The Applicant has made an application for administrative review of a restitution order made on 7 August 2014 by the delegate of the Commissioner of Victims Rights (the Commissioner). This required him to pay restitution of $6,500 for victims support that was approved for the victim in respect of an act of violence committed by him. That order was made pursuant to s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).
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.
On 17 July 2012, the victim (the Applicant's ex-wife) lodged an application for statutory compensation under the Part 2 of the Victims Support and Rehabilitation Act 1996 (NSW) (the old Act), which alleged that she was a primary victim of domestic/family violence that was perpetrated by the Applicant on 14 August 2010, at Umina in New South Wales. She alleged that the Applicant "…came home drunk and would have killed me if I did not slip out garage door. Strangled, punched in head, kicked, thought I was going to die, so so scared for my life, managed to grab phone and range triple 0 while he was still chasing me". The nominated the compensable injury of "domestic violence".
The Police COPS Event report indicates that on 14 August 2010, the victim reported that she and the Applicant had been married for 17 years and have 7 children ranging in ages from 1 to 17 years. She alleged that there had been prior domestic incidents involving assaults and breaches of AVO's. That day the Applicant returned home after consuming alcohol and she immediately noted that he was intoxicated. She walked to the rear of the house and shut the children's bedroom doors and the Applicant went into the garage and started punching a punching bag. A short time later the Applicant approached the victim and said, "You want to fight, do you? Come on". She attempted to walk away and the Applicant took hold of her and pushed her to the ground, he took hold of her by the hair and punched her 5 times to the head. She attempted to get up, but he kept pushing her to the ground and kicking her in the arms and side of the body. Police attended the scene and arrested the Applicant and cautioned. However, he was not interviewed due to his intoxication and aggressive manner. Police did not notice any visible injuries to the victim.
The Applicant was charged with common assault and Police applied for an urgent AVO. The Applicant was issued with a Court Attendance Notice, requiring him to appear before Woy Woy Local Court on 17 August 2010. The matter was then listed for hearing on 5 October 2010, but the Applicant failed to appear, in breach of his Bail undertaking. He was then convicted of common assault in Gosford Local Court and he was sentenced to a term of imprisonment for 2 months. He appealed against the sentence to the District Court of NSW, but the Court dismissed the appeal on 4 March 2011.
On 7 May 2013, the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by the Act and cl 5 (1) of Sch 2 of the Act set out the following saving and transitional provision:
5 Applications for compensation under statutory compensation scheme
(1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
On 6 November 2013, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D recognition payment under s 35 (4) (d) of the Act in the sum of $1,500 and a special grant pursuant to Sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor's reasons included (relevantly):
…5. The application relates to an incident that took place on the 14 October 2010.
6. The applicant was at premises in Umina when she was approached by her husband (the offender). The offender pushed the applicant to the ground and then hit the applicant a number of times to the face.
7. The incident was reported to police and investigated.
8. I note that the offender was later charged and convicted of assault and malicious damage.
9. I have viewed the report of Doctor (name redacted). I accept the report of Doctor (name redacted) establishes injury as required under s 19 (1) (c).
10. No evidence has been presented that establishes that the applicant has sustained a serious physical injury or continuing physical disability as a result of the act of violence.
11. On the balance of probabilities an act of violence is established.
Section 44 Consideration
I am required to consider whether there are any factors under section 44 of the Act that would lead me to decline victims support to the applicant or to reduce any amount payable.
I find no relevant s44 considerations.
Recognition Payments
12. Recognition payments under section 36 of the Act are payable to primary victims of particular types of acts of violence. On the facts, and following consideration of the applicant's original application for statutory compensation, the applicant's claim for a recognition payment will be considered in relation to the following categories:
S 35 (4) (d) - an assault not resulting in grievous bodily harm.
Decision on Recognition Payment
13. On the balance of probabilities I consider the applicant is entitled to a recognition payment as detailed in s 36 (1) (e).
14. I approved the payment of $1,500 to the applicant in accordance with clause 12 schedule 4 of the Victims Support and Rehabilitation Regulation 2013, as a recognition for the trauma suffered as a result of the act of violence.
Special Grant from the Victims Support Fund
15. Clause 5 (3) of schedule 2 of the Act provides for a special lump sum grant of $5000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous act within 2 years from the date of the act of violence [or two years from the day after the applicant reached 18 years of age (where applicable).]
The applicant applied to statutory compensation on the 17th July 2012. I note that the act of violence took place on the 14th August 2010.
16. The applicant is therefore eligible to receive a Schedule 2 Clause 5 (3) grant.
[2]
Provisional order for Restitution
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 of the Act:
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 a provisional restitution order 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).
"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.
A provisional 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.
On 7 August 2014, the Commissioner made a provisional order for restitution against the Applicant in the sum of $6,500, being the full amount of victims support that was approved for the victim.
A copy of the Provisional Order was posted to the Applicant on 12 August 2014 under cover of a letter from the Commissioner dated 7 August 2014. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.
Section 62 of the Act gives a person upon whom a Provisional Order 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).
[3]
Objection to Provisional Order
On 21 August 2014, the Commissioner received an Objection to a Provisional Order for Restitution, which the Applicant signed on 19 August 2014. He alleged the following grounds:
Your client sold (sic) me the pill that sent me crazy. This is why the situation occurred and I am willing to testify this in court. This matter is now in the district court's hands. I am sorry about the matter. It is a no win situation.
On 28 August 2014, the Commissioner wrote to the Applicant and acknowledged receipt of the Objection. The Commissioner stated, relevantly:
…Court records indicate the subject offence for which you were convicted was the subject of an appeal at Gosford District Court on 4 March 2011, the Sentence Appeal Dismissed - Order Confirmed.
This matter is to be listed for determination by the Commissioner of Victims Rights. You will be advised of the list date when a date has been set. The Commissioner when determining the matter may consider any relevant written submissions and supporting documentation provided…
On 18 September 2014, the Commissioner received a letter from the Applicant, which was in the following terms:
Dear Madam,
I was put into a housing boarding kennel, were I was robbed, bashed, car broken into, scratched up, tyres slashed.
They drop pills into my coffee.
I tried to kill my self.
2. I am not sure wot your talking about.
I do no I am the victim.
You had to fight for your life.
Send me wot your talking about. I don't remember much over the 4 years in hell.
On 28 September 2014, the Commissioner wrote to the Applicant, acknowledging receipt of an Affidavit of Financial Circumstances and providing him with copies of the Notice of Decision dated 6 November 2013. She informed him that the Objection was to be determined at the first available opportunity on or after 29 September 2014.
[4]
Determination of Objection
On 24 October 2014, the Commissioner's delegate determined the Objection and decided that the Applicant was convicted of a relevant offence. The delegate decided to vary the Provisional Order to reducing the restitution amount to $5,000 to be payable by instalments, based upon reasons that included the following:
Grounds of Objection, Submissions and Evidence in Support
4. In determining this objection, I have had access to the Victims Services file. I refer to the relevant parts of the file below.
5. The Court record shows that on 4 March 2011, Gosford District Court conformed a conviction of common assault against the defendant. When read alongside police information (COPS Event number provided) and other information, it appears that this incident arises out of an incident on 14 August 2010, during the course of which the defendant has pushed (the victim) and hit several times to the face. From the facts before me, it appears that the victim and the defendant were in a domestic relationship for roughly 17 years.
6. On 17 July 2012, the victim made an application for victims compensation. On 6 November 2013, an assessor, after considering all of the evidence on file, made an award of victims support in the sum of $6,500.
Objections and Reasons
7. The defendant has objected on grounds that he is unsure what the provisional order relates to. I note that the defendant has been provided documents by Victims Services.
8. The restitution process is regulated by Part 5 of the VRS Act. The object of Part 5 of the VRS Act us to allow awards of victims support that have been paid to victims by the State to be recovered from persons found guilty of the crimes giving rise to those payments.
9. The Act enables the Commissioner to make a provisional order against a person for the payment of restitution if the Commissioner is of the opinion that a person has been convicted of a relevant offence.
10. I consider that the defendant has been convicted of a relevant offence.
11. The defendant has submitted an Affidavit of Financial Circumstances, which states that he is in receipt of a social security payment. As such, I propose to reduce the total amount of restitution payable on the basis of his financial circumstances. I also allow payment to be made by instalments on this ground.
[5]
Service of Determination of Objection
A copy of the Determination of the Objection was served upon the Applicant by post under cover of the Commissioner's letter dated 24 October 2014. I am satisfied that this document was properly served upon him, but the date upon which it was posted is not indicated in the documents before me.
[6]
Application for Administrative Review
The powers of the Tribunal upon administrative review are set out in s 67 of the Act, relevantly, 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.
…
(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…
On 31 October 2017, the Tribunal received an undated Application for Administrative Review, which sought review of the decision made by the Commissioner's delegate. This set out a single ground, namely:
That the order should not have been made in the first instance as the assault never happened and there is no evidence to support.
Attached to the Application are copies of the following documents:
1. Notice of Overdue Fine under s 59 of the Fines Act 1996, issued to the Applicant by Office of State Revenue State Debt Recovery, which required him to pay the amount of $4,255 by 26 June 2017.
2. An undated letter from the Applicant, in which he stated:
To Administrative Review
The law has become a joke. The woman (name provided) can say anything she wants no proff no evidence.
She said, I punshed her to the head 5 times, kicked her to the ground.
She said she crawled under a car to get away from me.
The Police statement said not a mark on her.
It is your job to prove it. Lets go back to court.
The Application came before me for directions on 24 November 2017. The Applicant was self-represented and appeared by telephone and a representative appeared on behalf of the Commissioner. I listed the matter for hearing on 22 December 2017.
At the hearing on 22 December 2017, the Applicant was self-represented and appeared in person and Ms Sabesan, Victims Services, appeared for the Commissioner.
[7]
Extension of time
The Tribunal noted that the Application for Administrative Review was lodged almost 3 years after the date of the Notice of Determination of the Objection, but that s 66 (4) of the Act requires it to be lodged within a period of 60 days. Ms Sabesan stated that the Commissioner did not oppose an extension of time for lodging the Application for Administrative Review under s 41 of the Civil and Administrative Tribunal Act 2013 (NSW).
Section 41 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.
The Tribunal extended the time for filing the current Application to 31 October 2017.
[8]
Applicant's Submissions
The Applicant argued that there was no act of violence against the victim. He complained that his Legal Aid Solicitor did not appeal against his conviction for assault and that there is no evidence that the victim suffered any injury at all. He disputed that the assault occurred and asserted that the victim "just wanted me out of the house and I wouldn't leave". He expressed the view that he should be compensated rather than the victim. He also stated that he failed to appear at the Local Court because he "got the date confused" and that the conviction was entered in his absence. He then said that he "felt tortured" while he was in prison and that he did not learn about "all of this" until 2017 and he concluded by expressing the view that he has been mistreated because he is Aboriginal and that if the Tribunal dismissed his application he would appeal against that decision.
[9]
Commissioner's Submissions
Ms Sabesan relied upon the written submissions dated 19 December 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
3. The questions at paragraph 2 above are based on the Commissioner's interpretation of the Act, which is as follows.
4. 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 of the crimes giving rise to those payments (s 57 of the Act).
5. The Commissioner may make a provisional order if she under section 59 in the following circumstances:
1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person.
2) An order may not be made against a person if:
(a) two years or more have elapsed since:
(i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or
(ii) the date on which the person was convicted of the relevant offence, whichever is the later, or
(b) Civil proceedings have been commenced or are being maintained against the person, by on behalf of the State, in respect of an action to damages arising from substantially the same facts as those on which the relevant approval was based.
6. A "relevant offence" under section 58 is defined as follows:
(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 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 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 the Act.
7. 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.
Jurisdiction
8. As background, Victims Services served the Provisional Order on 12 August 2014. The Provisional Order was issued to the amount of $6,500. Victims Services received the applicant's objection on 21 August 2014. The applicant's objection to Victims Services was lodged within time.
9. Victims Services determined the objection on 20 October 2014 and sent notification on 24 October 2014. Under section 64 of the Act, the Restitution Order was confirmed and reduced to $5,000.
10. As per section 70A of the Act, if an order for restitution is confirmed by the Commissioner or the Tribunal, the amount payable under the order by the person against whom the order is made is a debt payable to the Commissioner.
11. Under section 112C of the Fines Act 1996, a restitution amount is taken to be a court imposed fine. Under Division 3 of Part 2 of the Fines Act 1996, the restitution amount can be referred to the Fines Commissioner for enforcement if it is not paid by the due date (s 14). The applicant's restitution debt was referred to the Fines Commissioner for enforcement.
12. Under section 66 of the Act:
(1) The defendant may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which an objection was made if:
(a) the defendant is dissatisfied with the Commissioner's determination of the objection, or
(b) 90 days have passed as referred to in section 64 since the objection was lodged with the Commissioner and the Commissioner has not determined the objection.
13. The application for review to the Tribunal is dependent on an objection being made in the first instance.
14. The writer submits that in this matter, as Mr Jackson originally submitted an objection to Victims Services, he is able to apply to the Tribunal for administrative review.
…
Compensation was awarded to victims of crime
18. On 6 November 2013, the victim (name provided) was approved a total of $6,500 victims support. This was made up of $1,500 recognition payment and $5,000 special grant. The determination found that the victim was a primary victim and sustained an injury from an act of domestic violence on 14 August 2010. The decision maker also refers to the applicant's conviction of common assault as a result of the act of violence on 14 August 2010.
19. According to the evidence before the decision maker, including Police Report (COPS Event number provided) and Justicelink records, it is reported that the applicant physically assaulted the victim on 14 August 2010. The decision was made on the basis that the victim suffered an injury as a result of the physical assault committed by the applicant.
The applicant was convicted of an offence
20. According to Justicelink records and Court records the applicant was charged with one count of common assault related to the act of violence on 14 August 2010. He was sentenced to two months imprisonment.
17. It is submitted that for the purpose of the administrative review before the Tribunal, the culpability of the offender at the time of the offence is not a relevant consideration. The relevant consideration is whether the applicant was convicted of the offence.
The Commissioner cited a number of decisions of this Tribunal in which it was determined that the Tribunal has no power to look behind the conviction when determining an administrative review of a provisional order for restitution, namely: Clow v Commissioner of Victims Rights [2017] NSWCATAD 40; Xiang v Commissioner of Victims Rights [2017] NSWCATAD 316; and Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172.
The Commissioner concluded that the evidence indicates that the Applicant was convicted of a relevant offence and that the correct and preferable decision is for the Tribunal to confirm the decision under review. However, Ms Sabesan advised the Tribunal that the Commissioner conceded that the special grant of $5,000 should not form part of any order to be made by the Tribunal. She also submitted that the Tribunal may wish to make an order for "set off" of the restitution debt against the approval for victims support that has been made in favour of the Applicant. However, she did not provide any details of that approval.
[10]
Consideration
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 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.
In this matter, the Provisional Order alleged that the Applicant was convicted of a relevant offence by the District Court in Gosford 4 March 2011, which confirmed his conviction in the Local Court at Gosford for the offence of "common assault".
The Applicant maintains that there was no act of violence as there is no evidence of any injury and he placed emphasis upon comments in the Police Report to the effect that attending Officers did not observe any evidence of physical injury.
However, the Tribunal has reviewed the evidence that was before the Assessor when victims support was approved. This includes evidence from a Clinical Psychologist dated 23 March 2013, which indicates that the victim suffered a psychological injury as a direct result of the assault on 14 August 2010. I am therefore satisfied that an act of violence has been established on the balance of probabilities.
This Tribunal has no power to look behind the terms of the Applicant's conviction for common assault.
The Tribunal is satisfied that this offence arose from substantially the same facts as those constituting the act of violence for which the approval for victims support was made and that the Applicant was convicted of a relevant offence for the purposes of s 59 (1) of the Act.
While the Applicant lodged a draft Affidavit of Financial Circumstances in support of his Objection to the Provisional Order, he has not filed a sworn Affidavit in support of the current application. There is no evidence before me as to his current financial circumstances and although Ms Sabesan indicated that the Applicant has received an approval of victims support, no information is before me regarding the terms of that approval.
The Applicant bears the onus of proving any alleged lack of financial capacity to satisfy a restitution order and in the current matter I am not satisfied that he has discharged that onus.
While this Tribunal lacks jurisdiction to review the Commissioner's decision to approve victims support for the victim, I note that the approval of comprised a category D recognition payment ($1,500) and a special grant ($5,000) and that the Commissioner has conceded that the "special grant" should not form any part of the order to be made by this Tribunal upon administrative review. That concession is relevant to the determination to be made under s 67 (1) (a) of the Act.
In my view, it is appropriate to confirm the restitution order but to reduce the Applicant's liability to $1,500 (the amount of the category D recognition payment) on terms that the debt is payable within 30 days.
[11]
Order
I make the following orders:
1. The Provisional Order is confirmed subject to the following variation.
2. The liability of the Applicant is reduced to $1,500, to be paid within 30 days.
[12]
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
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Decision last updated: 19 March 2018