Budrodeen v Commissioner of Victims Rights

[2018] NSWCATAD 67

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Budrodeen v Commissioner of Victims Rights [2018] NSWCATAD 67
Hearing dates:	22 December 2017
Date of orders:	27 March 2018
Decision date:	27 March 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	1. The Provisional Order is confirmed subject to the following variation.  2. The liability of the applicant is reduced to $10,000, payable by monthly instalments of $100.
Catchwords:	ADMINISTRATIVE LAW – merits review- Victims Rights and Support – restitution order against person convicted of relevant offence – dispute regarding culpability despite a plea of guilty and conviction
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing and Procedure) Act 1999 Victims Rights and Support Act 2013 Victims Rights and Support Amendment (Transitional Claims) Regulation 2015 Victims Rights and Support Regulation 2013 Victims Support and Rehabilitation Act 1996
Cases Cited:	Budrodeen v R [2017] NSWCCA 100 Clow v Commissioner of Victims Rights [2017] NSWCATAD 40 Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172 Xiang v Commissioner of Victims Rights [2017] NSWCATAD 40
Category:	Principal judgment
Parties:	Adam Budrodeen (Applicant) Commissioner of Victims Rights (Respondent )
Representation:	Solicitors: Applicant (Self-represented) Victims Services (Respondent)
File Number(s):	2017/00270634
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

Background

1. The Applicant has made an application for administrative review of a restitution order made on 30 May 2017 by the delegate of the Commissioner of Victims Rights (the Commissioner). This required him to pay restitution of $25,000 for victims support that was approved for the victim in respect of an act of violence committed by him. That order 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 victims 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.

3. On 18 May 2012, the victim’s parent/guardian lodged an application for statutory compensation on his behalf under the Part 2 of the Victims Support and Rehabilitation Act 1996 (the old Act). It alleged that the victim (who was aged 15 years at that time) was a primary victim of sexual assault that was perpetrated by the Applicant on 23 October 2011, at Adamstown in New South Wales, while he was a passenger in a taxi that the Applicant was driving. It nominated the compensable injury of “sexual assault”.

4. The Police COPS Event report indicates that on 23 October 2011, the victim reported that he had attended a park (name and location provided) for a picnic with his parents and siblings, after which the family went to a nearby hotel (name and location provided). The victim’s parents left the hotel at around 7:10pm, leaving the victim in the company of family and friends and he agreed to follow his parents home by taxi about 15 minutes later. At about 7:20 pm, the victim’s mother contacted a family friend by telephone to ensure that the victim had been sent home by taxi. At 7:30 pm, the victim’s mother was informed that the victim had been placed into a taxi and was on his way home. The taxi was driven by the Applicant and the victim was the sole passenger. During the journey, the Applicant enquired as to the victim’s sexuality. At about 7:43pm, the victim’s mother telephoned him and asked where he was. The victim alleged that the Applicant told him to enter the rear of the taxi and he did so. The Applicant followed him into the rear of the taxi and he then pulled the victim’s pants down and began performing fellatio upon him as well as kissing his neck region. He then directed the victim to perform fellatio on him, but the victim refused to do so. The Applicant provided the victim with his name and phone number (to put into his phone) and he then allowed the victim to leave the taxi. The victim returned home after deleting the Applicant’s name and phone number from his phone. He informed his parents of the incident after showering and eating a meal and his mother took him to Newcastle Police Station where the incident was reported.

5. The Applicant was charged with 4 offences, namely: indecent assault on a person under 16 years of age; aggravated sexual assault on a victim under the age of 16 years; have sexual intercourse with person aged between 14 and 16 years; and indecent assault on a person under the age of 16 years. He pleaded guilty to the charge of “sexual intercourse with a person between the age of 14 and 16 years” but the other charges were withdrawn. He was sentenced to a period of imprisonment for a period of 3 years and a non-parole period of 1 year and 8 months, which was coextensive with the time that he had already spent on remand. As a result, he was released on parole immediately.

6. The Applicant appealed against the conviction to the Court of Criminal Appeal on two grounds, namely: (1) Destruction of evidence; and (2) An act of entrapment was committed. In oral submissions on the appeal, the Applicant informed the Court that he was seeking an acquittal and not a retrial. In the judgment dated 1 October 2015, Beazley ACJ (Adamson and Wilson JJ agreeing) held:

1. The issue to be determined on appeal against conviction is the integrity of the plea. A conviction entered on the basis of a guilty plea will not be set aside unless it can be shown that a miscarriage of justice has occurred.

2. An appeal against conviction on a plea of guilty will only be upheld if there is a real question about the guilt of the accused.

3. In relation to ground 1:

4. there was nothing before the court to indicate that the evidence in question, CCTV footage from the hotel, had been suppressed concealed or destroyed. As a result, nothing was demonstrated that raised doubt as to the integrity of the plea.

5. In relation to ground 2:

6. There is no substantive defence of entrapment under the Australian common law.

7. In any event, none of the matters on which the applicant relied in arguing that entrapment occurred were established.

8. There was nothing in what was presented to the court to establish that the integrity of the plea was impugned.

7. 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 the Act and cl 5 (1) of sch 2 of the Act 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.

8. On 23 February 2015, an Application for Support under the Victims Support Scheme was lodged on behalf of the victim under the provisions of the Act. However, the Commissioner treated that as a duplicate application and it did not proceed to determination.

Award of victims support to the victim

9. On 17 March 2015, an Assessor (client claims) approved payment of victims support to the victim in the sum of $15,000 (comprising a Category B recognition payment pursuant to s 35 (2) (b) of the Act in the sum of $10,000 and a special grant pursuant to Sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor’s reasons included (relevantly):

…5. The application relates to incidents that took place on the 23 October 2011.

6. The applicant was in Adamstown when he took a taxi home.

7. The taxi driver (the offender) stopped the taxi and sexually assaulted the applicant a number of times.

8. Incidents were reported to police and the offender was charged and convicted of a number of sexual assault offences.

9. I note matters raised by the assessor on 5 December 2014.

10. I have viewed the police report on file and details of counselling attended by the applicant. I accept that information provided establishes injury under s 19 (1) (c).

11. On the balance of probabilities an act of violence is established.

Section 44 Consideration

I am required to consider whether there are any factors under section 44 of the Act that would lead me to decline victims support to the applicant or to reduce any amount payable.

I find no adverse s 44 issues.

Recognition Payments

12. Recognition payments under section 36 of the Act are payable to primary victims of particular types of acts of violence. 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 (2) (b) – a sexual assault involving violence that is one of a series of related acts.

Decision on Recognition Payment

13. On the balance of probabilities I consider the applicant is entitled to a recognition payment as detailed in s 36 (1) (c).

14. I approved the payment of $10,000 to the applicant in accordance with clause 12 schedule 4 of the Victims Support and Rehabilitation Regulation 2013, as a recognition for the trauma suffered as a result of the act of violence.

Special Grant from the Victims Support Fund

15. Clause 5 (3) of schedule 2 of the Act provides for a special lump sum grant of $5000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous act within 2 years from the date of the act of violence [or two years from the day after the applicant reached 18 years of age (where applicable).]

The applicant applied to statutory compensation on 18 May 2012. I note that the act of violence took place on 23 October 2012 (sic).

The applicant is therefore eligible to receive a schedule 2 Clause 5 (3) grant.

10. Part 5 of the Victims Rights and Support Regulation 2015 (the Regulation) provides, relevantly:

Division 3 Reassessment of applications for statutory compensation under repealed Act

17 Definitions

In this Division:

new Act means the Act.

reassessment application—see clause 19.

18 Operation of Division

(1) The provisions of this Division have effect despite any provision of Part 2 of Schedule 2 to the new Act.

(2) An application cannot be dealt with under clause 5 of that Schedule or clause 15 of this Regulation after the commencement of this Division.

19 Eligibility for reassessment applications

(1) A person whose application for statutory compensation was lodged, but not finally determined, under the repealed Act before the day the Bill for the new Act was first introduced into Parliament is eligible to make an application for reassessment of that application under this Division (a reassessment application).

(2) A person is eligible to make a reassessment application even if the person subsequently withdrew the application for statutory compensation or withdrew from having the application dealt with under clause 5 of Schedule 2 to the new Act.

(3) Despite subclause (1), a person whose application was dealt with under clause 5 of Schedule 2 to the new Act and was dismissed is not eligible to make a reassessment application unless the ground for dismissal was that the person was a family or secondary victim who was not entitled to a recognition payment under the new Act.

(4) For the purposes of this section, an application was not finally determined if:

(a) any period for bringing an appeal as of right in respect of the application had not expired (ignoring any period that may have been available by way of extension of time to apply), or

(b) any appeal in respect of the application was pending (whether or not it was an appeal brought as of right).

20 Reassessment applications

(1) A person cannot make a reassessment application after 1 September 2016.

(2) A reassessment application is to be made by written notice to the Commissioner indicating that the applicant wishes to have the previous application for statutory compensation reassessed under this Division.

(3) No fee is payable for making a reassessment application.

(4) The Commissioner may require a person who makes a reassessment application to provide any documentary evidence or other information requested in writing by the Commissioner. The evidence or information must be provided not later than 6 months after the reassessment application is made.

(5) If a request for evidence or information to be provided by the applicant is made by the Commissioner more than 3 months after the reassessment application is made, the applicant must provide the evidence or information not later than 3 months after the request is made.

21 Application of repealed Act to reassessment applications

(1) A reassessment application is to be determined as if it were an application for statutory compensation duly made under the repealed Act and the provisions of the repealed Act continue to apply to and in respect of a reassessment application, subject to this Division.

(2) For the purposes of this Division, a reference in the repealed Act:

(a) to the Director or a compensation assessor is taken to be a reference to the Commissioner, and

(b) to a determination for restitution is taken to be a determination under Part 5 of the new Act (as applied by this Division), and

(c) to the Compensation Fund is taken to be a reference to the Victims Support Fund, and

(d) to the Compensation Fund Corporation is taken to be a reference to the Secretary of the Department of Justice.

(3) The following provisions of the repealed Act do not apply to a reassessment application:

(a) sections 25 (2) and (3), 26, 34, 35 and 42 (1) (b),

(b) Divisions 6, 8 and 9 of Part 2,

(c) Part 3,

(d) Parts 4 and 5,

(e) Schedule 2.

11. On 20 October 2015, an Application for Reassessment under Part 5 of the Regulation was lodged on behalf of the victim, which nominated the compensable injury – “Sexual assault – Category 3” as the injury for which statutory compensation was sought.

12. On 5 December 2016, an Assessor determined the Application for Reassessment and determined that the victim was the primary victim of an act of violence and awarded the victim a further amount of $10,000 by way of statutory compensation under the old Act ($15,000 having been approved by way of victims support under the Act).

13. The Assessor’s reasons included, relevantly:

Is there an act of violence?

6. Under the 1996 act, an applicant has to establish an act of violence to be entitled to compensation. Section 5 of that Act defines an act of violence as an incident apparently occurring during the commission of an offence that involves violent conduct against a person, and that has resulted in injury or death to a person.

7. Without wishing to further traumatise the applicant, it is necessary to consider the circumstances of the act of violence. On 23 October 2011, the applicant was sexually assaulted at the age of about 15 by the driver of a taxi in which he was a passenger. I note that the matter was reported to police and the offender appears to have been charged and convicted of the offence of indecent assault and aggravated sexual assault and sentenced to a term of imprisonment.

8. I note from the medical notes on file that the applicant is of an extremely fragile mental state, suffering from PTSD and (redacted) as a result of this act of violence.

9. After considering the evidence before me and, and for the reasons set out in the in the decision of the Assessor dated 17 March 2013, I find that an act of violence occurred on 23 October 2011.

Is there a reason to reduce or decline an award of compensation?

10. I am required by the legislation to consider whether there are any factors under section 30 of the 1996 Act that would lead me to decline an award to the applicant or to reduce the amount of compensation payable.

11. Having had regard to the evidence, I find no issue is relevant to section 30 of the 1996 Act.

Which compensable injuries are established?

12. The applicant is applying as a ‘primary victim’. Under section 7 of the 1996 Act, a primary victim of an act of violence is defined as a person who sustains a compensable injury as a direct result of that act.

13. Section 14 (1) (a) of the 1996 Act provides that a primary victim of an act of violence is eligible for compensation for compensable injuries received as a direct result of the act of violence.

14. The applicant has nominated the compensable injury of sexual assault – category 3.

15. Sexual assault:

Clause 6 of Schedule 1 to the previous Act is set out as follows:

6 Sexual assault

The following applies to the compensable injury of sexual assault:

(a) Category 1 sexual assault consists of:

• indecent assault, or

• an assault with violence in the course of attempted unlawful sexual intercourse.

(b) Category 2 sexual assault consists of:

• unlawful sexual intercourse, or

• the infliction of serious bodily injury in the course of attempted unlawful sexual intercourse.

(c) Category 3 sexual assault consists of:

• a pattern of abuse involving category 1 or category 2 sexual assault, or

• unlawful sexual intercourse in which serious bodily injury is inflicted, or

• unlawful sexual intercourse in which 2 or more offenders are involved, or

• unlawful sexual intercourse in which the offender uses an offensive weapon.

16. Having carefully read the police reports, and other documents on file, I consider that the act of violence falls within the definition of category 2 sexual assault.

Amount of compensation for compensable injuries

18. The injury of sexual assault – category 2 is established. Having considered the facts and the medical reports in relation to the effect of the incident on the applicant, I consider the appropriate amount of compensation in relation to the injury to be the maximum available in this category, being $25,000.

…

Total amount of statutory compensation

21. Under clause 28 (2) of the Victims Rights and Support Regulation 2013, the amount of any statutory compensation awarded to a person on reassessment is to be reduced by the amount of transitional victims support approved to the person in respect of the same act of violence. Under the 2013 Act the applicant was given a Category B recognition payment of $10,000 and a special grant of $5000. In total and amount of $15,000 was paid.

…

Conclusion

22. The evidence establishes that the applicant was the primary victim of an act of violence.

23. Statutory compensation is payable on the amount of $10,000.

Provisional order for Restitution

14. 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 of the Act:

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.

15. 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 the Act).

16. “Relevant offence” is defined in s 58 of the Act, 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. (Emphasis added)

(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.

17. 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 the Act.

18. On 30 May 2017, the Commissioner made a provisional order for restitution against the Applicant in the sum of $25,000, being the full amount of statutory compensation approved for the victim under the Reassessment Application.

19. A copy of the Provisional Order was posted to the Applicant on 1 June 2017 under cover of a letter from the Commissioner dated 30 May 2017. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.

20. Section 62 of the Act 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 the Act) and the objector bears the onus of proving their case (see: s 62 (4) of the Act).

Objection to Provisional Order

21. On 9 June 2017, the Applicant sent an email to the Commissioner, in which he stated:

I am requesting more information about this claim including the breakdown of the amount and why it is so high compared to other cases of similar offences.

22. On 9 June 2017, a Senior Client Officer, Victims Services sent an email in the following terms to the Applicant:

I refer to your email dated 9 June 2017.

I have posted a copy of the vetted notice of decision dated 5 December 2016 to your address.

The victim in this matter lodged an application for victims compensation on 18 May 2012 under the Victims Support and Rehabilitation Act 1996. The victim was awarded $15,000 on 17 March 2015 under clause 5 of schedule 2 of the Victims Rights and Support Act 2013.

The victim also lodged a reassessment application because the determination of his application was made after 7 May 2013. Victims may be eligible to have their claim reassessed if they lodged a claim under the old Victims Compensation Scheme before 7 May 2013 and it was not finalised before that date.

On the 5 December 2016, the victim was awarded $25,000 (sexual assault – category 2) for a Reassessment Application under Part 5, Division 3 of the Victims Rights and Support Regulation 2013. As the victim had only been previously awarded $15,000, an additional $10,000 payment was granted.

I am not authorised to release the COPS event report or other information obtained from the NSW Police Force. Victims Services policy does not authorise the release of medical evidence submitted in support of the victim’s injuries.

Under the circumstances, a further 28 days, from the date of this letter, is granted to Lodge an objection.

If an objection is not filed by 11 July 2017 the Commissioner of Victims Rights may confirm the provisional order.

If you need legal advice or assistance regarding this matter, you may contact Law Access NSW by phoning (number provided) for free legal advice provided to people have who have a New South Wales based at legal enquiry. Alternatively, you may contact the legal practitioner of your choice. However, Victims Services does not meet the cost of legal representation…

23. On 27 June 2017, the Commissioner received a letter from the Applicant that enclosed an Objection to the provisional order for restitution, which set out the following grounds of review:

1. The sexual act was an (sic) consensual act.

2. Other similar payouts are only $1500.

3. This claimant lied in his original statement leading to an article in the newspaper that still remains on the Internet.

4. My assets were seized and sold. I had property stolen from these asset (sic) which you hold and won’t informed me who stole them.

5. The claimant told me he was having sex in the hotel toilets with his brothers (sic) mates will stop the video of this was purposely destroyed.

6. This evidence that was destroyed is a criminal offence. The CCTV footage of the taxi, in particular the last bit before he gets that the taxi shows that the claimant was not in distress or being forced to do anything he did not want to.

7. I have lost (including income from taxi) close to $1 million already. $45,000 in defence, who misrepresented me.

8. This was a complete set up by the New South Wales police and covered up by corrupt NSW government employers including Justices, Judges, Magistrates, Crown solicitor’s, the DPP, Speakman, Grant, the Premier, and people like yourself.

9. The claimant had come out of a hotel and had been drinking (evidence destroyed). He would not take a medical rape kit as it would have shown the presence of alcohol.

10. The initial $15,000 he applied for was three charges. This shows how corrupt this government is, I pleaded out to one charge after the NSW government further destroyed evidence.

11. I am a diagnosed Paranoid Schizophrenic and am being provoked by the NSW government into trying to make me commit suicide. This whole corrupt persecution has had an absolutely detrimental effect on my health.

12. I have served my time in prison. I was bashed three times and still have lose (sic) teeth and other injuries, why am I not compensated?

13. The claimant said in his statement that he did not want any money or compensation. Is this another lie.

4. Victims of homicide get $25,000. Why is this so high.

24. In his covering letter to the Commissioner, the Applicant stated:

I wish to inform the Commissioner that all supporting information that I have in relation to this objection will be remaining with myself and most of it is being forwarded to ICAC.

You should have access to it anyway.

Any determination, as I suspect will be made unfavourably against myself, and will provide this information to the AAT and beyond.

I do wish to however to demand the documents that you are withholding in relation to who ransacked my taxi and stole my property.

(name provided) from litigation and Public Law tells me that you are holding this information. I want this information so I can initiate legal proceedings against the entities involved in this theft and other seizure of my taxi.

Once again, I do not trust any public service with evidence as you will highly likely destroy it like all other public servants and then cover up your cowardly and corrupt acts.

Determination of Objection

25. On 28 July 2017, the Commissioner’s delegate determined the Objection and decided that the Applicant was convicted of a relevant offence. The delegate decided to vary the Provisional Order to reducing the restitution amount to $15,000 to be payable by monthly instalments of $100, based upon reasons that included the following:

Grounds of Objection, Submissions and Evidence in Support

10. I have read the submissions and documents constituting the defendants notice of objection. I have carefully considered all the evidence.

11. I note that the defendant has raised many objections and contentions. While I acknowledge the defendant’s emotional distress and suffering, I am of the opinion that many, if not the majority, of his contentions are simply not relevant to the determination of restitution. The defendant has repeated allegations, raised earlier in the trial, of corruption and miscarriage of justice. He has stated his belief on suspicion that he was the victim of “a complete set-up by the NSW Police and covered up by corrupt NSW government employers, including Justices, Judges, Magistrates, Crown Solicitors, the DPP, Speakman, Grant, the Premier and people like yourself”. There is no evidence to substantiate or support the defendant’s allegations.

12. I will, however, briefly outline the relevant objections below:

a. The defendant states that the sexual act was consensual.

b. The defendant states that victims support for similar sexual acts ‘I’ve only $1500”.

c. The defendant states that the victim “lied in his original statement”.

d. The defendant states that he has lost “close to $1 million dollars already. $45,000 in defence who misrepresented me.”

e. The defendant states that he is “a diagnosed paranoid schizophrenic”.

13. The defendant has not submitted an Affidavit of Financial Circumstances.

Consideration

Should the Provisional Order be confirmed or varied?

14. Based on the evidence, the defendant was convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which the award of victims support was made.

15. That is, the victim was approved victims support related to an act of violence occurring on 23 October 2011. The defendant was convicted of a relevant offence as per section 58 of the Act, in that the offence arose from substantially the same facts as those constituting an act of violence in respect of which an approval for victims support has been given. The facts underlying the conviction on the facts underlying the approval of victims support involve an offence of the same nature, against the same person, at the same time, by the same offender.

16. I acknowledge that as a result of the criminal penalty imposed on him by the court, the defendant has already paid a serious emotional, psychological and financial cost for his actions.

17. While I acknowledge his distress, it is important to point out that the restitution process carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a “civil process”.

18. Under the Act, if a person has been convicted of the offence that led to the victim’s injury, restitution can be taken by Victims Services to recover the money from the offender. The offender may therefore be ordered to pay back all or some of the victims support payment.

19. The defendant claims that he is impecunious am unable to pay off the restitution debt now or in the future. The defendant states that he has spent a significant amount of money in trying to prove his innocence. I acknowledge the high costs of financing any legal action. However, the defendant must have known about the high costs, the merits and the risks of legal action before he proceeded and assessed his options accordingly.

20. Overall, the defendant’s objection indicates that he lacks remorse and refuses to accept responsibility for the consequences of his actions.

21. I note that the defendant appears to be suffering from ongoing mental health issues, consisting of paranoid schizophrenia.

22. I have given careful consideration as to how the enforcement of the full restitution order would be extremely financially burdensome on the defendant and would severely damage his emotional and psychological health. Therefore, I am granting leniency of the enforcement of the order on the grounds of financial and emotional hardship.

23. I hold that the restitution orders should be confirmed under the provisions of section 64 of the Act. However, I consider it reasonable and appropriate to reduce the amount to be paid under the provisional order to $15,000.

24. I am willing to offer the defendant the opportunity to make payments by monthly instalments of $100 beginning on 15 September 2017.

Service of Determination of Objection

26. A copy of the Determination of the Objection was served upon the Applicant by post under cover of the Commissioner’s letter dated 31 July 2017. I am satisfied that this document was properly served upon him, but the date upon which it was posted is not indicated in the documents before me.

27. However, in relation to this issue I note that s 76 (1) (b) of the Interpretation Act 1987 (NSW) deems the Applicant to have received the Commissioner’s letter dated 31 July 2017 on the fourth clear business day after posting. If the letter was posted on 31 July 2017, the earliest date that the Applicant is deemed to have received it is 4 August 2017. This is significant when determining whether the current Application was lodged in a timely manner.

Application for Administrative Review

28. The powers of the Tribunal upon administrative review are set out in s 67 of the Act, 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…

29. On 6 September 2017, the Tribunal received an Application for Administrative Review dated 30 August 2017, which sought review of the decision made by the Commissioner’s delegate. This set out the following grounds:

1. The amount is excessive.

2. The original decision was made on different charges.

3. There was no act of violence can meet committed.

4. Only $1500 is awarded under the charter.

5. The victim lied under oath.

6. I will provide evidence at the hearing.

30. The application indicates that the Applicant received the determination of the Objection on 7 August 2017. I am therefore satisfied that it was lodged within 60 days of the date upon which the Applicant is deemed to have received the Determination of the Objection from the Commissioner.

31. The Application came before Senior Member McAteer for directions on 13 October 2017. The Applicant was self-represented and appeared by telephone and Mr Singh appeared on behalf of the Commissioner. Senior Member McAteer listed the matter for Directions hearing on 10 November 2017 and he ordered the Applicant to file and serve any material upon which he relies on or before 10 November 2017. He noted that the Applicant was also required to notify the Tribunal of the status of a Summons (which he intended to issue) on the next occasion.

32. On 10 November 2017, Senior Member McAteer conducted a further Directions hearing. The Applicant was again self-represented and appeared by telephone, but there was no appearance on behalf of the Commissioner. The Senior Member made the following orders:

1. The proceeding is listed the hearing on 22 December 2017…

2. Commissioner of Victims Rights as to give to the tribunal and the other party, an Affidavit stating the reasons for non-attendance on 10 November 2017 before the Tribunal (bearing in mind their correspondence to the applicant dated to November 2017, and NCAT correspondence dated 8 November 2017) on or before 24 November 2017.

3. Approval is given to (the Applicant) to issue summons by 16 November 2017 to produce CCTV footage of full shift/footage record of taxi on 23 October 2012 (2011) referred to in brief of evidence in R v (the Applicant) to the Office of the Director of Public Prosecutions. Such Summons is issued on or before 16 November 2017 and is to be returnable on or before 23 November 2017.

4. (The Applicant) is to give to the Tribunal and the other party, any material on which that party relies on or before 15 December 2017.

5. Commissioner of Victims Rights is to give to the Tribunal and the other party, any material in reply or written submissions as to jurisdiction or any other matter on or before 21 December 2017

33. The Tribunal also noted that the Applicant will liaise with the respondent in the period 24/11/2017 (after Summons returnable) to 20/12/2017 to see if an agreement on the matters can be reached.

34. In accordance with the Orders made on 10 November 2017, the Commissioner’s delegate, Mr Ting, swore an Affidavit on 16 November 2017, in which he explained his non-attendance on 10 November 2017. The Tribunal accepts that explanation and is satisfied that no further action is required in relation to this matter.

35. The matter came before me for hearing on 22 December 2017. The Applicant was self-represented and appeared in person and Ms Sabesan, Victims Services, appeared for the Commissioner.

36. The Applicant sought to rely upon CCTV Footage from 2 cameras inside the taxi as evidence that he was not guilty of sexual assault. However, the forage had been provided in a CD/DVD format and the Tribunal was unable to view this from the Bench. I determined that this footage would be viewed in Chambers before the application was determined and I proceeded to hear the parties’ submissions.

Applicant’s Submissions

37. The Applicant pressed all the grounds set out in the Application for Administrative Review and he spoke to them as follows:

1. The amount is excessive.

2. In relation to this ground, the Tribunal noted that upon determination of the applicant’s Objection, the Commissioner reduced the amount of restitution from the total awarded to the victim upon reassessment ($25,000) to the amount of victims support that was initially approved under the Act ($15,000). However, the Applicant maintained that the amount awarded was excessive.

3. The original decision was made on different charges.

4. The Applicant stated that he was initially charged with “aggravated sexual assault” and 2 charges of “aggravated indecent assault” and that he was “accused of rape”. He argued that the first decision (which I note was the initial approval of victims support for the victim) was made before the convictions were entered by the Court of Criminal Appeal). He stated that he intends to appeal against the decision of the Court of Criminal Appeal to the High Court of Australia, the International Court of Justice and the International Human Rights Court and informed the Tribunal, that “this matter is far from over”.

5. The Applicant also submitted that he was the victim of “a secret government carousel of corruption” in that the evidence in this application (the application for statutory compensation by the victim) was withheld from him. He also believed that the victim had lied when he stated that he did not want compensation and expressed the opinion that the entire judicial process “is utterly farcical”.

6. There was no act of violence committed

7. The Applicant argued that the victim had lied and that this was reported in a newspaper, which repeated his lies, and he denied raping the victim.

8. Assets were seized and stolen

9. The Applicant submitted that he obtained business finance from a bank (identified), but NSW Police seized the taxi vehicle for the purpose of conducting forensic investigations. The bank then repossessed the taxi and sold it to Newcastle taxis, which then removed $7500 worth of his assets from the taxi. The bank is deducted the finance debt and paid the balance of sale proceeds to NSW Police. When the Applicant won his case for return of his assets he had to “deal with” the Attorney General’s office to find out where the assets/proceeds were and learned that they were being held by Victims Services. He said that he has evidence of this, namely a letter which stated that the balance of the proceeds of sale ($6,700) were being held by the Victims Compensation Fund under the Proceeds of Crime legislation. He argued that these monies should never have been taken from him and that it has caused him financial hardship as he was then unable to obtain finance because of a “black credit rating”. He also argued that Victims Services should be required to pay him interest.

38. In relation to the Provisional Order, the Applicant stated that he does not dispute that he was convicted, but he said that he “had to plead out.” Following the trial in the District Court, in Newcastle, in February 2013, he was convicted and imprisoned. He appealed to the Court of Criminal Appeal on all matters in October 2014. The convictions were quashed and the matters were remitted to the District Court for re-trial. The re-trial occurred in September 2015, at which time NSW Police could not locate the CCTV footage. He decided to plead guilty, but he was not advised that he would be placed on a Child Sex Offenders Register and that he could be the subject of a restitution order. He lodged a further appeal to the Court of Criminal Appeal has evidence had been destroyed, but that of appeal failed. He argued that this was evidence of a “constitutional error” by the Court.

Commissioner’s Submissions

39. Ms Sabesan relied upon the written submissions filed on 18 December 2017, which provided (relevantly):

2. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself these questions:

a. Was a victim awarded compensation, and if so, upon what facts?

b. Was the applicant found guilty of an offence, and if so, upon what facts?

c. Having regard to a. and b., was the offence with which the applicant was convicted a relevant offence under section 58 of the Victims Rights and Support act 2013 (the Act)?

d. If the answer to c. is “yes”, is there any reason why the applicant should not reimburse the State for the money that was paid to the victim, such as financial circumstances?

Provisional orders for restitution can be made under the Act

3. The questions at paragraph 2 above are based on the Commissioner’s interpretation of the Act, which is as follows.

4. The Commissioner’s power to make provisional orders for restitution comes from Part 5 of the Act. The purpose of Part 5 of the Act is, broadly, to allow money paid to victims by the State to be recovered from persons found guilty of the crimes giving rise to those payments (s 57 of the Act).

5. The Commissioner may make a provisional order if she under section 59 in the following circumstances:

1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person.

2) An order may not be made against a person if:

(a) two years or more have elapsed since:

(i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or

(ii) the date on which the person was convicted of the relevant offence, whichever is the later, or

(b) Civil proceedings have been commenced or are being maintained against the person, by on behalf of the State, in respect of an action to damages arising from substantially the same facts as those on which the relevant approval was based.

6. A “relevant offence” under section 58 is defined as follows:

(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 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 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 the Act.

7. To be of the opinion that a person has been convicted of a relevant offence requires an understanding of both the facts giving rise to the court’s finding of guilt and also the facts giving rise to payment of victims support. Those facts are “jurisdictional facts”. They ground the Commissioner’s jurisdiction to make a provisional order. In the absence of either, the Tribunal cannot confirm the provisional order.

Compensation was awarded to victims of crime

8. On 5 December 2016, the victim (name provided) was approved a total of $25,000 victims compensation. As background, the victims submitted an application for victims compensation on 18 May 2012 under the Victims Support and Rehabilitation Act 1996 (the 1996 Act).

Commissioner’s Submissions

40. Ms Sabesan relied upon the written submissions filed on 18 April 2017, which provided (relevantly):

2. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself these questions:

a. Was a victim awarded compensation, and if so, upon what facts?

b. Was the applicant found guilty of an offence, and if so, upon what facts?

c. Having regard to a. and b., was the offence with which the applicant was convicted a relevant offence under section 58 of the Victims Rights and Support act 2013 (the Act)?

d. If the answer to c. is “yes”, is there any reason why the applicant should not reimburse the State for the money that was paid to the victim, such as financial circumstances?

Provisional orders for restitution can be made under the Act

3. The questions at paragraph 2 above are based on the Commissioner’s interpretation of the Act, which is as follows.

4. The Commissioner’s power to make provisional orders for restitution comes from Part 5 of the Act. The purpose of Part 5 of the Act is, broadly, to allow money paid to victims by the State to be recovered from persons found guilty if the crimes giving rise to those payments (s 57 of the Act).

5. The Commissioner may make a provisional order if she (or one of her delegates (s 9 (2) of the Act; s 49 Interpretation Act 1987) is of the opinion that a person has been convicted of a relevant offence and, generally speaking, no more than two years has passed since either the conviction or payment to the victim, whichever is the later (s 59 of the Act).

6. A “relevant offence” includes an offence involving one or more acts of a series of related acts in respect of which a payment has been made to a victim. It also includes a conviction for substantially the same facts as those upon which the payment to the victim was approved (s 58 of the Act).

7. To be of the opinion that a person has been convicted of a relevant offence requires an understanding of both the facts giving rise to the court’s finding of guilt and also the facts giving rise to payment of victims support. Those facts are “jurisdictional facts”. They ground the Commissioner’s jurisdiction to make a provisional order. In the absence of either, the Tribunal cannot confirm the provisional order.

Compensation was awarded to victims of crime

8. On 5 December 2016, the victim (name provided) was approved a total of $25,000 victims compensation. As background, the victims submitted an application to the victims compensation on 18 May 2012 under the Victims Support and Rehabilitation Act 1996 (the 1996 Act).

9. On 7 May 2013, the Act was introduced into Parliament. At that time, the victim’s application had not yet been finally determined. On 17 March 2015, the victim’s application was determined as per Clause 5 of Schedule 2 of the Act.

10. The victim folder reassessment application on 20 October 2016. The victim was able to folder reassessment application as the determination of his application was made after 7 May 2013. On 5 December 2016, a delegate for the commission determined that the victim was a primary victim of an act of violence, namely sexual assault, perpetrated by the applicant that occurred on 23 October 2011 and suffered the injury of Sexual Assault – category 2.

11. According to the evidence before the decision maker including Police Report (number provided), on 23 October 2017 (sic), the victim aged 15 entered into a taxi driven by the applicant was sexually assaulted in the course of the taxi service to his home. The applicant was charged with a range of sexual assault offences.

12. The decision was made on the basis that the victim suffered an injury as a result of the sexual assault committed by the applicant.

The applicant was convicted of an offence

13. According to Police reports and Justicelink records, the applicant was charged with indecent assault person under 16 years of age (two counts); aggravated sexual assault – victim under the age of 16 years (one count); have sexual intercourse with person more than 14 and less than 16 years (one count).

14. According to the Court of Criminal Appeal judgment: on 30 September 2015, the applicant pleaded guilty to one count of sexual intercourse with a person between the age of 14 and 16 years and was sentenced to a period of imprisonment of three years. At the time of the offence, the complainant was a 15-year-old student. The offence occurred when the applicant, who was a taxi driver/owner, was driving the complainant from a hotel, where the complainant had been with his parents and family.

…

17. It is submitted that for the purpose of the administrative review before the Tribunal, the culpability of the offender at the time of the offence is not a relevant consideration. The relevant consideration is whether the applicant was convicted of the offence.

41. The Commissioner cited a number of decisions of this Tribunal, in which the Tribunal held that it has no power to look behind the conviction in determining an administrative review of a provisional order for restitution, namely: Clow v Commissioner of Victims Rights [2017] NSWCATAD 40; Xiang v Commissioner of Victims Rights [2017] NSWCATAD 316; and Kabir v Commissioner of Victims Rights [2015] NSWCATAD 172.

42. The Commissioner concluded that the Assessor found that the victim was eligible for victims compensation as he was the victim of sexual assaults committed by the Applicant on 23 October 2011, which were a series of related acts. The Applicant has been convicted of a relevant offence because, in substance, the facts underlying the conviction on the facts underlying the approval of victims compensation are substantially the same. They involve an offence of the same nature, against the same person, at the same time, by the same offender. Accordingly, the correct and preferable decision is for the Tribunal to confirm the decision that is under review.

Applicants submissions in response

43. in response to the Commissioner’s submissions, the applicant argued that “medical facts” are missing, namely he has not been provided with medical evidence of injury suffered by the victim, and he also argued that he should be excluded from restitution because of his mental illness (paranoid schizophrenia). He maintained that s 19 of the Act was not satisfied as there was no act of violence, but also stated that as he was only convicted of a single offence a category B recognition payment had been incorrectly awarded to the applicant.

44. The Tribunal notes that on behalf of the Commissioner, Ms Sabesan conceded that the appropriate category of recognition payment for a single act of sexual assault is category C (s 35 (3) (a)) and that the amount payable is $5,000.

45. The Applicant also demanded “credit for interest not paid” to him by the Commissioner.

Consideration

46. The Commissioner’s discretion under s 59 (1) of the Act to make a provisional order for restitution is dependent on the person against whom the order is made being convicted of a relevant offence.

47. 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.

48. In this matter, the Provisional Order alleged that the Applicant was convicted of a relevant offence by the Court of Criminal Appeal on 19 May 2017, which confirmed his conviction in the District Court of New South Wales for the offence of “Have sexual intercourse with a person aged between 14 and 16 years”.

49. The Applicant maintains that there was no act of violence as the sexual act was “consensual”, and he relied upon CCTV footage from the two cameras that were active in his taxi during the relevant journey, which were produced under Summons by the Office of the Director of Public Prosecutions, on the basis that the footage proves that he “…did not rape the victim”.

50. I viewed the CCTV footage after the hearing but in my view, it does not assist the Applicant in this matter for the following reasons:

1. The footage, which does not include a sound track, clearly records the sexual assault as described in the Police Cops Event report and Court documents;

2. This Tribunal has no power to look behind the terms of a conviction;

3. In this matter, the Applicant pleaded guilty to a single charge of sexual assault against the victim and while he appealed against that conviction to the Court of Criminal Appeal, that Court confirmed it; and

4. The victim was 15 years old at the time that the sexual assault occurred and as the legal age of consent in New South Wales is 16 years, he was legally incapable of consenting.

51. Accordingly, the Tribunal is satisfied that the Applicant was convicted of a relevant offence for the purposes of s 59 (1) of the Act.

52. The Applicant specifically declined to lodge an Affidavit of Financial Circumstances in support of his Objection to the Provisional Order and he has not lodged any Affidavit of Financial Circumstances in support of the Application for Administrative Review.

53. Accordingly, while the Applicant has made submissions to the Tribunal regarding the economic loss that he allegedly suffered as a result of his being charged, prosecuted and convicted of a relevant offence, there is no verified evidence of these matters before the Tribunal.

54. The Applicant bears the onus of proving any alleged lack of financial capacity to satisfy a restitution order and in the current matter I am not satisfied that he has discharged that onus.

55. This Tribunal lacks jurisdiction to review the Commissioner’s decision to approve victims support for the victim. However, I note that the initial approval of victims support for the victim pre-dated the final determination of the criminal proceedings against the Applicant. The Assessor approved a Category B recognition payment (in the sum of $10,000) for the victim based on available evidence that the Applicant was charged with more than one act of sexual assault against the victim and the Assessor determined that these multiple sexual assaults were a series of related acts of violence.

56. However, the Commissioner has conceded that as only a single charge against the Applicant proceeded to trial and conviction, the definition under s 35 (3) (a) of the Act is satisfied and the appropriate category of recognition payment is category C, for which an amount of $5,000 is payable. In my view, this concession is relevant to the determination of the order that the Tribunal should make under s 67 (1) (a) of the Act.

57. I further note that upon determination of the objection, the Commissioner’s delegate determined that it was appropriate to vary the amount of restitution by reducing it from $25,000 (the total amount of statutory compensation ordered in relation to the reassessment application) to $15,000 (the total initially approved by way of victims support). The latter amount included a special grant of $5,000 under cl 5 of Sch 2 of the Act.

58. In my view, it is appropriate to vary the restitution order by reducing the amount of restitution payable to $10,000, comprising the amount payable for a category C recognition payment ($5,000) and the special grant ($5,000). I am further satisfied that this should be payable by monthly instalments of $100.

Order

59. I make the following orders:

1. The Provisional Order is confirmed subject to the following variation.

2. The liability of the applicant is reduced to $10,000, payable by monthly instalments of $100.

********

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: 27 March 2018