Tuckerman v Commissioner of Victims Rights

Provisional order for restitution

1. 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.
2. The statutory scheme gives the Commissioner a discretion to make a provisional 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 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.
5. On 24 October 2019, the Commissioner made a provisional order for restitution against the Applicant in the sum of $10,449.00, being the full amount of victims support approved for the victim.
6. A copy of the Provisional Order was posted to the Applicant on 13 November 2019. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.
7. 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).
8. On 9 December 2019, the Applicant sent an email to the Commissioner, in which he stated, inter alia, that he intended to object to the Provisional Order and that he would take his fight to the highest Court in the country if needs be.
9. On 9 December 2019, the Commissioner advised the Applicant by way of email that Victims Services Policy does not authorise the release of medical evidence submitted in support of the victim's injuries or receipts/invoices associated with any financial assistance approved to her. The Commissioner granted the Applicant a further period of 28 days in which to lodge a Notice of Objection to the provisional order.
10. On 5 January 2020, the Applicant lodged lengthy objections with the Commissioner, in which he complained, inter alia, that the Commissioner had wasted resources by approving victims support for the alleged victim and he asserted that the alleged victim was never a victim of domestic violence and that she had used victims services to fund her own selfish endeavours and lifestyle. He alleged that the alleged victim was known to various Government Agencies and had previously been charged by Police for criminal dishonesty. He disputed several of the items of alleged loss that were the subject of the approvals for financial assistance for immediate needs and also disputed that the alleged victim suffered any injuries and that she was not in true need of financial assistance. He also alleged that he is suffering financially and emotionally from years in the Family Court system.

Determination of objection

1. On 17 March 2020, the Commissioner's delegate determined the Objection and decided that the Applicant was convicted of a relevant offence. The delegate decided to vary to Provisional Order by reducing the restitution amount to $5,000 to be payable by monthly instalments of $100, based upon reasons that included the following: 17. I have carefully considered the defendant's written submissions to Victims Services dated 5 January 2020, email correspondence to Victims Services dated 9 December 2019 and the defendant's Submission to the Joint Select Committee on Australia's Family Law System dated 17 December 2019. 18. I note in the defendant's objections, he has expressed a denial of responsibility and that he did not commit domestic violence against the victim. Many of the objections are allegations regarding the circumstances of the crime and the conduct and behaviour of the victim during the relationship and following during family law proceedings. 19. While I acknowledge the defendant's view, I am not in a position to 'go behind' the findings of the Court. For the purposes of determining restitution, it is relevant that in regards to the domestic violence charge, the defendant was found guilty and directed to comply with a good behaviour bond. 20. The defendant submits that he did not cause injury to the victim and questions the credibility of the medical evidence. The defendant also raises objections in regards to the payment of victims support to the victim. He argues that the victim was not deserving, for a variety of reasons. 21. I am not in the position to overturn the findings of the Assessor in the original decision or to call into question the reasoning and basis of their decision. This does not mean that I am accepting that decision at face value. Rather, I have noticed that the decision was based on the objective evidence found in medical files which confirm the injuries, as suffered by the victim, were the direct result of the actions of the defendant. This medical evidence is not required to be provided to the defendant, nor is notification that a claim is underway by the victim. Further I confirm that victims support is not means tested, but is based on immediate need as a direct result of an act of violence. 22. I acknowledge that the defendant has experienced very difficult and protracted family court proceedings. I understand and accept that this has been extremely difficult for the defendant, emotionally, psychologically and also financially. Most relevantly however, the fact the defendant has not had visitation and contact with his children has surely been the most difficult aspect and for this I acknowledge the defendant's distress. 23. Overall I am of the opinion that the enforcement of the full restitution order would likely result in financial hardship on the defendant and further impact his quality of life. Therefore I am granting leniency of the enforcement of the order on the grounds of likely financial hardship. 24. 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..

Service of determination of objection

1. A copy of the determination of the objection was served upon the Applicant by post under cover of the Commissioner's letter dated 26 March 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 Commissioner's documents, the current application for administrative review indicates that he received it on 4 April 2020.

Application for Administrative Review

1. 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…
2. On 29 April 2020, the Tribunal received an Application for Administrative Review dated 23 August 2020, which sought review of the decision made by the Commissioner's delegate. This set out the following grounds: Commissioner has not: - Provided the respondent with a full disclosure of evidence - Exercised their powers provided under the legislation to investigate validity of claims or authenticity of documents provided despite being requested to do so by the respondent - Weighed the emotional and financial destruction placed upon the respondent from years in the Federal Family Court nor ongoing domestic violence by the applicant against the respondent - Considered other factors within their "Notice of Determination of Objection"
3. I am satisfied that the current application was lodged within 60 days of the applicant receiving the determination of the objection from the Commissioner.
4. The Application came before me for directions on 8 May 2020. The Applicant was self-represented and appeared by telephone and Ms Srikanth appeared on behalf of the Commissioner. I ordered the Commissioner to file and serve any material upon which she relies and submissions on or before 22 May 2020 and ordered the applicant to file and serve any evidence in response by 12 June 2020. I listed the matter for hearing on 3 July 2020.
5. The matter came before me for hearing on 3 July 2020. The Applicant was self-represented and Ms Srikanth, Victims Services, appeared for the Commissioner. Owing to the current Covid-19 Pandemic, the hearing was conducted in a virtual hearing room.

Applicant's evidence and submissions

1. The applicant relied upon an Affidavit, which he either swore or affirmed (this is not apparent from the document) on 12 June 2020, in response to the documents contained in the Commissioner's section 58 bundle. This is a lengthy document in which he expanded upon his previous submissions to the Commissioner and his allegations that he was the victim of domestic violence perpetrated by the victim. While I have considered the contents of the applicant's Affidavit in making this decision, I have not extracted its contents in this decision.
2. However, I note that the Applicant annexed a copy of the transcript from the proceedings in Gosford Local Court to his Affidavit. This indicates that the Magistrate was faced with two conflicting versions of what happened on the relevant date. His Honour stated, relevantly: In circumstances like that, what the Court has to do is look to see whether there was any other objective factors which the Court can rely upon to try and give added weight to one version or another that would allow me to accept one version over the other. There is no injuries, there was not suggested there was any injuries, there's no doubt she ended on the ground in both versions. Both versions are consistent with her ending up on the ground - that is, the motions of both of them consistent with her ending up on the ground. So there is nothing objectively that I can go to that would allow me to conclude that one version should be preferred to the required standard over the other - purely because the standard of proof that the prosecution bears, I could not be satisfied beyond reasonable doubt as to which was it happened. That is not to say it happened one way or the other, I just cannot be satisfied beyond reasonable doubt as to which way it happened. However, when it comes to the other part of the assault, my view is that there is clear evidence that it happened as the victim said. That is, that she says she was tapped on the head whilst the argument was going on. The accused himself says - well, in cross-examination, it was simply put to the victim that he helped her up, which she denied, in any event. But putting that aside - that when she got up, he was saying, "Mel, wake up to yourself," and touched her on the head with his two fingers. There was never a suggestion in cross-examination to her that he was trying to help her up or he was trying to revive her or get her attention or that she needed any reason for her to be touched on the head. In his own evidence, he says that he tapped her on the head, not as a consequence of anything that needed to be done to her or to protect himself. And when cross-examined about it, again he just said, "I was just sick of the argument. I was sick of her carrying on and I wanted to get her to wake up." And it is clear what he was saying that to reinforce what he was trying to do - that is, get her to wake up - to reinforce that belief, he tapped her on the head. My view is that clearly is an assault. There was nothing that would allow anybody to conclude that that was done in self-defence. It is not suggested it was done in self-defence. It cannot be suggested it was done in aid of the person herself to try to give her some sort of (not transcribable)… or recognition. It was a gratuitous act by him to try to reinforce his own statement about getting her to take up. My view is he had no legal entitlement to touch her to the head, however many times it was. It was not a touch. He used the word himself, "tap", which is precisely the word the victim said herself. My view is that action constitutes an assault and I find the offence proved…
3. The Applicant argued that although he had "tapped" the victim, this did not constitute an injury nor warrant a criminal conviction and it does not fulfil the meaning of "act of violence" in the Act. He submitted that the Commissioner did not undertake any enquiries regarding the victim's eligibility for victims support as it this had been done, it would have produced evidence beyond reasonable doubt that injuries did not occur as the Local Court transcript was then available. He stated, "Most seriously in this case I refer to Victims Rights and Support Act 2013… subsection 12 (3) "A person who provides the Commissioner with information that the person knows is false or misleading in a material particular is guilty of an offence…" He concluded that the victim had breached s 12 (3) of the Act.
4. The Applicant sought orders that the Restitution Order be set aside and that the Tribunal should direct the Commissioner to report the victim's application for victims support to Police and take the necessary steps to investigate this matter as a criminal act of fraud and to recover the funds paid to her by Victims Services.

Commissioner's submissions

1. Ms Srikanth relied upon written submissions filed on 27 May 2020, which provided, relevantly: 4. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself the following questions: (a) Was a victim approved victims support, 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 5. The questions at paragraph 4 above are based on the Commissioner's interpretation of the Act. 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 enable money paid to victims by the State to be recovered from persons found guilty of the crimes giving rise to those payments. 6. The Commissioner may make a provisional order if she (or one of her delegates) 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 the later of: (a) that conviction; or (b) the end of the period within which a victim may make claims against the relevant application for support (see s 40 (6) of the Act). 7. Section 58 of the Act states (relevantly): Relevant offence means any of the following: (a) an offence in respect of which an act of violence (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. 8. 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. Victims support was approved 9. On 8 February 2016, (the victim) was approved victims support in the form of a Category D recognition payment of $1,500 in relation to an assault (not resulting in grievous bodily harm) and financial assistance in the amount of $8,949.00. In approving these amounts the decision maker found that (the victim) was the primary victim of an act of violence perpetrated by the applicant between 1 January 2013 and 19 October 2015. 10. The decision was based in part on COPS report (number provided), which indicated that the victim was subjected to a physical assault by the applicant. The applicant was charged with and found guilty of common assault under s 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999. 11. The decision to approve victims support was made on the basis of medical evidence verifying that the victim suffered psychological and physical injury as a result of the act of violence committed by the applicant. The Applicant was convicted of an offence 12. Court records show the applicant was found guilty of the offence of common assault and directed to enter into a good behaviour bond under section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999. The Applicant was convicted of a relevant offence 13. The applicant has been convicted of relevant offences within the meaning of section 58 of the Act. A conviction for the purposes of the Act includes an order made under section 10 (1) (b) of the Crimes (Sentencing Procedure) Act 1999. 14. Section 10 (4) (c) of the Crimes (Sentencing Procedure) Act 1999 states that an order under this section has the same effect as a conviction "for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property". 15. The Commissioner found that (the victim) was the victim of domestic violence perpetrated by the applicant with specific reference made to a physical assault occurring on 18 October 2015. The applicant was been convicted of common assault in relation to that incident. 16. The victim was approved victims support in respect of an act of violence that occurred on 18 October 2015. The applicant has been convicted of an offence in respect of which that victims support was approved. The Commissioner is therefore of the opinion that the applicant has been convicted of a relevant offence and the power at section 59 to make a restitution order is enlivened. Is there a reason why the applicant should not reimburse the State? 17. The applicant submits to the Tribunal that he should not be required to comply with the provisional orders for the reasons outlined in paragraph (3). 18. The evidence establishes that the applicant was convicted of an offence that directly relates to the assault on the victim on 18 October 2015 for which victims support was paid, the provisional order was lawfully made. 19. The Commissioner took the applicant's submissions into consideration while determining the Notice of Objection and reduced the applicant's liability to $5,000.00, payable in monthly instalments of $100. Powers of the Tribunal on Administrative Review 20. The powers of the Tribunal on administrative review as per section 67 of the Act are: (1) On an administrative review, the Tribunal may: (a) confirm the original decision the subject of review (with or without variations) or reverse that decision, 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. (2A) The Tribunal may confirm the order for restitution the subject of the review proceedings if the Tribunal confirms the decision to make that order (with or without variations). (3) The Tribunal may confirm an order for restitution 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. Conclusion 21. the Tribunal should be satisfied that the applicant has been convicted of a relevant offence. The Offence of which the applicant was found guilty was one "for or in respect of which victims support [was] given under the Act". The correct and preferable decision by the Tribunal is to: (a) confirm the decision to make the order under s 59 (s 67 (1) (a)) without variation; and (b) confirm the order for restitution (s 67 (2A) and (3)).

Consideration

1. 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.
2. 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.
3. In this matter, the Provisional Order alleged that the Applicant was convicted of a relevant offence by the Gosford Local Court on 6 January 2016, when he was convicted of a common assault upon the victim that occurred on 18 October 2015.
4. 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.
5. Based upon the available evidence, and the findings made by Gosford Local Court on 6 January 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.
6. 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. Accordingly, while the Applicant has made submissions regarding the financial detriment that he suffered as a result of his lengthy involvement in the Family Court system, and he has annexed copies of tax invoices for legal costs and disbursements that he incurred in relation to both the family law and local court matters, there is no verified evidence before me regarding his current earnings, assets and liabilities.
7. 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 Commissioner's decision to approve victims support for the victim.
8. In any event, I note that upon determination of the Objection, the Commissioner's delegate determined that it was appropriate to vary the amount of restitution by reducing it from $10,449.00 (the total initially approved by way of victims support) to $5,000 and that the reasons for this decision indicate that the Commissioner considered the Applicant's submissions regarding the financial and emotional impact of the family law and Local Court proceedings upon him.
9. The Applicant clearly feels aggrieved by the Commissioner's decisions to approve victims support for the victim and to order that he make restitution for part of the amount approved for the victim and he has asked the Tribunal to make an order requiring the Commissioner to refer the victim's application for victims support to Police for investigation of possible criminal fraud. However, I am not satisfied that this Tribunal has power under the Act to make such an order upon the Commissioner. I therefore decline to make any order of that nature.

Order

1. I make the following orders: 1. The Provisional Order is confirmed subject to the following variation: 1. The liability of the Applicant is reduced to $5,000, payable by monthly instalments of $100; 1. The Order for restitution dated 26 March 2020 is 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: 19 August 2020