Roth v Commissioner of Victims Rights

Order for restitution

1. 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.
2. 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).
3. "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.
4. 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 victims support could be made under s 40(6) of the Act.
5. In this matter, Court documents indicate that the Applicant was charged with recklessly causing grievous bodily harm to the victim and that he was convicted of that offence at Waverley Local Court on 14 November 2018.
6. On 2 August 2021, the respondent made an order for restitution against the applicant in the sum of $26,377.18, being the full amount of victims support that was approved for the victim.
7. A copy of the Order for restitution was posted to the applicant under cover of a letter from the respondent dated 2 August 2021. I am satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.
8. Section 62 of the Act gives a person against whom an order for restitution 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).
9. On 30 August 2021, the applicant signed an objection to an order for restitution, although I note that his declaration was not witnessed until 1 September 2021. He made submissions in support of his application as follows: I am writing this letter to you regarding my objection to an order for restitution. I have received the order a few days ago in my mail and I have suffered stress and lack of sleep ever since. I am asking you dear Commissioner to consider this matter and reverse this decision. I have suffered a great amount of punishment from the 14 November 2018, the date of my conviction to this very day. I have missed family opportunities to travel professionally as a full time tennis coach with my niece [name provided]. [name provided] is a number 1 junior ranked tennis player in Australia … We are hoping that [she] will represent Australia, not only in the Olympics but also all the major grand slams. As her full time tennis coach, I missed out supporting (her) ever since this incident has occurred. It has impacted me financially and also mentally. I have always supported my single mother [name provided], who suffered domestic violence for 17 years in Serbia. Growing up in Serbia my family and I experienced war at first hand in 1989-1995. My mother is on disability pension and lives on her own full time. I try to support my mother financially and try to be the best son possible. My mother was involved in a car accident back in 2017, when her back and neck took a heavy toll. One of my jobs is to buy her medicine and food with my own money, as she can no longer work. The covid-19 lockdowns have made it extremely hard for me to balance my life, and at the same time to support my mother financially and also be there for her eg. To do her shopping and purchase her medicine. I am unemployed at the moment, with the strict lockdowns I can no longer travel as a tennis coach. I have re4cently applied for Centrelink. I have no savings. I do not own any property or stock. I have no second income. My rent is $400 per week. I have bills such as electricity, gas, food, car service, car insurance, phone bill and the small amount of money I have left must help out my mother in any way. Dear Commissioner, I kindly ask you to consider my situation. Prior to this incident in [2017] involving [the victim], I have never been involved with the law or broken the law. I am not a violent person and I am against any type of violence. As a child growing up, I witnessed my father beat up my mother many times and this is something I have to live with for the rest of my life. My father and I have not communicated since 2006 and I have no plans on keeping in touch with my father. Dear Commissioner, my only wish is to put this matter to rest as I highly feel that I have paid financially and mentally the penalty. I hope that I can return to a normal life someday and support my niece [name provided] with her professional tennis career, as her full time tennis coach once again and hopefully make Australia proud in the future… Note: The incident that occurred involving [the victim]. I was working as a ride share driver on this particular day, waiting for a customer at the waiting bay area in Randwick. It was when [the victim] decided to approach me and behaved extremely aggressively towards me. At the time, I was new to the job as it was my first week as a ride share driver and I had just arrived back in Sydney from Cairns, QLD. I did not understand the competition between taxi v ride share [Uber] because Cairns did not yet grow in that sector [ride share] as I spent a few years living in Cairns. I only learned after the incident that [the victim] was angry and wanted to harm me because of the ride share v taxi competition. As I tried on many occasions to ignore [the victim], he just kept coming at me and threatening me. At on e stage I walked away and went inside of my ride share vehicle and locked myself inside the car. [the victim] decided to walk beside my door and made a couple of threats as he was on the telephone to a friend, saying things like "You wait here, my friends are coming to get you". [the victim] went out of his way to cause harm to someone that day I am very sure of this. Dear Commissioner, I want to leave you with this. I, Nick Roth have never in my life involved myself in a fight, nor have I been in a fight or do I plan too in the future. I was convicted on 14th November 2018, and I am now left with a charge, which is a criminal record. I have to live with this for the rest of my life. The truth is, on this very day that the incident occurred, I did NOT have the intention to harm anyone or start a fight with anyone. I simply went to work that morning like most Australians do.
10. The applicant provided copies of medical records, bank statements for a personal and business account, documentation relating to his mother and press articles relating to his niece in support of his objection.
11. On 7 October 2021, the respondent wrote to the applicant, referring to his Objection and reducing the amount of restitution to $21,000, to be paid in fully by 4 January 2022. Notice of that determination was served on the applicant as required by s 65 of the Act on 15 October 2013.

Application for Administrative Review

1. 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.
2. On 11 November 2021, the applicant filed an application for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) 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. The application set out the following grounds: The decision is asking me to pay the amount of $21,000.00. I do not work and I have not worked since lockdown early June 2021. I am currently on Centrelink. I receive $780 fortnight which is just enough money to cover rent. At times I must borrow money for food. I go into detail on how I served my time since the incident occurred in October 2017. I will attach all the paperwork once it is requested by you [NCAT].
4. The application came before me for a Directions hearing on 17 December 2021, when the applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I directed the applicant to file and serve any further evidence (including an Affidavit of Financial Circumstances) by 25 February 2022 and I directed the respondent to file and serve a bundle of documents under s 58 of the ADR Act and an outline of written submissions by 4 March 2022. I listed the matter for hearing on 25 March 2022.
5. At the hearing on 25 March 2022, the applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent.
6. I note that on 21 January 2022, the applicant filed and served an Affidavit of Financial Circumstances, which indicated income of $1,562.20 per month, comprising Jobseeker payments from Centrelink, monthly expenditure of $3,339 and a total bank balance (one account) of $2.98.
7. In response to questioning by the Tribunal regarding the extreme discrepancy between his income and his expenditure, the applicant stated that he borrows money from his family "when needed". He was asked why he pays expenses for a car when he has not disclosed a car as an asset. He replied that he owns a 2003 motor vehicle which is valued at $8,000 and that his furniture came from his mother. Otherwise, he disclosed that he owns an iPhone 8 and a small television but he denied having any other assets.
8. Ms Srikanth asked the applicant some questions about his bank statements and particularly the statement for the Business Transaction Account for the period from 1 January 2021 to 31 March 2021. She noted that these include multiple credits, which range from $260 to $1,300 and appear to be recorded against invoices. The applicant responded that these were examples of "Family members helping me out" and that he was also getting help from people that he used to help out "on invoices".
9. Ms Srikanth also noted that the Business Transaction Account and the Complete Access account statement for the period from 1 July 2021 to 31 July 2021, indicate multiple transfers to "CoinSpot", ranging from $550 to $3,000. She asked the applicant what those transfers were for and he replied "I had a friend who was a bad influence on me and I don't know what it was for".
10. The Tribunal also asked the applicant about the "CoinSpot" transfers, but the applicant declined to say anything about these other than to repeat that he had a friend who was a bad influence on me.
11. Ultimately, the applicant stated that he did some work as a tennis coach in 2021 and that he issued invoices in his own name and that he was currently looking for work as a tennis coach and was trying to recover his clients. He also stated that in order to manage his mental stress, he goes to the gym and that his food and groceries ($1,200 per month) includes protein shakes etc. He stated that he "took offence" to a suggestion by Ms Srikanth that the amounts claimed for food and groceries is "extreme" for a single person.
12. I note that the applicant has not produced any bank statements for his business account for any period after 31 March 2021 and that the most-recent personal account statement ended on 31 July 2021. There is no evidence before me that verifies the assertion in the Affidavit of Financial Circumstances, that there is a single bank account and that it had a balance of $2.98 on 24 January 2022.

Submissions

1. The applicant maintained his position that he does not have any financial capacity to pay restitution in any amount and that the order for restitution should be set aside.
2. The respondent relied upon written submissions filed on 7 March 2022. The respondent argued that the applicant was convicted of a relevant offence for the purposes of s 58 of the Act and that the order for restitution was issued within the period of 7 years from the date of the application for victims support (s 59(2)(a)(ii) of the Act).
3. The respondent noted that the applicant had not provided any current documentation to verify his alleged expenses or to indicate how he meets those expenses, which significantly exceed his income. The absence of this documentation raises concerns regarding the accuracy of the assertions contained in the Affidavit of Financial Circumstances. Further, the "CoinSpot" transactions strongly suggest that the applicant may have undisclosed assets in the form of cryptocurrency.
4. In relation to the applicant's arguments during the objection process, regarding the reduction of the restitution amount, the respondent stated, relevantly: Section 69 reduction 27. In Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172, Senior Member Riordan referred to the following passage in the matter of Conner v R [2005] NSWCCA 431 (at [41]): …asserted impecuniosity of an offender against whom a direction is sought… ought not ordinarily be regarded as a reason for declining to make a direction… An offender's impecuniosity may be temporary. His financial position may change though rehabilitation and hard work or by goof fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false… 28. In consideration the material submitted in support of the objection, the assessor confirmed the restitution order but reduced the amount payable from $26,377.18 to $21,000. This represents a deduction of $5,377.18 (being 20.38%). 29. Whilst the affidavit of financial circumstances was not before the assessor, due to concerns as to the completeness/accuracy of the information contained therein, the Commissioner is unable to assess whether the current financial situation of the applicant warrants a further deduction (if any). 30.In relation to the future prospects of the applicant, we note that he is currently 36 years old and that his employment prospects are likely to improve due to the reduction of restrictions related to the COVID 19 pandemic. 31. In consideration of the above, the respondent seeks confirmation of the order in the of $21,000. 32. If the applicant does not pay the restitution debt in full by the due date the debt will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996. Once the debt has been referred either by default or by consent, the applicant may apply to pay by instalments. Victims Services is currently unable to administer payment plans.
5. The respondent concluded by submitting that the correct and preferable decision is to confirm the "original" decision under s 67(1) without variations and to confirm the order for restitution under s 67(2A) in the sum of $20,000.
6. However, I note that the original order for restitution was in the sum of $26,377.18 and that this was reduced to $21,000 following the objection.

Consideration

1. Based on a consideration of the available evidence, I am reasonably satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.
2. I further note that following the applicant's objection, the respondent decided to reduce the restitution by $5,377.18 (being 20.38%). However, no specific reason was provided for the decision to reduce the restitution amount.
3. The Tribunal must consider the applicant's financial means when determining the amount of restitution that should be paid and the manner in which this should be paid. The decision in Connor v R (see above) is relevant to this issue.
4. In this matter, there is no financial documentation that supports that the applicant is suffering financial hardship to the extent that is asserted in the Affidavit of Financial Circumstances. While he asserted that he has not worked since the COVID 19 lockdown in 2021, the single business bank account statement that he has produced indicates that he was issuing and being paid on invoices until 31 March 2021 and that transfers were being made from this account to his everyday access account at least until 31 July 2021. As these transfers would not have been possible if there were insufficient funds in the business account, this strongly suggests that there were sufficient funds coming into that account during the period until 31 July 2021. This includes periods of lockdown due to the COVID 19 pandemic.
5. For these reasons, and noting the other matters raised and discussed previously in this decision, I am not satisfied that the applicant has discharged his onus of proving the allegations of financial hardship indicated in his Affidavit of Financial Circumstances.
6. Further, based on the applicant's statement during the hearing that he is currently trying to re-establish himself as a tennis coach, including by contacting his former clients, I am satisfied to the required standard that he has a capacity to earn income on the open labour market.
7. As a result, I am not satisfied that the restitution sum should be further reduced, but as the applicant may need to obtain finance or make arrangements to enable him to satisfy the restitution order dated 7 October 2021, I have decided that it is appropriate to vary the order to allow him a period of time in which to satisfy that order.

Order

1. Therefore, I make the following orders: 1. Pursuant to s 67(1)(a) of the Victims Rights and Support Act 2013 (NSW), I confirm the order made by the respondent on 7 October 2021, which requires the applicant to make restitution in the sum of $21,000. 2. However, I vary the order dated 7 October 2021 to allow the applicant time to pay comprising a period of six (6) months from the date of this decision.

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: 12 April 2022