Prompromis v Commissioner of Victims Rights

Compensation Awarded to the Victim

1. On 27 February 2012, 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 26 December 2010. In that application, the victim did not disclose that she had received any monies from the Applicant by way of financial support.
2. On 18 March 2015, an Assessor - Client Claims determined the Application for Compensation as if it were an Application of Victims Support under 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.
3. The Assessor awarded approved a payment of victims support in the sum of $10,000, comprising a Category C Recognition Payment under s 35 (3) (c) of the Act ($5,000) and a Special Grant under sch 5 (3) of Sch 2 of the Act ($5,000).

Provisional Order

1. 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 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.
2. 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.
3. On 24 August 2016, the Commissioner made a provisional order against the applicant in the sum of $10,000 (the amount of victims support paid to the victim). Notice of the provisional order was given to the applicant by post on 25 August 2016, as required by Section 61 of the Act.

Objection

1. Section 62 of the Act 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: s 62(3)) and the objector bears the onus of proving their case (see: s 62(4)).
2. The applicant filed an objection on 8 September 2016, which he failed to declare as being true and correct to the best of his knowledge. However, he stated: Hi I received your letter today on the 6.9.16 and just replying ASAP very concerned about this matter and would like to cooperate to the full. I would require some extra time as I have many learning disabilities and will be needing help to understand this form and the reason my request for 1 month to seek help is being sent. Thankyou…
3. On 9 September 2016, the Commissioner wrote to the Applicant and granted him an extension of time for 28 days to enable him to lodge his submissions in support of the Objection.
4. On 4 October 2016, the Applicant sent his submissions in support of the Objection to the Commissioner by email. He stated: I am currently 23 years old and have been receiving treatment for mental health issues by (name provided) (psychiatrist) for many years to combat my severe bouts of depression and anxiety. Doctor (name and address provided) can be contacted on (phone number provided) to confirm my long and detailed history. My condition has made my life very difficult and every day for me is an absolute struggle as I am receiving only disability benefits and constantly rely upon the support of family, friends and charity to make ends meet. Dr (name provided) issued a medical report to the solicitor from Legal Aid representing me at the time of the incident and that was also provided to the courts to clearly outline my condition and symptoms together with outlining the strong medications I had been receiving to try and help extreme the extreme and severe symptoms I have long been suffering from. The above conditions combined with a diagnosis of Ankylosing Spondylosis (severe and crippling back pain) a few years ago which I have been prescribed anti-inflammatory medication to assist with pain removal have made it impossible for me to get employment due to the constant back pain I am suffering combined with the anxiety and depression I experience which I also take medication for to combat and control my condition. Due to my current position and circumstances I object to a Provisional Order for Restitution as I would be unable to meet these obligations. I do not have funds available to engage the services of a solicitor to represent me and can only rely on the help of legal aid and friends to assist me with lodging this objection as I am not very literate and find this whole experience terrifying and daunting as this additional stress is making my condition worse as I see no solution in sight in my current position. I have provided a copy of my disability statement to show you my current financial position. I look forward to receiving your assistance and support under these extreme circumstances and will be happy to provide you any further documentation you may require to assist with your assessment if required.
5. On 6 October 2016, the Commissioner wrote to the Applicant, advising him that the Objection was listed for determination at the first available opportunity after 6 December 2016, and that any further documents that he wished to rely upon must be submitted to Victims Services by 22 November 2016.
6. On 14 November 2016, the Applicant sent an Affidavit of Financial Circumstances and supporting documents to the Commissioner by email. This indicated total income of $2,178 per month, comprising social security benefits, and total expenditure of $2,240 per month, of which the major items were rent ($825), food & groceries ($900), fares and petrol ($75) and medications ($50). He deposed that the shortfall between income and expenditure was funded by his family.
7. Section 64 of the Act 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.
8. On 20 December 2016, the Commissioner's delegate determined the objection and reduced the amount of restitution to the sum of $5,000, to be paid by way of instalments of $40 per month. Notice of that determination was served on the applicant as required by Section 65 of the Act under cover of a letter from the Commissioner dated 23 December 2016.
9. The date upon which the Determination of Objection was posted to the Applicant is not indicated in the documents before me.
10. However, on 17 January 2017, the Applicant wrote to the Commissioner and stated: I would like to appeal the decision for the following reasons: With my medical condition I am struggling to meet my current commitments without regularly receiving external help and support as the current disability benefits I am receiving are well below the minimum wage. A bank would not lend me any money in my position as I would not be able to service a loan but I have been given a debt of $5,000 to repay which has created enormous stress and anxiety in my life as I had suffered a nervous breakdown following this event that I have never recovered from and my life has been a constant struggle. The victim of this incident was my girlfriend at the time (name provided) who had borrowed $7,350 from me that was never repaid as I was not allowed to approach or contact her and have never had the financial resources following the incident to pursue the recovery of the debt which has greatly affected my life and wellbeing. Had I received the funds I would have been in a much better position to repay the judgment. As you can see the victim has already received $7,350 from me that was never repaid and now I am being asked to make further repayment whilst I am receiving Disability payments which I believe is totally unjust and unfair, The payment made to (the victim) greatly assisted with her recovery in this very unfortunate event that has greatly affected my life and I have no issue for this payment to be applied towards the judgment. I was heavily medicated whilst submitting my objection and had totally forgot to mention this very important fact and enclose a copy of the document that was signed on the 2nd of July 2011 confirming that (the victim) owed me the amount of $7,350 which has never been repaid. If you can assist with providing the relevant forms to lodge for the appeal if you are unable to reassess I will complete and return with the additional supporting documentation as required.
11. On 18 January 2017, the Commissioner wrote to the Applicant, advising him that she had made her final determination of the Objection in December 2016, but that he could refer his 'appeal' to this Tribunal before 21 February 2017.

Application for Administrative Review

1. The powers of the Tribunal upon review are set out in s 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 16 February 2017, the Applicant applied to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with s 66 of the Act. 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: s 66 (2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: s 66(3)).
3. In support of his application, the Applicant lodged submissions dated 13 February 2017, which are essentially the same as those set out in his letter to the Commissioner dated 17 January 2017.
4. The application came before Senior Member McAteer for a Directions hearing on 3 March 2017, when Ms Sabesan appeared for the Commissioner and the applicant appeared in Person. The Commissioner had not let lodged relevant documents under s 58 of the Administrative Review Act 1997. The Applicant submitted that the monies that he paid to the victim were a gift rather than a loan (as he previously submitted). The Senior Member directed the Applicant to file and serve any Statutory Declarations that he wished to rely upon regarding the circumstances surrounding the payment that he made to the victim by 21 April 2017. He also directed the Commissioner to file and serve s 58 documents within 7 days and to file and serve any further Submissions to be relied upon as soon as possible after receiving any further evidence from the Applicant. The Applicant was also directed to have any persons who provided Statutory Declarations on the issue in question to be available for contact by telephone on the hearing date. The matter was listed for hearing on 28 April 2017.
5. The matter came before me for hearing on 28 April 2017, Ms Sabesan again appeared for the Commissioner and the Applicant appeared in person. The Commissioner had filed and served all relevant s 58 documents and the Applicant had filed and served Statutory Declarations by himself and his father, declared on 6 April 2017 and 8 April 2017, respectively. The Commissioner did not require either deponent for cross-examination and the Statutory Declarations were admitted into evidence.
6. Both the Applicant and his Father declared that the monies paid to the victim were in the nature of a "gift" rather than a loan.
7. The applicant did not make any oral submissions at the hearing, but the Tribunal took note of his submissions made in relation to the Objection and in support of the current Application for Administrative Review.
8. Ms Sabesan relied upon written submissions, which the Tribunal had not previously received. These were read onto to record as the applicant had not received them. The Submissions were not dated, but were prepared before the Commissioner received the Statutory Declarations of the Applicant and his Father and they were to the effect that: 1. The Applicant perpetrated an act of violence upon the victim on 26 October 2010; 2. The Applicant had been convicted of a relevant offence on 13 December 2011. 3. On 18 March 2015, the payment of victims support in the sum of $10,000 was approved for the victim as a result of an act of violence that was perpetrated by the Applicant; 4. A provisional order for restitution was served upon the Applicant and he lodged an Objection. Upon determination of the Objection, the amount of restitution was reduced to $5,000; 5. The available evidence was that the Applicant had loaned the victim the sum of $7,350 after the act of violence occurred. However, the Applicant had not stated what steps he has taken to recover that loan, and whether the loan had been recovered. The Application should still be required to pay the restitution debt as he can recover the amount owed to him by the victim. Sought; and 6. As a result, the correct and preferable decision is to confirm the decision under review.

Consideration

1. I have carefully considered all of the available evidence, including the Statutory Declarations by the Applicant and his Father, which evidence that the amount of $7,350 that the Applicant paid to the victim following the act of violence, was in the nature of a gift. That evidence was not available to the Commissioner prior to the determination of the Objection and had not been received by Ms Sabesan prior to the preparation of her written submissions.
2. However, I note that Ms Sabesan did not seek to cross-examine either the Applicant or his Father regarding the matters deposed to in their declarations and that their credit on this issue was not impugned in any way.
3. I am concerned that the victim did not disclose the payment to the Commissioner in her Application for Compensation. This is relevant to the approval of victims support and the issue of restitution, as s 44 (4) of the Act provides (relevantly): 44 Reasons for not approving the giving of victims support or for reducing amount of financial support or recognition payment … (4) In determining the amount of financial support to be given or the recognition payment to be made to a person, the Commissioner must have regard to: … (b) any other amount that has been received by the person or that (in the opinion of the Commissioner) is likely to be received by the person, in respect of the act of violence to which the application for financial support or a recognition payment relates.
4. In my view, the Commissioner would more probably than not decided to reduce the recognition payment approved for the victim if she had been aware of the Applicant's gift in the sum of $7,350. This exceeded the recognition payment that was approved ($5,000), but as the applicant would nevertheless have been eligible for the special grant of $5,000, it is likely that the amount of victims support approved for the victim would have been reduced from $10,000 to $2,650.
5. The amount of restitution was reduced on Objection to $5,000 and I am satisfied that the Applicant has paid monies exceeding this sum directly to the victim, I am satisfied that it is appropriate to reverse the Commissioner's order dated 20 December 2016.
6. Therefore, I make the following order: 1. Pursuant to s 67 (1) (a) of the Act, the order made by the Commissioner on 20 December 2016 is reversed.

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: 20 June 2017