Miles v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2017-03-03

REASON FOR DECISION

Mr John Peter Miles ("the applicant") has made an application for administrative review of a restitution order made on internal review on 4 October 2016, by the Delegate of the Commissioner of Victims Rights. This required him to pay restitution of $3,250 by way of $20 monthly instalments, being part of the award for statutory compensation paid to the victim in respect of an act of violence committed by him. That order was made pursuant to Section 64 of the Victims Rights and Support Act 2013 ("the VRSA").
Part 5 of the VRSA is concerned with the recovery of victim support payments from offenders. The object of that Part is set out in Section 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 Commissioner of Victims Rights a discretion to make a provisional restitution order 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: Section 59(1)).
'Relevant offence' is defined in Section 58 of the VRSA to mean: Relevant offence means the following: (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, (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 provisional 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, whatever was the later the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under Section 40(6).

Compensation Awarded to the Victim

On 11 April 2013, 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 23 February 2012.
On 12 December 2014, an Assessor - Client Claims determined the Application for Compensation as if it were an Application of Victims Support under the Victims Rights and Support Act 2013 ("the Act"). Clauses 4 and 5 of Schedule 2 of the Act effectively provide that from 7 May 2013, all applications that were lodged under the old Act but not finally determined, should be determined as if they were lodged under the Act.
The Assessor awarded approved a payment of victims support in the sum of $6,500, comprising a Category D Recognition Payment under s 35 (4) (e) of the Act ($1,500) and a Special Grant under sch 5 (3) of Sch 2 of the Act ($5,000).

Provisional Order

Section 59 of the Act provides: 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.
The Commissioner's discretion under s 59 (1) of the Act 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.
On 23 June 2016, the Commissioner made a provisional order against the applicant in the sum of $6,500 (the amount of victims support paid to the victim). Notice of the provisional order was given to the applicant by post on 24 June 2016, as required by Section 61 of the VRSA.

Objection

Section 62 of the 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)).
The applicant filed an objection on 12 July 2016, in which he sought to rely upon an Affidavit of Financial Circumstances, which he failed to swear or affirm and/or sign and date. In the Objection, he stated: The victim never attended a hospital or doctor. It is over 2 years since the incident. Personally, I am not in any position financially to pay any more debt. I am currently homeless and on the emergency housing list. I am on Newstart with a history of depression since the incident. I am still getting counselling. I am seriously in debt.
The draft Affidavit of Financial Circumstances indicated total monthly income of $1,050 and total monthly expenditure of $1,700, as well as Visa Card loans totalling $13,000 and personal loans (creditors named) totalling $14,000. His only assets were disclosed as being household furniture ($10,000) and superannuation ($50,000).
On 26 July 2016, the Commissioner wrote to the Applicant, advising him that the Objection was listed for determination at the first available opportunity after 12 September 2016, and that any further documents that he wished to rely upon must be submitted to Victims Services by 1 September 2016.
On 15 August 2016, the Applicant wrote to the Commissioner stating: …I am being totally honest in pleading to the court that I am not in a financial situation to be able to honour a pay plan. My current truthful situation is: * I am 51 years old. * Listed for 'emergency housing'. Centrelink are also aware that I have been staying at friends' places where I can… * Registered for Centrelink Newstart, but frequently under a Medical Certificate for Clinical Depression, along with Borderline Personality Disorder. Not long after this incident, I was also diagnosed with post traumatic stress disorder. * Was previously admitted to (location) Mental Health Unit for depression after a suicide attempt… * Am heavily in debt with monies owed to (name provided) bank along with credit card debts. * I have no motor vehicle and some furniture stored at my sister's house. * Please understand that I am not in any position to be in any more debt. I am doing all I can to start again and this would become too much. Honestly, I have no way of paying it back. Please accept that I am sincerely sorry in relation to the matter. At that time I paid all legal costs and eventually, lost my property, my home to the bank, partly due to the incident. I have suffered the many consequences since then, along with been receiving counselling ever since. I am so sorry for the situation… I thank you in reading this letter and can only hope that you may take my plea into consideration.
Section 64 of the 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.
On 5 October 2016, the Commissioner wrote to the applicant, referring to his Objection and reducing the amount of restitution to the sum of $3,2350, to be paid by way of instalments of $20 per month. Notice of that determination was served on the applicant as required by Section 65 of the VRSA on 15 October 2013.

Application for Administrative Review

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.
On 23 November 206, the applicant applied to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with Section 66 of the 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)).
In support of his Application, the applicant lodged submissions dated 21 November 2016, in which he essentially repeated the matters raised in support of the Objection, but he also stated (relevantly): * I have large credit card debts of which I had to get a loan to try to pay them out. I am n debt to the (name) bank for a loan amount of $9,252.90 plus a credit card. I also have a credit card with (name) bank and are in further debt. * My bank account (institution named) maintains near a nil balance a most times… * O owe friends and family monies that I fear I will never be in a position to pay back… * I am 51 years old and having loads of trouble finding employment due to my mental state. * I cannot afford a motor vehicle… * I am on the verge of needing to register bankrupt due to these circumstances. Can I hereby request that an appeal be lodged?
The application came before me for a Directions hearing on 20 January 2017, when Ms Sabesan appeared for the Commissioner and the applicant appeared in person (by telephone). The documents provided by the Commissioner under Section 58 of the Administrative Review Act 1997 were comprehensive and complete. The applicant sought leave to file and serve an updated Affidavit of Financial Circumstances and I directed that he do so by 17 February 2017. The matter was listed for hearing on 3 March 2017.
On 3 March 2017, Ms Sabesan again appeared for the Commissioner and the applicant appeared in person (by telephone). The applicant made oral submissions that were consistent with the submissions that he lodged in response to the provisional order and objection. However, he had also filed and served a further Affidavit of Financial Circumstances and the Tribunal asked him some questions regarding items set out in that document. In relation to expenditures for electricity and gas, the applicant stated that he makes a contribution towards these utilities if the person that he is staying with happens to receive an account while he is staying with them. He said that he is on a mobile phone plan with Telstra ($120 per month). He stated that with respect to the personal loan that he obtained from (name provided), he agreed to repay this within a period of 3 years and that he is about half way through the term of that loan. He also stated that he has an 'open ended' loan from his sister, but that he feels that she is struggling and he is also trying to repay her as soon as possible.
During the course of the hearing, and after hearing the applicant's submissions, Ms Sabesan stated that the Commissioner was prepared to reduce the restitution sum to $1,500, to be paid at the rate of $20 per month. However, the applicant responded that he 'cannot afford to pay any more money'.
Otherwise, Ms Sabesan made submissions to the effect that the decision in response to the Objection was the correct and preferable decision.
At the completion of the parties' submissions, the Tribunal reserved its decision.

Consideration

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.
I am reasonably satisfied that the applicant is suffering from financial hardship. However, I am not satisfied that he has no capacity at all to make restitution. For reasons of public policy and in the exercise of my discretion, I am of the view that the restitution sum should be further reduced to an amount of $750, to be paid by way of instalments of $20 per month.
Therefore, I make the following orders: 1. Pursuant to Section 67 (1)(a) of the VRSA, I vary the order made by the Commissioner on 14 October 2016, as follows: 1. The applicant is required to make restitution in the sum of $750, to be paid by equal instalments of $20 per month.

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: 16 June 2017

At a glance

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Judgment (7 paragraphs)

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Cases Cited (1)