Hawker v Commissioner of Victims Rights [2017] NSWCATAD 381

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hawker v Commissioner of Victims Rights [2017] NSWCATAD 381 Hearing dates: 29 September 2017 Date of orders: 15 December 2017 Decision date: 15 December 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The decision of the Commissioner's delegate dated 7 December 2016 is confirmed. Catchwords: Victims Rights and Support – administrative review - restitution order against person convicted of relevant offence – dispute regarding culpability despite evidence of convictions - alleged financial hardship Legislation Cited: Civil and Administrative Tribunal Act 2013 Victims Rights and Support Act 2013 Category: Principal judgment Parties: Therin Wayne Hawker (Applicant) Commissioner of Victims Rights (Respondent) Representation: Solicitors:

Applicant in person Victims' Services (Respondent ) File Number(s): 2017/00141281 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

REASON FOR DECISION

Background 1. On 26 April 2017, the applicant filed an application for administrative review of a restitution order made on 7 December 2016, by the delegate of the Commissioner of Victims Rights. That order required him to pay restitution of $4,000, by payments of $20 per month, for victims support that was approved for the victim in respect of an act of violence committed by him, and was made pursuant to s 64 of the Victims Rights and Support Act 2013 (the Act). 2. 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: 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 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 s 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. 1. S 59 (2) of the Act provides that a provisional order 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) of the Act. 2. On 20 February 2012, the Victim made an application for statutory compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 (the old Act). 3. However, on 2 June 2013, the old Act was repealed and replaced by the Act. As a result, the victim's application for statutory compensation was assessed under the Act as if it were an application for victims support.