The applicant has made an application for administrative review of a restitution order made on 11 May 2021 by a delegate of the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $6,000, being part of the amount of victim's 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 (the Act).
[2]
Awards of victims support to the victim
On 13 September 2016, the victim lodged an application for victims support under the Act, which alleged that she was the primary victim of domestic/family violence in the nature of intimidation and assault, which was perpetrated by the Applicant on 11 September 2016. She alleged that she suffered physical and psychological injuries as a result of the act of violence and claimed victim's support in the nature of financial assistance for immediate needs and a recognition payment. The application also indicated that the victim had made a previous claim for victim's support under the Act.
On 1 November 2016, an Assessor (Client Claims) issued a Notice of Decision, which determined that the victim was a primary victim of an act of violence and approved financial assistance for immediate needs in the amount of $4,829, for the installation of security cameras at her premises. The Assessor noted that the victim had also requested the installation of security cameras at her mother's premises, but this request was not approved as there is a $5,000 limit on approvals of financial assistance for immediate needs. The application for a recognition payment was deferred.
On 5 December 2016, the victim accepted a payment of $4,829 from the respondent by signing an Acceptance of Payment form, in which she stated that she understood that if the offender is convicted of the offence upon which her award was based, steps would be taken to recover the amount awarded under her application from the offender.
On 8 March 2017, an Assessor (Client Claims) issued a Notice of Decision, which determined that the victim was a primary victim of an act of violence in the nature of an assault (not resulting in grievous bodily harm) and approved a Category D recognition payment in the sum of $1,500. The Assessor found that the victim had suffered a psychological injury as a result of the act of violence.
On 25 March 2017, the victim accepted the recognition payment by signing an Acceptance of Payment form, in which she stated that she understood that if the offender is convicted of the offence upon which her award was based, steps would be taken to recover the amount awarded under her application from the offender.
[3]
Order for restitution
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.
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).
"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 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 victim's support could be made under s 40(6) of the Act.
In this matter, Court documents indicate that the Applicant was charged with a number of offences in relation to his conduct towards the victim. However, those offences that are relevant to the approval that is the subject of the current application are as follows:
1. Contravene prohibition/restriction in AVO (domestic) - s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (the CDPV Act);
2. Destroy or damage property - s 195 of the Crimes Act 1900; and
3. Common assault domestic violence related - s 61 of the Crimes Act 1900.
On 10 October 2016, at Queanbeyan Local Court, the applicant pleaded guilty to all charges and he was convicted and placed on good behaviour bonds under s 9(1) of the Crimes (Sentencing and Procedure) Act 1999 as follows:
1. for a period of 12 months in respect of charges (1) and (3) above; and
2. for a period of 6 months in respect of charge (2) above.
The Court documents also indicate that on 25 October 2016, the Applicant was arrested, charged and convicted of other offences relating to the victim and that he appeared at Waverley Local Court and was subsequently convicted. However, those matters are not relevant to the act of violence that is the subject of the current application.
On 26 August 2020, the respondent made an order for restitution against the Applicant in the sum of $6,239, being the full amount of victim's support that was approved for the victim. However, the restitution order stated that the relevant offence comprised the act of violence with respect to which the applicant was convicted in Waverley Local Court.
A copy of the restitution order was posted to the applicant under cover of a letter from the respondent dated 26 August 2020. I am satisfied that the restitution order was served on the applicant as required under s 61 of the Act.
Section 62 of the Act gives a person upon whom a restitution 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).
On 23 September 2020, the applicant submitted an objection to the restitution order, in which he stated, relevantly:
…I would like to object to the order of restitution issued by Victims Services for the following reasons:
1. (The victim) has confirmed directly with Victims Services by email dated 9 September 2020 that this is incorrect (please refer to enclosed email as support).
2. I do not agree that this incident gave rise to (the victim) seeking financial support as a result. This was due to another incident unrelated to you as confirmed by her in the email.
A copy of an email from the victim to Victims Services dated 9 September 2020 was annexed to the objection and I note that it states, relevantly:
I contacted you in 2016 in relation to an act of violence by members of the Waverley command police. The violent act occurred on the 1st May 2016. I only ever contacted VS in relation to the action of the police not any other individual or incident. I disclosed to Sarah that there was a restraining order in place at the time in relation to a Mr Raymond Lechminka. Mr Lechminka's actions had nothing to do with why I made contact with Victims Services.
I received some services from VS but only because of my concerns for my safety from the Police officers involved in the violent incident.
I request that any restitution is being claimed from Mr Lechminka be waiver (sic) immediately.
However, the applicant did not object to the restitution order on the basis that the relevant offence cited in that order was not the subject of the approval of victims support upon which the order was purportedly based.
[4]
Determination of objection
On 11 May 2021, the respondent's delegate determined the Objection and confirmed the order under s 64 of the Act, but varied the liability to $6,000. The delegate's reasons included:
…
14. 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. The defendant objects on the basis that the victim has provided victims services with advices stating that the defendant's actions had nothing to do with her application for victims support. (The victim) advices received state that Mr Lechminka did not commit the acts of violence but rather her application was made concerning for her safety from police officers.
b. The defendant objects stating that the restitution debt be waived
Consideration
Should the order be confirmed, either with or without variation?
15. Based on the evidence, the defendant was convicted of an offence in respect of which victims support was approved.
16. That is, the victim was approved victims support related to an act of violence occurring between 6 January 2016 and 12 September 2016. 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 of 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.
17. It is important to point out 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.
18. 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.
19. Firstly, and notwithstanding the advices received from the victim and the defendant Mr Lechminka had nothing to do with the act of violence connected with the order for restitution, I note the application for victims support lodged by (the victim) on 13 September 2016 duly names Mr Lechminka as the "offender" for incidents of domestic violence occurring between 8 January 2016 and 12 September 2016.
20. I further note with regard to those complaints made by (the victim) to NSW Police, Mr Lechminka was arrested and convicted of those offences which include common assault, contravene prohibition/restriction in AVO and stalk/intimidate intend fear or physical harm. Details of those offences including dates of conviction are listed at paragraph 13 of this decision.
21. As a result of the application made by (the victim), she received financial support from Victims Services in the amount of $6,239.00.
22. I further note that internal correspondence indicates that (the victim) contact Victims Services on 9 September 2020 where staff explained that she had two applications one against Mr Lechminka and one involving Police.
23. What that means, for restitution purposes, is Mr Lechminka as convicted of a relevant offence for which the victim received support, and which Mr Lechminka is liable for the support paid. Under the Act, if a person has been convicted of the offence that led to the support being paid to a victim, restitution can be taken 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.
24. With request to the defendant's request for the restitution debt to be waived in full, unfortunately I cannot waive the debt, nor do I believe it is appropriate to do so. Therefore, the defendant's request for a full waiver is not accepted.
25. However, whilst he has engaged in the restitution process, providing a response to the Order made and documenting his reasons for objection. Given his willingness to engage in the process, I consider it appropriate to provide some leniency in the amount to be confirmed to be paid by Mr Lechminka in satisfaction of the debt due and owing.
26. Overall I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act.
27. I consider it reasonable and appropriate to reduce the amount payable under the original order…
The delegate reduced the restitution liability to $6,000 and ordered that payment be made by 8 August 2021.
A copy of the determination of the objection was served upon the Applicant by post under cover of a letter from the Respondent dated 11 May 2021. I am satisfied that the document was properly served upon him and, while the date of positing is not indicated in the Respondent's documents, the Applicant clearly received it as he attached a copy to his current Application.
However, I note that the delegate failed to note the obvious error in the restitution order regarding the convictions upon which the order was purportedly based.
[5]
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 2 July 2021, the Tribunal received an Application for Administrative Review dated 28 June 2021, which sought review of the decision made by the Respondent's delegate on the following grounds:
The restitution that victim Services are asking for is related to a crime that has nothing to do with me. The victim was of the understanding that restitution provided was for a different crime unrelated to me.
However, the applicant did not object to the restitution order on the basis that the relevant offence cited in that order was not the subject of the approval of victims support upon which the order was purportedly based.
I am satisfied that the current application was lodged within 60 days of the applicant receiving the determination of the objection from the respondent.
[6]
Directions
The matter was initially listed for directions on 6 August 2021. However, that listing was vacated by consent of the parties and the matter was listed for directions on 3 September 2021.
The matter came before Senior Member McAteer for directions on 3 September 2021, at which the applicant was self-represented and Ms K Douch of Victims Services appeared for the respondent. The Senior Member:
1. Ordered the applicant to file and serve any further evidence and material in respect of the determination of the application for a recognition payment, and why that application and award should not stand, or if it should not stand, why a repayment of the recognition and other payments should not be forthcoming having regard to the terms of the application made by (the victim) the victim of crime, on or before 8 October 2021.
2. Ordered the respondent to file and serve any material in reply on or before 22 October 2021.
3. Listed the matter for directions on 5 November 2021.
The matter came before Senior Member McAteer for directions on 5 November 2021, at which the applicant was self-represented and Ms K Douch of Victims Services appeared for the respondent. the Senior Member:
1. Ordered the respondent to file and serve their evidence and material on or before 3 December 2021.
2. Ordered the applicant to file and serve a reply (if any) to that material on or before 24 December 2021.
3. Ordered the respondent to file and serve any submissions on or before 14 January 2021.
4. Listed the matter for hearing on 21 January 2022, noting that there were potentially three witnesses giving evidence at the hearing.
[7]
The hearing
The matter came before me for hearing on 21 January 2021, at which the Applicant was self-represented and Ms Douch again appeared for the respondent. Owing to the current Covid-19 Pandemic, the hearing was conducted in a virtual hearing room.
[8]
Applicant's evidence and submissions
When the matter commenced, the victim was noted to be present with the applicant and she confirmed her intention to give evidence in the proceedings.
The applicant lodged a bundle of documentation in support of his application, including s 58 documents relating to the victim's claim against him. While I have read all of this evidence, I do not intend to refer to all of it in this decision. However, I consider the following documents to be relevant to the determination of this matter:
1. Statement of the applicant dated 3 August 2021, in which he stated, relevantly:
6. I understand that (the victim) only needed protection from the continuous intimidation from police officers and had no intention of seeking support regarding any act for which I was charged.
7. I believe that the commissioner did not consider all the circumstances surrounding the case when he held that (the victim) was provided support on the basis of the common assault I committed against her.
8. Upon enquiry, I realise that the commissioner did not have the authority to make an order for restitution against me if 2yrs or more had elapsed since the date I was convicted for any relevant offence. Annexed and marked "B" is a copy of the relevant provision.
9. I was convicted for common assault and contravention of an AVO against (the victim) on the 18th of January 2017. See paragraph 13 o the Notice of Determination of Objection.
10. The said assault formed the basis upon which the commissioner of victims services made an order of restitution against me.
11. I also know that the 2yrs limitation provided by s 59(2)(a)(i) of the Victims rights and Support Act Mo 37 - NSW Legislation had elapsed when the Commissioner issued a restitution order against me on the 26th August 2020.
12. I was also informed by (the victim) that she did not contact the Victims Services for any other issue except the assault from the NSW Police Officers.
13. I believe that the acts of the commissioner of victims services was not in good faith and didn't reflect the intentions of the victim (name provided) in the matter.
1. Statement of the victim dated 3 August 2021, in which she stated, relevantly:
4. I contacted the victims services on the 31st of May 2016 seeking support regarding a physical assault committed against me by two (2) officers of the NSW police.
5. I asked the Victims Services for support and protection because I was in absolute fear of my life following the continued threats, intimidating behaviours and unannounced visit from the police officers.
6. The officer from Victims Services sought documents and reports from the hospital, doctors and ambulance that was involved in the physical assault matter when it occurred.
7. The victims services had also organised a psychological counselling (with Suzanne de Barker) for me considering that I suffered psychological and emotional injury following the acts of the members of the NSW Police.
8. My discussions with Sarah (an officer of the Victims Services) were only in relation to the assault by the police officers and she organised security cameras should the police officers show up at my house again unannounced.
9. I also recall that the security cameras were quoted and installed well prior to the date when the incident with Ray occurred. Annexed and marked "A" is the Quotation from Fine View Technologies.
10. I also disclosed to Sarah (Victims services officer), Eva (my social worker) and psychologist (Suzanne de Barker) details regarding my medical history and disability. I informed them of how I had become very sick following the incidents from the police officers. Annexed and marked "B" is the initial report from the psychologist Suzanne de Barker.
11. I also confided in Sarah (Victims services officer) and my psychologist regarding Domestic Violence what I had endured from previous relationships.
12. I didn't contact victims services for any other claim regarding domestic violence from my ex-partner (Mr Raymond Lechminka) neither was I seeking any protection from him at the time.
13. I only realised upon enquiry in 2021 that Sarah (victims services officer) had also lodged an application for support on the basis of domestic violence from my ex-partner (name provided). Annexed and marked "C" is a copy of the Application for Support under the Victims Support Scheme.
14. At the time, Sarah only presented to me that the protections to my home was in relation to the intimidation by the police and not (the applicant).
15. I accepted support from Victims Services under the firm belief that it was regarding the protection from the members of NSW police officers.
16. I believe it was the duty of the victims services or their officers to make sure I understood the circumstance surrounding my case before providing the services.
17. I only became aware that the support given to me by victims services was approved on the basis of the assault by Ray Lechminka after a restitution order was issued against him on the 26th August 2020.
18. that the act of the Victims Services in this matter was not in good faith and didn't reflect my intentions in this matter.
1. A copy of a Statement of Claim that was filed on behalf of the victim in the District Court of NSW on 18 February 2020. This named the victim as the plaintiff and the NSW Police Force as the defendant and sought damages, interest and costs in respect of alleged false imprisonment and battery by 2 constables on 1 May 2016.
2. A copy of written instructions by the victim to her solicitors dated 9 October 2020, to resolve her application against the NSW Police Force by way of a consent judgment of $37,500.
The applicant advised the Tribunal that he accepted full responsibility for his actions against the victim and, when asked by the Tribunal, he conceded that the recognition payment that was approved and paid to the victim did in fact relate to the act of violence that was the subject of the approval of victims support. However, he maintained his argument that he should not have to pay "full restitution" because the financial assistance that was awarded to the victim related to her other claim for victims support against NSW Police Officers and not to the act of violence for which he was convicted.
The victim gave oral evidence, in which she maintained the allegations against the respondent that were set out in her statement dated 3 August 2021. When asked by the Tribunal why she accepted the payments from the respondent when the Assessor's decisions clearly indicated that they were made in respect of the acts of violence that were perpetrated by the applicant, she answered to the effect that she did not know that she had made a claim against the applicant.
However, the victim was unable to explain why she accepted payment from Victims Services of the financial assistance award when the approval clearly indicated that it was made in her claim against the applicant. She replied to the effect that Victims Services must have made a mistake in approving that payment in the claim against the respondent.
[9]
Respondent's further evidence and submissions
On 2 December 2021, the respondent lodged a supplementary bundle of documents under s 58 of the Administrative Decisions Review Act 1997, which included the following documents that I consider to be relevant to the current matter:
1. SCT Record dated 13 September 2016 and 14 October 2016;
2. Email from Fine View Technologies to the Victim dated 22 November 2016, attaching the tax invoice for the security cameras;
3. Email from the Victim to the respondent dated 22 November 2016, attaching the email from Fine View Technologies to the Victim dated 22 November 2016;
4. Email from the respondent to the victim dated 28 November 2016;
5. Email from the victim to the respondent dated 10 April 2019; and
6. Email from the respondent to the victim dated 12 June 2019.
The SCT record dated 13 September 2016 provides:
The client advised that she speaks to (name redacted) her social worker at (name redacted) hospital. She hasn't seen psychologist (name redacted) in a couple of weeks.
The client informed SC that there was an assault that occurred over the weekend by her ex-partner. We submitted a new application for this (241021). The alleged offender has been charged as is on conditional bail and is to abide by conditions of AVO. Her main priority at this stage is security related expenses.
The SCT record dated 14 October 2016 provides:
Claim 241021
Discussion with client to provide an update and progress claim.
The client advised that she has heard from the (redacted) but she hasn't gotten back to them. She has been busy and she receives support from her SW and A/C.
The email from Fineview Technologies to the victim dated 22/11/2016, indicates that it issued a tax invoice for security cameras on 21 November 2016.
The email from the respondent to the victim dated 28 November 2016, advised the victim that for the respondent to pay the tax invoice for the security cameras, she first needed to complete and return the Acceptance of Payment Form, which was attached to the Notice of Decision in matter no 241021.
As previously indicated in this decision, the victim signed the Acceptance (with respect to financial assistance) on 5 December 2016 and she signed the Acceptance (with respect to the recognition payment) on 25 March 2017.
In her email to the respondent dated 10 April 2019, the victim requested "all files, records and documents relating to herself…". The respondent sent these to her by email (and registered post) on 12 June 2019.
In submissions filed on 13 January 2022, the respondent argued that contrary to the applicant's assertions in this application, victims support was approved in respect of an act of violence that he perpetrated and that he was convicted of a relevant offence. The Respondent also stated, relevantly:
Grounds for review - the application/approval process
22. In this matter, the victim asserts that she did not apply for victims support in relation to the act of violence perpetrated by the applicant and that it was paid to her by Victims Services in error. Despite this assertion, the victim has indicated that she will not repay the victims support that has been approved.
23. At the time when the disputed application was "made", the victims services process was as follows:
(a) An applicant submits an application for victims support or contacts the victims access line, where a staff member completes the application with them after obtaining their verbal consent over the phone.
(b) The applicant provides supporting documentation or gives consent for Victims Services to obtain supporting documentation on their behalf from agencies such as hospitals or counsellors.
(c) The application is referred for assessment once supporting documentation is received.
(d) A Notice of Decision outlining the decision and reasons for the decision is provided to the client following assessment.
(e) To accept the payment of victims support, an applicant is required to sign and return an Acceptance of Payment (AOP) form. An AOP form sets out the case number, applicant obligations and the conditions of payment. This included an acknowledgment that restitution may be pursued.
24. At this time, Victims Services retained a team of Support Coordinators (Support Coordination Team, or SCT) to provide case management to clients who were deemed to have complex needs. Clients calling the Support Coordination team were able to request a Support Coordinator to assist them to complete an application over the phone.
Application for support - case number 214021
25. While the victim asserts that she did not contact Victims Services regarding the domestic violence perpetrated by the applicant, this assertion is not supported by the records held by Victims Services.
26. Victims Services records confirm that the victim called Victims Services and spoke to her Support Coordinator, Sarah on 13 September 2016. The record of this call states that the victim disclosed a domestic violence incident that occurred over the weekend by her ex-partner and was assisted in submitting an application for victims support in relation to that incident. That record indicates that the call/application process took approximately 180 minutes to complete.
27. A copy of the application submitted on 13 September 2016 during/following the conversation referred to above is at pages 1 to 5 of the Bundle. This application includes information regarding:
(a) the date and location of the offences perpetrated by the applicant against the victim;
(b) details of the offences perpetrated by the applicant against the victim;
(c) identifies the applicant as the offender; and
(d) provides details of the report to NSW Police and court proceedings on 12 September 2021.
28. The information set out above would not be available to a Support Coordinator unless such was disclosed by the applicant.
29. Contrary o the assertions made by the applicant, victims services processes, the duration of the call and the extent of the information contained in the victims application support a finding that the victim disclosed the act of violence perpetrated by the applicant and sought assistance in submitting an application in relation to that act of violence.
Approval of support
30. The victim asserts that she first became aware that support had been approved in respect of the act of violence perpetrated by the applicant after a restitution order was issued to the applicant on 26 August 2020. However, it is evident from the records of victims services (as set out below) and documentation submitted by the applicant that the victim:
(a) received each notice of decision which provided reasons for the approval of victims support and made clear that the approval was in respect of an act of violence perpetrated by the applicant; and
(b) signed an acceptance of payment form in respect of the approval of victims support and separately in respect of the approval of a recognition payment.
31. On 1 November 2016, the victim was approved financial assistance for immediate needs (security cameras) on the condition that (she) provided invoices for payment. A copy of the Notice of Decision (and acceptance of payment forms) were provided to (the victim) by post on or around 1 November 2016.
32. On 22 November 2016, (the victim) provided an invoice from Fineview Technologies for the cost of the security cameras.
33. On 1 December 2016, at the request of (the victim), the decision to approve financial assistance on claim 241021 and a notice of deferral on a separate claim (relating to an alleged assault by officers of the NSW Police) were resent to (the victim).
34. On 7 December 2016, Victims Services received a signed Acceptance of Payment Form.
35. On 8 March 2017, (the victim's) application for a recognition payment was determined and she was awarded a Category D recognition payment. A copy of the cover letter is at pages 10 to 11 of the Supplementary Bundle.
36. On 27 March 2017, (the victim) returned a signed and completed Acceptance of Payment form.
37 In addition to being sent each notice of decision as set out above, a copy of documents on claim number 241021 was provided via email and Registered Post on 12 June 2019 at the request of (the victim). A copy of that correspondence (attachments excluded) are at pages 13 to 16 of the Supplementary Bundle.
38. On review of the above documentation, it is clear that the victim received each decision as she subsequently signed and returned each acceptance of payment form which was sent with each decision.
39. In circumstances where each decision was received by the victim on multiple occasions, the victim cannot sustain an assertion that she was not notified that the approval of victims support related to the act of violence perpetrated by the applicant.
Other application for victims support
40. In support of this application, the applicant has filed/served substantial documentation in relation to alleged assault perpetrated by officers of the NSW Police (the NSW Police incident). This includes but is not limited to:
(a) A copy of the application for victims support submitted in respect of this incident;
(b) A copy of the deferment decision dated 8 November 2016;
(c) COPS and medical reports; and
(d) Documentation relating to the commencement and settlement of civil proceedings.
41. While the above documentation is largely irrelevant to the determination of this application, the deferment decision and the settlement documentation provides useful context.
42. Firstly, the deferment decision (which was sent to the applicant prior to payment of any victims support on claim number 241921) clearly states that:
(a) Security measures in respect of properties she frequents were considered on claim number 241021 which concerned domestic violence; and
(b) That the determination of the NSW Police incident was deferred pending further information from the applicant.
43. Secondly, civil settlement is relevant in that it would likely have given rise to a repayment obligation pursuant to section 48(2) of the Act had victims support been paid in respect of the NSW Police incident.
Section 69 deduction
44. It is clear from the documentation before the Tribunal that the victim received each decision approving victims support and accepted each decision by submitting an acceptance of payment form. Subsequent assertions of error do not warrant a deduction in the restitution debt and could be rectified by the victim via repayment.
45. The applicant has not provided an affidavit of financial circumstances or otherwise produced evidence to demonstrate financial hardship. In the absence of any such information, there are no grounds to support a further deduction of the restitution debt pursuant to section 69(1)(a).
The respondent argued that the correct and preferable decision is for the Tribunal to confirm the original decision under s 67(1) and to confirm the order for restitution under s 67(2A) in the sum of $6,000.
However, the respondent failed to address the fact that the convictions cited in the restitution order differ from those for the offences that formed the basis of the approval of victims support.
[10]
Consideration
The respondent's discretion under s 59(1) of the Act to make a restitution order is dependent on the person against whom the order is being 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.
The records from Queanbeyan Local Court clearly indicate that on 10 October 2016, the applicant pleaded guilty to charges of: (1) Common assault domestic violence related that occurred at Queanbeyan on 11 September 2016 and 12 September 2016; (2) Contravene prohibition/restriction in AVO (domestic); and (3) Destroy or damage property, He was convicted of those charges and was placed on good behaviour bonds under s 9 of the Crimes (Sentencing and Procedure) Act 1999.
However, the restitution order states that the applicant was convicted of a relevant offence by the Waverley Local Court on 14 January 2016, namely "stalk/intimidate intend fear of physical harm (domestic)" and on 18 January 2017, namely "common assault (DV) and Contravene prohibition/restriction in AVO (Domestic)".
The evidence before me does not support the allegations made by the applicant and the victim in these proceedings that the approval of victims support that formed the basis of the restitution order does not relate to any act of violence that the applicant committed against the victim. On the contrary, it supports a finding that the victim applied for victim's support in the form of financial assistance and a recognition payment with respect to the acts of violence that the applicant perpetrated and that she accepted payments of victim's support (x 2) with respect to those acts of violence.
However, the available evidence also supports a finding that the offences for which the applicant was convicted at Waverley Local Court are not relevant offences for the purposes of s 59(1) of the Act.
Accordingly, s 59(2A) provides that the Tribunal must reverse the restitution order and I so order.
[11]
Orders
I make the following orders:
1. Pursuant to s 67(1)(a) of the Act, the original decision dated 26 August 2020 is reversed.
2. Pursuant to s 67(2A) of the Act, the restitution order is reversed.
[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
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: 28 January 2022