Jones v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2024-11-08

Background

The applicant made an application for administrative review of a Determination of Objection to Restitution made on 1 August 2024 by the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $5,000, being the full amount of victims support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).

Award of victims support to the victim

On 2 November 2020, an Assessor determined an application for victims support, in which the victim alleged that they were the primary victim of an act of violence, in the nature of an assault, which was committed against them on 24 June 2017 at Lane Cover in the State of New South Wales. The victim suffered an injury consistent with the act of violence and was approved victims support in the form of a category C recognition payment pursuant to s 35(3)(c) of the Act in the amount of $5,000.

Application for Administrative Review

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.
On 30 September 2024,the Tribunal received the current Application for Administrative Review, which sought a review of the Determination of Objection to Restitution dated 11 1 August 2024 on the following grounds: Financial hardship - currently unemployed and not earning an income from employment.
The applicant also relied on a written submission, which is undated, in which he made the following points: 1. It is claimed I have 60 days to appeal the Notice of Determination of Objection. However, I only received the 1 August 2024 letter on 19 August 2024. This is proof s I was also emailed on the same date. The substantial amount of time not explained by Australia Post delivery times has reduced the amount of time I have to prepare my evidence for administrative review. This is grossly unfair. I am not a lawyer and need to therefore seek legal advice. 2. The Commissioner's Notice of Determination of Objection states that "I must inform the defendant of the right to have the Commissioner's decision to issue the original order administratively reviewed under Section 66 of the Act". Once again, I am not a lawyer and although the Commissioner does state that I have a right to the original order administratively reviewed it does not state to who I should write. Hence, I have also needed to seek legal advice on this. 3. The Commissioner's Notice of Determination of Objection states at point 25 that he/she acknowledges the defendant's statements and supporting documentation that "he is currently earning an income". This is not factual. (a) I am receiving a Job Seeker Allowance from Centrelink. I am currently receiving no income from employment. The Commonwealth Government pays this as a basic payment to provide some help towards basic food and is insufficient to cover rent. The Commonwealth Government acknowledges by providing rental assistance. I am not receiving rental assistance. (b) Any modest savings I have, have been eaten up by trying to survive. I need to find rental accommodation but due to no income from employment I am unable to even basic affordability calculations. (c) Unemployment is clearly not a "position to meet…pay the debt" as claimed at point 25 of the Commissioner's Notice of Determination of Objection. (d) I note only one point of 29 points in the Commissioner's Notice of Determination of Objection makes any reference to the defendant's statement and supporting documentation. I see little to no evidence that the administrative decision has not taken into account of my statements, supporting documents or character references. (e) In fact, the Commissioner's Notice of Determination of Objection misstates my financial position as being sufficient to meet alleged debt of $5,000 while unemployed, Centrelink would not be paying Job Seeker Allowance if I had an income or sufficient savings. (f) The commonwealth do not provide Job Seeker Allowance to provide revenue to the NSW Government. I went through the Court case in 2017 and seven years later without any notice the NSW Government invoices me to recover an alleged debt. On the basis that Victims Services have been meeting an expense. It is not my role to in society to redirect funding from the Commonwealth Government to NSW Government. My obligation is to look for work. (g) However, I recently lost my employment as the NSW Government decided to provide a Working with Children Check is "mandatory" to my then employer (name provided) 5 years after the matter went to Court. This directly and solely led to my loss of employment … Please note all evidence proves I was only defending myself and was not the aggressor yet 5 years later it denies me an income. (h) I note that if payment in full is not received on or by 30 October 2024 the alleged debt will be referred to the Fines Commissioner (Revenue NSW) and that this mat incur additional costs. My current unemployment provides no income beyond Job Seeker Allowance to meet the alleged debt. The Commission her at Point 25 acknowledged their obligation to take the defendant's financial position into account. This clearly has been not properly assessed - to argue that Job Seeker Allowance is sufficient to meet a $5,000 alleged debt and still survive within 60 working days is absurd, unfair, punitive, discriminatory and just plain wrong. (i) I am exempted to look for work at present due to medical reasons that Centrelink has acknowledged. Hence even if I had modest savings as claimed, I don't have prospects of gaining employment in near future to earn sufficient income to meet any alleged debt let alone an alleged debt of $5,000. I am hoping my health recovers, but the stress caused by this Commissioner has been immense and made my efforts to cope with my health issues harder. (j) On fairness grounds it is entirely unreasonable for the Commissioner of Victim Services to only give 60 days for an unemployed person to raise $5,000. I note any additional costs will make it even harder for me to meet any alleged debt. (k) The Commissioner has not made it ever clear why I am now being charged $5,000 seven years after the incident where I was viciously strangled and defended myself in fear of my life. I was lifted off the ground in a kitchen and used what I could to save my own life. The Commissioner of Victims Services if it was appropriate for them to recover $5,000 and intended for it to be paid by me would appropriately been billing progressively since 2017 not seven years down the track.

Procedural matters

The matter came before me for Directions on 11 October 2024. The applicant was self-represented and Ms K Douch, Victims Services, appeared for the respondent. I ordered the applicant to file and serve all evidence that he relied upon by 25 October 2024. I ordered the respondent to file and serve a bundle of documents under s 58 of the ADR Act by 18 October 2024 and to file and serve a summary of its legal arguments by 8 November 2024. I listed the matter for an in-person hearing on 8 November 2024.

The hearing

The matter came before me for hearing on 8 November 2024. The Applicant was self-represented and his Father sat with him as "a support person". Ms K Douch, Victims Services, appeared for the respondent.

Applicant's further evidence

I note that the applicant had filed additional evidence on 25 October 2024, in which he raised the following arguments: 1. He was convicted of reckless wounding and he was not convicted of a charge of assault resulting in grievous bodily harm. He stated, relevantly: "The Commissioner of Victims Services should apply the principle of innocent until proven guilty. Hence they have exceeded their administrative authority in making a recognition payment based on an assault resulting in grievous bodily harm." 1. On 24 June 2017, he was acting in self-defence. He argued to the effect that the alleged victim was of a larger build than himself, that he was actually overpowered and lifted into the air and he had little control over his body. He was being strangled and was having trouble breathing and as he struggled to break free, he grabbed a knife from the sink and used it to defend himself. He was in fear of his life and the alleged victim was only injured till he let go of his neck. He immediately retreated and called 000 to get the alleged victim assistance and gave him a towel to stop the bleeding. He did not run away and waited for police and an ambulance to arrive "thinking they would be on my side as I was the one who was attacked." 2. The "wrong conviction" made his immune system worse over the past seven years and he suffers from numerous health conditions that have required hospitalisations. He has also suffered from depression. 3. He now has a criminal record even though he acted in self-defence. 4. The Tribunal decision (?) ignores that he is currently unemployed and that he neither has an income or sufficient savings to pay the $5,000. He stated, "Any savings I do have are so I can survive while unemployed. I do not feel my job-seeker allowance is intended to be used by the Commonwealth Government towards State Government so called debts".
In a further submission dated 25 October 2024, the applicant reiterated that he was the victim and that he is not the kind of person who gets pushed and goes around stabbing people. The knife was used out of necessity. The facts are not the facts and the victim is not the victim and the way he has been treated this whole time deeply offends him. He also stated: I have been tortured for 7 years over this self-defence case. I used the force necessary to escape the death grip of a much larger drug and alcohol infused man. My human right, I am feeling bitter and have lost faith without any passion working with kids and health deteriorating over the last 7 years from the stress. It has affected my ability to be able to work and earn an income. I was forced to move back home with my father and rely on unemployment benefits and the little bit of savings I have left. I am feeling like I don't have any huma rights being forced out of the working systems and pushed away from Society as a convict.

Applicant's oral submissions

The applicant stated that he receives a Job Seeker Allowance of $770 per fortnight.
In response to questioning by the Tribunal, the applicant stated that he did not appeal against the conviction because his Mother passed away at about that time and he only had a period of 28 days in which to lodge an appeal.
The applicant also stated that he does not pay any board to his Father, but he spends about $100 per week on food and $100 per month on telephone and internet. Transport costs him about $50 per week.
The applicant maintained his argument that the Job Seeker Allowance is not income. However, he Tribunal rejected that argument on the basis that it is income support and is classed as income for taxation purposes.
The applicant's father then interjected and stated to the effect that the applicant "does not feel guilty" and that his son was the victim of an assault and no-one is listening. He expressed concern as to the life of the applicant if the Tribunal did not set aside the restitution order.
The Tribunal observed that there was no medical evidence in the applicant's case to support a submission that his life would be placed at risk if he did not succeed in his application for administrative review and that it considered this particular submission to be ill-advised and misconceived.
The applicant did not make any further oral submissions in support of his case.

Respondent's submissions

The respondent filed submissions on 5 November 2024, which argued to the effect that the correct and preferable decision is to confirm the decision under review. However, the Tribunal has power under s 69 of the Act to reduce the amount to be paid under a restitution order having regard to the financial means of the applicant and any such matters as it deems fit.
However, the Tribunal does not have power to look behind a conviction and it cannot, in the course of an administrative review of a restitution order, seek to review the respondent's decision to approve victims support to the victim of the act of violence.
Pursuant to s 59(1) of the Act, if the respondent is of the opinion that, before or after approving a recognition payment, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person.
In this matter, the applicant was convicted of a relevant offence and the conditions set out in s 59 of the ac have been satisfied. Therefore, the original decision and restitution order should be confirmed without variation under s 67 of the Act.
In relation to the approval of victims support, an Assessor is not restricted by the terms of a charge or conviction and is required to determine the relevant category of recognition payment based on the medical evidence and material before them. The Assessor determined that a category C recognition payment was appropriate.
It is also clear that the applicant, having been convicted of reckless wounding, was convicted of an offence in respect of which victims support was given. Therefore, he was convicted of a relevant offence as defined by s 58 of the Act. The respondent relied upon the tribunal's decisions in Hawker v Commissioner of Victims Rights [2017] NSWCATAD 381 and Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44.
The restitution order was also issued within the time prescribed by s 59(2)(a)(ii) of the Act.
In relation to s 69 of the Act, the respondent noted that the applicant sought a reduction of the restitution debt on the following grounds: (1) the nature of the conviction; (2) the circumstances of the offending conduct; (3) the consequence of the offending; (4) his health; and (5) unemployment/financial hardship.
The respondent noted that the extent to which the applicant relies upon his savings is not known as he had not provided a summary of his incomings and outgoings, but it appeared that he had been able to save some funds during the period between April 2024 and 30 September 2024. The respondent was agreeable to a reduction of $500 (10%) in view of the applicant's stated financial circumstances and was also prepared to offer an extended payment pan over six months. However, if the debt was not satisfied by the due date, the debt will be referred to the Fines Commissioner for enforcement under the Fines Act.

Relevant legislative provisions

Section 59 of the Act provides: Commissioner's discretion to make provisional order for restitution by offender (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) 2 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 or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.
Section 61 of the Act provides: Notification of decision (1) The Commissioner must serve notice of an order for restitution personally or by post on the person against whom it was made. (2) The notice must - (a) set out the terms of the order, and (b) include a statement of the grounds on which the order was made, and (c) set out the effect of sections 63 and 64, and (d) set out an explanation of - (i) the right to object, within 28 days after the notice is served to the order and the procedure for objecting, and (ii) the effect of objecting or failing to object.
Section 62 of the Act provides: Objection to order (1) A person served with notice of an order for restitution may lodge a written objection to the order with the Commissioner. (2) The objection must be lodged within 28 days (or such longer period, not exceeding 90 days, as the Commissioner may allow) after the notice was served. (3) The grounds for the objection must be stated fully and in detail in the objection. (4) On an objection, the defendant has the onus of proving the defendant's case.
Section 64 of the Act provides: Powers of Commissioner on objection (1) After considering an objection, the Commissioner may - (a) allow the objection in whole or in part or disallow the objection, and (b) confirm the decision to which the objection was made (with or without variations) or reverse that decision. (2) The Commissioner may confirm the order for restitution if the Commissioner confirms the decision to which the objection was made (with or without variations). (2A) Before confirming the order, the Commissioner may vary the order by reducing the amount payable under it. (3) The Commissioner must revoke the order for restitution 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.
Section 66 of the Act provides: Administrative reviews by Tribunal (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. (2) The applicant's and respondent's cases on an application for an administrative review are not limited to the grounds of the objection. (3) The applicant has the onus of proving the applicant's case in an application for an administrative review. (4) An application for an administrative review - (a) following a determination by the Commissioner of an objection - must be made not later than 60 days after the date of issue of the notice of the Commissioner's determination of the objection, or (b) following a failure of the Commissioner to determine an objection within the relevant 90-day period - may be made at any time after the end of that period (but must be made as required by paragraph (a) following a subsequent determination of the objection by the Commissioner). (5) The Tribunal may extend the time for making an application for an administrative review. (6) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application made under this section - (a) Part 2 of Chapter 3, (b) section 55 (3)-(6), (c) Division 2 of Part 3 of Chapter 3. (7) For the purposes of section 58(1)(a) of the Administrative Decisions Review Act 1997 - (a) the obligation of the Commissioner under that paragraph to lodge a statement of reasons with the Tribunal in respect of an application is limited to providing the Tribunal with a statement of reasons only in respect of the matters arising from the grounds specified in the application, and (b) if one of the grounds specified in the application relates to a matter raised in an objection determined by the Commissioner - the Commissioner may rely on reasons previously given to the defendant by the Commissioner under this Act for the determination of the objection in explanation of that part of the original decision. (8) In any review proceedings, a person who is a victim of the relevant offence to which the proceedings relate is competent, but not compellable, to give evidence or produce documents. Note - See also section 113 which provides that an application for victims support and any documents supporting the application are, subject to that section, not admissible as evidence in any legal proceedings.
Section 67 of the Act provides: Powers of Tribunal on administrative review (1) On an administrative review, the Tribunal may - (a) confirm the original decision the subject of review (with or without variations) or reverse that decision, 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. (2A) The Tribunal may confirm the order for restitution the subject of the review proceedings if the Tribunal confirms the decision to make the order (with or without variations). (3) The Tribunal may confirm an order for restitution 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 an order for restitution 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.

Consideration

Based on a consideration of the available evidence, I am satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.
I am satisfied that the restitution order was made within the time permitted by S 59(2)(a) of the Act.
In this matter, the evidence before the Assessor supported the respondent's decision to approve a category C recognition payment for the victim in the sum of $5,00. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the victim.
In considering the application of s 69(1) of the Act to this matter, I note that based solely upon his evidence, the applicant's current financial circumstances are precarious as he is unemployed, is unable to obtain a Working with Children clearance that would enable him to seek and obtain work for which he is qualified, and he suffers from multiple health conditions (physical and psychological) that prevent him from currently seeking work.
However, while I accept that the applicant is suffering from financial hardship, I reject his arguments to the effect that his Job Seeker Allowance cannot be applied towards satisfying a State Government Debt, such as a the restitution debt in this matter, and that his savings exist to help him to survive and should also not be utilised to satisfy that debt.
For these reasons, I have decided that the correct and preferable decision is to vary the restitution order under s 69(1) of the Act, to reduce the total amount payable to $2,500 (a reduction of 50%).

Conclusion and orders

I make the following orders: 1. Pursuant to s 67(1) of the Act, the restitution order dated 1 August 2024 is confirmed. 2. However, the restitution order is varied as follows: 1. The restitution sum is reduced to $2,500 pursuant to s 67(2A) of the Act; and 2. The restitution sum is payable within six (6) months of the date of this decision.

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: 19 December 2024

At a glance

Court

Decision date

Source

Judgment (13 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (2)