Tran v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2021-02-05

REASONS FOR DECISION

The applicant has made an application for administrative review of a restitution order made on 11 August 2020 by the delegate of the Commissioner of Victims Rights (the respondent). This required him to pay restitution of $3,500, being part of the victims support that was approved for the victim in respect of an act of violence committed by him. The order was made pursuant to s 64 of the Victims Rights and Support Act 2013 (the Act).
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.
On 21 June 2016, the victim lodged an application for victims support under the Act. It alleged that the victim was a primary victim of assault and sexual assault that was perpetrated by the applicant over a period of time between 2012 and 2016, culminating in the granting of an Apprehended Violence Order (AVO) in favour of the victim on 29 March 2016.
On 13 May 2016, the applicant was charged by NSW Police with breaching the AVO and he was bailed to appear at Liverpool Local Court. The Court records produced by the respondent indicate that on 21 June 2016, the applicant pleaded guilty to breaching the AVO and a conviction was entered.

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 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. (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.
An order for restitution 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 5 June 2020, the respondent made an order for restitution against the applicant in the sum of $5,117.98, being the full amount of victims support approved for the victim.
A copy of the Order for restitution was posted to the Applicant under cover of a letter from the respondent dated 5 June 2020, although the date upon which it was posted is not in evidence before me. I am satisfied that the restitution order was served on the applicant as required by s 61 of the Act.
Section 62 of the Act gives a person upon 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).
On 16 June 2020, the applicant submitted an objection to an order for restitution,, to which he attached an Income Statement from Centrelink dated 11 June 2020 and a "Status of Declaration" (sic), in which he stated, relevantly: 2/ I was not charged of the offence or I was not convicted of the offence, She had financial hardship and therefore she lied and give the wrong statement about this domestic violence as the first place since 2012 so she can have a child and get pension, she slander me that I hit my son with the belt and punch her in the stomach that I never do that in my life. I love my son and she tried to separate me and my son just because she hate me that I don't listen to her and advocate her with my mom during she live with my mom, during in the court she said she afraid of me therefore the judge granted the A.V.O and the court order apply at that time for two years, but during that time that she follow me and demand me for signing the paper to allowed by son to have the passport to travel overseas so she can go to see her mum in overseas, but I don't agree because she take my son from me and don't let me see the child, she promise that I will see the child and I can go with her and my son to overseas and she show me her apartment that she liver with my child at (address provided). I went to her apartment and saw that she and my son didn't have washing machine and the heater therefore I bring my Maytag washing machine and oil heater to her apartment, we were together sometime on the weekend and when the A.V.O finish after two years she suddenly made an A.V.O again because she want to have the massage machine that I bought when I bring it to her apartment, she stop me to come to her house and I don't come to her house anymore at that time. I miss my son and I go to my son school sometime to give him my love and something he need, you can figured that out what happen she did to me after. I repeat that I never intend to harm anybody even animal. 3/ I ask that the victim serviced waive the entire that debt. 4/ I had financial hardship and live on Centrelink benefit since 2013 and I have attach the income statement with it.
The applicant did not submit an affidavit of financial circumstances to the respondent.

Determination of objection

On 11 August 2020, the respondent's delegate determined the Objection and decided that the applicant was convicted of a relevant offence. The delegate decided to vary the Order for restitution by reducing the restitution amount to $3,500, payable in full by 9 November 2020. The delegate's reasons included the following: 17. I have carefully re-read the available Police report relating to the violence that the victim experienced in this matter and I have also considered the court documentation provided to Victims Services, that documentation confirms that an apprehended violence order was taken out to protect the victim against Mr Tran on 29 March 2016 for a 12 month period. The available evidence details that on 13 May 2016, Mr Tran contravened that order at Cabramatta Public School. The contravention was reported to Police and investigated and Mr Tran was charged with the contravention offence. I note he pled guilty to the offence and was convicted accordingly in the Liverpool Local Court on 21 June 2016. 18. Noting the available evidence, whilst I have read through Mr Tran's advices, unfortunately it does appear to be the case that he was convicted of the offence of contravening an apprehended violence order that was in place for the protection of the victim in this matter. I consider on the facts of the evidence that the contravention is a relevant offence in which restitution may be pursued against Mr Tran. 19. I have next considered Mr Tran's assertions that the victim lied and gave a wrong statement to Police/the Courts. 20. While I have noted Mr Tran's advices, it is the case that he pled guilty to the offence preferred against him, and given that the criminal proceedings are entirely separate to the present restitution proceedings, I am unable to go behind the findings of the Court, nor revisit the evidence that was presented as part of those proceedings for the purposes of considering Mr Tran's liability to meet the restitution debt outstanding. 21. While the Court has imposed a penalty in the criminal proceedings, this is separate from the restitution proceedings, which is a civil process. Under the Act, if a defendant has been convicted of an offence that led to the victim's injury, Victims Services has the right to initiate restitution proceedings to recover the victims support payments from the defendant. The consequence of that, regardless of the defendant's objections, he must pay the restitution debt. 22. With respect to the defendant's request for the restitution debt to be waived in full, unfortunately I cannot waive the debt, nor do I believe it is appropriate to do so. Therefore, the defendant's request for a full waiver is not accepted. 23. I have next considered Mr Tran's advices that he cannot afford the cost associated with repaying the restitution debt due and owing. I note though that whilst he has provided his Centrelink statement, which evidences his earnings as a carer, he has not provided any affidavit of his financial circumstances which mote fully sets out his assets and liabilities and his ability to repay the debt itself. 24. However, notwithstanding the above, the defendant has been compliant with the restitution process and lodged an objection in time, therefore I am prepared to make a reduction of the restitution debt. 25. Overall, I am of the view that the restitution debt should be confirmed under the provisions of section 64 of the Act. 26. I consider it reasonable and appropriate to reduce the amount to be paid under the original order.

Service of determination of objection

A copy of the determination of the objection was served upon the applicant by post under cover of the respondent's letter dated 11 August 2020. I am satisfied that this document was properly served upon him and while the date upon which it was posted is not indicated in the respondent's documents, the current application for administrative review indicates that he received it.

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 9 September 2020, the Tribunal received an Application for Administrative Review dated 2 September 2020, which sought review of the decision made by the Commissioner's delegate. This set out the following grounds: 1. Remove all AVO against me since 2012 was made by (the victim, name provided). 2. Remove the charge that she (the victim) was made with Victim Services about she suffer during the AVO.
I am satisfied that the current application was lodged within 60 days of the applicant receiving the determination of the objection from the respondent.
The Application came before Senior Member McAteer for directions on 6 November 2020. The Applicant was self-represented and appeared by telephone and Ms Srikanth appeared on behalf of the respondent. The Senior Member ordered the respondent to file and serve any submissions by 20 November 2020 and he ordered the applicant to file and serve any further evidence about his current income and expenditure by 4 December 2020. He listed the matter for hearing on 18 December 2020.
However, on 18 December 2020, Senior Member Perrignon vacated the hearing date on the basis that the applicant required a Vietnamese interpreter. He listed the matter for hearing on 5 February 2021.
The matter came before me for hearing on 5 February 2021. The applicant was self-represented and appeared with the assistance of a Vietnamese interpreter. Ms Srikanth, Victims Services, appeared for the respondent. Owing to the current Covid-19 Pandemic, the hearing was conducted in a virtual hearing room.

Applicant's evidence and submissions

The applicant relied upon a letter dated 10 August 2020 addressed to the respondent's delegate, in which he stated: I want the order to review. 1/ On the paragraph 13 said 1 January 2012 and 20 June 2016, the defendant was convicted of the offence because the victim apply for AVO for not threaten her, not come to her premises, not harash (sic) her… 2/ And can you explained by the victim follow me and travel with me to oversea and live with me in Hotel in Nha Trang (Vietnam) for holiday during AVO still in force, during that time she (the victim), my son and I was going together and stay together in Vietnam. 3/ And can you explained why she asks me to come to her house (her premise) to stay with her during weekend during AVO still in force during 2012 until the second she ask for another AVO on 19 March 2016. 4/ And when the first VO is expire after 2 years, she again apply for another AVO I don't know why she is doing that for and I still don't know why she is doing that for unknown reason when I came to her premise and she don't let me in could you explain why she is doing that for and I still don't know why? After that I don't came to her house to see her and my son and I then to see my son only at school because I miss my son very much and one day she saw me and my son at school and she come close to me to take a picture and don't even know that she take a picture of me to give to the police for evidence and I think she just video me and my son for something else, that is happen during June 2016 and that why someone call me that I am a crime. 5/ On the paragraph 17 said that I have an apprehended violence on 13 May 2016 because I went to the school to meet my son and I became a crime. I could not explain at the court because I don't have a time and don't know how to say and explain in court. That explain to paragraph 4. 6/ I think for my self that I have not do anything to hurt any people why I have to be a crime. Am I a victim or is she a victim? Am I a crime or is she a crime? All I said here is true, you can ask and check my son and (the victim's) passport departing to Vietnam…
During the hearing on 5 February 2021, the applicant maintained that he had not done anything to the victim and he denied that he assaulted her. He said that he only went to the school to see his son and that he had no solicitor and no interpreter at Liverpool Local Court and he did not understand what was happening. The Tribunal asked the applicant if he understood that he had been charged and brought before the Court for breaching the AVO? He did not respond.

Respondent's submissions

Ms Srikanth relied upon written submissions filed on 27 November 2020, which asserted, inter alia, that the applicant's average weekly income is $1,075.60 and that his expenses are unknown, and that the respondent considered the applicant's submissions in reducing the restitution debt from $5,117.98 to $3,500. She argued that the Tribunal should be satisfied that the applicant has been convicted of a relevant offence and that the correct and preferable decision for the Tribunal to make is to confirm the decision to make the order for restitution under s 59 (s 67 (1) (a)) without variation and confirm the order for restitution (ss 67 (2A) and (3)).

Consideration

The respondent's discretion under s 59 (1) of the Act to make an 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.
In this matter, the Order for restitution alleged that the applicant was convicted of a relevant offence by the Liverpool Local Court on 21 June 2016, when he was convicted of a contravene prohibition/restriction in AVO (Domestic).
The decisions of Clow v Commissioner of Victims Rights [2017] NSWCATAD 40, Xiang v Commissioner of Victims Rights [2017] NSWCATAD 316 and Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172 are authority for the proposition that this Tribunal has no power to look behind the conviction in determining an administrative review of a provisional order for restitution.
Based upon the available evidence, and the findings made by Liverpool Local Court on 21 June 2016 in particular, I am satisfied that the applicant was convicted of a relevant offence for the purposes of s 59 (1) of the Act. This Tribunal has no power to look behind that conviction.
Despite the Applicant's submissions to the effect that the victim was not eligible for victims support because she did not suffer any injury, the Tribunal lacks jurisdiction to review the respondent's decision to approve victims support for the victim.
The Applicant did not lodge an Affidavit of Financial Circumstances in support of his Objection to the provisional order and he has not lodged any such Affidavit in support of his current application. However, during the hearing on 5 February 2021, the applicant asserted that the payments he receives from Centrelink are fortnightly and that he receives $538 per week.
The Tribunal examined the Income Statement from Centrelink and I am satisfied that this supports the applicant's argument and that he receives $538 per week by way of a carer's benefit.
In view of the evidence of his weekly income, I am satisfied that it is appropriate to confirm the order for restitution subject to a variation to take account of his lesser income.

Order

I make the following orders: 1. The order for restitution is confirmed subject to the following variation: 1. The liability of the applicant is in the sum of $3,500, payable by monthly instalments of $100; 1. The Order for restitution dated 11 August 2020 is otherwise confirmed.

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 March 2021

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