Thomas 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:
2. 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.
3. 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).
4. "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.
5. 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.
6. In this matter, Court documents indicate that the Applicant was charged with "Stalk/intimidate intend fear physical etc. harm (domestic) to the victim on 2 November 2017 and that he pleaded guilty at Moss Vale Local Court on 23 January 2018. He was convicted and placed on a good behaviour bond for a period of 12 months.
7. On 30 September 2021, the respondent made an order for restitution against the applicant in the sum of $10,325.86, being the full amount of victims support that was approved for the victim.
8. A copy of the restitution order was posted to the applicant under cover of a letter from the respondent dated 30 September 2021. I am satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.
9. 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).
10. On 4 November 2021, the applicant signed an objection to the order for restitution. He made submissions in support of his objection, relevantly, as follows: …I met (the victim) in June 2016 on a dating website, she was at that stage in Australia from the Philippines on a protection visa due to an abusive marriage. (She) was residing in a granny flat owned by (name provided) and (name provided) at (address provided). I would visit (the victim) at that address when we first met until she had to vacate the premises due to the property was to be sold. I, at that stage, had a person boarding at my residence (name provided) from June 2016 up until 29th September 2016. I attached a statement from (name provided). (The victim) and her 7yo daughter (name provided) moved in October 2016. Throughout the duration of both (the victim) and her daughter staying at my house, never was there ever a time that the police were called due to any domestic disturbance or acts of violence, and I have attached Court documents including the facts sheet relating to the offence. (The victim) and daughter had vacated my premises 1 month prior to the offence, which conflicts with the allegations. Everyday, during the week, I was physically carrying (the victim's daughter) to the car each morning and drive her to (names provided)'s residence in (name provided) street, Picton, on my way to work for early hours babysitting, as well, I would make myself available to meet the afternoon school bus when required. I would regularly drop off and pick up (the victim's daughter) from weekly appointments such as Maths/English tutoring in Bargo and Girl Guides in Thirlmere. On occasions, I would be asked by (the victim) to pick up (her daughter) from Tahmoor Primary School. I also financed holidays away on occasion including flights and accommodation. (The victim's) motive and agenda for being in a relationship with me was to qualify and obtain an Australian Citizenship Certificate, and was annoyed at the fact that at the time I was going through a marriage separation and wasn't clear when I could file for a divorce. When this agenda became more apparent, that's when I respectfully requested that she leave on 4th October 2017, 1 month prior to the offence. From that date to now I have, and do not wish to, at any stage, actively sort information to the whereabouts of (the victim's) place of residence nor wish to contact by any means.
11. On 30 November 2021, an Assessor issued a Notice of Determination of objection acting as a delegate of the respondent. the Assessor confirmed the restitution order and ordered the full amount ($10,325.86) to be paid by 28 February 2022. Notice of that determination was served on the applicant as required by s 65 of the Act on 30 November 2021.

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. 28 January 2022, 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: Financial hardship as I am currently unemployed as of 3 January 2022. I've stated in my objection that the crime I was convicted of was not linked to the time that the defendant resided with me and I request a review by the Commissioner under section 57 and 39 of the Victims Support Act 2013.
4. The matter came before Senior Member McAteer for a directions hearing on 9 February 2022, when the applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. The Senior Member directed the applicant to file and serve an affidavit of financial circumstances by 25 February 2022 and ordered the respondent to file and serve documents under s 58 of the ADR Act by 25 February 2022. He otherwise dismissed the applicant's request for a stay under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and listed the matter for further directions on 18 March 2022.
5. The matter came before me for directions on 18 March 2022, at which time the Tribunal had received the respondent's s 58 documents and I listed the matter for hearing by telephone on 27 May 2022.
6. At the hearing on 27 May 2022, the applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent.
7. The applicant relied upon his submissions in support of the objection and argued that the offence for which he was convicted occurred on 2 November 2017, which was 1 month after the victim and her daughter had moved out of his premises. He maintained his denial of alleged domestic violence over a period of time until 4 October 2017, which was not the subject of the charge for which he was convicted, and questioned why he was required to pay restitution for financial assistance, particularly in circumstances where the victim would have required at least some of the claimed items from/after 4 October 2017.
8. I asked the applicant questions regarding the information contained in his Affidavit of Financial Circumstances, which included bank statements for his personal account from 18 November 2021 to 17 February 2022 and business accounts for the period from 1 July 2021 to 31 December 2021 and a Statement for his business loan account from 1 July 2021 to 2021. He stated that he was made redundant from his position with his local Council and that his final payslip was issued on 23 December 2021. Since then, he has had casual work in Traffic Control, but this was adversely impacted by COVID-19 lockdowns. Otherwise, he receives $1,600 per month by way of rent from a tenant, pays $1,400 a month by way of mortgage payments on his property and has been funding the shortfall between his expenditure and his income by redrawing from his mortgage offset account. I accept the applicant's evidence in relation to these matters.
9. The respondent relied upon written submissions filed on 24 May 2022. I note that the respondent argued that the restitution order should be confirmed and asserted that the applicant was convicted of a relevant offence as defined in s 58 of the Act, which provides: relevant offence means any of the following - (a) an offence in respect of which an act of violence or act of modern slavery (whether or not a series of related acts) is found to have been committed, (b) an offence for or in respect of which victims support is given under this Act, (c) any other offence if an offence referred to in paragraph (a) or (b) 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.
10. The respondent argued that the applicant was convicted of an offence for or in respect of which an act of violence "comprising a series of related acts" was found to be committed and/or an offence in respect of which victims support as given.
11. The respondent also argued that the restitution order was issued within the time required under s 59(2)(a)(ii) of the Act, which provides, relevantly: 59 Commissioner's discretion to make provisional order for restitution by offender … (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 …
12. In relation to the applicant's financial circumstances, the respondent argued that his bank statements do not verify the expenses set out in the affidavit or explain how he meets his monthly expenses which significantly exceed his income. The statements suggest that he has addition accounts for which a bank statement has not been provided. The absence of this information raises doubt as to the accuracy of the information contained in the affidavit of "financial hardship" (sic). The respondent also stated: 21. In addition, during the objection process the applicant provided written submissions, a statement from (name provided) and court documents in support of a deduction to the restitution debt. In these submissions, the applicant: (a) states that (the victim) was not residing at his premises for the whole claim period; (b) provides details of his relationship with (the victim); (c) states that the relationship had broken down prior to the date of the relevant offence; and (d) states that the (victim) was not residing at his premises at the time of the offence. 22. While the material before the Tribunal supports the statements referred to in paragraphs (a), (c) and (d) above, such does not preclude an assessor from finding that (the victim) was a victim of a series of related acts over a period of time which involved different living arrangements and/or a breakdown of a relationship. In this regard, I note that a series of related acts constitutes a single act of violence for the purpose of the Act (see section 19(7)).
13. The respondent referred to my decision in Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172, in which I cited the following passage from the decision in Conner v R [2005] NSWCCA 431 at [35]: …the 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…
14. The respondent argued that while the applicant's affidavit of financial circumstances was not before the Assessor, due to concerns regarding the completeness/accuracy of the information contained in it, the Commissioner is unable to assess whether the current financial situation of the applicant warrants a deduction. The respondent stated, relevantly: 27. While the affidavit of financial circumstances indicates that the applicant may not currently have capacity to pay the restitution debt in full, if the order is confirmed and the debt is not received by the due date, the debt will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1986. Following this transfer, the applicant can raise his financial circumstance and request a payment plan with State Revenue directly. Any such request will be considered by NSW Revenue and not Victims Services. In this regard, we note that Victims Services is unable to administer payment plans internally.
15. The respondent concluded that the correct and preferable decision is to confirm the restitution order under s 67(2A) pf the Act.

Consideration

1. Based on a consideration of the available evidence, I am reasonably satisfied that some, but not all, of the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.
2. In this regard, I note that the medical evidence lodged by the respondent supports a finding that the victim suffered a psychological injury as a result of the act of violence that occurred on 2 November 2017. This is the date of the relevant offence for the purposes of s 58(b) of the Act.
3. However, although the application for victims support also asserted that an act of violence occurred over a period of time from a date in 2016 until 4 October 2017, the Court documents do not support a finding that the applicant was charged with or convicted of any offence that occurred during that period.
4. The applicant argues, and in my view rightly so, that not all of the victims support that was approved for the victim directly resulted from the relevant offence. The evidence before me indicates that the victim and her daughter moved out of the applicant's premises on or about 4 October 2017, approximately 1 month before the relevant offence occurred.
5. I had the benefit of hearing from the applicant at the hearing and I am satisfied that he has not been employed by his local Council since 31 December 2021 and that he is currently engaged in current employment as a traffic controller, with limited income.
6. I am satisfied on the balance of probabilities that the psychological injury that the victim suffered directly resulted from the act of violence on 2 November 2017, for which the applicant was duly convicted. As a result of that injury, a category D recognition payment was approved for the victim in the sum of $1,500.
7. I am also satisfied that the victims support that was approved for the victim's travel expenses to consult her approved counsellor also directly resulted from the act of violence on 2 November 2017. I note that travel expenses totalling $586.37 were approved for the victim.
8. However, I am not satisfied on the balance of probabilities that the victims support in the form of financial assistance for immediate needs and economic loss that was approved for the victim directly resulted from the relevant offence. In my view, the victims support in the nature of household items, furniture, and educational expenses for her daughter did not result directly from the relevant offence on 2 November 2017, but were the result of the victim and her daughter leaving the applicant's premises on or about 4 October 2017 as a result of the breakdown of their relationship. There is no evidence from either NSW Police or the Local Court of NSW that supports a finding to the contrary.
9. Accordingly, I am satisfied that the correct and preferable decision is to vary the restitution order and I order that the applicant pay restitution in the sum of $2,086.37, comprising the recognition payment and travel expenses for the victim's attendance on her approved counsellor.

Order 1. Pursuant to s 67(2A) of the Victims Rights and Support Act, I vary the restitution order made by the respondent on 30 November 2021, such that the applicant is required to pay the sum of $2,086.37 to the respondent within 28 days of the date of this order.

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: 31 May 2022