Lin v Commissioner of Victims Rights

Supreme Court of NSW|2024-03-27|Before: Schmidt AJ

JUDGMENT

In July 2017, Ms Lin was convicted of assault occasioning actual bodily harm for which she was given a two year good behaviour bond and made the subject of a 12 month apprehended violence order. In 2023, the Commissioner made a restitution order against Ms Lin under the Victims Rights and Support Act 2013 (NSW), her victim having been awarded $5,000 in respect of the April 2017 assault in which Ms Lin injured her.
Ms Lin unsuccessfully challenged that order in the Civil and Administrative Tribunal of New South Wales. She then unsuccessfully appealed that decision to an NCAT Appeal Panel: Lin v Commissioner of Victim Rights [2023] NSWCATAP 302.
By her 5 December 2023 amended summons, Ms Lin sought to have the Panel's order set aside and the Commissioner's order reversed. She also sought reimbursement of her application fees and incidental expenses.
What is in contention turns on the correct legal characterisation of the proceedings which led to Ms Lin's conviction. Her case is that they were civil, not criminal proceedings, with the result that the Commissioner was not empowered to make a restitution order against her and the order made was invalid. That turned on provisions of the Victims Rights Act and her view of definitions in the Civil Procedure Act 2005 (NSW), for which she found support in an Australian Law Reform Commission Report.

The Parties' Cases

What was in issue between the parties turned on the proper construction of various statutory provisions.

Ms Lin

The case Ms Lin advanced rested on: 1. the definition of "criminal proceedings" in s 3 of the Civil Procedure Act, which she contends does not extend to "any" proceeding against a person for an offence. Instead, it is confined to committal proceedings, proceedings related to bail, proceedings related to sentence and proceedings on an appeal conviction or sentence. 2. her contention that the proceedings which led to her conviction and the orders made against her under s 59(2)(b) of the Victims Rights and Support Act arise from substantially the same facts as those considered in the 2017 proceedings. 3. the Appeal Panel not taking account of important evidence, namely, the Civil and Criminal Proceedings table published by the ALRC in its Report 114. No reason for the omission of this evidence was provided in its judgment.
In her oral submissions, Ms Lin explained that properly understood, "criminal proceedings" were only those in which an offender was sentenced to imprisonment. In reply, after the Commissioner relied on the definition of "sentence" in the Crimes (Sentencing Procedure) Act 1999 (NSW) to resist her case, she contended that because the word "penalty" used in that definition is undefined and applicable in both civil and criminal proceedings, fines being able to be imposed in civil proceedings, she had not been "sentenced" in the 2017 proceedings.

Commissioner of Victims Rights and Others

The Commissioner's case was that the Appeal Panel did not misinterpret either the definition of criminal proceedings in s 3 of the Civil Procedure Act or s 59(2)(b) of the Victims Rights Act. Further, that the Panel did not omit "important evidence" or fail to give adequate reasons for the conclusions it reached, which were also supported by the definition of "sentence" in the Sentencing Procedure Act. Ms Lin having been sentenced for the assault of which she had been convicted, the conclusion that they were not civil proceedings, but criminal ones, was correct.
The table Ms Lin relied on did not, in any event, provide the support for her case which she believed.

Section 59(2)(b) of the Victims Rights Act

Section 59 must be interpreted in light of the object of the Victims Rights Act, namely, to "recognise and promote the rights of victims of crime": s 4. "Victim" is defined in s 58 to mean "a person to whom an amount has been paid under an approval for the giving of financial support or the making of a recognition payment under Part 4". Part 4 of the Act deals with the Victims Support Scheme.
But "crime" is not there defined and so takes its ordinary meaning. Namely, "[a]n act or omission constituting an offence (usually a grave one) against an individual or the state and punishable by law": Oxford English Dictionary.
That accords with assault occasioning bodily harm, the offence Ms Lin committed in 2017 being dealt with as it is in s 59(1) of the Crimes Act 1900 (NSW). Such an offence attracts a maximum penalty of 5 years imprisonment. It follows that victims of such assaults fall within the provisions made in the Victims Rights Act, they being victims of crime.
Such criminal offences must be prosecuted in accordance with the provisions of the Criminal Procedure Act 1986 (NSW), whether pursued summarily or on indictment. On conviction, sentences for such offences must be imposed in accordance with the Sentencing Procedure Act.
The concept of a "sentence" is not confined to imprisonment, as Ms Lin contended. The definition of that word in the English Oxford Dictionary is "the judicial determination of the punishment to be inflicted on a convicted criminal. Hence, the punishment to which a criminal is sentenced." In s 3 of the Sentencing Procedure Act the word is defined to mean: 1. "when used as a noun, the penalty imposed for an offence, and 2. when used as a verb, to impose a penalty for an offence."
The word "penalty" is not defined in the Sentencing Procedure Act, but s 4(1) provides that "[t]he penalty to be imposed for an offence is to be the penalty provided by or under this or any other Act or law". That penalty reflects the sentence imposed on the offender.
Under the Sentencing Procedure Act, sentences of imprisonment are penalties of last resort, even for serious crimes. Thus, no matter the maximum applicable penalty to a particular offence under the Crimes Act, the Sentencing Procedure Act does not permit a sentence of imprisonment to be imposed on an offender, unless the Court "is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate": s 5(1). That reflects that a penalty of imprisonment is not the only penalty which can be imposed when an offence attracts a maximum penalty of a term of imprisonment, as Ms Lin's offence did.
This also helps explain why the sentence imposed on Ms Lin in 2017 for the offence of which she was convicted was not imprisonment, but a good behaviour bond. Such bonds, for a term not exceeding 5 years, were an available penalty before amendments to ss 9 and 10 of the Sentencing Procedure Act in 2018.
Despite the penalty imposed on Ms Lin not involving imprisonment, it was recognised as one involving real punishment for the crime in question. Such a bond is a judicially sanctioned requirement that the offender be of good behaviour for a specified period, with onerous consequences if that requirement was not observed: R v Mauger [2012] NSWCCA 51 at [37]-[40].
The Victims Rights Act creates a Victims Support Scheme for victims of crimes: Part 4. Its object is to "establish a scheme for the provision of support for victims of acts of violence and acts of modern slavery": s 17. Those eligible for support include "[a] primary victim of an act of violence": s 23(1). Such a victim includes "a person who is injured, or dies, as a direct result of" an act of violence: s 20. There is no requirement that the offender who inflicted the violence be convicted before such support is provided, even though Ms Lin was.
There was no issue that Ms Lin's victim successfully applied for such a payment, before the challenged restitution order was made against her.
Necessarily the victim's claim for payment under the scheme for the acts of violence involved in Ms Lin's offending and her prosecution for that offence arose from substantially the same facts. But contrary to Ms Lin's case, that does not preclude payment to a victim under the Victims Rights Act, or an order for restitution against her, she being the relevant offender.
Payment of victims support to victims of such acts of violence from the Victims Support Fund is for the Commissioner to approve, as are restitution orders against offenders: s 54 and 59. It is the order made against Ms Lin that she challenges, despite having been convicted of the offence which subjected her victim to acts of violence for which she received a payment under the statutory scheme.
The object of Part 5, Recovery of victims support payments from offenders, must also be taken into account. It 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": s 57. Ms Lin was such a person.
Division 2 of Part 5 regulates restitution by offenders. Section 59 provides, with my emphasis: 59 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.
At the time the Commissioner made the disputed order against Ms Lin in 2023, she had long been convicted and punished for her 2017 assault. There was no suggestion that, since then, her victim had brought any civil proceedings against her for recovery of damages for the injuries Ms Lin had inflicted. That was not what the 2017 proceedings in which Ms Lin was convicted and sentenced were concerned with.
Still it was whether those 2017 proceedings were criminal or civil proceedings which was in issue before the Appeal Panel. I am satisfied that the Panel was correct in concluding that they were not civil proceedings, as Ms Lin claimed. That flies in the face of reality, the provisions of s 59 and the other relevant statutory schemes.
The term "civil proceedings" is not defined in the Victims Rights Act. But in the Civil Procedure Act, which regulates civil proceedings, the term is defined to mean "any proceedings other than criminal proceedings": s 3.
There, the term "criminal proceedings" is also defined. Namely, to mean "proceedings against a person for an offence (whether summary or indictable), and includes the following - (a) committal proceedings, (b) proceedings relating to bail, (c) proceedings relating to sentence, (d) proceedings on an appeal against conviction or sentence.
The Appeal Panel correctly concluded, contrary to Ms Lin's case, that the 2017 proceedings were not civil proceedings, but criminal proceedings. That was because they concerned Ms Lin's offence of assault occasioning actual bodily harm, which had been dealt with summarily by a Magistrate: at [26]. It followed that those proceedings thus fell within the definition of criminal proceedings, pursued as they had been against Ms Lin.
Ms Lin's case that the definition of "criminal proceedings", by its use of the word "includes", without use of the word "any", was restrictive and not expansive, could not sensibly be accepted. That also accords with the statutory scheme in which s 59 arises to be considered, its express terms and how civil and criminal proceedings are separately regulated by the other statutory schemes I have discussed.
As discussed in Malek Fahd Islamic School Ltd v Minister for Education and Early Learning (2023) 111 NSWLR 585; [2023] NSWCA 143 at [30], the word "includes" is ordinarily non-exhaustive. It is principally used to expand the ordinary and natural meaning of a defined term, or to remove doubt that certain things fall within the term.
The definition of "criminal proceedings" in s 3 of the Civil Procedure Act is an example of such a use of the word "includes". That definition does not restrict the ordinary and natural meaning of the defined term by use of the phrase "proceedings against a person for an offence (whether summary or indictable)", by the other proceedings which the definition includes. That rather expands what is otherwise encompassed, so that the specified proceedings, which might not otherwise clearly fall within the phrase used in the definition, are included.
It follows that it is not open to conclude that the s 3 definition of "criminal proceedings" is one of those occasions where the word "includes" must be construed as being equivalent to "means and includes", as Ms Lin essentially contended. That being the other way in which the word "includes" is sometimes used.
Even if that were not correct, by including in the definition "sentencing proceedings", there can be no question that the 2017 proceedings were criminal proceedings, as defined. Ms Lin was not only convicted of assault in those summary proceedings. She was also sentenced for her criminal offence by imposition of a bond. That being one of the penalties then available to be imposed on an offender under the Sentencing Procedure Act, as I have explained.
In the result Ms Lin's appeal must fail.

The ALRC Report

The ALRC Report Ms Lin relied on to advance her case included the following table: Civil protection order Criminal proceedings Purpose (see discussion in Chapter 4) Protect victim from future violence. Punish offender for past criminal conduct. Other sentencing purposes include: deterrence, rehabilitation, incapacitation, denunciation and restoration. Standard of proof Balance of probabilities Police lay charges and prosecute less serious offences. State/territory DPPs prosecute more serious offences. Who initiates Victim, authorised person, police, and possibly-but less frequently-the DPP. In certain cases and in some jurisdictions, courts can also initiate making of protection order. Police lay charges and prosecute less serious offences. State/territory DPPs prosecute more serious offences. Outcome Conditions or restrictions placed on person against whom order is made (eg, not to harass, be of good behaviour, not to approach victim). On finding of guilt or conviction, offender is sentenced.

What was so said in this report does not have the result for which Ms Lin contended. The table refers both to punishment for crimes and the purposes of sentencing. Nothing there said lends support to the argument that it is only imprisonment to which the report is referring when it uses the words "sentencing" or "sentenced".
Neither does it lend support to the argument that the imposition of a good behaviour bond on sentencing after conviction of a crime, in accordance with the applicable statutory schemes, does not involve either punishment for the proven offence, or does not accord with the sentencing purposes this table describes. Even of it did, that would be contrary to what was decided in Mauger, which is binding.
That the Panel did not refer to this Table does not evince any error, irrelevant as it is to the proper construction of s 59 of the Victims Rights Act, on which the Commissioner's power to make the challenged orders depends.
In the result Ms Lin's case cannot be accepted and the proceedings must be dismissed.

Costs

The usual costs order under the Uniform Civil Procedure Rules 2005 (NSW) is that costs follow the event. In this case that is an order that Ms Lin bear the Commissioner's costs, as agreed or assessed.
Unless the parties approach to be heard within 14 days with short written submissions, that will be the Court's order.

Orders

For the reasons given, I now order that: 1. The orders Ms Lin sought be refused and the proceedings be dismissed; and 2. Unless the parties approach to be heard within 14 days with short written submissions, the Court's order will be that Ms Lin bear the Commissioner's costs of the proceedings, as agreed or assessed.

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: 22 April 2024

(2023) 111 NSWLR 585

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