In this matter, Mr Uttam Singh ("the Applicant") has made an Application for Administrative Review of a Restitution Order made on 20 October 2016, by the Delegate of the Commissioner of Victims Rights ("the Commissioner") upon internal review, which varied the amount payable under a Provisional Order for Restitution dated 28 May 2016. That order was made pursuant to s64 of the Victims Rights and Support Act 2013 ("the Act").
On 20 September 2011, the victim made an Application for Compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 ("the old Act"), in which he alleged that he had been the victim of an assault that was committed by the Applicant on 2 April 2010. The victim claimed compensation for the compensable injuries of "Injured shoulder; and Chronic psychological disorder".
The Police COPS Event report indicates that on 2 April 2010, the victim reported the Act of violence that allegedly occurred that day. As a result of the Police investigation the Applicant was charged with one count of assault occasioning actual bodily harm.
[2]
Award of victims support to the victim
On 7 May 2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by the Act and cl 5 (1) of sch 2 of the Act set out the following saving and transitional provision:
5 Applications for compensation under statutory compensation scheme
(1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.
On 17 November 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D Recognition Payment pursuant to s 35 (3) (c) of the Act in the sum of $1,500 and a special grant pursuant to sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor's reasons included (relevantly):
6. According to the application form on 22 April 2010 the applicant was a victim and sustained injury as a result of an assault committed by Uttam Singh (the alleged offender) at NSW. According to the application the alleged offender came to his house and began to verbally abuse him and then punched him and then hit him repeatedly with a club lock from his car. The incident was reported to police at Macquarie Fields on the same day.
7. The police records of the incident note that (the victim's) daughter had been in a relationship with Mr Singh's son. There had been a history of dispute with Mr Singh who objected to his son staying at (the victim's) residence. On 2 April 2010 Mr Singh went to (the victim's) home after his wife told him that (the victim) had been rude to her the day before. When he went there a verbal argument ensued and Mr Singh allegedly punched (the victim) three times in the face and (the victim) then responded by punching Mr Singh in the mouth. Mr Singh then went to his car and pulled out a club steering lock and proceeded to hit (the victim) about the head and face with it. He then got back in his car and drove to the local police station to report the incident, the police report noted that (the victim) sustained a small laceration to the top of his head and scratches to his torso. After investigating the matter police later arrested and charged the alleged offender with assault occasioning actual bodily harm. He entered a plea of guilty and on 18 June 2010 he was convicted and sentenced to 200 hours of community service.
8. I have considered the medical evidence on the applicant's file. This consists of a Discharge Referral from (name redacted) dated 2 April 2010. This notes the assaults and recalls that he sustained scratches to his shoulders. Other medical evidence in the form of x-ray and ultrasound examinations disclosed that he had suffered a partial thickness tear to his supraspinatus involving the middle third of the tendon. I do note though that these reports do not refer to the injury being the result of the assault. On the basis of this evidence, I therefore find that the applicant has suffered an injury from the alleged act of violence in accordance with Section 19(1)(c) of the Victims Rights and Support Act 2013…
Recognition Payments
14. A category D recognition payment is payable under section 36(1)(e) of the Act, and pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under Category D is $1,500.00.
Special Grant from the Victims Support Fund
15. Clause 5(3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years from the date of the Act of violence (or two years after the applicant reached 18 years if age),
16. Noting the applicable dates the applicant is therefore eligible to receive a special grant, pursuant to Schedule 2, Clause 5(3) of the Act.
The Tribunal notes that the Applicant pleaded guilty to the charge of assault occasioning actual bodily harm. On 18 June 2010, a Magistrate entered a conviction in relation to that charge and ordered the Applicant to perform 200 hours of Community Service pursuant to s 8 of the Crimes (Sentencing and Procedure) Act 1999.
[3]
Provisional order for Restitution
Part 5 of the Act is concerned with the recovery of victim support payments from offenders. The object of that Part is set out in s 57 of the Act:
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: s 59 (1) of the Act).
"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,
(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 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.
On 28 May 2016, the Commissioner made a provisional order for restitution against the Applicant in the sum of $6,500, being the full amount of victim's support that was approved for the victim.
A copy of the Provisional Order was posted to the Applicant on 30 May 2016 under cover of a letter from the Commissioner dated 28 May 2016. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.
Section 62 of the Act gives a person upon whom a Provisional Order 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).
[4]
Decision upon Internal Review
On 25 July 2016, the Applicant signed an Objection to the provisional order for restitution, which was completed by his Solicitor, Mr Qoro. It set out the following grounds of review:
1. My son was staying with the Applicant's daughter at the Applicant's resident (sic). I did not approve of this relationship.
2. On 1st April 2015, whilst my wife was alone in the house, the Applicant stopped by and told her in rude manner that he had approved of his daughter and our son relationship. My wife did not like it and hence told me (defendant) about it when I came back from work.
3. On 2nd April 2015, I together with my wife, went to the Applicant's house and told him that I did not like him coming to the house whilst I am not there and being rude to my wife. Besides I did not approve of our son and their daughter's relationship as they were young.
4. The Applicant did not like it so he punched me on the mouth. I got injured. Both of us got into a scuffle. Punches were exchanged by both of us. However, I could not contain the Applicant as he was much taller and stronger than I am. He had a better reach.
5. In order to defend myself, I tried to use the club locker on the Applicant but wife came between us and pushed us aside to diffuse the situation. I may have hit him with the club with minimum force.
6. I denied hitting him repeatedly with the club clock (sic).
7. However, I admitted the offence without seeking independent legal advice. I just want to get over with the matter and moved on when I pleaded guilty.
8. I asked that consider section 44(1)(a) of the Act and refused the application of the Applicant.
On 28 July 2016, the Commissioner wrote to the Applicant's solicitors, advising that the Objection had been listed for determination at the first available opportunity on or after 13 September 2016 and that any further evidence to be relied upon should be lodged by 2 September 2016.
On 2 September 2016, the Applicant's solicitors lodged further evidence with the Commissioner by email, namely: (1) An Affidavit of Financial Circumstances sworn 2 September 2016; (2) BAS Statement for the period from 1 April 2016 to 30 June 2016; and (3) 2 bank statements. In the Affidavit, the Applicant deposed that he was able to make restitution by instalments of $50 per month.
On 12 October 2016, the Commissioner's Delegate determined the Objection. The Delegate decided that the Applicant was convicted of a relevant offence, but decided to vary the amount of the restitution order by reducing it to $4,500, and ordered the Applicant to pay this by monthly instalments of $50. The Delegate's reasons included (relevantly):
11. The defendant has provided an Affidavit of Financial Circumstances. The defendant is self-employed. The defendant apparently has a number of financial liabilities and responsibilities and his principal assets are a mortgaged property, a motor vehicle and his superannuation.
12. The defendant has offered to pay restitution by instalments of $50.00 a month.
13. The defendant has expressed regret for his actions.
…
15. I cannot look behind the findings of the Court however I take into account the defendant's financial situation as well as his offer to make monthly payments of $50.00.
…
18. On the basis of the above factors, I find it appropriate to reduce the amount to be paid under the provisional order. I am satisfied that the original sum can be reduced to $4,500.00 and that this be paid by monthly instalments of $50.00.
A copy of the Determination of the Objection was served upon the Applicant by post under cover of the Commissioner's letter dated 14 October 2016. I am satisfied that this document was properly served upon him, but the date upon which it was posted is not indicated in the documents before me.
However, in relation to this issue I note that s 76 (1) (b) of the Interpretation Act 1987 (NSW) deems the Applicant to have received the Commissioner's letter dated 14 October 2016 on the fourth clear business day after posting. If the letter was posted on 14 October 2016, the earliest date that the Applicant is deemed to have received it is 20 October 2016. This is significant when determining whether the current Application was lodged in a timely manner.
[5]
Application for Administrative Review
The powers of the Tribunal upon administrative review are set out in s 67 of the Act, relevantly, 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.
…
(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…
On 16 December 2016, the Tribunal received Administrative review application form dated 14 December 2016, which set out the following grounds:
1. The Commissioner erred in granting special grant when there was no evidence provided to show that the Respondent urgently required financial assistance to cover expenses for treatment as required by section 26(1)(b) or economic loss suffered by the Respondent under section 26(1)(c) of the Victims Rights and Support Act 2014 and also as required by Schedule 2 of clause 5(3) of the Victims Rights and Support Regulation 2013.
2. The Commissioner erred in granting recognition payment where there was no evidence of injury provided by the respondent that resulted from the Act of violence as defined under s 19(1)(c) of the Victims Rights and Support Regulation 2013.
The Application asserts that it was filed late as the Applicant "miscalculated the expiry of the 60 days". However, for the reasons set out above, I am satisfied that it was lodged within 60 days of the date upon which the Applicant is deemed to have received the Determination of the Objection from the Commissioner.
On 10 January 2017, the Commissioner lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 ("the ADR Act"). These were comprehensive and complete and were served upon the Applicant.
The current Application came before me for a directions hearing on 20 January 2017. Mr Qoro appeared for the Applicant and Ms Sabesan appeared for the Commissioner. Mr Qoro stated that the Applicant wished to file further financial evidence. The Tribunal ordered that he file and serve any further Affidavit of financial circumstances by close of business on 3 February 2017. The matter was listed for hearing on 17 February 2017.
On 15 February 2017, the Tribunal received written submissions from the Commissioner.
On 16 February 2017, the Tribunal received a further Affidavit of financial circumstances that the Applicant sworn on 14 February 2017, and further documents that included: (1) BAS Statements for periods from 1 July 2015 to 31 December 2016; (2) Income Tax records for the 2016 financial year and a letter from the ATO dated 28 September 2016; (3) Bank Statements for "Business Transaction Accounts" for the period from 1 October 2016 to 13 December 2016; (4) Credit Card Statements (x 3) for the period from 13 October 2016 to 27 December 2016; (5) Electricity accounts (x 3); (6) Rate instalment notice from Campbelltown City Council dated 10 January 2017.
At the hearing of the matter on 17 February 2017, Mr Qoro again appeared for the Applicant and Ms Sabesan appeared for the Commissioner. However, the Applicant was not in attendance.
[6]
Applicant's Submissions
Mr Qoro stated that the Applicant relies upon the grounds in the Application and his further Affidavit of financial circumstances, which indicate that he does not have current financial capacity to make restitution.
The Tribunal noted that the grounds of the Application incorrectly refer to the Act as the Victims Rights and Support Regulation and that it also incorrectly cited the provisions of Schedule 2 of the Act.
The Tribunal observed that Ground 2 of the current Application was misconceived, as it lacks jurisdiction to review the Commissioner's decision to approve victims support for the victim. Mr Qoro responded by withdrawing that ground of review.
The Tribunal further observed that Ground 1 appeared to be premised upon a misunderstanding of the operation of the savings and transitional provisions contained in sch 2 of the Act, as approval of a special grant is not conditional upon the approval of all types of victims support under s 26 of the Act. In response, Mr Qoro also withdrew that ground of review.
As a result, the only live issue for determination by the Tribunal was the Applicant's financial capacity to make restitution to the Commissioner and this required the interpretation of the Applicant's evidence including his most-recent Affidavit of financial circumstances.
In relation to this issue, the Tribunal noted that the most-recent Affidavit:
1. Alleges a significant increase in the Applicant's personal expenditure from $10,571 per month (as at 2 September 2016) to $26,379 per month;
2. However, it did not disclose any additional income or source of income and there is no evidence to explain how the alleged monthly shortfall of $15,808 is met;
3. Indicates that a number of alleged personal expenditure items (including electricity accounts, motor vehicle expenses, telephone and rent) were actually paid from the Business Transaction Accounts (x 2);
4. Indicated that there was "other expenditure" in the sum of $14,379 per month, which was unexplained; and
5. The business transaction accounts were both in credit as at 30 December 2016 and there are no personal bank account statements.
The Tribunal asked Mr Qoro whether the Applicant was available to assist it in understanding his evidence regarding his financial circumstances. Mr Qoro stated that the Applicant was not in attendance at the Tribunal, but that he would attempt to obtain instructions from him by telephone. It allowed Mr Qoro a short adjournment to enable him to attempt to contact the Applicant by telephone.
However, following that adjournment Mr Qoro stated that he had been unable to contact the Applicant by telephone and that he was unable to assist the Tribunal further in relation to these matters.
The Tribunal noted that the Applicant was not available to assist it in understanding the recent significant deterioration in his financial circumstances alleged in his most-recent Affidavit of financial circumstances.
[7]
Commissioner's Submissions
Ms Sabesan relied upon the written submissions filed on 15 February 2017, which provided (relevantly):
2. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself these questions:
a. Was a victim awarded compensation, and if so, upon what facts?
b. Was the applicant found guilty of an offence, and if so, upon what facts?
c. Having regard to a. and b., was the offence with which the applicant was convicted a relevant offence under section 58 of the Victims Rights and Support act 2013 (the Act)?
d. If the answer to c. is "yes", is there any reason why the applicant should not reimburse the State for the money that was paid to the victim, such as financial circumstances?
Provisional orders for restitution can be made under the Act
3. The questions at paragraph 2 above are based on the Commissioner's interpretation of the Act, which is as follows.
4. The Commissioner's power to make provisional orders for restitution comes from Part 5 of the Act. The purpose of Part 5 of the Act is, broadly, to allow money paid to victims by the State to be recovered from persons found guilty if the crimes giving rise to those payments (s 57 of the Act).
5. The Commissioner may make a provisional order if she (or one of her delegates (s 9 (2) of the Act; s 49 Interpretation Act 1987) is of the opinion that a person has been convicted of a relevant offence and, generally speaking, no more than two years has passed since either the conviction or payment to the victim, whichever is the later (s 59 of the Act).
6. A "relevant offence" includes an offence involving one or more acts of a series of related acts in respect of which a payment has been made to a victim. It also includes a conviction for substantially the same facts as those upon which the payment to the victim was approved (s 58 of the Act).
7. To be of the opinion that a person has been convicted of a relevant offence requires an understanding of both the facts giving rise to the court's finding of guilt and also the facts giving rise to payment of victims support. Those facts are "jurisdictional facts". They ground the Commissioner's jurisdiction to make a provisional order. In the absence of either, the Tribunal cannot confirm the provisional order.
Compensation was awarded to victims of crime
8. On 17 November 2014, the victim (name provided) was awarded total $6,500 victims support. This was made up of $1,500 Category D recognition payment and $5,000 special grant. The decision maker found that (the victim) was a primary victim of an act of violence that occurred on 2 April 2010 perpetrated by the applicant.
9. The decision refers to police reports, including police report (event number provided), which states that on 2 April 2010, a physical altercation broke out between the applicant and the victim, with the applicant later making full admissions to assaulting the victim. The applicant was charged for the assault on 2 April 2010.
10. the decision was made on the basis that the victim suffered an injury as a result of the physical violence committed by the applicant.
The applicant was convicted of offences
11. According to police reports and Justicelink records, the applicant was charged with Assault occasioning actual bodily harm (one count).
12. The applicant was convicted of Assault occasioning actual bodily harm on 18 June 2012. The applicant received 200 hours of Community Service Order.
The applicant was convicted of relevant offences
13. The Assessor found that (the victim) was eligible for victims support as he was the victim of violence committed by the applicant on 2 April 2010. The Commissioner submits that the applicant has been convicted of a relevant offence because, in substance, the facts underlying the conviction and the facts underlying the approval of victims support are substantially the same. They involve an offence of the same nature, against the same person, at the same time, by the same offender.
14. The correct and preferable decision is to confirm the decision under review.
The Tribunal reserved its decision.
[8]
Consideration
The Commissioner's discretion under s 59 (1) of the Act to make a provisional order for restitution 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.
This Tribunal does not have power to either review the Commissioner's decision to approve victims support for the victim or to look behind the conviction that was entered by a Magistrate. It is no defence to a restitution order for an Applicant to assert that he was acting in self-defence when the relevant offence occurred.
Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence. On 18 June 2010, he was convicted in the Local Court of NSW of assault occasioning actual bodily harm.
On 17 November 2014, victims support was approved for the victim in the sum of $6,500, comprising a Category D recognition payment ($1,500) and a Special Grant ($5,000). The provisional order was made on 28 May 2016. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of the Act.
However, the Commissioner exercised her discretion in determining the Applicant's Objection to the provisional order and she reduced the amount of restitution to $4,500.
After considering all of the available evidence and the parties' submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order. For the reasons that the Tribunal raised with Mr Qoro during the hearing, and set out previously in this decision, the Tribunal rejects the allegation that the Applicant lacks the financial means to meet that order.
[9]
Determination
Pursuant to Section 67 (1) (a) of the Act, I confirm the order made by the Commissioner on 12 October 2016, which requires the Applicant to make restitution in the sum of $4,500 by way of instalments of $50 per month.
[10]
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: 01 May 2017