Hofer v Commissioner of Victims Rights

Order for restitution

1. Part 5 of the Act is concerned with the recovery of victims support payments from offenders. The object of that Part is set out in s 57: The object of this Part is to enable financial support paid and recognition payments made under the Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.
2. The statutory scheme gives the respondent a discretion to make an order for restitution against a person convicted of a relevant offence, either after a recognition payment or financial support has been paid to a victim of that offence or following approval of such a payment (see: s 59(1) of the Act).
3. "Relevant offence" is defined in s 58 of the Act, as follows: Relevant offence means the following (emphasis added): (a) An offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given. (Emphasis added) (b) Any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence, (c) An offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.
4. A restitution order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or if more than two (2) years have passed since the later of the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under s 40(6) of the Act.
5. In this matter, Court documents indicate that the applicant was charged with two counts of sexual intercourse without consent and that he was convicted of those offences at the District Court of New South Wales, in Sydney, on 23 September 2016. He was sentenced to an aggregate term of imprisonment of 9 years and 9 months commencing on 31 October 2014 and expiring on 30 July 2024, with a non-parole period of 6 years and 6 months.
6. On 15 February 2019, the respondent made an order for restitution against the applicant in the sum of $5,000, being the full amount of victims support (recognition payment) that was approved for the victim. A copy of the order was posted to the applicant under cover of the respondent's letter dated 15 February 2019. I am satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.
7. Section 62 of the Act gives a person against whom an order for restitution is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (see s 62(3) of the Act) and the objector bears the onus of proving their case (see s 62(4) of the Act).
8. On 26 February 2019, the applicant signed an objection to an order for restitution. He made submissions in support of his application as follows: Grounds for objection 1. I am innocent of all charges allegedly committed on 30/10/2014 against the alleged victim (name provided). All sex was with her explicitly consent. She said "YES". 2. (the victim) is a fraudulent claimant and she has made wilfully false statements to the Police, Courts and Victims Services. Please forward me a copy of the file no. (number provided) to enable myself or my solicitor to refute the false claims in detail. 3. I have instructed my solicitor (name provided) to submit an Appeal to the NSW Court of Criminal Appeal… Please contact (the solicitor) so he can email you the submission with grounds for appeal. His email address is (address provided). 4. Immediately after my trial (the victim)'s solicitor contacted my previous solicitor seeking to sue me civilly in the Supreme Court as she wrongly believed that I was a multi-millionaire. (in a Police statement by (name provided) I was the owner of a $200 million shopping mall in Malaysia (The Summer Mall).) 5. I have been of good character and previous to these allegations had never been charged by police. In 2003 I was appointed a Justice of the Peace in NSW. 6. I have NIL asserts and Income (see Affidavit of Financial Circumstances) and unless I win my appeal to the NSW Court of Criminal Appeal my earliest release date is April 2021…
9. I note that the appeal to the Court of Criminal Appeal was unsuccessful and that the applicant then appealed to the High Court of Australia (Special Leave being granted by the Court on 12 March 2021).
10. On 13 May 2021, the applicant wrote to the respondent requesting that the restitution order be closed "with nil restitution required" due to his High Court appeal.
11. On 21 July 2021, an Assessor issued a Notice of Determination of Objection under s 65 of the Act. The assessor confirmed the restitution order in the sum of $5,000. In response to the applicant's objections, the Assessor stated, relevantly: Grounds of Objection, Submissions and Evidence in support 16. I have read the submissions and documents constituting the defendant's Notice of Objection. I have carefully considered the evidence and will briefly outline the objections below: a. Mr Hofer had no knowledge of the claim for victims support being lodged until he received the order for restitution. b. Mr Hofer is innocent of all criminal charges and alleges the victim is a fraudulent claimant. The victim indicated shortly after the criminal proceedings that she was going to pursue a civil claim against him believing he had millions of dollars. c. The solicitor for Mr Hofer has lodged an appeal to the High Court of Australia which has yet to be resolved. d. Mr Hofer reports being of good character and was a Justice of the Peace in 2003 and had bever previously been charged with a criminal offence by police. e. Mr Hofer is experiencing financial hardship and has nil assets. Consideration Should the order be confirmed, either with or without variation? 18. Based on the evidence, the defendant was convicted of an offence in respect of which victims support was approved. 19. That is, the victim was approved victims support related to an act of violence occurring on 30 October 2014. The defendant was convicted of a relevant offence as per section 58 of the Act, in that the offence for which they were convicted gave rise to an approval for victims support. The facts underlying the conviction and the facts underlying the approval of victims support involve an offence of the same nature, against the same person, at the same time, by the same offender. 20. It is important to point out of that the restitution process carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a 'civil' process and arise from the giving of victims support. 21. Under the Act, if a person has been convicted of a relevant offence, restitution can be sought by Victims Services to recover that money from the offender. The offender may therefore be ordered to pay back all or some of the victims support payment. 22. I have carefully considered the objections raised by Mr Hofer and will address these points in turn. I note that Mr Hofer has been granted special leave for an appeal of the previous Supreme Court of Criminal Court Appeal dismissal and there is a hearing set down in the High Court of Australia in August 2021. 23. I accept that whilst this may be occurring, I do not see a reason to either delay or revoke the order for restitution on this basis as the proceedings remain ongoing at this time and there may be further delays to the finalisation of that matter. Should Mr Hofer have the conviction overturned then it may be the case that the restitution proceedings will be terminated. Until such a final decision has been made and if it occurs then it remains appropriate to proceed and make an order for restitution against Mr Hofer. 24. It is not my role in this decision to revisit the criminal proceedings or subsequent appeals against the initial convictions of Mr Hofer. As it stands, Mr Hofer was convicted of several offences related to the sexual assault of the victim for which he is presently exercising his right to appeal the conviction and sentence. For this reason, it is not necessary to address any of the allegations made about the victim in this decision. Nor is it appropriate for me to discuss his statement in relation to his lack of previous criminal charges or his standing in the community as a Justice of the Peace or that Mr Hofer is of good character. These points can all be addressed by the proceedings related to the appeal. 25. In relation to Mr Hofer's statement that he was not aware of the victim's claim for victims support until he was served with the order for restitution, I wish to advise that the legislation sets out timeframes for the approval of victims support. The restitution proceedings (when the offender is convicted of a relevant offence) occur after the giving of victims support within a period of either two years after the relevant criminal conviction or within two years of the expiry of the victims support claim. The relevant timeframe was adhered to in relation to this matter and Mr Hofer advised accordingly. Also, restitution proceedings are considered separately to criminal proceedings against an offender. 26. Mr Hofer has stated that he is of good character and this can be evidenced by his status as a Justice of the Peace in New South Wales for a period of time and also his lack of criminal charges prior to the sexual assault matters. Whilst these points may be correct, it does not negate the criminal convictions recorded against him. 27. In relation to the financial circumstances of Mr Hofer, I note that he has been released from incarceration since the time of completing the Affidavit of financial circumstances and given his report of minimal to no asserts and the length of his incarceration, he is likely to be experiencing financial hardship. 28. I have carefully considered all the objection submissions Mr Hofer raises as to reasons why he should not have to meet the restitution debt due and owing, I do not consider the issues warrant any reduction or waiver of the debt. Overall, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act. 29. Based on the above, I make the following determination and issue the following notice to the defendant under section 70B of the Act: The order is confirmed but the liability of the defendant is reduced to $5,000 to be paid by lump sum and is to be paid on or by 18 October 2021/ Note: If payment in full is not received by the due date, the debt will be referred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 without further notice to you. Should this occur you may incur additional costs…
12. I note that a copy of the determination of objection was served on the applicant under cover of a letter from the respondent dated 21 July 2021 and I am satisfied that this was served as required by s 65 of the Act.

Application for Administrative Review

1. The powers of the Tribunal upon review are set out in s 67 of the Act as follows: (1) On an administrative review, the Tribunal may: (a) confirm, vary or reverse the original decision the subject of review, and (b) make any other orders it thinks fit. (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.
2. On 2 February 2022, the applicant filed an application for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) 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 (see: s 66(2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: s 66(3)).
3. The application set out the following grounds: I am innocent and appealing my conviction to the High Court of Australia… and I expect to have all convictions quashed. The hearing was on 12 August 2021. I am waiting on the High Court of Australia to hand down its decision.
4. The application came before me for a Directions hearing on 21 January 2022, when the applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I listed the matter for further directions on 18 February 2022 and granted both parties leave to appear by telephone.
5. The applicant did not appear at the directions hearing before Senior Member McAteer on 18 February 2022, when the Senior Member noted: The Tribunal notes the oral submission of the respondent that the Justicelink record shows that bail was not applied for for the applicant as at 16/2/2022 which may suggest that he is in custody and therefore has not appeared today in the absence of any s 77 order. The Tribunal notes the decision in Hofer v The Queen [2021] HCA 36 dated 10/11/2021 dismissing the applicant's appeal. He listed the matter for directions on 14 April 2022 and ordered the Registrar to issue an order under s 77 of the Crimes (Administration of Sentences) Act 1999.
6. However, the s 77 order failed to issue and on 14 April 2022, Senior Member McAteer made a further order for issue of an order under s 77 and listed the matter for directions on 27 May 2022.
7. I conducted a directions hearing on 27 May 2022, at which the applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I ordered the applicant to file and serve an updated Affidavit of Financial Circumstances by 24 June 2022 and listed the matter for hearing by telephone on 15 July 2022.
8. On 16 June 2022, the applicant filed an Affidavit of Financial Circumstances in which he declared a bank account ($300) as his sole asset and a debt owing to his brother in the sum of $5,000, although he also declared a superannuation balance of $10,000.
9. However, on 27 June 2022, the applicant filed an Affidavit regarding his financial circumstances, although he did not attach any documentation in support. He stated that he is currently in custody and his release date is 30 August 2024. He said that his sole asset is $300 in a bank account and that he was previously in receipt of Centrelink benefits. He did not declare his superannuation and he asserted that it is highly unlikely that he will be able to get any paid work following his release "due to the many news articles about my alleged offences and conviction." He maintained that he is "100% innocent of all subject charges" and asserted that Justice Gordon of the High Court ruled that the conviction should be quashed and a retrial held.
10. At the hearing on 15 July 2022, the applicant was self-represented and Ms K Douch, Victims Services, appeared for the respondent.
11. The applicant stated that his superannuation balance is actually $16,950 and that his previous affidavits were incorrect in this regard. He stated that he has 2 daughters who live with his ex-wife in Taiwan (they are aged 17 and 18), but he is not currently paying any financial support for them and he has been in gaol since 2014. He said that the $5,000 debt to his brother was in relation to "rent support."
12. Ms Douch sought to ask the applicant some questions about his work history. He stated that prior to his incarceration he was working in the real estate industry but he is no longer permitted to do that work because he has a criminal conviction. Ms Douch asked the applicant if there was any other work that he would be able to do? He replied to the effect that he had a couple of interviews, but he was not granted any second interviews, and that while he was on parole, his only income was $350 per week from Centrelink.

Applicant's submissions

1. The applicant maintained his position that the restitution order should be set aside for the reasons stated in his objection and because he is innocent of the charges and he has no financial capacity to pay restitution.

Respondent's submissions

1. The respondent relied on written submissions filed on 27 June 2022, which are summarised below:

• The Tribunal does not have power to look behind a conviction recorded by a conviction recorded by a Court and it cannot, in the course of administrative review of a restitution order, review the Commissioner's decision to approve victims support for the victim: Singh v Commissioner of Victims Rights [2017] NSWCATAD 135 at [41]; Clow v Commissioner of Victims Rights [2017] NSWCATAD 40 at [39]; Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44 at [37].
• The applicant was convicted of a relevant offence and the conditions set out in s 59 of the Act have been satisfied. Therefore, the original decision and the restitution order should be confirmed pursuant to s 67 of the Act.
• The restitution order was issued within time. Pursuant to s 59(2)(a)(ii) of the Act, the respondent must make an order for restitution within 7 years from the date of the application for victims support. AS the period for making a restitution order expired on 12 November 2021, the order was made within time.
• In relation to the applicant's financial circumstances, in his Objection, he asserted that he had no assets, but he provided an unsigned Affidavit of Financial Circumstances in which he said that he has NIL assets and expenses and $39,000 in superannuation. However, in his further Affidavit dated 16 June 2022, he disclosed that: he has $300 in a bank account; he has 2 dependants; he owes $5,000 to his brother; and his superannuation balance is $10,000.
• While the applicant is currently incarcerated, it is difficult to ascertain from the information he has provided what capacity he may have to satisfy the restitution debt following his release from prison.
• In Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172 (Kabir), the Tribunal referred to the following passage in the decision of Studdert J in Conner v R [2005] NSWCCA 431 at [41]: …asserted impecuniosity of an offender against whom a direction is sought… ought not ordinarily be regarded as a reason for declining to make a direction… An offender's impecuniosity may be temporary. His financial position may change though rehabilitation and hard work or by goof fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false…No deduction should be made under s 66 of the Act
• While the affidavit of financial circumstances indicates that the applicant may not currently have capacity to pay the restitution debt in full, if the order is confirmed and the debt is not received by the due date, the debt will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996. Following this transfer, the applicant can raise his financial circumstances/incarceration and request a payment plan or a hold of the restitution debt with State Revenue directly. Any such request will be considered by Revenue NSW and not Victims Services.
• Accordingly, the Tribunal should confirm the original decision under s 67(1) of the Act and confirm the order for restitution in the sum of $5,000 under s 67(2A) of the Act.

Consideration

1. Based on a consideration of all of the available evidence, I am reasonably satisfied that the compensation for which the Commissioner seeks restitution was awarded with respect to a relevant offence that was committed by the applicant.
2. I am satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.
3. While the applicant asserts his innocence, he was convicted in the District Court of NSW on two counts of sexual assault and neither the Court of Criminal Appeal nor the High Court of Australia set aside those convictions. This Tribunal does not have power to look behind those convictions.
4. While the applicant alleges that the victim was a "fraudulent claimant", I am satisfied on the evidence before me that she was the primary victim of an act of violence on the balance of probabilities and that she suffered injury as a direct result. I am satisfied that the appropriate category of recognition payment was approved for the victim given the nature of the relevant offence.
5. Based on the Tribunal's decision in Kabir I am satisfied that no deduction to the restitution debt should be made under s 66 of the Act.
6. Accordingly, I am satisfied that the correct and preferable decision is as follows: 1. The decision dated 15 February 2019 is confirmed under s 67(1) of the Act; and 2. The Order for restitution in the sum of $5,000 is confirmed under s 67(2A) of the Act.

Order

1. Therefore, I make the following orders: 1. The decision dated 15 February 2019 is confirmed under s 67(1) of the Act; 2. The Order for restitution in the sum of $5,000 is confirmed under s 67(2A) of the Act; and 3. The restitution sum is payable within 90 days of the date of this decision.

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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: 03 August 2022