Chapman v Commissioner of Victims Rights

[2023] NSWCATAD 250

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Chapman v Commissioner of Victims Rights [2023] NSWCATAD 250

Hearing dates:

9 June 2023

Date of orders:

25 September 2023

Decision date:

25 September 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

1. Pursuant to s 67(1)(a) of the Act, the restitution order dated 1 December 2022 is confirmed.

2. However, the restitution order is varied as follows: The restitution sum is reduced to $2,250 pursuant to s 67(2A) of the Act; and The restitution sum is payable within 90 days of the date of this decision.

Catchwords:

ADMINISTRATIVE LAW – merits review – Victims Rights and Support – restitution order against person convicted of relevant offence – financial hardship – restitution order varied

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

None

Texts Cited:

None

Category:

Principal judgment

Parties:

John Chapman (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Self-represented (Applicant)
P Srikanth, Victims Services (Respondent)

File Number(s):

2023/00032164

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 made an application for administrative review of a restitution order made on 1 December 2022 by the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $4,500, being the full amount of victims support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).

Award of victims support to the victim

2. On 23 July 2019, the victim lodged an application for victims support under the Act, which alleged that she was the primary victim of an act of domestic/family violence, which was perpetrated by the applicant over a period of time from 1 March 2018 to 21 June 2018 at Lethbridge Park, in New South Wales. She alleged that she suffered “physical, emotional, psychological, financial abuse, stalk intimidate, offence breach of ADVO” as a result of the act of violence and claimed victims support in the nature of financial assistance for immediate needs and a recognition payment.

3. On 5 August 2019, an Assessor (Client Claims) issued a Notice of Decision in relation to the claim for financial assistance for immediate needs and approved payment to the victim in the sum of $3,000 (for security cameras and costs of a removalist).

4. On 6 May 2020, an Assessor (Client Claims) issued a Notice of Decision in relation to the claim for a recognition payment and approved a category D recognition payment in the sum of $1,500. This was approved on the basis that the victim was the primary victim of an assault not resulting in grievous bodily hard: s 35(4)(d) of the Act.

Order for restitution

5. 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.

6. The statutory scheme gives the respondent a discretion to make an order for restitution 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) of the Act).

7. “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.

8. A restitution 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.

9. In this matter, Court documents indicate that the applicant was charged with the offences of “stalk/intimidate intend fear physical etc harm (personal)” and “contravene prohibition/restriction in AVO (Domestic)” with respect to the victim and that he pleaded guilty.

10. On 9 April 2018, Mt Druitt Local Court found him guilty of the offences and placed him on a good behaviour bond for a period of 12 months (each offence) under s 10(1)(b) of the Crimes (Sentencing and Procedure) Act 1999 (The CSP Act).

11. On 10 June 2022, the respondent made an order for restitution against the applicant in the sum of $4,500, being the full amount of victims support that was approved for the victim. A copy of the order was posted to the applicant under cover of a letter from the respondent dated 10 June 2022.

12. I am satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.

13. Section 62 of the Act gives a person against whom an order for restitution 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).

14. On 7 July 2022, the applicant submitted an objection to the restitution order, in which he stated, relevantly:

• You state that I was convicted of acts of violence… That is incorrect, I’ve NEVER been convicted of any act of violence to anybody.

• On the 9^th April 2018 I was given an ADVO.

• An ADVO is not a conviction or a criminal offence.

• If the money was for immediate needs, why did it take her over a year to apply? Because she is using the system to gain money by way of fraud.

• You gave her money and didn’t look into the evidence… there has never been any claims of violence before or after the ADVO, she used the system to get a new house and to make it look bad in Family Court.

• The ADVO again is proof of the mother using the system, I said the F word in a voice message (out of caritor) along with a few missed chosen words…

• The ADVO has cost me my marriage, my wife, my children (who are now suffering psychological and emotional abuse) my future and my financial status.

Since the ADVO the mother has used the police to try to get me arrested on several charges but all dismissed!!! She also used the Family Court’s system to stop me seeing the children by way of lies, I’ve now got my lawyer and a forensic Psychologist who are preparing reports to prove these claims, I’m more than happy to forward the 630 pages of evidence I have and to invite you to the final hearing so you can see for yourself how you and myself have been used by this evil person I used to call my wife.

So I’m not willing to pay anything and willing to go to a hearing of any type to prove she never was/is a victim of violence.

15. On 1 December 2022, an Assessor issued a Notice of Determination of Objection under s 65 of the Act. The Assessor confirmed the restitution order and stated, relevantly:

23. The defendant has stated in his reasons for objection that he has never been convicted of an act of violence and that on 9 April 2018 an Apprehended Domestic Violence Order was put in place which is not a conviction or criminal offence.

24. Available Court records state that the defendant entered a plea of guilty to the offence of Stalk/intimidate intend fear physical harm which was accepted at Mr Druitt Local Court on 9 April 2018. The defendant was found guilty of this offence but without proceeding to convicted was directed to enter into a good behaviour bond for 12 months pursuant to section 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

25. Whilst no conviction was recorded against the defendant by the Court for the offence of Stalk/intimidate intend fear physical harm, section 3 of the Act states that for the purpose of restitution, a ‘conviction’ includes an order made under section 10 of the Crimes (Sentencing Procedure) Act 1999.

26. It is therefore apparent that for the purposes of determining the defendant’s objection to the Order for Restitution under the Act, that the defendant was ‘convicted’ of an offence in respect of which victims support was approved and that the Order for Restitution has been duly made within the scope of the Act.

Concerns over victims support approved

27, The defendant has raised concern over financial assistance for immediate needs that was approved to the victim and that the evidence relied upon was not looked into. The defendant asserts that the victim has also used the system to get a new house and to make it look bad in Family Court.

28. In terms of my role in determining restitution, I am not in the position to overturn the findings of the Assessor in the original decision. Nor can the defendant ask me to ‘go behind’ that decision-maker’s evidence or to call into question their reasoning.

29. This does not mean that I am accepting that decision at face-value. Rather, I note that the original decisions were based on objective documentary evidence contained within the available NSW Police and NSW Court records in conjunction with the supporting documentation on file which includes a counselling report. I hereby affirm the decision of the original decision makers.

Impacts of the Apprehended Domestic Violence Order

30. In the defendant’s typed submission, the defendant advises that the ADVO in place has impacted his relationships and his financial circumstances.

31. With this objection, the defendant asserts that the ADVO has been used by the victim to try to get the defendant arrested on several charges which were subsequently dismissed.

32. The defendant further asserts that the Family Court system has been used by the victim to stop him from seeing the children but that he now has a lawyer and forensic psychologist preparing reports to prove these claims.

33. I acknowledge that the defendant believes that the above circumstances mitigate his responsibility to the restitution debt sought by him. However, it is most relevant that under the Act, the defendant has been convicted of an offence in respect of which victims support was approved.

34. Overall, I am of the view that the restitution order should be confirmed under the provisions of section 64 of the Act.

16. The Assessor advised the applicant of his rights to seek administrative review of their decision within 60 days of the date of the determination.

17. I note that a copy of that decision was posted to the applicant under cover of a letter from the respondent dated 1 December 2022. I am therefore satisfied that the decision was served in accordance with the provisions of the Act.

Application for administrative review

18. The powers of the Tribunal upon review are set out in s 67 of the Act 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.

19. On 27 January 2023, the applicant wrote to the respondent in response to the determination of his objection and stated that he wanted to “use my rights as put to me in Number 36 under section 66”. He stated, relevantly:

I again would like to ask you to look into this claim as I still think (and know that the mother has lied/misled you into thinking she is the victim of DV.

First, I would like to point out Number 12 in your letter, it states an act of domestic/family violence at Lethbridge Park in 2018… I’ve no idea where you got this information but again I will sate the victim (name provided) has NEVER received an injury as a result of violence from me nor has any such allegation been made to the police!!! FACT. Like I’ve said before the mother is misleading you, a allegation was made by the mother (the only one she has ever made) that I assaulted my son which was later dismissed by the police without any charges and that was on 30^th March 2018 not 5^th April !!!(see transcript). As this is not the victim you are referring to (name provided) in this letter and that it didn’t happen at the address stated (I was at (address provided)) and the fact that there was no charge nor ADVO given I have no idea what you are talking about and therefore should NOT be connected in this claim!!, but the ADVO was for swearing in a voice message which I sent from Newcastle not Lethbridge Park!! The ADVO is not a crime but in 14 of your letter the Court outcome was a good behaviour bond… Again not true the good behaviour bond was for a breach (where sent a text stating I love her!!) telling my wife I love her is now a crime? It has nothing to do with the original claim for a ADVO.

I’ve got a court transcript where the police officer was questioned about the charge on my son and he clearly states he didn’t put a ADVO for the protection on son, and that was the only allegation ever to be put to the police like I’ve stated many times… The mother is lying/misleading you to gain money which I see as a FRAUD!!

In summary in relation to 19 of your letter, there is not an offence of the same nature, nor against the same person not at the same time by me.

I’m including the relevant parts of the transcript to prove that there was never an ADVO taken out for the protection of my son as this is the only allegation made where there was an alleged injury (which was not the victim in this case).

The police officer clearly states the ADVO was for protection of JJ for an allegation on 30^th March, but the Judge clearly states the AVO (which there was only 1) was for a voice message on the 5^th April and he makes it very clear that there are some contradictions!!! It’s clear that the police officer didn’t do an AVO for JJs protection which rules out the injury, he also concedes that the mother did not report any allegations of assaulting her and that she never reported that she was frightened! Again difference allegations on different dates to different people.

I’m asking for this to be reviewed as there is lots of contradictions between facts, and there has NEVER been an allegation of injury to your so called victim at any time, and the dates and places are all mixed up, the mother is clearly putting bit from one case to another to make a claim. FRAUD.

20. In an undated email to the applicant, the respondent stated:

I refer to your correspondence regarding Notice of Determination of Objection. I advise that Victims Services is unable to review the Commissioner’s decision dated 6 October 2022.

Your review rights are set out in section 66 of the Victims Rights and Support Act 2013. Please note that an application for review must be lodged at the NSW Civil and Administrative Tribunal within 60 days of the date of issue of the Notice of Determination of objection…

21. On 31 January 2023, the applicant filed the current application for administrative review, which asserted that the victim had “lied/mislead victim support to believe she is a victim of DV. She should have not receive any money. This is fraud”.

Procedural matters

22. The matter came before me for Directions on 3 March 2023. The applicant appeared in person and Ms P Srikanth, Victims Services, appeared for the respondent. The Tribunal noted that the applicant asserts that the claim for victims support was fraudulent and that he disputes that he was subjected to a s 10 bond with respect to a relevant offence. I directed the respondent to file and serve its documents under s 58 of the ADR Act by 31 March 2023 and ordered the respondent to file and serve its summary of legal arguments by 5 May 2023. I listed the matter for hearing on 9 June 2023.

23. However, the applicant subsequently alleged that the respondent failed to comply with the orders made on 3 March 2023 and the matter came before me for further directions on 14 April 2023. The applicant again appeared in person and the Ms Srikanth appeared for the respondent. I ordered the applicant to file and serve any evidence that he intended to rely upon by 5 May 2023 and I ordered the respondent to file and serve s 58 documents and a summary of legal arguments by 19 May 2023. I confirmed the hearing date.

24. The applicant later applied to have a summons to give evidence issued to the victim.

25. However, on 26 May 2023, the Registrar refused to issue the summons as the relevance of the evidence to the restitution review was not evident.

The hearing

26. The matter came before me for hearing on 9 June 2023. The applicant appeared in person and Ms Srikanth appeared for the respondent.

27. I note that the applicant had filed a large volume of documents in support of his arguments that the victim was not a victim of an act of violence perpetrated by him and that he was not convicted of a relevant offence.

28. The applicant told the Tribunal that the claim for financial assistance was fraudulent and therefore the restitution order should not have been made against him. He said that he sent the victim a voicemail as she was not answering his calls and he told her that he was “f***ing coming down to sort it out”.

29. The applicant also stated that he has had eight hearings in the Local Court and Family Court relating to Custody/Access (Parenting Orders), a property dispute and a claim for child maintenance. He is currently paying the victim $650 per fortnight by way of child maintenance and as a result, he has had to re-mortgage his house twice. He currently pays approximately $2,500 per month on the mortgage and he has a loan of $20,000, which he is paying off at $400 per month. Therefore, his monthly outgoings for loan/mortgage repayments and child maintenance total $4,240.

30. The applicant stated that he works at the Steelworks in Newcastle and that he sometimes gets overtime, but if he does overtime, his child support payments increase so that 1/3 of the overtime payments go towards child maintenance. Otherwise, his mother (who lives in the United Kingdom) send him money from time to time and she had sent him $17,000 to assist with his legal costs.

31. The Tribunal referred to the s 58 documents and drew the applicant’s attention to the report from JusticeLink (at pages 37 and 38), which clearly indicate that he pleaded guilty to the charges of “Stalk/intimidate intend fear physical harm etc (personal)” and “Contravene prohibition/restriction in AVO (Domestic)” on 9 April 2018 and that the Court placed him on a 12-month good behaviour bond under s 10(1)(b) of the CSP Act with respect to each charge. These are classed as a conviction by operation of s 3 of the Act.

26. The Tribunal also noted that contrary to his assertions to the respondent dated 27 January 2023, the ADVO was clearly issued in favour of the victim in respect of the voicemail message that he left for her and subsequent events that are indicated in the statement of facts that the police placed before the Court.

27. The applicant then stated that he wished to proceed based solely on the grounds of financial hardship. However, as he had not filed any documentation in support of a claim for financial hardship, the Tribunal made the following orders:

1. The Tribunal notes that the applicant is proceeding in the current application solely on the basis of financial hardship;

2. The respondent is to send to the applicant a prof-forma affidavit of financial circumstances by 16 June 2023;

3. The applicant is to file and serve an affidavit of financial circumstances and supporting document by 23 June 2023; and

4. The respondent can file and serve further submissions regarding the applicant’s financial circumstances by 30 June 2023.

34. Section 50 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) provides:

50 When hearings are required

(1) A hearing is required for proceedings in the Tribunal except—

(a) in proceedings for the granting of leave for an external or internal appeal, or

(b) in connection with the use of any resolution processes in proceedings, or

(c) if the Tribunal makes an order under this section dispensing with a hearing, or

(d) in such other circumstances as may be prescribed by the procedural rules.

(2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal.

(3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first—

(a) afforded the parties an opportunity to make submissions about the proposed order, and

(b) taken any such submissions into account.

(4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules.

(5) This section does not prevent the Tribunal from holding a hearing even if it is not required.

35. I was satisfied that a further hearing would not be required and that the matter could adequately be determined in the absence of the parties by considering written submissions and other documents lodged with the Tribunal.

36. Accordingly, I dispensed with a further hearing and reserved the matter for determination on the papers after 30 June 2023.

Applicant’s further evidence

37. On 27 June 2023, the applicant filed a “Request for Fee Waiver” document with the Tribunal in which he asserted:

I’m 54 and I’m relying on my 80 yo widow pensioner to send money to buy food and pay to see my kids from other country (UK). If I have to pay any more money I will end up homeless, which will leave my children without a home when they see me! These false allegations are killing me and leaving me in very serious financial hardship.

38. The applicant disclosed that he earns $2,200 net per fortnight and that his expenses total $2,538 per fortnight. However, this does not include Child support (currently $658.73 per fortnight), costs of driving to Sydney to see his children ($50 per fortnight), medication costs $50 per fortnight), home & car insurance ($35 per fortnight) and Council rates ($81 per fortnight). In all, he asserted fortnightly expenses of $3,413. While he said that his “figures” do not include overtime, he will be liable for extra child support when he submits his tax return.

Respondent’s submissions

39. The respondent filed written submissions, which argued to the effect that the Tribunal should confirm the restitution order without variations under s 67(1) of the Act and confirm the restitution order in the sum of $4,500 under s 67(2A) of the Act.

Consideration

40. Based on a consideration of the available evidence, I am satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence that was committed by the applicant.

41. I am also satisfied that the restitution order was made within the time permitted by s 59(2)(a) of the Act.

42. In this matter, the evidence before the Assessor indicated that the victim was experiencing a significant level of post-trauma symptoms as a result of the domestic violence she experienced and that she was planning to relocate. However, there is no evidence that she suffered any physical injury. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the victim.

43. However, s 69(1) of the Act provides that the Tribunal may reduce the amount to be paid under an order for restitution that it confirms having regard to—

(a) the financial means of the defendant, and

(b) such other matters as are, in the opinion of the Tribunal, relevant to the determination.

44. In my view, the applicant’s current financial circumstances are precarious and I am satisfied that he is currently suffering financial hardship.

45. On that basis, I have decided that the correct and preferable decision is to vary the restitution order under s 69(1)(a) of the Act so as to reduce the total payable to $2,250 ( a reduction of 50%).

Conclusion and orders

46. I make the following orders:

1. Pursuant to s 67(1)(a) of the Act, the restitution order dated 1 December 2022 is confirmed.

2. However, the restitution order is varied as follows:

1. The restitution sum is reduced to $2,250 pursuant to s 67(2A) of the Act; and

2. The restitution sum is payable within 90 days of the date of this decision.

**********

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: 25 September 2023