Sutton v Victims Compensation Tribunal

Background 8On 29 August 2007, Anthony Cartwright and William Sutton were involved in an altercation in Gosford, New South Wales. On 12 June 2009, Mr Sutton was convicted of malicious wounding under s 35(1)(a) of the Crimes Act 1900. According to the agreed facts upon which Mr Sutton was convicted, Mr Cartwright received two stab wounds to the chest, resulting in bilateral pneumothoraces causing each lung to collapse. 9On 3 August 2009, Assessor Hipwell awarded Mr Cartwright $33,000 in statutory compensation under the Victims Support and Rehabilitation Act. That award comprised of $33,000 for the compensable injury of "Category 2; chronic psychological or psychiatric disorder that is severely disabling"; $720 for compensable injury of "Torso, lung - puncture of one lung"; and $160 for loss of personal effects. 10On 5 November 2009, Mr Cartwright appealed the amount of the award to the Victims Compensation Tribunal on the grounds that a higher amount should have been awarded as the hospital notes indicated injury to both lungs (my emphasis added).

Hearing on 29 March 2010 11On 29 March 2010, Mr Cartwright's appeal came before the Chairperson of the Victims Compensation Tribunal. The Chairperson was his Honour Lulham. The Tribunal accepted that the hospital notes evidenced a puncture of both lungs. The Tribunal also accepted that an amount should be awarded for scarring. The Tribunal also indicated that Assessor Hipwell did not appear to take into account, in determining Mr Cartwright's psychological disorder and current functioning, Mr Cartwright's pre-incident functioning. 12In the psychological report of R Napier, Mr Cartwright was assessed with a pre-incident Global Assessment of Functioning score of 50. The Tribunal's view on this evidence was that Mr Cartwright was already severely disabled at the time of the act of violence, and any award for psychological injury would be subject to a reduction for a pre-existing condition. The Tribunal further indicated that a reduction of even 10% would result in the applicant losing more than could be gained from pursuing the appeal. The Chairperson, in accordance with Nguyen v Victims Compensation Fund [2001] NSWCA 264 (also known as the Parker decision from an earlier decision of Parker v Director of Public Prosecutions (1992) 28 NSWLR 282), gave Mr Cartwright the opportunity to withdraw the appeal. Mr Cartwright's solicitor made submissions to the effect that a higher amount should have been awarded, however, he indicated that if those submissions were not accepted then the appeal would be withdrawn. 13On 4 August 2010, the Chairperson determined the appeal. His Honour stated that he was of the view that the evidence of psychological injury was such as to require a significant reduction in compensation payable due to a pre-existing psychological condition. This would have resulted in a significant reduction in the award made by the compensation assessor in the first instance. His Honour allowed Mr Cartwright to withdraw his appeal. 14On 1 February 2011, the Director issued a provisional order for restitution in the amount of $33,880.00 against Mr Sutton pursuant to s 46 of the Victims Support and Rehabilitation Act. On 21 February 2011, Mr Sutton filed a notice of objection pursuant to s 47 of the Act. On 5 April 2012, Mr Sutton filed another notice of objection. This meant that the matter was referred to the Tribunal to be determined pursuant to s 51 of the Victims Support and Rehabilitation Act.

The hearing before the Victims Compensation Tribunal - the subject of the appeal to this Court 15Section 51 of the Victims Support and Rehabilitation Act reads: "51 Provisions relating to orders for restitution (1) The Tribunal may, when it confirms a provisional order, reduce the amount to be paid under the provisional order having regard to: (a) the financial means of the defendant, and (b) such other matters as are, in the opinion of the Tribunal, relevant to the determination. (2) The maximum amount that may be ordered to be paid under an order for restitution (whether made against one or more defendants) is the amount that has been paid to the victim under the award of statutory compensation to which the order relates. (3) If an order for restitution is made against two or more defendants in respect of the same award of statutory compensation, each of the defendants is jointly and severally liable under the order. (4) If the Tribunal decides under subsection (1) to reduce the amount payable by a defendant under an order made against two or more defendants, the Tribunal may confirm the order subject to the liability of the defendant concerned being limited under the order to an amount specified in the order." 16At the hearing Mr Weller, solicitor, appeared for Mr Sutton. Mr Srikanth, solicitor, appeared for the Director, Victims Services. 17The notices of objection, an affidavit of financial circumstances, submissions, as well as further submissions on 1 May 2012 and 4 May 2012, the agreed facts sheet, the prior determinations, an affidavit of Mr Sutton's financial circumstances and a report of Ms Napier, clinical psychologist of Peninsular Clinical Forensic Psychology dated 12 August 2008 were also before the Chairman. In addition to the written submissions, Mr Weller made oral submissions for Mr Sutton. These submissions are recorded in the transcript of the hearing at T3-5. They are essentially the same submissions as those he furnished in writing to the Tribunal and made before this Court. They refer to Mr Sutton's lack of finances and the criticisms of what is said to be the shortcoming of Ms Napier's report. 18Magistrate Lulham, in his oral reasons, referred to the history of the prior proceedings before him, which have already been outlined in this judgment and need not be repeated here. His Honour continued: "In my view the findings by psychologist required the assessor to take into account the provisions of cl 4 of sch 1 of the Act and required the assessor to consider the contribution of Mr Cartwright's existing psychological health when determining the amount of the compensation. The psychologist Napier indicated that Mr Cartwright's response to the psychometric testing was invalid in that there was evidence that on the test he intended to exaggerate his symptoms and complaints. As is frequently the position in restitution hearings there is far more evidence before the Tribunal as to the background to the dispute and as to the dispute itself. I consider that even on the evidence available to the assessor that a fifty per cent reduction in the award for the psychological injury was in order and that would have reduced the award for psychological injury to $16,500. I take that into account the further evidence presented in Mr Willow's [Mr Weller's] submissions. I also take into account the appellant's health and financial position. It is an unusual matter. There is no doubt the stabbing took place." 19On 28 May 2012, his Honour Magistrate Lulham confirmed the provisional order for restitution but reduced the amount to $8000 payable by instalments of $20 per month. That is the Magistrate reduced the order for restitution by the sum of $25,880. 20The grounds of appeal are of short compass. They are that the Tribunal below erred at law in that it was unreasonable on the facts, to make an order against the plaintiff because firstly, the financial circumstances of the defendant were such that for all practical purposes he had no capacity to meet any order; and secondly, due regard was not given to the shortcomings of the evidence which procured the award of compensation to the to the victim including: (a) the victim's pre-existing psychiatric condition; and (b) the lack of objective evidence of the victim's pre-incident functioning. 21Ms Napier's report, in relation to Mr Cartwright, covered the following topics: presentation, background, the incident, psychological response, current psychometric testing; diagnosis; corroborating opinion and prognosis; and summary and conclusions. The Magistrate agreed with Mr Weller's submissions to some extent on this topic, taking it into account because he stated that the evidence available to the assessor would have reduced the award for psychological injury to $16,500. 22Clearly, the financial circumstances of Mr Sutton were also taken into account. After Mr Weller made oral submissions on this topic, the Magistrate stated he took both Mr Sutton's health and financial position into account and reduced the order for restitution further, down to $8000. Mr Sutton's statement of financial affairs discloses that he is in receipt of a Centrelink payment each week. The Magistrate determined that Mr Sutton was able to afford to pay $20 per month. 23The Magistrate considered the matters raised in s 51 of the Victims Support and Rehabilitation Act. Essentially, the grounds of appeal contest findings of fact. It was open to the Magistrate to make the findings he did. Those findings were not unreasonable. They were mostly favourable to Mr Sutton. Hence, leave is not granted. There is no error of law. The appeal is dismissed. The decision of his Honour Magistrate Lulham dated 28 May 2012 is affirmed. The amended summons filed 31 July 2012 is dismissed. The plaintiff is to pay the defendant's costs as agreed or assessed.

The Court orders that: (1) Leave to appeal is refused. (2) The appeal is dismissed. (3) The decision of his Honour Magistrate Lulham dated 28 May 2012 is affirmed. (4) The amended summons filed 31 July 2012 is dismissed. (5) The plaintiff is to pay the defendant's costs as agreed or assessed.

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