Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Sewell v Commissioner of Victims Rights [2017] NSWCATAD 44 Hearing dates: 16 December 2016 Date of orders: 31 January 2017 Decision date: 31 January 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The Restitution order dated 20 October 2016 is confirmed. Catchwords: Victims Rights and Support – administrative review - restitution order against person convicted of relevant offence – alleged lack of culpability and financial hardship & impecuniosity Legislation Cited: Civil and Administrative Tribunal Act 2013 (No. 2) Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 Administrative Decisions Review Act 1997 Crimes (Sentencing and Procedure) Act 1999 Category: Principal judgment Parties: Andrew Sewell also known as Andrew Ford (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors: A Sewell (Applicant in person) Victims Services (Respondent) File Number(s): 1610743 Publication restriction: Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons REASONS for decision 1. In this matter, Mr Andrew Sewell ("the Applicant") has made an Application for Administrative Review of a Restitution Order made on 20 October 2016, by the Delegate of the Commissioner of Victims Rights ("the Commissioner") upon internal review, which varied the amount payable under a Provisional Order for Restitution dated 6 July 2016. That order was made pursuant to s 64 of the Victims Rights and Support Act 2013 ("VRSA"). 2. On 16 October 2012, the victim made an Application for Compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 ("the old Act"), in which he alleged that he had been the victim of an assault that was committed by the Applicant on 18 April 2012. The victim claimed compensation for the compensable injuries of "Arms: tendon(s)/ligament(s): minor damage (full recovery)" and "Nose: deviated nasal septum requiring septoplasty". 3. The Police COPS Event report indicates that on 18 April 2012, the victim reported the act of violence that allegedly occurred that day. As a result of the Police investigation the Applicant was charged with one count of assault occasioning actual bodily harm and one count of common assault. Award of victims support to the victim 1. On 7 May 2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by VRSA and cl 5(1) of sch 2 of VRSA set out the following saving and transitional provision: 5 Applications for compensation under statutory compensation scheme (1) An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support. 1. On 16 December 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $10,000 (comprising a Category C Recognition Payment pursuant to s 35 (3) (c) of VRSA in the sum of $5,000 and a special grant pursuant to sch 2, cl 5 (3) of VRSA in the sum of $5,000). The Assessor's reasons included (relevantly): 6. The Applicant was working in a factory in (location provided) when he got into an argument with the offender (the Applicant's fellow worker). 7. The argument escalated resulting in the offender hitting the Applicant with a sander and punching the Applicant a number of times to the face. 8. The incident was reported (to) police and the offender was charged and convicted of assault occasioning actual bodily harm. 9. I consider the report of Dr (name provided) and WorkCover documents establish injury as required under s 19 (1) (c). I also note the conviction against the offender. I note that the Applicant sustained facial lacerations and a deviated nasal septum as a result of the subject incident. 10. On the balance of probabilities an act of violence is established… Recognition Payments 11… On the facts, and following consideration of the Applicant's original application for statutory compensation, the Applicant's claim for a recognition payment will be considered in relation to the following categories: S 35 (3) (c) (an assault resulting in grievous bodily harm). … 1. The Tribunal notes that the Applicant pleaded not guilty to both charges, and that the charge of common assault was dismissed but a Magistrate entered a conviction in relation to the charge of assault occasioning actual bodily harm. He was placed on a 12-month good behaviour bond pursuant to s 9 (1) of the Crimes (Sentencing and Procedure) Act 1999. He was also ordered to pay Court costs. Provisional order for Restitution 1. Part 5 of VRSA is concerned with the recovery of victim support payments from offenders. The object of that Part is set out in s 57 of VRSA: 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. 1. The statutory scheme gives the Commissioner of Victims Rights a discretion to make a provisional 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 VRSA). 2. "Relevant offence" is defined in s 58 of VRSA, 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, (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. 1. 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 VRSA. 2. On 6 July 2016, the Commissioner made a provisional order for restitution against the Applicant in the sum of $10,000, being the full amount of victims support that was approved for the victim. 3. A copy of the Provisional Order was posted to the Applicant on 7 July 2016 under cover of a letter from the Commissioner dated 6 July 2016. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of VRSA. 4. S 62 of VRSA 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 VRSA) and the objector bears the onus of proving their case (see: s 62 (4) of VRSA). Decision upon Internal Review 1. On 28 July 2016, the Applicant completed an Objection to the provisional order for restitution, in which he set out the following grounds: I was bullied in the workplace by (the victim) for a period of 22 years. I talked to management about it but nothing happened, so that put me in an unsafe workplace. I defended myself as (the victim) attacked me as I feared for my safety and well-being. I stopped when he stopped. I didn't go on with it (that to me is self-defence). There were no witnesses. I now suffer with hypertension and anxiety and I have a copy of my second 2-yearly mental health plan since the incident. I was put off work over this incident and didn't start work again (until) 10 months after due to mental health. I have done courses, counselling and psychologist appointments to better myself so I am not put in that position again as copys(sic) have been provided with these documents. I am now a single parent. The Magistrate at Hornsby Court on this matter said it could have gone either way and I wasn't able to put in a report on my medical injuries and I still suffer with mental health. (The victim) lied to the Magistrate that he didn't hit me in the head with an air sander and then attacked me, but he did do that. This is how the incident started. (The Victim) said to the Magistrate that he pushed me. (The victim) still works at (workplace named) where this incident happened and I believe I would still be working there if I wasn't attacked by (the victim). I don't think it is fair that I have to pay $10,000 to a person who bullied me and can't take responsibility for his actions as I still suffer with mental health over the matter. The Applicant submitted that the restitution amount should be reduced to $2,000, which he offered to pay in instalments at the rate of $50 per month. 1. On 17 October 2016, the Commissioner's Delegate determined the Objection. The Delegate decided that the Applicant was convicted of a relevant offence, but decided to vary the amount of the restitution order by reducing it to $5,000. The Delegate's reasons included (relevantly): 11. I note the contents of the defendant's objections and submissions. 12. The defendant seeks to re canvass the circumstances of the offence and submits he was acting in self-defence. 13. The defendant also makes submissions in relation to the loss of his employment at that time and his mental health. The defendant has submitted medical/counselling documentation in substantiation. 14. The debt owed is $10,000. The purpose of these proceedings is not to re-punish the defendant. This is simply a debt recovery process. 15. The defendant provided an Affidavit of Financial Circumstances as well as documentation in relation to employment and financial liabilities. The defendant has gone to some trouble to set out his financial position. The defendant was a spray painter earning a good income. The defendant has a dependent child. 16. The defendant's principal assets are a mortgaged property, a motor vehicle and his superannuation. Other than the expenses of daily living the defendant's principal liability is a credit card debt. The defendant has requested the debt be reduced to $2,000 which he has offered to pay at $50.00 a month. 1. The Commissioner's Delegate considered the Applicant's submissions regarding the impact that the matter had upon his mental health and his financial circumstances and ordered him to pay restitution in the sum of $5,000 by way of instalments of $50 per month commencing on 15 December 2016. 2. A copy of the Determination of the Objection was served upon the Applicant by post under cover of the Commissioner's letter dated 20 October 2016. I am therefore satisfied that this document was properly served upon him. Application for Administrative Review 1. The powers of the Tribunal upon administrative review are set out in s 67 of VRSA, 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… 1. On 8 November 2016, the Tribunal received the following documents from the Applicant: 1. Administrative review application form dated 7 November 2016; 2. Team Care Arrangement Authority dated 22 September 2016; and 3. Documentation relating to the Applicant's proposed legal adoption of his biological daughter. However, the Applicant did not lodge any evidence of a change in his financial circumstances since the 28 July 2016. 1. On 7 December 2016, the Commissioner lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 ("the ADR Act"). 2. The Application for Administrative Review was lodged within the permitted time. It came before me for hearing on 16 December 2016, when the Applicant appeared in person and Mr Singh appeared for the Commissioner. 3. The documents provided by the Commissioner under Section 58 of the ADR Act were comprehensive and complete and were served upon the Applicant. Applicant's Submissions 1. The Applicant informed the Tribunal that he is in the process of applying to the Supreme Court of NSW for an adoption order in relation to his daughter, which is being funded by a grant from Legal Aid NSW. 2. The Tribunal asked the Applicant whether the Affidavit of Financial Circumstances dated 28 July 2016 remained accurate? He replied "Yes" and stated that he did not wish to lodge any further evidence in support of his application for administrative review. Commissioner's Submissions 1. On behalf of the Commissioner, Mr Singh made oral submissions to the following effect: 1. The Applicant was convicted of a relevant offence under s 58 of VRSA, as the conviction arose from substantially the same facts as those constituting the act of violence in respect of which the recognition payment was approved (see: s 58 VRSA); 2. The provisional order for restitution was made no more than 2 years after the later of either the date of conviction or the date of payment to the victim (see: s 59 of VRSA); and 3. There was no evidence of any change in circumstances since the date of determination of the objection and the correct and preferable decision is that the decision of the Delegate dated 17 October 2016 should be confirmed. 1. The Tribunal reserved its decision. Further Evidence 1. However, on 18 January 2017, the Tribunal received a letter from the Commissioner dated 16 January 2017, which stated (relevantly): …On 4 January 2017, the Applicant sent to Victims Services further submissions regarding his income presumably for consideration in a final decision. We have not been informed whether submissions have been provided to the Tribunal and accordingly now attach a copy. Victims Services objects to the filing of further submissions by the Applicant given the hearing was finalised on 16 December 2016 and the matter simply reserved for decision in Chambers. Should the Tribunal accept the Applicant's further submissions, the respondent's position is that the amended financial expenditure should be treated given the significant rise in the expenditure from what has previously been advised by the Applicant and the convenience of the newly formulated amount being equal to the Applicant's current income (which was also previously amended). We confirm a copy of this correspondence will be sent to the Applicant for his records. 1. Attached to the Commissioner's letter was a letter from the Applicant to the Commissioner, which appeared to have been sent by way of facsimile transmission on 4 January 2017, in which he stated: I made a mistake filing my monthly expenditure on the Affidavit of financial circumstances, the estimate on the telephone (incl. mobile), food and groceries, petrol are wrong. I under estimated petrol for my car as I put $50 week which is $200 a month. I also under estimated mobile phone as we don't have a home phone. I forgot to put down my son's phone. I was paying $45 pre-paid for each phone so it was cheaper to get a $40 a month plan from Optus for each phone which is $80 a month for both phones, I thought I could afford $2,000 at $50 a month but I don't have any money left at the end of the month, so circumstances have changed. I have sent copys (sic) of my Optus phone plans. 1. The Commissioner has objected to the admission of this further evidence on behalf of the Applicant and it is therefore necessary to determine whether leave should be granted to the Applicant lodge the further evidence. 2. In considering this matter, I confirm that the Tribunal is not bound by the rules of evidence. The main considerations governing the admissibility of evidence are the requirements that the evidence must be logical, probative and relevant to the matters that are to be determined. 3. I am satisfied that the Applicant's further evidence is logical, probative and relevant to the matters to be determined in these proceedings. For this reason, I grant leave to the Applicant to lodge the further evidence and I extend the time for lodgement until 18 January 2016 (when the Tribunal received the further evidence). 4. However, it is also necessary to determine the weight that the Tribunal should be given to the further evidence. In determining this issue I have considered the following matters: 1. On 28 July 2016, the Applicant deposed that his evidence regarding his financial circumstances was true and correct. 2. The Commissioner relied upon the Applicant's Affidavit dated 28 July 2016 in determining his Objection to the provisional order. 3. However, the Applicant now seeks to resile from his Affidavit dated 28 July 2016 and he now asserts that the amounts that he deposed to as being accurate items of expenditure were actually "estimates" and that he 'under-estimated" certain items, namely: Food and groceries (he alleged an increase of $200 per month); Fares and/or petrol (he alleged an increase of $20 per week); and Telephone (incl. mobile) (he alleged an increase of $35 per month). 4. By my calculation, if the Tribunal accepts the Applicant's further evidence as being accurate and adds them to the liabilities described in his Affidavit dated 28 July 2016, his expenditure totals $4,250.72 per month. 5. However, the Applicant also alleges that a significant reduction in his wage/salary from $4,180 per month to $3,200 per month. If this evidence is accepted as being accurate and noting that there has apparently been no change in the amount of family allowance that he receives, I have calculated his current income as being $3,700 per month. 6. However, the Applicant has not completed the second page of his further Affidavit and he has not deposed that his further evidence is true and correct. 7. The Applicant has lodged copies of mobile telephone plans for himself and his son). However, he has not provided any evidence that verifies either the alleged increased expenditure (from $3,449 per week to $3,704 per week) or the alleged significant reduction in income. 1. In the absence of evidence verifying the alleged increased expenditure (with the exception of mobile telephone costs) and the alleged reduced income since 16 December 2016, when the Applicant told the Tribunal that the evidence contained in his Affidavit dated 28 July 2016 was accurate, I am not satisfied that his further evidence accurately reflects his current financial circumstances. 2. For these reasons I prefer the Affidavit of Financial Circumstances dated 28 July 2016 and reject the Applicant's further evidence (with the exception of the evidence regarding mobile telephone costs that have been verified). Consideration 1. The Commissioner's discretion under s 59 (1) of VRSA 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. This Tribunal does not have power to either review the Commissioner's decision to approve victims support for the victim or to look behind the conviction that was entered by a Magistrate. It is no defence to a restitution order for an Applicant to assert that he was acting in self-defence when the relevant offence occurred. 4. Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence. On 10 August 2012, he was convicted in the Local Court of NSW of assault occasioning actual bodily harm. 5. On 16 December 2014, victims support was approved for the victim in the sum of $10,000, comprising a Category C Recognition Payment ($5,000) and a Special Grant ($5,000). The provisional order was made on 6 July 2016. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of VRSA. 6. However, the Commissioner exercised her discretion in determining the Applicant's Objection to the provisional order and she reduced the amount of restitution to $5,000 (a 50% reduction). 7. After considering all of the available evidence and the parties' submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order as based upon the Affidavit of Financial Circumstances dated 28 July 2016, the Applicant has the financial means to meet that order. Determination 1. Pursuant to Section 67 (1) (a) of VRSA, I confirm the order made by the Commissioner on 17 October 2016, which requires the Applicant to make restitution in the sum of $5,000 by way of instalments of $50 per month. 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: 31 January 2017