BGF v Commissioner for Victims Rights [2014] NSWCATAD 77

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: BGF v Commissioner for Victims Rights [2014] NSWCATAD 77 Hearing dates: 23 November 2013 and 13 December 2013 Decision date: 06 June 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: P H Molony, Senior Member Decision: 1. The decision of the Commissioner for Victims Rights requiring BGF to make restitution is reversed. 2. The Tribunal determines not to make an order requiring BGF to pay restitution to the Commissioner for Victims Rights. Catchwords: Victims Rights and Support - administrative review - restitution order against person convicted of relevant offence - requirement that there be a conviction for relevant offence where there is a series of related acts of violence - restitution not available were no conviction for relevant offence Legislation Cited: Civil and Administrative Act 2013 Victims Rights and Support Act 2013 Category: Principal judgment Parties: Applicant - BGF Respondent - Commissioner for Victims Rights Representation: Applicant - In person Respondent - M Ting File Number(s): 137332 Publication restriction: S 64 Civil and Administrative Act 2013

reasons for decision 1In this matter the Tribunal has determined pursuant to s 64 of the Civil and Administrative Act 2013 that it is desirable to restrict disclosure of the applicant's name, and of any information that may lead to the disclosure of his identity and that of his victim. As a consequence he is referred to in these reason as BGF. 2BGF has made an application for administrative review of a restitution order made on 28 August 2013 by the delegate of the Commissioner of Victims Rights. This required him to pay restitution of $18,000, by payments of $20 per fortnight, for statutory compensation paid to the victim in respect of an act of violence committed by him. That order was made pursuant to section 64 of the Victims Rights and Support Act 2013 (the VRSA). 3Part 5 of the VRSA is concerned with the recovery of victim 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. 4The statutory scheme gives the Commissioner for Victims Right a discretion to make provisional restitution orders 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: s 59(1). 'Relevant offence' is defined in section 58 to mean: relevant offence means the following: (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, (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. 5Provisional orders cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or more than two years have passed since, whatever was the later the date of (a) conviction, or, (b) the expiry of the time in which a claim for victim support could be made under s 40(6). In BGF's case there is no dispute that the relevant offence occurred on 6 July 2008, and that BGF was convicted at the Burwood Local Court of two counts of assault occasioning actual bodily harm against his wife. 6On 2 October 2008 the Victim made an application for statutory compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 (the old Act). On 20 June 2012 she was awarded statutory compensation of $30,000 on account of a category 2 chronic psychological/psychiatric disorder that is severely disabling (after deduction for her pre-existing psychiatric condition). 7The old Act was repealed on 2 June 2013 and replaced by the VRSA. Clause 16 of Schedule 2 of the VRSA contains transitional provisions relating to the application of Part 5 to statutory awards of compensation under the old Act. Clause 16 relevantly provides: (1) Part 5 of this Act applies to statutory awards of compensation made under Part 2 of the repealed Act that were not the subject of a provisional order for restitution under Division 8 of Part 2 of the repealed Act before its repeal in the same way as it applies to awards under Part 5 of this Act. As a consequence the Commissioner was able to make a provisional order under the VRSA in respect of the application for statutory compensation made by BGF's wife under the old Act. 8On 22 June 2013 the Commissioner made a provisional order against BGF in the sum of $30,000. This reflected the compensation paid to the victim. Notice of the provisional order was given to BGF by post of 26 June 2013 as required by s 61. 9Section 62 gives a person on whom such an order is served 28 days in which to make a written object to a provisional order. The grounds of objection must be fully stated (s 62(3)). The objector bears the onus of proving his case (s 62(4)). BGF filed an objection dated 16 July 2013. He relied on the following grounds: 1. I have been unemployed for more than three years and I don't have any assets. 2. I have been suffering from depression for more than three years and I am undergoing medical treatment and I don't know when I will get better to be able to work again. 3. I don't see myself to be the reason behind [the victim's] psychological problem since she had a troubled upbringing and psychological problems since the first day we married. 10He provided an affidavit of financial circumstances in which he disclosed a net monthly wage of $983.20 and expenditure of $807. BGF also provided a copy of his bank account records which showed that in the period 9 May 2013 to 15 July 2013 the sum of $3,448.32 was paid into his account. This included Centrelink payments of $1,992.04, and other miscellaneous credits of $1,456.20. He also provided evidence that he had been in receipts of Centrelink youth allowance since June 2012. 11Finally BGF provided a letter from his mental health councillor dated 13 August 2013 which said - [BGF] has been a client of Maroubra Community Centre since 2010. He suffers from mental illness and he is receiving specialist treatment. He is compliant with the treatment plan and actively engaged in rehab program. The major stress in [BGF's] life is the legal matter which has its significant negative impact. We are kindly asking you to consider support and legal guidance in his matter as some of the skills and motivation of patients with mental illness can be impaired. 12Section 64 of the VRSA is concerned with the Commissioner's consideration of objections to provisional orders. It provides: (1) After considering an objection, the Commissioner may: (a) allow the objection in whole or in part or disallow the objection, and (b) accordingly reverse, vary or confirm the decision to which the objection was made. (2) On confirmation of the decision the amount payable under the provisional order concerned may be recovered (subject to section 71) by the Commissioner under section 72. (3) The Commissioner must discharge the provisional order concerned 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. (5) The Commissioner's failure to determine an objection within the period referred to in subsection (4) does not prevent the Commissioner from continuing to deal with the objection after that period has expired. (6) In calculating a period referred to in subsection (4), the period between the date on which the Commissioner requests further information or supporting evidence from the defendant in relation to the objection and the date on which that further information or supporting evidence is furnished is excluded. 13On 28 August 2013 the Commissioner's delegate confirmed BGF's liability, but reduced the amount payable under the order to $18,000, to be paid in instalments of $20.00 per fortnight. Notice of that determination was served on BGF as required by s 65 on 5 September 2013. 14On 24 October 2013 BGF applied to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with s 66 of the VRSA. That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection (ss(2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (ss(3)). The powers of the Tribunal on review are set out in s 67: (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. 15In his application for administrative review BGF relied on the following grounds: 1. My x-wife have (sic) had psychological problems since the beginning of our marriage because of her upbringing (e.g. not being sent to school) and these problems strongly appeared after having our first child as it was diagnosed as after birth depression and she was seeing a specialist at Canterbury Mental Health unit in Canterbury Hospital, so I don't see myself responsible for the psychological problems she has right now. 2. I have been unemployed for the last three years and I just got employed last month, therefore I don't have the financial capacity to pay this amount to Victims Services. 3. I don't have any assets so I have very little means to be able to pay the money. 4. Along with not being employed I have suffered from having a psychological problem (Depression) and I was admitted to hospital (mental care unit) for four times in the last few years and I am still seeing a doctor and taking medication for that problem, and I think having to pay this huge amount of money in this difficult financial circumstances that I have will contribute negatively to my health being (sic), which may result in me having a relapse consequently losing all the progress I have had over the last year as well as risking losing my job if my health deteriorates. 16BGF's application for administrative review first came before me on 29 November 2013, when BGF appeared in person and the Commissioner was represent by Mr Ting. The documents provided by the Commissioner under s 58 of the Administrative Review Act 1997 were in my opinion inadequate, resulting in the hearing being adjourned to 13 December 2013. At the same time I raised with the parties and sought submissions from the Commissioner as to whether the statutory compensation paid to BGF was with respect to a relevant offence. 17BGF did not appear at the adjourned hearing. The Commissioner did. Further s 58 document and submissions responsive to my request were filed.