Kabir v Commissioner of Victims Rights

Compensation Awarded to the Victim

1. On 2 July 2009, the victim made an application for statutory compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 ("the old Act") in relation to the incident that occurred on 31 May 2009.
2. However, 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 On 2 June 2014, the old Act was repealed and replaced by VRSA.
3. Clause 5 of Schedule 2 of VRSA contains transitional provisions and provided: 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scheme (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
4. Accordingly, on 28 January 2014, a Compensation Assessor made an award in favour of the victim in the sum of $6,500, comprising: 1. A category D recognition payment pursuant to Section 35(4)(d) of VRSA in the sum of $1,500; and 2. A special grant pursuant to Schedule 2, Clause 5(3) of VRSA in the sum of $5,000. 3. The Reasons for Decision indicate that the Compensation Assessor was satisfied that an act of violence had been established on the balance of probabilities and that the victim had suffered an assault (not resulting in grievous bodily harm).

Provisional Order

1. The Commissioner's discretion under Section 59(1) of VRSA to make a provisional order 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.
2. On 31 October 2014, the Commissioner made a provisional order against the applicant in the sum of $6,500 (the amount of compensation paid to the victim). Notice of the provisional order was given to the applicant by post on 4 November 2014, as required by Section 61 of VRSA.

Objection

1. Section 62 of VRSA gives a person upon 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 (see: Section 62(3)) and the objector bears the onus of proving their case (see: Section 62(4)).
2. On 7 November 2014, the applicant wrote to the Respondent and requested further information regarding the award made to the applicant, including the nature of the injury sustained, medical and other evidence that the victim relied upon. He also requested an extension of time in which to lodge an objection.
3. On 19 November 2014, the Respondent wrote to the applicant and provided him with information regarding the recognition payment and special grant and informed him that he would be required to respond within 28 days of receipt of the further documentation that would be provided to him.
4. On 22 December 2014, the Respondent wrote to the applicant and provided him with further documents that were requested and advised him that he was required to respond to the Provisional Order by 19 January 2015.
5. The applicant filed an objection on 12 January 2015, in which he sought to rely upon multiple documents, including: 1. Written Submissions (undated); 2. Documents relating to the dissolution of the Applicant's marriage to the victim's daughter; 3. An Application for Parenting Orders filed in the Local Court of NSW at Campbelltown on 2 June 2009; 4. Letter from Chris Taylor, Barrister at Law, to the Applicant dated 10 October 2011; 5. Letter from the Applicant to the Department of Attorney General and Justice dated 3 June 2013; and 6. Letter from the Department of Attorney General and Justice to the Applicant dated 5 June 2013.
6. The applicant sought to raise issues of guilt and culpability and he contended, amongst other things: 1. That he suffered injury during the melee that occurred and that he had no intention of hitting the victim; 2. That the victim did not suffer grievous bodily harm and his own injuries were related to the stress and worry of family law proceedings; 3. He disputed his culpability for the charge of common assault, which he pleaded guilty to. He said that he pleaded guilty to the offence based upon legal advice, but "afterwards realised the effect of a conviction on his life and career". He received advice from a barrister, which indicated that his case was winnable, and he wrote a letter requesting to have his conviction annulled. However, this outcome was not achieved; 4. He had since completed a Master's degree in Finance from the University of Wollongong and was working in accounting.
7. On 27 January 2015, the Commissioner wrote to the applicant, referring to his Objection and advising him that if he wished his financial circumstances to be considered, he should complete the Affidavit of Financial Circumstances and provide supporting documents and that he should complete the enclosed Restitution Payment Options Application and indicate a reasonable monthly instalment amount that he may be able to meet if he was unable to make a lump sum payment, by 17 February 2014 (sic). However, the applicant did not respond.
8. Section 64 of VRSA 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.
9. On 26 March 2015, the Commissioner's Delegate confirmed the applicant's liability, but reduced the amount payable under the order to $5,000.00 to be paid forthwith on the basis that the Applicant had pleaded guilty in the criminal proceedings. Notice of that determination was served on the applicant as required by Section 65 of VRSA on 1 April 2015.

Application for Administrative Review

1. The powers of the Tribunal upon review are set out in Section 67 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 5 May 2015, the Applicant applied to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with Section 66 of VRSA. 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: Section 66 (2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: Section 66(3)).
3. In support of his Application, the Applicant lodged a statement dated 7 June 2015, in which he stated: Culpability for the injuries to the victim 1. The commissioner has failed to consider the culpability issue I have raised (please refer to the grounds of objection of provisional order). 2. The commissioner has sole focused on the conviction and only reduced the fine by $1,500. 3. Conviction in a court means guilty but, exceptional circumstances do arise and conviction can occur due to mistake. 4. My case is exceptional and I pleaded guilty by mistake due to lack of knowledge and misrepresentation (please refer to the objection of provisional order). 5. Commissioner's reason based on conviction is not founded in Victim Rights Act 2013 part 5. 6. Commissioner's explanation on para 11 is not consistent with law. Other relevant issues 7. The supposed victim did not qualify for the payment under Section 44(a)(d)(f). 8. The supposed victim made several in accurate statement in ARW report and was motivated to obtain victim support money. 9. Victim of a crime definition in sec 5 is not met in this case. 10. My past and present background was not fully considered. 11. No out of pocket expense evidence provided. Financial Circumstances 12. Currently, I am unemployed, have two dependent children & unable to pay the fine. 13. I have a large credit card debt of $17,868.01 and struggling to repay.
4. The Application for Administrative Review was lodged within the permitted time. It came before me on 19 June 2015, when Mr Matulewicz appeared for the Commissioner and the Applicant appeared in person. The documents provided by the Commissioner under Section 58 of the Administrative Review Act 1997 were comprehensive and complete.
5. The Applicant made oral submissions that essentially repeated those set out in his Objection and Statement dated 7 June 2015. While he agreed that he pleaded guilty to the offence of common assault, upon which the award of victims support was based, he maintained that this occurred "by mistake" and that it was based upon an unspecified "misrepresentation" by his lawyer. He sought to cavil with the statement of facts that were presented to the Magistrate when he entered a plea of Guilty.
6. However, the Tribunal informed the Applicant that it does not have power to go behind a decision made by a Magistrate in Local Court proceedings and that for the purposes of the provisional order, he had been convicted of a relevant offence (common assault) under Section 9 of the Crimes (Sentencing and Procedure) Act 1999.
7. The Tribunal also noted that the Applicant had not lodged an Affidavit of Financial Circumstances and/or any documents that support his allegation of impecuniosity, despite raising this issue in his "Statement" and that if he wished to rely upon this ground of review he would need to lodge that evidence.
8. The Applicant replied that he wished to rely the ground of impecuniosity and the Tribunal therefore made the following orders: 1. The Applicant is to file and serve a fully completed Affidavit of Financial Circumstances by 3 July 2015; 2. The Respondent is to file and serve any evidence in response by 10 July 2015; 3. As at 10 July 2014, the matter is to be marked as "reserved" and is to be determined by Senior Member Riordan in Chambers.
9. On 20 June 2015, the Applicant executed an Affidavit of Financial Circumstances, in which he asserted income totalling $2,180 per month; Expenditure totalling $2,395 per month (including mortgage payments) and total assets of $12,760. However, none of the disclosed/asserted items have been verified by any supporting financial documentation.
10. On behalf of the Respondent, Mr Matulewicz lodged written submissions that dated 19 July 2015, in which he submitted, relevantly: 1. Evidence is to be weighed according to the capacity of a party to adduce it: Blatch v Archer (1774) 1 Cowp 63; 98 ER 696. He submitted that the documentation required to support the Affidavit of Financial Circumstances are normally easy to obtain; 2. The Applicant was born in 1981. He is a young, qualified professional person and presented at the hearing as being both intelligent and articulate. While he said that he had recently been laid off, he hoped to start his own business. He is financially savvy and had previously worked within the field of finance. On that basis, there is no reason to believe that the financial position asserted in the Affidavit of Financial Circumstances is anything but temporary; 3. If the Affidavit of Financial Circumstances is now accepted, the Tribunal is in no better position to make a decision about the Applicant's financial circumstances that it was when the hearing commenced. If it forms the view that the Commissioner had power to make a provisional order, it should confirm that order and dismiss the Application for Administrative Review; 4. If the Affidavit of Financial Circumstances is accepted, then the Applicant's current financial hardship is temporary. On that basis, the Tribunal should order payment by nominal monthly instalments (say $40 per month) and in default of those orders, the entire amount is to become due and payable; and 5. In either event, the Tribunal ought to stay the execution of the order for restitution for a reasonable period to allow the applicant to consider his options, including entering into an agreement under section 60 of VRSA, a reasonable period comprising three months

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 committed by the applicant.
2. I further note that following the Applicant's objection, the Respondent decided to reduce the restitution amount by $1,500 to $5,000 on the basis that the Applicant pleaded guilty in the Local Court proceedings.
3. I also satisfied that other issues that were raised by the Applicant in his Statement dated 7 June 2015, including the assertion that the Victim did not qualify for the payment of victims support under Section 44 of VRSA, are without merit and irrelevant to the matters to be determined by this Tribunal. In any event, this Tribunal does not have power to go behind the Magistrate's decision.
4. The Tribunal must, under Section 69 (1)(a) of VRSA, consider the Applicant's financial means when determining the amount of restitution to be paid and the manner in which it should be paid. In relation to this issue, I note that in the matter of Connor v R [2005] NSWCCA 431 [at 41], Studdert J in the Court of Criminal Appeal held: …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…
5. In the current matter, there is no evidence that supports the allegations of financial hardship set out in the Affidavit of Financial Circumstances and there is no explanation from the Applicant as to why that evidence could not be adduced. In accordance with the decision in Blatch v Archer (supra), I regard the allegations contained in the Affidavit as being in the nature of 'bare assertions' by the Applicant. Further, in view of his professional qualifications as an Accountant, and his stated intention of establishing his own business, I am not satisfied that any financial impecuniosity that he may currently be suffering is anything other than temporary in nature.
6. As a result, I am not satisfied that the restitution sum should be further reduced, but as the applicant may need to obtain finance in order to satisfy the restitution order dated 26 March 2015, I have decided that it is appropriate to vary the order to allow him a period of time in which to satisfy that order.
7. Therefore, I make the following orders: 1. Pursuant to Section 67 (1)(a) of VRSA, I confirm the order made by the Commissioner on 26 March 2015, which requires the applicant to make restitution in the sum of $5,000; 2. However, I vary the order dated 26 March 2015 to allow the applicant time to pay comprising a period of twelve (12) months from 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 August 2015