McMahon v Commissioner of Victims Rights [2025] NSWCATAD 139

1. On 11 September 2020, an Assessor approved victims support for the victim in the sum of $5,000, which represented a category C recognition payment arising from a sexual assault that occurred in NSW in January 2015.

The defendant was convicted of a relevant offence

1. Court records indicate that the applicant was arrested and charged in relation to the sexual assault of the victim and that he was subsequently sentenced in the District Court of NSW to a term of imprisonment under the Crimes (Sentencing Procedure) Act 1999 (NSW).
2. The applicant appealed to the Court of Criminal Appeal, but the Court dismissed the appeal.

1. On 3 My 2024, the respondent issued an Order for restitution to the applicant pursuant to Part 5 of the Act, which required him to pay restitution in the amount of $5,000. This represented the full amount of victims support that was approved for the victim.

1. On 31 May 2024, the applicant lodged an Objection to the restitution order. He filed submissions in support of the objection, which include the following:

...My intention is to pursue vindication through the High Court once my parole period ends. Due to my financial situation, responsibilities as a full time father and ongoing psychological and medical challenges, I am unable to fulfil the restitution amount requested. However, as a mark of social conscience and procedural awareness, I propose to pay a proportionate amount of up to $300 with an emphasis that any payment is not an admission of guilt...

I am a semi-retired personal trainer and a full-time father to four children...(one of whom requires intensive home care)...My partner... and I have decided that she will focus on her career while I manage the household and perform the important roe of primary carer for our children...

My financial situation is precarious. I have five long-term personal clients, generating a maximum revenue of $430 per week, though the average is around $280. This income covers mobile phone bills, travel, food and other child related expenses, with the rest allocated to various business costs. My partner covers all utility and grocery bills. I live in my partner' rented accommodation and have o savings, super, car, other sources of income or financial assets....

1. The applicant stated that he has funds totalling about $700 in his bank account and that he and his partner have no joint assets or bank accounts. He also stated that he is suffering from psychological issues as a result of the trauma associated with his incarceration and he requires ongoing treatment with a psychologist.
2. The applicant now asserts that he is considering an application for special leave to appeal to the High Court of Australia based on fresh evidence, he is in contact with lawyers and legal aid with a view to obtaining funding for such an appeal. He also stated that whilst he could have applied for benefits upon his release, he instead chose to become a full time father and he argued that this is evidence of a practical approach that he is applying to his objection to the restitution order. He stated, relevantly:

...I am providing these insights in a genuine attempt that perhaps whomever is reading this will be able to agree that the damage that has been done to my family, in particular my children, has been notable, and that as a result of having been so cooperative with all of the individual parts of this overall process, that perhaps it's time to recognise that it's time for a greater level of consideration as to how much more one person should be put into such a distressing position even when so many irregularities occurred along the way. I understand that the system is imperfect, but I still have the responsibility to tell the truth, and this is why I must take my case to the High Court...

Since my release I have not sought governmental relief in the form of emergency payments from Centrelink or other benefits therefrom. Instead I have focused on building a loving space for my family, being the best father that I can be to all of my children, a loving, supportive partner and continuing to enthusiastically help others with their ongoing health and wellbeing issues.

Everything I earn goes back into the system. I understand that the economy is suffering and that the best thing our citizens can do under these circumstances is to spend money, not save....

1. On 15 November 2024, an Assessor issued a Notice of Determination of Objection pursuant to s 65 of the Act and confirmed the restitution sum as $5,000.
2. After considering the applicant's submissions in detail, the Assessor noted that restitution is a civil process that arise from the giving of victims support and they are not connected to the criminal proceedings. The Assessor stated, relevantly:

31. I acknowledge tat the defendant feels he has been wrongly convicted in relation to this matter. In circumstances where there was a trial and an appeal has been pursued however, I am not in a position to go behind the conviction for a relevant offence which has occurred. While I appreciate the defendant (applicant) intends to appeal the conviction further at this point there is a relevant conviction and this is not a basis to allow the objection.

32. I acknowledge the defendant's willingness to make a contribution towards the restitution debt and that his current circumstances see him have limited financial means. It is clear that he and his partner have made decisions about the best arrangements for the care of the children and the and management of the household at the present time which have impacted the defendant's earning ability.

33. The available evidence however is that the defendant has been able to rejoin the workforce very quickly after his release and has skills and expertise which allow him to earn a livelihood now and in the future. I note also that he has apparently been able to make arrangements to meet household, business and heath costs and that he apparently has future earning potential noting that the available evidence does not indicate the current financial or personal stressors are permanent.

34. I note that while payment arrangements or alternatives to meet the obligation based on financial hardship cannot be considered by Victims Services directly, relevant material abut this can be put forward for consideration if the matter is referred to Revenue NSW. I do not find the defendant's submissions regarding his financial circumstances a reason to allow the objection based on the current evidence...

1. The Assessor was not satisfied that the Applicant's current mental health issues were a basis for allowing the objection and that his positive and useful conduct during his incarceration was also not a basis for allowing it. Therefore, the restitution order was confirmed under s 64 of the Act.

1. 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.

1. On 20 December 2024, the Applicant filed the current application for administrative review, on grounds that he is suffering financial hardship. However, stated that he was increasing his final offer to $1,000, without admission of guilt. He also referred to his intention to pursue a Furter appeal against his conviction to the High Court.

1. The matter came before me for hearing on 28 March 2025, at which time the applicant was self-represented and Ms K Douch, Victims Services, appeared for the Respondent.
2. When the matter commenced, Ms Douch advised that the Respondent was not prepared to accept the Applicant's final offer of $1,000 in satisfaction of the restitution debt.
3. The Tribunal heard oral submissions from the Applicant regarding his current family arrangements and child care commitments and his "serious" mental health issues arising from the trauma of his "wrongful conviction". He expressed the opinion that the system is economically irrational, as he was denied the opportunity to repay the restitution debt whilst he was incarcerated by way of a Work Detail order (WDO). He stated that he cannot return to practice as an accountant "even though I did nothing wrong" and that he has given up everything to care for his family.
4. Otherwise, the Applicant repeated his previous submissions regarding his intention to appeal against his conviction to the High Court. He also complained that he had suffered procedural unfairness, although he did not particularise this.
5. The applicant filed multiple bundles of documents in support of his application and the Tribunal considered these documents at length in chambers.

1. The Respondent filed written submissions and Ms Douch relied upon them. Those submissions were to the effect that the correct and preferable decision for the tribunal to make is a decision to confirm the restitution order.
2. I have considered the Respondent's submissions in detail, but I have not extracted them in this decision.

1. 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-

(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,

(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.

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. Consideration
2. Based on a consideration of all 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 with respect to which the Applicant was convicted.
3. I am satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.
4. In this matter, the evidence before the Assessor supported the respondent's decision to approve victims support totalling $5,000. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the victim.
5. In considering the application of s 69(1) of the Act to this matter, I note that the Applicant's current financial circumstances are precarious as the applicant is a part-time personal trainer and full-time carer for his young children. He has rights to commonwealth benefits which may alleviate this situation to some extent but he has chosen not to avail himself of those rights.
6. The medical evidence also indicates that he suffers psychological symptoms and associated medical issues for which he receives treatment from a psychologist.
7. In my view, it is appropriate to exercise the Tribunal's discretion to reduce the amount of the restitution debt in all the circumstances and particularly the fact that the Applicant continues to suffer from psychological conditions that resulted from symptoms as a result of the trauma suffered during his incarceration. However, the potential for a future appeal to the High Court, which would first necessitate an application for special leave to appeal, and the fact that the Applicant has chosen not to avail himself of Commonwealth benefits to which he may be entitled, are not grounds for setting aside or reducing the amount of the restitution order.
8. For these reasons, I have decided that the correct and preferable decision is to vary the restitution orders under s 69(1) of the Act, to reduce the total amount payable to $3,0000. This represents a reduction of 40% on the restitution order, which reflects the factors raised by the Applicant upon administrative review.

(1) The restitution order is confirmed.

(2) However, the total restitution payable is reduced to $3,000.

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.