Walker v Commissioner of Victims Rights

NCAT Administrative and Equal Opportunity|2022-03-25

REASONS FOR DECISION

The applicant has made an application for administrative review of a restitution order made on 30 June 2021 by a delegate of the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $14,000, being part of the amount of victim's support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (the Act).

Award of victims support to the victim

On 15 March 2016, the victim lodged an application for victims support under the Act, which alleged that she was the primary victim of an act of violence in the nature of sexual assaults, which was perpetrated by the applicant over a period of time from 1 January 1986 to 31 December 1994. She alleged that she suffered a psychological injury as a result of the act of violence and claimed victims support in the nature of counselling, financial assistance for immediate needs and economic loss and a recognition payment.
On 24 January 2017, an Assessor (Client Claims) issued a Notice of Decision, which determined that the victim was a primary victim of an act of violence and conditionally approved financial assistance for economic loss (out of pocket expenses) in the sum of $2,599. The Assessor also approved financial assistance for economic loss (out of pocket expenses) in the sum of $1,817 and a category B recognition payment in the amount of $10,000, on the basis that the act of violence was a sexual assault, indecent assault or attempted sexual assault involving violence that is one of a series of related acts (s 35(2)(b) of the Act).

Order for restitution

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.
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).
"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.
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.
In this matter, Court documents indicate that the applicant was charged with sixteen counts of sexual and indecent assault and that he was convicted of five of those charges in the District Court of NSW in Sydney. He was sentenced to imprisonment for an aggregate period of 9 years from 7 March 2016, with a non-parole period of five years.
The Court documents also indicate that the applicant appealed against the sentence to the Court of Criminal Appeal and that on 1 February 2019, the Court dismissed his appeal.
On 24 January 2020, the respondent issued a Provisional Order for Restitution against the applicant in the sum of $14,416, being the full amount of victims support that was approved for the victim. The Order stated that the Court of Criminal Appeal entered the convictions on 1 February 2019, although this is clearly incorrect as the convictions were entered by the District Court of NSW in Sydney.
A copy of the Provisional Order for restitution was posted to the applicant under cover of a letter from the respondent dated 24 January 2020. 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 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).
On 18 February 2020, the applicant lodged an Objection to the provisional order. He stated that his matter had been accepted for a petition of review under s 76 of the Crimes (Appeal and Review) Act 2001 in relation to his convictions. He also stated: …A challenger to the appeal under the part was sent to Her Excellency the Governor of NSW who referred the matter to the Attorney General of NSW. There is doubt surrounding this matter the stale allegation was tested with no credible evidence. The complaint (sic) had been abused by a family friend who is now deceased. During the arrest and court proceedings no police procedures were followed and no paper work was signed and witnessed be custody manager. E.g. Caution of Summary of Part 9 of the Law Enforcement (Power & Responsibilities) Act 2002 Detention warrant to extend investigation period (cf Crimes Act 1900, s 356g) Formally charged and no charge forms were signed for. Could you extend me to courtesy of allowing an extension of time to see this matter resolved? If required I be happy to correspond with you when the matter is finalised.
On 29 March 2021, the applicant notified the respondent that he was released from custody on 6 March 202 and he provided an updated address.
On 30 June 2021, the respondent issued a Notice of Determination of Objection, which reduced the amount of restitution to $14,000, to be paid in full by 27 September 2021. The Assessor stated, relevantly: Should the order be confirmed, either with or without variation? 15. Based on the evidence, the defendant was convicted of an offence in respect of which victims support was approved… 17. It is important to point out that the restitution process carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a civil process and arise from the giving of victims support. 18. Under the Act, if a person has been convicted of a relevant offence, restitution can be sought by Victims Services to recover that money from the offender. The offender may therefore be ordered to pay back all or some of the victims support payment. 19. I have given careful consideration to the objections raised by the defendant in the Notice of Objection to the restitution order made against him. 20. I acknowledge the correspondence confirms that the defendant has received return correspondence from Mr Michael Miller, Official Secretary to the Governor of New South Wales on behalf of her Excellency the Governor of New South Wales (a confirmation of receipt dated 24 June 2019). Further to this, I have just read correspondence confirming a Petition for Review from Department of Communities & Justice and further follow up correspondence of matter referred to Attorney General of NSW which I note is awaiting a response dated 14 October 2019. 21. Unfortunately, in the absence of a response from the Attorney General, I have no evidence before me to confirm that an Appeal has been duly lodged, and therefore there is nothing to suggest that a decision is imminent. Noting the lapse of time, it is unlikely that this will proceed in the near future. Therefore, whilst I note the defendant's objections in this matter, I will proceed with determining the order for restitution as it stands. If the defendant's conviction is quashed at a later point in time it is likely that repayment of the confirmed order will not be pursued by Revenue NSW. 22. With regard to objections concerning financial hardship, unfortunately Mr Walker has not provided any documentation detailing his financial circumstances for me to consider as part of his objection to the order made. 23. Apart from the above objection, I note Mr Walker has engaged in the restitution process, providing a response to the order made and documenting his reasons for objection. Given his willingness to engage in the process, I consider it appropriate to provide some leniency in the amount to be confirmed to be paid by Mr Walker in satisfaction of the debt due and owing. 24. Overall, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act. 25. I consider it reasonably and appropriate to reduce the amount to be paid under the original order…
I note that a copy of the Notice of determination of objection was served on the applicant as required by s 65 of the Act on 30 June 2021.

Application for Administrative Review

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.
On 23 July 2021, the applicant filed an application for administrative review under the Administrative Decisions Review Act 1997 (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)).
The application set out the following grounds: After my release from custody 06/03/2021 I had 28 days to forward a new address to Victims Service as requested. No confirmation correspondence was forwarded to me on 9/07/2021 a notice of determination of objection was received by post. This ordered me to pay $14,000 by 27th September 2021. I have secured paperwork from my case plan on release that would back u my argument for an Objection to Restitution and I rang Victims Services on 12/07/2021 to reconcile the matter as your department advised witch was fruitless. The paper work needs the opportunity to be presented if fair and just outcome is to be obtained.
The applicant submitted the following documentation in support of the application: 1. Copies of emails to the respondent "seeking reasonable resolution under difficult circumstances"; 2. I Custody case plan stating he was ineligible to participate in any therapeutic programs (including the Sex Offenders Program).
In an email dated 6 July 2021, the applicant stated that he had secured paperwork that relates to his obligation to attend, participate in, and complete the Sex Offenders Program and that he was found to be ineligible for the program on 21 August 2021. He sought to submit that information in support of his objection to the restitution order.
On 6 July 2021, the respondent sent an email to the applicant, advising him of his rights to seek an external review by this Tribunal under s 66 of the Act.
The application came before me for a directions hearing on 17 December 2021, when the applicant appeared in person and Ms K Douch, Victims Services, appeared for the respondent. I ordered the applicant to file and serve any further evidence (including an Affidavit of Financial Circumstances) by 25 February 2022. I ordered the respondent to file and serve its bundle of documents under s 58 of the ADR Act and a written outline of legal arguments by 4 March 2022. I listed the matter for hearing on 25 March 2022.
At the hearing, on 25 March 2022, the applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent.
I note that on 11 March 2022, the applicant lodged a document headed "Grounds for Objection to Restitution" dated 13 October 2021. This cited provisions of the Law Enforcement (Powers and Responsibilities) Act 2002, which are the provisions that he raised in his Objection.
However, the applicant also filed an Affidavit of Financial Circumstances dated 1 November 2021, in which he stated that he has no occupation and no employer. He disclosed income totalling $1,585 per month, comprising Social Security payments ($1,265) and income from a rental property ($320). He disclosed total expenditure of $1,420 per month, including rent/board of $680 per month, rates of $35, telephone, food/groceries, fares/petrol and motor vehicle expenses totalling $555, clothing ($50), health fund contributions ($28) and "other expenditure" ($75). He disclosed savings of $70,000, a house that he valued at $100,000, a motor vehicle that he valued at $2,000 and superannuation totalling $65,000. He stated that he was only able to pay $20 per month.
During the hearing, the applicant stated that he is currently receiving Sickness Benefits and that he has recently had 3 tumours removed. He said that he is the part-owner of a house, which is rented out, and he agreed that based on the matters set out in his Affidavit of Financial Circumstances, his income exceeds his expenditure by $165 per month.

Submissions

The applicant maintained his position that the restitution order should be set aside because of the procedural defects committed by Police and particularly the fact that he was never cautioned. However, he said that he did not raise these matters with the judge during the trial because he was not aware of those issues at the time.
The respondent relied on written submissions filed on 4 March 2022. The respondent argued that the Tribunal does not have power to look behind a conviction recorded by a Court and it cannot, in the course of administrative review of a restitution order, review the respondent's decision to approve victims support in favour of a victim. The applicant was convicted of a relevant offence and as the conditions set out in s 59 of the Act have been satisfied, the restitution order should be confirmed as varied under s 67 of the Act.
However, the respondent stated, relevantly: 19. While the restitution order correctly identifies the relevant offences, it refers to the orders made by the Court of Criminal Appeal on 1 February 2022. The respondent therefore requests that the Tribunal vary the order to reflect the date of the finding of guilt/conviction of the appellant by a jury on 7 March 2016 in the District Court pursuant to section 67(1)(a) of the Act. These details are clearly set out in annexure A to these submissions.
The respondent argued that the restitution order was made within the time prescribed by s 59(2)(a)(ii) of the Act. However, when the respondent's submissions were filed the applicant had not yet filed his Affidavit of Financial Circumstances.
In relation to the applicant's other grounds, the respondent stated, relevantly: 23. Firstly, the applicant has produced documentation that indicates he was considered ineligible for a sex offender program on 21 August 2020 or any other therapeutic program. While the applicant appears to assert that such is relevant to his culpability for the offences, the Tribunal does not have jurisdiction to go behind a conviction. 24. Secondly, the applicant has provided documentation to indicate that he submitted a petition for the exercise of the royal prerogative of mercy. The most recent correspondence from the Secretary of the Governor of NSW is dated 14 October 2019 whilst he was incarcerated. The applicant was subsequently released from custody on 6 March 2021. 25. In the absence of any evidence that the Governor has directed than an inquiry be conducted by a judicial officer or that the matter has been referred by the Attorney General to the Court of Criminal Appeal under section 77 of the Crimes (Appeal and Review) Act 2001, we do not consider this petition should delay the confirmation of the restitution order. In this regard, we note that the relevant convictions have already been the subject of an unsuccessful appeal to the Court of Criminal Appeal. 26. Finally, the applicant asserts that proper police procedures were not followed during his arrest and court proceedings, and that no paperwork was signed and witnessed by the custody manager. 27. In consideration of matters raised in the objection and the applicant's engagement in the process, the assessor confirmed the restitution order but reduced the amount payable from $14,416 to $14,000. The Commissioner does not consider the matters raised above (to the extent that they are relevant to the determination of this matter) warrant a further deduction pursuant to section 69 of the Act…

Consideration

The respondent concedes that the restitution order did not correctly cite the convictions that were entered against the applicant by the District Court of NSW and it is therefore necessary to consider whether the restitution order properly identifies a relevant offence. If there is no relevant offence, the restitution order must be set aside.
In determining this issue I have considered the definition in s 58 of the Act, which is set out previously in this decision. In my view, this does not expressly require that the restitution order accurately states the Court in which a conviction was entered, provided that the requirements of ss 58 (a), (b) or (c) are satisfied.
In this matter, I am satisfied that the restitution order correctly identifies an offence arising from substantially the same facts as those constituting the act of violence in respect of which victims support was approved (s 58(a)) and an offence involving one or more acts of a series of related acts in respect of which victims support is given under this Act (s 58(c)). It follows that I am reasonably satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.
While the restitution order incorrectly stated the date of the convictions as the date upon which the Court of Criminal Appeal dismissed the applicant's appeal against his conviction on the five charges that constitute the relevant offence, and also states that the convictions were entered by the appeal court rather than the District Court of NSW, the particulars of the offences that are the subject of the convictions are accurately stated in the Notice.
I am also satisfied that the applicant's submissions concerning: (a) his ineligibility for the sex offenders program or any other therapeutic program; (b) his application for the royal prerogative of mercy; and (c) the failure of police to follow proper procedures, are irrelevant to the matter before me. In short, this Tribunal does not have power to go behind the convictions that were entered by the District Court of NSW.
In relation to the applicant's financial circumstances, and the financial hardship suggested in his Affidavit of Financial Circumstances in which he deposed that he could only pay $20 per month, I note that Studdert J stated in Connor v R [2005] NSWCCA 431 (at [41]): …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 through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, may later be demonstrated to be false…
Based on the available evidence, I am satisfied that while the applicant is not currently in paid employment, he has sufficient financial resources available, in the form of savings in his bank accounts, to satisfy the restitution order. As a result, I am not satisfied that the restitution sum should be further reduced.

Orders

Accordingly, I make the following orders: 1. Pursuant to s 67(1)(a) of the Act, I confirm the order made by the respondent on 30 June 2021, which requires the applicant to make restitution in the sum of $14,000. 2. However, I vary that order to allow the applicant time to pay comprising a period of three (3) months from the date of this decision.

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: 11 April 2022

Civil and Administrative Decisions Tribunal Act 2013(NSW)

Crimes (Sentencing and Procedure) Act 1999(NSW)

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (9)

Cases Cited (1)