Westaway v Commissioner of Victims Rights [2026] NSWCATAD 68;

1. On 4 March 2025, the Respondent made two provisional orders for restitution under s 59 of the Act against the Applicant. The orders were as follows:

(1) A provisional order for restitution in the amount of $9455 ('the first restitution order'). This represented the total amount of approved victim support in relation to an act of violence committed by the Applicant against the victim on 31 January 2020.

(2) A provisional order for restitution in the amount of $3850 ('the second restitution order'). This represented the amount of approved victim support in relation to an act of violence committed by the Applicant against the victim on 12 December 2021.

1. On 26 March 2025, the Applicant lodged objections in respect of both orders.
2. On 20 May 2025, the Respondent:

(1) Confirmed the order under s 64 of the Act in the amount of $9455.

(2) Confirmed the order under s 64 of the Act in the amount of $3850.

1. The background to these orders is set out briefly below.

The first provisional order for restitution in the sum of $9455

1. On 4 March 2025, the Respondent made an order for the payment of restitution by the Applicant in the sum of $9455.
2. On 20 February 2020, the victim lodged an application for victims support in respect of an act of violence committed against her on 31 January 2020. The following decisions were made to approve victim support to the victim in relation to the act of violence that occurred on 31 January 2020:

(1) On 10 March 2020, an Assessor approved financial assistance in the form of immediate needs in the amount of $3850.

(2) On 13 May 2020, an Assessor approved $1150 for financial assistance for immediate needs.

(3) On 19 June 2020, an Assessor approved $4455 for financial assistance for economic loss.

1. The decision dated 10 March 2020 to approve victim support describes the act of violence and indicates that the Applicant had been charged with certain offences in relation to the incident including common assault, destroy or damage property, stalk/intimidate intend fear physical harm, and armed with intent to commit indictable offence. The decisions on 13 May 2020 and 19 June 2020 refer to the same act of violence as the decision dated 10 March 2020.
2. On 17 September 2021, the Applicant was convicted of common assault and was sentenced to a term of imprisonment to be served by way of an intensive correction order. The conviction was in respect of the act of violence being an offence perpetrated by the Applicant against the victim between 31 January 2020 and 1 February 2020. On the same date, the Applicant was also convicted of: the offence destroy or damage property for an offence which took place between 31 January 2020 and 1 February 2020; the offence of Stalk/intimidate intend fear physical etc harm which took place between 31 January 2020 and 1 February 2020, and the offence of armed w/I to commit indicatable offence.
3. On 4 March 2025, an Assessor issued a Notice of Determination of Objection pursuant to s 65 of the Act.
4. The Assessor determined that the Applicant had been convicted of a 'relevant offence' pursuant to s 58 of the Act. The Assessor identified the relevant offence: Notice of Determination of Objection at [15]. The Assessor found the offence for which he was convicted gave rise to an approval for victims support and the facts underlying the conviction and the facts underlying the approval involve an offence of the same nature against the same person at the same time by the same offender: Notice of Determination of Objection at [19].
5. The Assessor noted that the restitution is a civil process that arises from the giving of victims support and is not connected to the criminal proceedings. The Assessor noted that the Applicant had not submitted any information regarding his financial situation.
6. The Assessor confirmed the restitution order in the amount of $9455.

The second provisional restitution order in the sum of $3850

1. On 4 March 2025, the Respondent made an order for the payment of restitution by the Applicant in the sum of $3850.
2. On 11 January 2022, victims support was approved in relation to an act of violence in the nature of domestic/family violence committed against the victim by the Applicant on 12 December 2021. The victim was approved victims support in the form of financial assistance for immediate needs in the amount of $3850.
3. On 25 May 2022, the Applicant was convicted of an offence of attempt/stalk/intimidate/intend fear of harm(domestic) and an offence of contravene prohibition/restriction in AVO (domestic).
4. The Applicant filed a notice of objection on the basis that the victim did not require financial assistance for any immediate needs.
5. On 20 May 2025, an Assessor issued a Notice of Determination of Objection pursuant to s 65 of the Act.
6. The Assessor determined that the Applicant had been convicted of a relevant offence pursuant to s 58 of the Act. The Assessor found the offence for which he was convicted gave rise to an approval for victims support and the facts underlying the conviction and the facts underlying the approval involve an offence of the same nature against the same person at the same time by the same offender: Notice of Determination of Objection at [15] and [19].
7. The Assessor noted that restitution is a civil process that arises from the giving of victims' support and is not connected to the criminal proceedings. The Assessor noted that the Applicant objected to the order on the basis that the victim was undeserving of the financial support that she received. The Assessor stated:

Whilst I am not in a position to overturn the findings of the Assessor in the original decision or to call into question the reasoning and basis of their decision, the defendant will note that the decision to approve victim support is based on a careful analysis of supporting documentation in line with legislative requirements.

1. The Assessor noted the Applicant had not submitted any information regarding his financial situation.
2. The Assessor confirmed the restitution order in the amount of $3850.

1. On 3 July 2025, the Applicant made an application for administrative review under s 66 of the Act. There are two applications for administrative review forms on the Tribunal file expressed in identical terms. In each application, the Applicant states:

I was diagnosed with bi-polar affective disorder in 2005. This condition affects my capacity to work, and as a result I am receiving centrelink benefits as my main source of income. My current financial situation due to my mental health makes me unable to meet the restitution orders.

1. The Applicant attaches: the Notice of Determination of the Objection relating to the first restitution order (debtor files 99387) and the Notice of Determination of the Objection relating to the second restitution order (debtor file 99386).
2. On 15 August 2025, the matter came before Senior Member Riordan for directions. Orders were made for the parties to file and serve evidence and submissions and the hearing was listed for 21 November 2025.

1. Part 5 of the Act concerns the recovery of victims support payments from offenders. The object of Part 5 of the Act 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: section 57 of the Act.
2. "Relevant offence" is defined in section 58 of the Act_,_ to mean 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.

1. Section 59 of the Act provides:

Commissioner's discretion to make provisional order for restitution by offender

(1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person.

(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

(b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.

1. Section 61 of the Act provides for the notification of an order for restitution personally or by post on the person against whom it was made.
2. Section 62 of the Act gives the person served with a notice of an order for restitution 28 days to lodge a written objection to the order with the Commissioner (or a period not exceeding 90 days if the Commissioner permits). The grounds of objection must be fully stated and the Defendant, that is the person subject to the restitution order, has the onus of proving their case.
3. Section 64 of the Act provides that:

(1) After considering an objection, the Commissioner may -

(a) allow the objection in whole or in part or disallow the objection, and

(b) confirm the decision to which the objection was made (with or without variations) or reverse that decision.

(2) The Commissioner may confirm the order for restitution if the Commissioner confirms the decision to which the objection was made (with or without variations).

(2A) Before confirming the order, the Commissioner may vary the order by reducing the amount payable under it.

(3) The Commissioner must revoke the order for restitution if the Commissioner reverses the original decision.

(4) For the purpose of enabling a defendant to apply to the Tribunal for an administrative review, the Commissioner is taken to have failed to determine an objection if 90 days have passed since the objection was lodged with the Commissioner.

...

1. Section 65 of the Act provides that the Commissioner must give a defendant who makes an objection written notice of the determination of the objection.

1. Section 66 of the Act provides that:

Administrative reviews by Tribunal

(1) The defendant may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which an objection was made if -

(a) the defendant is dissatisfied with the Commissioner's determination of the objection, or

(b) 90 days have passed as referred to in section 64 since the objection was lodged with the Commissioner and the Commissioner has not determined the objection.

(2) The applicant's and respondent's cases on an application for an administrative review are not limited to the grounds of the objection.

(3) The applicant has the onus of proving the applicant's case in an application for an administrative review.

(4) An application for an administrative review-

(a) following a determination by the Commissioner of an objection-must be made not later than 60 days after the date of issue of the notice of the Commissioner's determination of the objection, or

(b) following a failure of the Commissioner to determine an objection within the relevant 90-day period - may be made at any time after the end of that period (but must be made as required by paragraph (a) following a subsequent determination of the objection by the Commissioner).

(5) The Tribunal may extend the time for making an application for an administrative review.

(6) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application made under this section-

(a) Part 2 of Chapter 3,

(b) section 55 (3)-(6),

(c) Division 2 of Part 3 of Chapter 3.

(7) For the purposes of section 58(1)(a) of the Administrative Decisions Review Act 1997-

(a) the obligation of the Commissioner under that paragraph to lodge a statement of reasons with the Tribunal in respect of an application is limited to providing the Tribunal with a statement of reasons only in respect of the matters arising from the grounds specified in the application, and

(b) if one of the grounds specified in the application relates to a matter raised in an objection determined by the Commissioner-the Commissioner may rely on reasons previously given to the defendant by the Commissioner under this Act for the determination of the objection in explanation of that part of the original decision.

(8) In any review proceedings, a person who is a victim of the relevant offence to which the proceedings relate is competent, but not compellable, to give evidence or produce documents.

Note-

See also section 113 which provides that an application for victims support and any documents supporting the application are, subject to that section, not admissible as evidence in any legal proceedings.

1. Section 67 of the Act sets out the powers of the Tribunal on administrative review as follows:

(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 the 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.

....

1. Section 69 provides that the Tribunal may reduce the amount to be paid under an order of restitution that it confirms 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 Act defines a 'confirmed order' to include an order that is confirmed by the Tribunal under section 67 of the Act. Section 70A of the Act provides that if an order is confirmed by the Tribunal, the amount payable under the order by the person is a debt payable to the Commissioner. The due date for the amount for the amount payable is the due date for payment specified in the debt notice served on the person: section 70A(2) of the Act.
3. Section 70B provides the Commissioner may, by notice served on a person against whom a confirmed order has been made, require the person to pay the amount payable by the person under the order. The notice is to specify the amount payable, and the due date for payment which must not be less than 28 days after the notice is served on the person: section 70B(3) of the Act. If the amount payable is not paid by the due date the debt may be referred to the Fines Commissioner and enforcement action for recovery of the amount may be taken under the Fines Act 1996 (NSW).

1. On 3 July 2025, the applicant filed two applications for review forms.
2. On 19 August 2025, the Applicant filed a bundle of documents ('the Applicant's Bundle') comprised of:

(1) A statement from Centrelink dated 8 July 2025 which indicates that the Applicant receives a regular jobseeker payment. The statement records $40 is deducted from the amount for court fees. The statement records that the Applicant has provided a medical certificate which indicates that he is currently unable to work or participate in mutual obligation requirements.

(2) A medical certificate from a psychologist dated 19 August 2025, which indicates that the Applicant has been diagnosed with bipolar disorder, which is managed through counselling and medication. The psychologist states that despite his treatment Applicant is unable to keep employment due to his medical conditions and therefore has financial difficulties. The psychologist states the Applicant 'is living with his parents and they are providing support for him'.

(3) A referral from a General Practitioner at Illawarra Medical Service to a named psychiatrist, dated 25 February 2026 for opinion and management of depression, anxiety, and bipolar affective disorder.

(4) A transaction summary for a 'Smart Access' bank account in the Applicant's name for the period 1 April 2025 to 19 August 2025. This statement has an opening balance of $1038.34 and a closing balance of $2828.27.

1. On 4 September 2025, the Respondent filed documents under s 58 of the Administrative Decisions Review Act 1997(NSW) ('the Respondent's bundle') in respect of the restitution orders in debtor file 99387 and debtor file 99386.
2. On 24 September 2025, the Respondent filed submissions. The Respondent's position is that the Tribunal should confirm the original decisions under s 67(1) of the Act and confirm the restitution orders under s 67(2A) of the Act. The Respondent raised concerns about three unexplained depositions in addition to the receipt of the Centrelink payments:

(1) On 1 April 2025, the applicant received $2000 from Faughlin family group in respect of "inv 97".

(2) On 22 April 2025, the applicant received $2000 from UOW Pulse Ltd.

(3) On 28 May 2025, the Applicant received $636 dollars from AWX Labour Pty L titled 'Pay'.

1. The Respondent notes that the Applicant has limited fixed outgoings, and that the Respondent understand that this is because the Applicant is currently living with and receiving support from his parents. The Respondent notes the applicant has not explained the above payments or providing a summary of all incomings/outgoings and any assets/debts.
2. The Respondent's position is that the available evidence before the Tribunal indicates that the Applicant has some capacity to make payments towards the restitution orders. The Respondent submits that should the Applicant be unable to satisfy the debts by the due date, the debts will be transferred to the Fines Commissioner for enforcement under the Fines Act. Following this transfer, the Applicant may request a payment plan.
3. On 18 November 2025, the Applicant filed a copy of his Disability Support Pension ('DSP') statement issued on 3 November 2025. The statement acknowledges the claim for DSP has been granted from 30 July 2025. It records the 'information used for calculating his regular payment is an annual income $5, 867.42.

1. The matter came before the Tribunal for hearing on 21 November 2025. The applicant was self-represented, Ms Srikanth, Victims Services, appeared for the Respondent. The Respondent and the Applicant made oral submissions, and the Applicant gave evidence with respect to his financial means. The Respondent maintained that the Tribunal should confirm the original decisions under s 67(1) and confirm the restitution orders under s 67(2A) of the Act.

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. Based on the evidence before it, the Tribunal is satisfied that with respect to the first order of restitution in the sum of $9455 the Applicant was convicted of a relevant offence on 31 January 2020. The applicant was convicted of common assault on 31 January 2020. He was also convicted of the offences set out in paragraph 9 of this decision. The Tribunal is further satisfied that first restitution order was made within time in accordance with s 59(2)(a)(ii) of the Act.
3. Based on the evidence before it, the Tribunal is satisfied that with respect to the second order of restitution in the sum of $3850, the Applicant was convicted of a relevant offence on 25 May 2022. On 25 May 2022, the Applicant was convicted of attempt/stalk/intimidate/intend fear of harm(domestic) and contravene prohibition/restriction in AVO (domestic). The Tribunal is further satisfied that restitution order was made within time in accordance with s 59(2)(a)(ii) of the Act.
4. For completeness, the Tribunal notes that in the objections the Applicant made to the orders of restitution on 26 March 2025 the Applicant sought to challenge to the decisions to approve victims support. It is well established that the Tribunal has no power to review the Commissioner's decision to approve victims support for the victim in the course of an application for review made under s 66 of the Act: Singh v Commissioner of Victims Rights [2017] NSWCATAD 135 at [41].
5. The Tribunal must, under section 69(1)(a) of the Act_,_ consider the Applicant's financial means when determining whether to exercise its discretion to reduce the amount to be paid under an order for restitution.
6. The Tribunal has considered the available evidence about the Applicant's financial circumstances. The Applicant has not provided an affidavit about his financial circumstances, but he has provided the Tribunal with various documents that are relevant to his financial circumstances.
7. The Tribunal accepts that the Applicant has a diagnosis of Bipolar affective disorder and that he was first diagnosed in 2005. The Tribunal accepts that the Applicant was approved for the DSP from July 2025. The Tribunal accepts that the Applicant's medical condition significantly impacts upon his capacity to work. The Tribunal notes that the DSP statement dated 3 November 2025 indicates that the annual income used to calculate his regular DSP payment is $5,867.42. The Tribunal notes that DSP statement dated 3 November 2025 records a $40 reduction for 'court fees'.
8. The Respondent's bundle shows that the Applicant has two Commonwealth bank accounts: a Netbank saver account and a Smart Access account. The Applicant's bundle includes a transaction statement for his Smart Access account between the period 1 April 2025 and 18 August 2025, with a closing balance of $2828.27. In addition to the transactions noted at paragraph [41] of this decision record, there are debits for petroleum as well as credits from various sources including Jobseeker payments ($504 on 14 May 2025 and thereafter fortnightly payments of $968), as well as named individuals, and 'FOG' (see, for e.g., transactions on 26 June 2025 and 28 July 2025). With respect to the transactions noted at paragraph [40] of the decision, the Tribunal finds that this was for paid work undertaken by the Applicant, including as an artist. As noted above, the DSP statement dated 3 November 2025 records that the annual income used to calculate his regular DSP payment is $5, 867.42.
9. The object of Part 5 of the Act 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: section 57 of the Act. It is for the Applicant to establish his case: section 66(3) of the Act.
10. The Tribunal accepts that the Applicant's medical condition significantly restricts the Applicant's capacity to work. The Applicant's evidence suggests that the Applicant was diagnosed with bipolar disorder in 2005 and has engaged in some work, including as an artist, in the recent past, albeit on A limited basis. As noted above, he is in receipt of the DSP payments. With respect to the availability of family support, the Applicant is living with his parents and the letter from his treating psychologist indicates his parents provide him with support.
11. The Tribunal acknowledges that the available evidence indicates that the Applicant has limited financial means. The Tribunal accepts that the Applicant receives DSP payments from Centrelink and that, notwithstanding the fact he is receiving treatment, his psychologist's reports that he is unable to keep employment. The Tribunal accepts the Respondent's submission that the Applicant has not provided a summary of any assets and/or debts and that the evidence he has provided to the Tribunal about his incomings and outgoings presents a partial picture of his financial situation. Overall, the Tribunal considers the evidence the Applicant has provided in support of his application provides an incomplete picture of his financial means.
12. It is for the Applicant to establish his case. In considering whether to reduce the amount of the restitution orders, the Tribunal has had regard to the statutory objective of Part 5 of the Act, which 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 and to the available evidence about the Applicant's financial means. While the Applicant submits his financial situation is such that he unable to make payments towards the restitution debts, the Tribunal is not satisfied that the available evidence about the Applicant's financial means and circumstances establishes that he is unable to make payments towards these debts.
13. On the available evidence, the Tribunal is not satisfied that the Applicant has no capacity to meet payment of the two restitution orders, including through a payment plan over time. While the evidence before the Tribunal suggests that the Applicant does not have the funds available to immediately pay the total debts in respect of the two restitution orders in full, it does not follow that it is appropriate for the Tribunal to exercise the discretion to reduce the total amounts payable under s 69 of the Act. As noted by the Respondent, if the Applicant fails to pay the restitution debt by the due date specified in the debt notice, the debt will be transferred to the Fines Commissioner ('Revenue NSW') for enforcement under the Fines Act. The Applicant may then raise his alleged financial hardship with the Fines Commissioner and any request for a payment plan will be considered by Revenue NSW.
14. Having considered the available evidence about the Applicant's financial means and having regard to the object of Part 5 of the Act, the Tribunal is not satisfied that it is appropriate to exercise its discretion under s 69(1) of the Act to reduce the amount of restitution to be paid in respect of the restitution order in the sum of $9455 or the restitution order in the sum of $3850.
15. For these reasons, the Tribunal is satisfied that the correct and preferable decision is to:

(1) Confirm the decision of the Respondent under s 67(1) of the Act and confirm the order for restitution in the sum of $9455 under s 67(2A) of the Act; and

(2) Confirm the decision of the Respondent under s 67(1) of the Act, and confirm the order for restitution in the sum of $3850 under s 67(2A) of the Act.

(1) The decision of the Respondent is confirmed under s 67(1) of the Victims Rights and Support Act 2013 and the order for restitution in the sum of $9455 is confirmed under s 67(2A) of the Victims Rights and Support Act 2013.

(2) The decision of the Respondent is confirmed under s 67(1) of the Victims Rights and Support Act 2013 and the order for restitution in the sum of $3850 is confirmed under s 67(2A) of the Victims Rights and Support Act 2013.

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.