approved for the victim in respect of an act of violence committed by him, and was made pursuant to s 64 of the Victims Rights and Support Act 2013 (the Act).
Part 5 of the Act is concerned with the recovery of victim 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.
The statutory scheme gives the Commissioner of Victims Rights a discretion to make provisional restitution orders 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: s 59 (1). 'Relevant offence' is defined in s 58 to mean: Relevant offence means the following: (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, (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.
S 59 (2) of the Act provides that a provisional order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or more than two years have passed since, whatever was the later the date of (a) conviction, or, (b) the expiry of the time in which a claim for victim support could be made under s 40 (6) of the Act.

[4]

Objection

S 62 of the Act gives a person on whom such an order is served 28 days in which to make a written objection to a provisional order. The grounds of objection must be fully stated (s 62(3)). The objector bears the onus of proving his case (s 62(4)). The applicant filed an objection dated 12 September 2016, in which he relied upon the following submissions: …This case and these convictions are a grave miscarriage of justice and I have been working tirelessly for the past five years to get justice. The so called victims (sic) evidence is false and misleading these people were the aggressors and instigators and colluded and were then led by police none of any of their evidence has ever been tested in court or even been compared with each others (sic) by police. My quest for justice could have been further along but I have lost the last two years because the only lawyer I could afford was an inactive old man I am now trying to find a new lawyer that can progress my demand for justice. I have prepared a professional negligence claim against both my lawyer and barrister and have been advised that I have a solid case for professional indemnity against them. I am in correspondence with the Legal Services Commissioner about my lawyers (sic) professional negligence. I have prepared an appeal against all of the convictions. I have prepared a complaint about police misconduct and inactivity in charging the victims with fraud, larceny, assault in company, threatening my life with firearms and refusal to abide by the court order for the recovery of possessions etc etc. I have prepared a civil action for the recovery and replacement of my possessions. I have made various criminal complaints to police about the so called victims and because of police bias and inactivity I brought a private prosecution on my own without a lawyer and charged (the victim) with assault and false and misleading information but I was out manoeuvred by his shyster lawyer who would not let (the victim) answer any questions in court so that all the judge had to go on was his and the other so called victims (sic) original statements this cost me another $2000. This is the same shyster lawyer who four years after the incident advised (the victim) to milk the system and me for $10000 (the victim) and the other victims were just happy to get away with it before this and did not try to claim anything in case their evidence was tested. This is just more cruel and unusual punishment after my life and health are ruined five years later the system is still haunting me, I don't know what you can take, I have nothing left, I have no money I am now a disability pensioner with severe mental problems caused by the crushing injustice of all of this maybe you can have the mattress that I sleep on on the floor or the milk crate that I am sitting on to write this. I lost my renovation business because of this, I lost all of my possessions and tools while in remand when the victims refused to abide by a court order and stole, broke and pissed on all of my possessions, then after three months in remand where I had to defend myself against various scum and suffer the humiliation of the system I was released and was homeless for six months because I had not tools, money or way to earn a living. Shortly after this whatever chance I had to return to normal life was destroyed when I had to declare bankruptcy… My position is and always has been that I acted in self-defence against two drunk twenty year olds that were just trying to impress two drunk girls. This matter is not finalised and I will not let it go until I get justice…
The applicant also lodged an Affidavit of Financial Circumstances, although this was not separately sworn or affirmed, in which he declared total monthly income and expenses/outgoings. By my calculation, these totalled $2,228 and $2,104, respectively.

[5]

Determination of the objection

Section 64 of the Act is concerned with the Commissioner's consideration of objections to provisional orders. It provides: (1) After considering an objection, the Commissioner may: (a) allow the objection in whole or in part or disallow the objection, and (b) accordingly reverse, vary or confirm the decision to which the objection was made. (2) On confirmation of the decision the amount payable under the provisional order concerned may be recovered (subject to section 71) by the Commissioner under section 72. (3) The Commissioner must discharge the provisional order concerned if the Commissioner reverses the original decision. (4) For the purpose of enabling a defendant to apply to the Tribunal for an administrative review, the Commissioner is taken to have failed to determine an objection if 90 days have passed since the objection was lodged with the Commissioner. (5) The Commissioner's failure to determine an objection within the period referred to in subsection (4) does not prevent the Commissioner from continuing to deal with the objection after that period has expired. (6) In calculating a period referred to in subsection (4), the period between the date on which the Commissioner requests further information or supporting evidence from the defendant in relation to the objection and the date on which that further information or supporting evidence is furnished is excluded.
On 7 December 2016, the Commissioner's delegate determined the Objection. The applicant's liability to make restitution was confirmed, but the amount of restitution payable under the order was reduced to $4,000, payable by instalments of $20.00 per month. The delegate's reasons included: 11. The defendant has provided an affidavit of financial circumstances. The defendant is aged 55 years and is in receipt of Social Security/disability pension payments. The defendant states he has been virtually unemployed since his release from custody and he has no immediate prospect of employment. The defendant appears to have no significant assets other than a motor vehicle 12. The defendant states he is not in a position to pay the full sum of restitution due to his financial circumstances. The defendant has submitted documentation from the Salvation Army and Uniting Care indicating that he has at times sought assistance from them. 13. The defendant seeks to re canvass the circumstances of the offence and the role of the victim in the offence. The defendant also raises issues in relation to his legal representation at the time as well as the police prosecution of the matter and other matters in relation to legal proceedings he instigated himself. I note some of these issues have been dealt with by other bodies such as the Legal Services Commissioner. 14. The defendant does not make any specific offer to make monthly payments of the debt. Consideration Should the provisional order be confirmed or varied? 15. The defendant was convicted of offences arising from substantially the same facts as those constituting the act of violence in respect of which the payment of victims support was made. These proceedings are by way of debt recovery and are not in any sense initiated by the applicant in the claim for victims support. 16. I cannot look behind the findings of the court however I take into account the defendant's submissions and financial and other constraints. 17. I note the defendant has gone to significant trouble and time to prepare his submissions and documentation. 18. I am of the opinion that the restitution order can be varied under the provisions of section 64 of the VRS Act. I accept that the defendant has limited financial resources and has undoubtedly suffered significant stress as a result of the events in September 2011. 19. On the basis of the defendant's situation, cited above, I find it appropriate to reduce the amount to be paid under the provisional order… I am satisfied that the original sum can be reduced to $4,000.00 and that this be paid by monthly instalments of $20.00…
Notice of that determination was served on the applicant as required by s 65 of the Act on 9 December 2016.

[6]

Application for administrative review

The powers of the Tribunal on review are set out in s 67 of the Act: (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. (2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. (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. (4) The Tribunal may confirm a provisional order made under section 60 if satisfied that: (a) a person against whom a provisional order has been made has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and (b) the applicant was a party to the scheme and obtained property under the scheme without giving sufficient consideration. If the Tribunal is not so satisfied, it must reverse the original decision.
On 26 April 2017, the applicant applied to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with s 66 of the Act. That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection (ss (2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (ss (3)).
The application did not indicate any specific grounds, but the applicant annexed a copy of his submissions in support of the objection to the provisional order. Accordingly, while the available evidence indicates that on 21 October 2013, the applicant was convicted of charges of common assault and assault occasioning actual bodily harm against the victim in the District Court of NSW, at Bega, he now disputes his culpability as well as relying upon financial hardship.

[7]

Procedural matters

The application for administrative review was filed late. However, s 41 of the Civil and Administrative Tribunal Act 2013 (No 2) "the CAT Act") provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired.
In this case, the Commissioner consented to an extension of time pursuant to s41 of the CAT Act and, by consent, the Tribunal extended the time for filing the application to the date upon which it was filed.
The application for administrative review first came before me for a directions hearing on 1 September 2017, when the applicant appeared in person (by telephone) and the Commissioner was represented by Ms Sabesan. The documents provided by the Commissioner under s 58 of the Administrative Review Act 1997 were comprehensive and complete. The applicant stated that he did not wish to adduce any further evidence, but he did seek leave to participate in the hearing of the matter by telephone.
S 36 of the CAT Act provides, relevantly: Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules
The Tribunal listed the matter for hearing on 29 September 2017. Pursuant to s36 (2) (a) of the CAT Act, the Tribunal granted the applicant leave to participate in that hearing by telephone.
At the hearing of the matter on 29 September 2017, the Applicant again appeared in person and Ms Sabesan appeared for the Commissioner.

[9]

Commissioner's submissions

Ms Sabesan relied upon the written submissions filed on 12 September 2017, which provided (relevantly): 2. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself these questions: a. Was a victim awarded compensation, and if so, upon what facts? b. Was the applicant found guilty of an offence, and if so, upon what facts? c. Having regard to a. and b., was the offence with which the applicant was convicted a relevant offence under section 58 of the Victims Rights and Support act 2013 (the Act)? d. If the answer to c. is "yes", is there any reason why the applicant should not reimburse the State for the money that was paid to the victim, such as financial circumstances? … Provisional orders for restitution can be made under the Act 6. The questions at paragraph 2 above are based on the Commissioner's interpretation of the Act, which is as follows. 7. The Commissioner's power to make provisional orders for restitution comes from Part 5 of the Act. The purpose of Part 5 of the Act is, broadly, to allow money paid to victims by the State to be recovered from persons found guilty if the crimes giving rise to those payments (s 57 of the Act). 8. The Commissioner may make a provisional order if she (or one of her delegates (s 9 (2) of the Act; s 49 Interpretation Act 1987) is of the opinion that a person has been convicted of a relevant offence and, generally speaking, no more than two years has passed since either the conviction or payment to the victim, whichever is the later (s 59 of the Act). 9. A "relevant offence" includes an offence involving one or more acts of a series of related acts in respect of which a payment has been made to a victim. It also includes a conviction for substantially the same facts as those upon which the payment to the victim was approved (s 58 of the Act). 10. To be of the opinion that a person has been convicted of a relevant offence requires an understanding of both the facts giving rise to the court's finding of guilt and also the facts giving rise to payment of victims support. Those facts are "jurisdictional facts". They ground the Commissioner's jurisdiction to make a provisional order. In the absence of either, the Tribunal cannot confirm the provisional order. Compensation was awarded to victims of crime 11. On 22 January 2015, the victim (name provided) was approved a total $10,000.00 victims support. This was made up of $5,000 Category C recognition payment and $5,000 special grant. The decision maker found that (the victim) was a primary victim of an act of violence that occurred on 16 September 2011 perpetrated by the applicant. 12. The decision refers to police reports, including police report (event number provided), which states that on 16 September 2011, a physical altercation broke out between the applicant and the victim and his friends. During the altercation the applicant physically assaulted the victim. The applicant was charged with a range of offences relating to assault and break and enter on 16 September 2011. 13. The decision was made on the basis that the victim suffered an injury as a result of the physical violence committed by the applicant. The applicant was convicted of offences … 15. According to Police Reports and Justice Link records, the applicant was convicted of common assault and assault occasioning actual bodily harm in relation to the victim on 21 October 2013. The applicant was sentenced to twelve months prison. The applicant was convicted of relevant offences 16. The Assessor found that the victim was for victims support as he was the victim of an act of violence committed by the applicant on 16 September 2011. The Commissioner submits that the applicant has been convicted of a relevant offence because, in substance, the facts underlying the convictions and the facts underlying the approval of victims support in both applications are substantially the same. 17. They involve an offence of the same nature (physical assault), against the same person (the victim), at the same time (18 September 2011), by the same offender (the applicant). 18. Following the applicant's objection, the restitution debt was reduced to $4,000.00 to be paid in monthly instalments of $20. 19. The correct and preferable decision is to confirm the decision under review.
The Tribunal asked Ms Sabesan what the Commissioner's response would be in the event that the applicant was able to successfully appeal against the convictions that were the basis of the restitution order. Ms Sabesan replied that if the convictions were successfully appealed then the Restitution Order would be set aside.

[11]

Consideration

At the completion of submissions from the parties, the Tribunal reserved its decision.
The Commissioner's discretion under s 59 (1) of the Act to make a provisional order for restitution is dependent on the person against whom the order is made being convicted of a relevant offence.
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.
Despite the Applicant's objections and submissions in the current matter, this Tribunal lacks jurisdiction to look behind the convictions entered by the District Court of NSW. However, the Tribunal takes note of the advice provided by Ms Sabesan that if the applicant successfully appeals against the convictions that constitute "a relevant offence" in this matter, the Commissioner will set aside the restitution order.
While I have considered all of the applicant's submissions and evidence lodged in support of the application, whether he has rights of action against his former legal representatives for professional negligence and/or whether he ultimately succeeds in his complaints to the Legal Services Commissioner and against NSW Police, are not relevant to the matters that the Tribunal must consider in determining the current application for administrative review.
It follows that the only issue for determination by this Tribunal is the Applicant's financial capacity to make restitution to the Commissioner. This requires the interpretation of his evidence regarding his financial circumstances.
In relation to this issue, I note that his Affidavit of Financial Circumstances, which he neither swore nor affirmed, indicates monthly income and expenses that are sufficient to meet the monthly instalment payment required under the restitution order. The Tribunal therefore rejects his submission that he lacks the financial means to meet the restitution order.
Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence on 21 October 2013.
On 22 January 2015, victims support was approved for the victim in the sum of $10,000, comprising a Category C recognition payment ($5,000) and a Special Grant ($5,000). The provisional order was made on 29 July 2016. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of the Act.
However, the Commissioner exercised her discretion in determining the Applicant's Objection to the provisional order and she reduced the amount of restitution to $4,000.
After considering all of the available evidence and the parties' submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order.