BGF v Commissioner for Victims Rights
[2014] NSWCATAD 77
•06 June 2014
NSW 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 2013Category: Principal judgment Parties: Applicant - BGF
Respondent - Commissioner for Victims RightsRepresentation: Applicant - In person
Respondent - M Ting
File Number(s): 137332 Publication restriction: S 64 Civil and Administrative Act 2013
reasons for decision
In 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.
BGF 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).
Part 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.
The 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.
Provisional 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.
On 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).
The 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.
On 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.
Section 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.
He 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.
Finally 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.
Section 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.
On 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.
On 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.
In 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.
BGF'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.
BGF did not appear at the adjourned hearing. The Commissioner did. Further s 58 document and submissions responsive to my request were filed.
BGF's convictions
On 10 October 2009 BGF was convicted by the Local Court at Burwood of two counts of assault occasioning actual bodily harms under s 59(1) of the Crimes Act 1900 and released on 2 year bond under s 9 of the Crimes (Sentencing Procedure) Act 1999. The court attendance notice records that BGF was charged with and convicted of two counts of assault occasioning actual bodily arms of his wife at Lakemba at 12pm on 6 July 2008.
Compensation awarded to the victim
BGF's wife made two application for statutory compensation under the old Act. The assessor who considered them described them thus:
Application 145962 relates to a series of incidents that took place between April 2004 and the 7th July 2008. All incidents relate to domestic violence perpetrated upon the applicant by the offender at premises in Lakemba. Police and court records have been obtained for the subject period. I note the offender was convicted of assault occasioning actual bodily harm. I also note apprehended violence orders made for the applicant's protection.
Application 145797 relates to an incident that took place on the 9th September 2008. The applicant was in a park in Petersham when she was set upon by two men that were associates of the offender. The applicant was assaulted and she was threatened that worse was to come if she did not drop apprehended violence proceedings against the offender. I have read the police report concerning this incident and I also note solicitor's submissions concerning breach of an apprehended violence order.
The compensation assessor considered that the act of violence in September 2008 was domestic violence related. He considered that it was an attempt by BGF to intimidate his ex-wife into withdrawing domestic violence proceedings against him. As a consequence, he considered all the acts of violence to be related and treated them as such under s 5 of the old Act which relevantly provided:
(1) In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:
(a) that has apparently occurred in the course of the commission of an offence, and
(b) that has involved violent conduct against one or more persons, and
(c) that has resulted in injury or death to one or more of those persons.
...
(2) For the purposes of this section, violent conduct extends to sexual assault and domestic violence (as defined in the Dictionary).
(3) Except as provided by subsections (3A) and (3B), a series of related acts is two or more acts that are related because:
(a) they were committed against the same person, and
(b) in the opinion of the Tribunal or compensation assessor:
(i) they were committed at approximately the same time, or
(ii) they were committed over a period of time by the same person or group of persons, or
(iii) they were, for any other reason, related to each other.
(3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts.
(3B) An act is not related to any earlier act in respect of which an award of statutory compensation has been made if it occurs after the award was made.
(4) For the purposes of this Act, a series of related acts, whether committed by one or more persons, constitutes a single act of violence.
Based on the act of violence constituted by these related offences the compensation assessor awarded BGF compensation for domestic violence on application 145962 and dismissed the related claim on application 145797.
The compensation assessor's determination was appealed to the Victims Compensation Tribunal. The Tribunal set aside the determination. The Tribunal found that the two counts of assault occasioning actual bodily of which BGF was convicted constituted a series of related acts which should be treated as related acts. The Tribunal considered that included in this series were a series of alleged assaults committed during the marriage.
With respect to the other claim no 145762 the Tribunal found:
12. In that claim the appellant relies upon an assault which occurred on 9 September 2008. At that time the perpetrator in this matter was on bail in relation to the assault on 6 July 2008 and an interim ADVO order had been made against him. On 9 September 2008 the appellant met a counsellor in Petersham Park. The counsellor left. The appellant then went to the toilet. She was then severely assaulted by two or three men who during the assault made comments such as; "Drop the AVO against your husband, you're a slut for not wearing your hijab, go back to your husband." The police were contacted and made very extensive enquiries. They made arrangements for the appellant to be moved to a new, undisclosed location. The police were satisfied that the assault was carried out at the request and direction of the perpetrator but could not charge Him because of the lack of evidence.
13.I am satisfied that, in those circumstances, the assault by the two men established a domestic violence offence against the perpetrator as, on the balance of probabilities, I am satisfied that he could be charged as an accessory before the fact in relation to the assault.
14. The Compensation Assessor found the act of violence in this matter, based largely on assaults by the perpetrator from April 2004 to 7 July 2008, to be related to the act of violence in claim no. 145962 being the assault by the two men. Whilst I agree that the two acts of violence may be found to be related pursuant to the terms of s.5(3) of the Act, I am satisfied that this is a matter to which s.5(3A) applies. That section provides as follows;
5 Act of violence
(3A) An act is not related to another act if, in the opinion of the Tribunal or compensation assessor, having regard to the particular circumstances of those acts, they ought not to be treated as related acts
5. In my view, the use by the perpetrator of two men to seriously assault the appellant at a time when the perpetrator was subject to charges of occasioning actual bodily harm and against whom an interim apprehended domestic violence order had been made including the mandatory order that he was not to assault the appellant does establish very serious and completely different criminal behaviour by the perpetrator which, in my view, establishes "particular circumstances" in relation to that act of violence which requires that the two acts of violence "ought not to be treated as related acts" pursuant to s.5(3A) of the Act.
16. I find the two acts of violence ought not to be treated as related acts and I proceed with the determination of this claim on that basis.
The Tribunal went on to find that the victim had sustained a category 2 chronic psychological/psychological disorder that is severely disabling. In the course of doing so the Tribunal made the following findings, at [27]:
27. Psychologist Somerville was of the opinion that such disorders were caused as a result of the domestic violence relied upon in this matter and also the assault on 9 September 2008. I am satisfied that, clearly, the major contributing cause of the appellant's psychological disorders was the acts constituting domestic violence inflicted upon her by the perpetrator during their marriage. I am satisfied that the psychological disorders are chronic in the sense of long term.
The Tribunal fixed the statutory compensation payable at $40,000, from which it deducted one-quarter on account of the victims' pre-existing mental health concerns.
Has BGF been convicted of a relevant offence?
The compensation that the Commissioner seeks to recover from BGF relates to that paid to the victim with respect to the two separate and distinct claims for separate and distinct acts of violence within the meaning of s 5. BGF has been convicted of the act of violence which were included in one of those claims and for which he was convicted of two counts of assault occasioning actual bodily harm.
BGF has not been charged or convicted of any offence relating to the events that occurred when the victim was assaulted by persons unknown in September 2008.
The statutory compensation paid to BGF was not apportioned as between those two claims. The issue that then arises is whether the compensation which the Commissioner requires restitution for is with respect to a relevant offence committed by BGF, or can include acts of violence that constitute offences he has not been convicted of?
The Commissioner submitted that part (c) of the definition of relevant offence in s 58 is applicable. This says relevant offence means, among other things:
(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.
Section 19(4) mirrors s 5(3 ) of the old Act and provides -
(4) Except as provided by subsections (5) and (6), a series of related acts is two or more acts that are related because:
(a) they were committed against the same person, and
(b) in the opinion of the Tribunal or the Commissioner:
(i) they were committed at approximately the same time, or
(ii) they were committed over a period of time by the same person or group of persons, or
(iii) they were, for any other reason, related to each other.
The Commissioner said that in determining whether or not a relevant offence has been committed by BGF one should:
1) Determine the nature of the act of violence upon which the giving of support was based, with reference to all of the material before the original decision-maker, and if the act of violence consisted of invariably particular reference to the date or dates of the incidents alleged in the application and evidenced by material on file will be of assistance. Other matters may relate to any ongoing relationship between the victim and offender, the nature of the offences alleged and particularly any offences which may stand out so as to warrant a finding of being exceptional or outside of the incidents comprising the remainder of the act of violence.
2) Following identification of what the act of violence, being a series of (two or more) incidents that for any reason are considered related, consisted of, it is submitted the question becomes: Is the offence for which the applicant is convicted one that falls within the subset of offences that were accepted by the decision-maker as forming the series of related acts (as found in task 1, above)?
Applying that to the circumstances of BGF's case the Commissioner submitted BGF had been convicted of two of a series of related acts of violence perpetrated by him against the victim from 2004 to 2008. A finding that BGF had been convicted of one or more offence "within a series of related acts (being two or more acts that have been related for any reason by the Tribunal)" was said to lead to a compelling conclusion that a relevant offence had been committed.
I have considerable difficulty with this proposition. The reasoning would lead to the Commissioner being authorised to recover compensation paid to a victim from persons who have not been convicted of the offence(s) that gave rise to that payment, provided the Commissioner, or the Tribunal on review, is satisfied that the person was convicted of a related offence within the meaning of s 19(4). In my opinion this is not what s 59(1) authorises the Commissioner to do. It is also contrary to the stated object of part 5 of the VRSA.
The Commissioner's discretion under s 59(1) to make a provisional order is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of related offence makes it clear, whether or not one is considering one act of violence or a series of related acts, that the conviction has to relate to the act of violence (or series of acts of violence) concerning which payment is made. It does not allow the recovery of compensation for acts of violence that the person, from whom recovery is sought, has not been convicted of.
With respect to related acts it is a precondition to a provisional order being made that the Commissioner is satisfied (a) that payment to the victim has been made or approved with respect to identified and related acts of violence (b) that the person from whom recovery is sought has been convicted of an offence involving one of more of those acts.
This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that persons from whom recovery is sought must have been convicted of the offences arising from the acts of violence for which statutory compensation (or recognition payments) have 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 each such act of violence.
In the present case BGF was convicted of two offences that occurred In July 2008.
An examination of the Victims Compensation Tribunal's (the VCT) reasons for decision reveals that it awarded the victim compensation on being satisfied that the victim had suffered a series of related acts of violence at the hands of BGF between 2004 and 2008 (which included the assaults for which he had been convicted).
The VCT was also satisfied that the assault on the victim by two strangers in September 2008 was arranged and instigated by BGF and that BGF was an accessory to that assault. However, the VCT expressly found that that act of violence was not related to the other assaults committed by BGF. Given that finding it was not open to the Commissioner when considering making a recovery order to treat the acts of violence that the VCT had expressly found not to be related, to be related for the purposes of recovery.
The VCT went onto award the victim compensation with respect to both claims, with no attempt to distinguish between the compensation awarded with respect to each claim. The compensation was therefore awarded, without apportionment, with respect to:
- A series of related acts of violence that occurred between 2004 and 2008 which included two assaults that BGF had been convicted of in July 2008; and
- A unrelated act of violence involving the assault that occurred in September 2008.
It was open to the VCT to assess compensation payable with respect to each of the victim's claim separately.
In those circumstances the compensation that the Commissioner now seeks to recover from BGF is not a payment made with respect to an offence involving a series of related acts of which BGF has been convicted. Rather, it relates to a series of acts, some related, some not, of which BGF has been convicted of two only. In the absence of specific compensation paid with respect to the acts of violence for which has been convicted, I cannot be satisfied that BGF has been convicted of a relevant offence, or that restitution is sought for compensation payable to the victim with respect to a relevant offence.
As a consequence s 67(3) requires that the Tribunal reverses the Commissioner's decision requiring BGF to make restitution.
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
Decision last updated: 10 June 2014
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