BJI v Commissioner for Victims Rights
[2014] NSWCATAD 78
•30 May 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BJI v Commissioner for Victims Rights [2014] NSWCATAD 78 Hearing dates: 30 May 2014 Decision date: 30 May 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Ms M Riordan, Senior Member Decision: 1. The time for lodgement of the Application for Administrative Review is extended to the date upon which it was filed.
2. I order BJI to pay the amount of $4,500 to the Respondent by way of restitution, by equal instalments of $10 per month commencing on 15/06/2014.
Catchwords: Victims Rights and Support - administrative review - restitution order against person convicted of relevant offence Legislation Cited: Civil and Administrative Act 2013
Victims Rights and Support Act 2013
Victims Support and Rehabilitation Act 1996Category: Principal judgment Parties: Applicant - BJI
Respondent - Commissioner for Victims RightsRepresentation: Applicant - In person
Respondent - Mr Baker
File Number(s): 1410191 Publication restriction: S 64 Civil and Administrative Act 2013
reasons for decision
Background
In this matter the Tribunal has determined pursuant to Section 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 reasons as BJI.
BJI has made an application for administrative review of a restitution order made on 26/08/2013 by the Delegate of the Commissioner of Victims Rights. This required him to pay restitution of $4,500, by payments of $15 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 Section 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 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: Section 59(1)).
'Relevant offence' is defined in Section 58 of the VRSA 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.
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, whatever was the later the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under Section 40(6).
In this case, there is no dispute that the relevant offence occurred on 20/09/2009, and that BJI pleaded guilty to the offence of common assault against his former wife at the Nowra Local Court and that he was placed on a Good Behaviour Bond in accordance with Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999.
On 4/03/2010, the victim made an application for statutory compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 (the old Act). On 14/05/2012 she was awarded statutory compensation of $8,488 for the compensable injury of Domestic Violence and expenses (after application for the deductible under Section 19A of the old Act).
The old Act was repealed on 2/06/2013 and was 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 provides (relevantly):
(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 has power to make a provisional order under the VRSA in respect of the application for statutory compensation made by BJI's former wife under the old Act.
On 1/05/2013 the Commissioner made a provisional order against BJI in the sum of $8,488 (the amount of compensation paid to the victim). Notice of the provisional order was given to BJI by post on 3/05/2013, as required by Section 61 and service is evidenced by the Affidavit of Service sworn by Sean Makari on 3/05/2013.
Section 62 of the VRSA gives a person upon whom such an order is served 28 days in which to make a written objection to a provisional order. The grounds of objection must be fully stated (see: Section 62(3)) and the objector bears the onus of proving their case (see: Section 62(4)).
On 9/05/2013, the Registrar of the Victims Compensation Tribunal wrote to BJI in the following terms (relevantly):
I refer to your telephone contact of today regarding the above restitution matter.
For the purposes of Sec 46(1) of the Victims Support & Rehabilitation Act 1996, the Dictionary within the Act includes under conviction - (a) an order made under section 10 of the Crimes (Sentencing and Procedure) Act 1999 (formerly section 556A of the Crimes Act 1900).
Given the above these restitution proceedings will continue.
A further 28 days, from the date of this letter, is granted to file a Notice of Objection to a Provisional Order for Restitution.
If a Notice is not filed by 6 June 2013 the Provisional Order for Restitution may be confirmed by the Tribunal and enforcement proceedings commenced.
BJI filed an objection dated 16/05/2013, in which he relied on a single ground, namely:
I disagree on Compenation (sic) payout. I took my Solicitor's advise (sic) for this issue.
In support of the Objection, he provided an Affidavit of Financial Circumstances, in which he disclosed that he is in receipt of a Disability Pension from Centrelink of $1,544 per month, from which he supports himself and his 3 dogs. He alleged that his expenditure also totals $1,544 per month, comprising mortgage repayments ($380), Rates ($75), Telephone ($60), Food & groceries ($587), Fares & Petrol ($200), Motor Vehicle expenses ($20), Insurance/superannuation ($172) and Clothing/shoes etc. ($50). He asserted that the current market value of his house is $3,000,000 (although this is still under construction) and that he owes $35,000 on a mortgage and $300 to Centrelink. He also alleged that he pays vet bills for his dogs ($45 each fortnight) and medications for his dogs ($80 per month) and that he pays a net monthly wage of $983.20 and expenditure of $807.
On 18/06/2013, the Registrar of the Victims Compensation Tribunal wrote to BJI, referring to his Objection and Affidavit of Financial Circumstances, and advised him that the matter would be determined under the VRSA.
On 18/07/2013, BJI sought an adjournment of his Objection on the ground that he was seeking legal advice and that he was only able to obtain an appointment on 30/07/2013.
On 19/07/2013, the Manager of Victims Services advised BJI that his request for an adjournment had been granted. On 23/07/2013, BJI was advised that his Objection would be determined by the Commissioner on the first available opportunity on or after 19/08/2013 and that if he intended to provide further documents they should be received by 12/08/2013.
On 7/08/2013, BJI wrote to the Respondent in the following terms:
I ... would like to submit my paper work towards my objection of this matter ... and copy of some of my bills - not including food or medicines for myself plus medical fees for ankle surgery in the near future...
I also note that BJI lodged a Statutory Declaration dated 30/07/2013, in which he stated (relevantly):
3. My ex-wife alleged that I assaulted her. I pleaded guilty on the basis of legal advice because I was told that it was the cheapest way to deal with it. If I had pleaded not guilty I would have had to pay for a solicitor and all the witnesses and court costs for a hearing. I did not have Legal Aid and I would have had to pay for that myself.
4. My ex-wife alleged that I picked her up and carried her up and carried her to the edge of a veranda and threw her off. I did not do that.
5. Attached to this declaration and marked "A" is a report from Dr Mark Ridalgh. This describes problems that I have with my spine, shoulder and ankle.
6. I could not have done what my ex-wife alleged because she is heavier than I am and my back, shoulder and ankle injuries mean that I physically could not have picked her up and I could not have carried her.
7. I would like this order reduced to nothing as I am in no state to pay anything off. If I have to pay this money it will mean a home sentence for me because I don't have any money to spare after I have paid my mortgage, living costs, mobile phone and medicine for my dogs...
10. My weight is 69kgs...(her) weight is 74kgs...
I note that while BJI lodged a medical report from Dr Ridalgh, the doctor did not the address the issues that were raised in BJI's Statutory Declaration and that there is no medical evidence that indicates his weight, his ex-wife's weight and/or whether he has the physically capacity to commit the common assault (to which he pleaded guilty).
On 12/08/2013, the Commissioner acknowledged receipt of BJI's letter dated 7/08/2013 and the attached documents and served copies of the following documents upon him:
(1) Bail CAN Master Coversheet (reference no. provided)
(2) Court attendance notice (reference no. provided)
(3) Court orders (reference no. provided)
(4) Facts sheet (reference no. provided)
It repeated its previous advice to BJI that for the purposes of issuing a Provisional Order for Restitution the Dictionary within the old Act and the definitions in the VRSA includes: conviction - (a) an order made under section 10 of the Crimes Sentencing Procedure) Act 1999. It confirmed that the restitution proceedings were based upon that conviction.
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 26/08/2013, the Commissioner's Delegate confirmed BJI's liability, but reduced the amount payable under the order to $4,500, to be paid in instalments of $15.00 per fortnight. Notice of that determination was served on BJI as required by Section 65 of the VRSA on 6/09/2013.
On 10/12/2013, BJI wrote to the Respondent in the following terms:
I ... disagree with the decision made against me by victims services, the decision was made from probabilities only.
You are forcing me to pay for a crime I did not do, for me to pay the $15.00 per fortnight means home jail and then soon after the loss of my unfinished house. It would be sold at a loss. This is all I have left in my life. The stress that victim services is putting on me, is too much to handle. It is affecting me mentality, I have major health problems as it is.
I am asking the Commissioner to review my restitution order. If the decision is the same I would like this matter to be heard in a courtroom. Reason for this is I have a lot more to say and prove.
On 18/12/2013, the Respondent wrote to BJI in response to his letter dated 10/12/2013. It advised (relevantly):
The VRSA does not make provision for the Commissioner of Victims Rights to review an order.
As previously advised in Victims Services letter dated 6 September 2013, an application for review must be forwarded to the Administrative Decisions Tribunal (ADT)... within 60 days of the Notice.
You are required to:
· Comply with the Notice of Determination by Objection by commencing instalments as per the terms of the Order, or
· Make application for a review by the ADT...
A response is required by 15 January 2014...
However, BJI a further Affidavit of Financial Circumstances sworn on 19/12/2013 to the Respondent and I note that this was received on 23/12/2013. The Respondent wrote to him in response to that letter on 30/12/2013, advising (relevantly):
Many restitution defendants have financial and other difficulties. Your circumstances are not uncommon. However, the Victims Rights and Support Act 2013 (VRSA) requires offenders to contribute to payments made to victims. Nevertheless the Commissioner of Victims Rights may limit a defendant's liability where relevant submissions are made.
However, as you are currently in receipt of Centrelink benefits, you may make your restitution payments via Centrelink's Centrepay Deduction facility...
On 9/01/2014, the Respondent wrote to BJI in the following terms (relevantly):
I refer to your telephone contact of 6 January 2014.
You have advised you were not convicted of an offence regarding this matter, however, copies of court documents regarding the underlying conviction were forwarded to you under cover of my letter dated 12 August 2013.
Review rights were advised to you in my letters of 6 September 2013 and 18 December 2013. The Victims Rights and Support Act (VRSA) does not make provision for the Commissioner of Victims Rights to review an order.
Applications for review must be forwarded to the Administrative Decisions Tribunal...
However, Sec 68 of the VRSA makes provision for the Commissioner to enter into an arrangement.
In considering the matter, the Commissioner would be prepared to accept payment of the amount ordered $4,500 by instalments of $10 per fortnight to be paid through Centrelink's Centrepay facility.
You should:
· Comply with the Notice of Determination of Objection by commencing instalments as per terms of the Order, or
· Make an application for a review by the ADT..., or
· Make arrangements for Centrelink Centrepay deductions of $10 per fortnight...
A response is required by 6 February 2014.
On 5/02/2014, the Respondent wrote to BJI in the following terms (relevantly):
I refer to your telephone contact dated 5 February 2014 regarding a request for documents and an extension of time. Enclosed are the requested documents...
An extension of time has been granted for 20 February 2014...
On 12/03/2014, Justine O'Reilly, a Solicitor employed by Legal Aid sent an email to the Respondent, in the following terms:
We are assisting (BJI) with a restitution matter...
(BJI) would like copies of the following documents:
· The victim's application for victims compensation
· The victim's statutory declaration, if any
· All other evidence presented by the victim to prove their case, including, but not limited to reports to Police and medical evidence; and
· Victims services' written reasons for awarding a compensation payment to the victim...
On 20/03/2014, the Respondent provided copies of those documents to BJI, but directed that they were provided to him on a confidential basis for the sole purpose of preparing his response to these proceedings and that their contents may only be disseminated to a legal practitioner for the purposes of obtaining legal advice. It also advised him (relevantly):
...You have also indicated that you are lodging an appeal with NSW Civil and Administrative Tribunal (NCAT). To date, Victims Services has not been notified that any application has been made in this matter. Please confirm if an application has been lodged with NCAT.
Until such time that an application is lodged with NCAT, you must comply with the order of 26 August 2013...
On 15/04/2014, BJI applied to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 in accordance with Section 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 (see: Section 66 (2)) and that the "applicant has the onus of proving the applicant's case in an application for an administrative review" (see: Section 66(3)).
The powers of the Tribunal on review are set out in Section 67 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.
(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 BJI relied on the following grounds:
"I did not do the things my ex-wife alleges. I was misadvised to plead guilty. Please see attached Statutory Declaration.
However, no Statutory Declaration was attached to the Application. Rather, BJI attached a handwritten letter/statement comprising approximately 2.25 A4 sized pages, the contents of which were not the subject of any declaration.
The Application for Administrative Review was filed late and BJI submitted that this occurred as a result of the following reason:
Because I thought the appeal was to be sent to victims services. I did not understand from VS' letter dated 6 September 2013 that the Administrative Decisions Tribunal was a different organisation from victims services. I was aware of the 60 day time limit but I called victims services and was granted an extension verbally.
BJI's Application for Administrative Review first came before me on 30 May 2014, when BJI appeared in person and the Commissioner was represented by Mr Baker. The documents provided by the Commissioner under Section 58 of the Administrative Review Act 1997 were comprehensive and complete.
BJI's conviction
On 14/12/2009, BJI was convicted by the Local Court at Nowra of the offence of common assault domestic violence related harms under Section 61 of the Crimes Act 1900. In accordance with Section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999, he was directed to enter into a 2 year good behaviour bond to commence that day. This is evidenced by the court attendance notice records.
Compensation awarded to the victim
BJI's wife made an application for statutory compensation under the old Act. The assessor who considered it described it as follows:
(name) has lodged an application for compensation as a primary victim under Section 7 of (the old Act) in respect of an incident that is alleged to have occurred at Basin View in New South Wales on 20 September 2009...
Apart from the contents of the application form, the available material to assess the act of violence includes a police COPS report, information from Nowra Local Court, AVO documentation, a statutory declaration and medical evidence...
According to the application form, it is alleged that on the above date, the applicant was a victim and sustained injury as a result of an assault, committed by the alleged offender, her former husband, at a residence on Riverside Esplanade, Basin View...
The offender was subsequently arrested and charged with the offence of "Common assault" and, according to information from Nowra Local Court, entered a plea of guilty to the offence and was placed under a god behaviour bond...
The Compensation Assessor considered that the act of violence in September 2009 was domestic violence related and that as a consequence, found that an act of violence was established as required by Section 5 of the old Act, which provided (relevantly):
(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).
Based on the act of violence constituted by this offence, the Compensation Assessor awarded BJI's ex-wife compensation for compensable injury of Domestic Violence and fixed the statutory compensation payable at $8,750, to which it added expenses for financial loss ($488) and after applying the deductible of $750 under Section 19A of the old Act, awarded her compensation of $8,488.
Provisional Order
The Commissioner's discretion under Section 59(1) of VRSA 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 relevant 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. 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.
I am satisfied based on a consideration of all of the available evidence, that the compensation that the Commissioner now seeks to recover from BJI relates to that which was paid to the victim as a result of an act of violence within the meaning of Section 5 of the Act and that this was an offence for which BJI has been convicted.
I am also satisfied that the provisional order complied with Section 61(2) VRSA and that it was properly served on BJI.
Application for Objection
I note that the Application for Objection was lodged more than 28 days after the date of the provisional order but within 90 days of that order and that the Commissioner granted BJI an extension of time in which to lodge this and to lodge additional evidence in support.
BJI seeks to have the Commissioner's Determination of the Objection overturned on the grounds that he did not commit the offence of common assault and that he only pleaded guilty because his Solicitor advised him that this was the least expensive option that was available to him and that he is suffering from financial hardship.
The Commissioner's Delegate made a determination following a review of the Objection on 26/08/2013. The Delegate considered the matters that BJI raised in his Objection and made a decision that was significantly less onerous upon him by reducing the amount of the order from $8,488 to $4,500 (a reduction of 46.9%) and requiring payment to be made by instalments at the rate of $15 per fortnight.
I am satisfied on the evidence before me that this determination was made within a period of 90 days from lodgement of the Objection and that it was properly served upon BJI by post on 6/09/2013.
I am satisfied that the Commissioner's Delegate properly advised BJI of his review rights in his letter dated 6/09/2013, 18/12/2013, 9/01/2014 and 20/03/2014.
Application for Administrative Review
The current Application was not filed within 60 days of issue of the Determination of the Objection.
However, for the reasons indicated in the correspondence between the parties, I have decided that it is appropriate in all the circumstances to extend the time for lodgement of the current Application to the date filed and I make that order.
During the hearing on 30/05/2014, BJI was focussed on discrediting the allegations made by his ex-wife (upon which the award of statutory compensation was based). However, I advised him (as the Commissioner had done in relation to the objection to the provisional order) that the definition of conviction within VRSA includes (a) an order made under Section 10 of the Crimes (Sentencing Procedure) Act 1999. I noted that the facts indicated in the Facts Sheet that was tendered to the Magistrate at Nowra Local Court, when the Section 10 order was made against him, do not support a determination that he is not guilty of the relevant offence. I also informed him that this Tribunal does not have power to overturn the Magistrate's judgment, based upon his plea of guilty.
Upon hearing this, BJI made comment to the effect - "You just want to shut me up and process me". He also stated that he could not afford to pay for something that he did not do and protested that he was badly advised by his Solicitor because he did not tell him that he could be in his current situation if he pleaded guilty to the common assault charge.
For the reasons set out in this decision, I am satisfied that BJI has been convicted of a relevant offence. Therefore, pursuant to Section 67(1)(a) of the VRSA, I order BJI to pay the amount of $4,500 to the Respondent by way of restitution, by equal instalments of $10 per month commencing on 15/06/2014.
In view of the allegations that BJI has made against his solicitor, who is not a party to these proceedings, I recommended to BJI that he may wish to contact either the Law Society of New South Wales or the Office of the Legal Services Commissioner with a view to making a complaint against his solicitor and/or seeking a compensation order against him under Part 4.9 of the Legal Profession Act 2004.
Conclusion
I make the following orders:
(1) The time for lodgement of the Application for Administrative Review is extended to the date upon which it was filed.
(2) I order BJI to pay the amount of $4,500 to the Respondent by way of restitution, by equal instalments of $10 per month commencing on 15/06/2014.
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: 17 June 2014
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