DKZ v Commissioner of Victims Rights

[2018] NSWCATAD 86

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DKZ v Commissioner of Victims Rights [2018] NSWCATAD 86
Hearing dates:	24 November 2017
Date of orders:	24 November 2017
Decision date:	19 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The time for lodging the application for administrative review is extended to 21 August 2017.  (2) The decision of the Commissioner for Victims Rights requiring the Applicant to make restitution is reversed.
Catchwords:	ADMINISTRATIVE LAW – merits Victims Rights and Support - restitution order against person convicted of relevant offence – requirement that there be a conviction for relevant offence – restitution not available where no conviction for relevant offence
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
Category:	Principal judgment
Parties:	DKZ (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: Self-represented (Applicant) S Sabesan (Respondent)
File Number(s):	2017/00253946
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 5 May 2017 by the delegate of the Commissioner of Victims Rights (the Commissioner). This required him to pay restitution of $5,600, by payments of $200 per month, 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. In this matter, on 9 December 2013, the victim (the Applicant’s ex-wife) lodged an Application for Financial Assistance for Immediate Needs under the Act, in which she alleged that she had been the victim of numerous acts of assault (domestic/family violence) that were perpetrated by the Applicant over a period from 2008 to April 2012 and that she had suffered both physical and psychological injuries as a result.

4. On 7 February 2014, the victim lodged an application for victims support (recognition payment) under the Act, in which she alleged the same acts of violence.

5. The victim reported the matters to Police on 24 April 2011. There is no COPS Event report in the documents before me, but I note that the Facts Sheet that Police submitted to Wollongong Local Court indicates that on 28 April 2011, an argument began between the Applicant and the victim, after which the Applicant left for work and the victim took two children to school and another child to a medical appointment. At about 9:30pm that day, the Applicant returned home and found the victim and youngest child asleep on the lounge. The Applicant demanded to know if the victim had fed the dog and then shouted that the victim and children had left all the lights on. The Applicant then went into the study and turned on the computer. The victim wanted to discuss the matter, but the accused did not wish to do so. The victim then pulled the plug out of the computer and disconnected it. The Applicant said, “All the stuff is mine anyway” and the victim replied, “We should all be able to use the stuff”. The victim then made a cup of tea and sat down to watch the television. However, the accused turned the television off and removed the remote controls and threw a basket at the victim in her back. She turned around and the Applicant threw a second basket at her front, then grabbed her from behind and put her in a head lock. The Applicant has a prosthetic arm and the victim pushed it away and managed to break free, but while doing so her cup of tea spilled over the Applicant. The Applicant then pulled the victim’s hair, which removed a clump, and then swung his prosthetic arm at her and struck her on the right cheek area. She put out her right arm to prevent the Applicant from striking her again and cut her middle right finger on his prosthetic arm. The Applicant then walked away. The victim was then taken to Wollongong Hospital by Ambulance and then contacted Police. Police attended the Hospital and observed that the victim had a swollen right black eye and a bandaged right middle finger. She provided a statement.

6. On 29 April 2011, Police attended the residence of the Applicant and victim and arrested and cautioned the Applicant. He was taken to Wollongong Police Station. He accepted the offer of an electronic interview, but he was unable to explain how the victim sustained her injuries.

7. JusticeLink records indicate that the Applicant was charged with Assault occasioning actual violence domestic violence related (s 59 (1) of the Crimes Act 1900) and Contravene prohibition or restriction in an apprehended domestic violence order (s 14 (1) Crimes (Domestic and Personal Violence) Act 2007). The Applicant pleaded not guilty to both charges, but he was convicted in Wollongong Local Court on 1 July 2011 and was placed on a Bond under s 9 of the I.

8. I further note that the Applicant breached the Bond, which resulted in further proceedings against him in Wollongong Local Court and that he was convicted of that breach on 16 May 2013 and was imprisoned for a period of two months.

9. On 17 May 2013, the Applicant submitted an appeal to the District Court of New South Wales, but the conviction was confirmed.

Award of Victims Support to the Victim

10. On 8 April 2014, an Assessor (Client Claims) determined that an act of violence had been established on the balance of probabilities and approved payment of victims support to the victim in the sum of $7,903, comprising financial assistance for immediate needs in the sum of $2,903 a Category C Recognition Payment pursuant to s 36 (1) (d) of the Act in the sum of $5,000. In approving the recognition payment, the Assessor determined that the victim had suffered grievous bodily harm as the medical evidence indicated that she had suffered a fractured nose which required surgery.

11. In this matter, there is no dispute that the Applicant was arrested and charged with assault occasioning actual bodily harm arising from an act of violence against the victim on 28 April 2011.

Provisional order for Restitution

12. 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.

13. 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).

14. “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,

(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.

15. 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.

16. On 31 January 2017, the Commissioner made a Provisional Order for restitution against the Applicant in the sum of $7,903, being the full amount of victims support that was approved for the victim. However, the Provisional Order indicated the date of conviction as “17 May 2013” and the place of conviction as “Wollongong District Court”.

17. A copy of the Provisional Order was posted to the Applicant on 31 January 2017, under cover of a letter from the Commissioner of that date. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.

18. 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

19. On 24 February 2017, the Applicant signed an Objection to the Provisional Order for restitution, which set out the following grounds of review (relevantly):

…In 2012, in an attempt to reconcile with the victim and repair our relationship the victim and I together with the children went on a motoring holiday to Queensland. While returning (home) an argument developed with the victim regarding the behaviour of the children while I was driving. During the argument while I was driving the victim began to attack me with her fists and attempted to pull my face and left arm off the steering wheel. In an attempt to maintain control I struck out at the victim and struck her on the face injuring her nose. I was wearing a prosthetic arm at the time. My actions were only to prevent me from losing control of the vehicle and having an accident. On returning to our home the victim called Police and I was arrested and charged with Assault occasioning actual bodily harm. Since this event the victim has denied me access to my child…

I too have suffered from domestic violence from this person with police statements to justify this, I have had things smash over my head and in the case that she is claiming for it was deemed that the victim started the situation by pulling on my face while I was driving a motor vehicle, once again the police statements to verify this.

I pleaded guilty to the assault as I could not afford a solicitor to defend my actions and was under the impression that the Court would admonish my actions and allow the victim and I to continue to reconcile our marriage. Instead I was convicted and placed on a further AVO. I did not return to my home after that incident and did not reconcile with the victim. Without the benefit of a copy of the full facts put before the Court I recall that the presiding Magistrate commented that the victim’s actions contributed to the actions and I was placed on a good behaviour bond…

In lodging this objection I maintain the victim was not in any financial disadvantage and did not require financial assistance for immediate needs. She was residing in the home rent free and receiving payments from employment and other means…

I will be appealing this matter and I await your repose of a court hearing were (sic) all evidence will be provided.

20. On 28 March 2017, the Commissioner received the following further letter from the Applicant, in which she stated (relevantly):

…Attached are the court documents from the incident that (the victim) has claimed for. As you can see from these documents I was found not guilty and the charges were dismissed as well as other charges relating to these incidents. I ask the question why I am being persuade (sic) for this money when I was found not guilty and in the transcript from the court the judge said that (the victim) had started the incident, hence the reason for not guilty. I believe there is no reason to fill in the Affidavit of Financial Circumstances as there no case against me in this matter because of the Not Guilty outcome and case dismissed.

I hope this can now be resolved with no further action against me.

21. I note that the Outcome Details submitted with the Applicant’s letter related to proceedings at Wollongong Local Court on 21 September 2012.

22. However, on 29 March 2017, the Commissioner wrote to the Applicant in response to his letter and stated (relevantly):

…Please be advised that the Provisional Order dated 31 January 2017 refers to a conviction on the 17 May 2013 at Wollongong District Court (case number provided).

The case numbers referred to in your correspondence (numbers provided) are separate cases and are not part of the Provisional Order.

A copy of court papers from Wollongong District Court has been provided to substantiate the outcome of proceedings concerning case (number provided).

I advise that the matter remains listed for determination by the Commissioner of Victims Rights at the first available opportunity on or after Wednesday the 19 April 2017…

23. On 12 April 2017, the Applicant sent an email to the Commissioner, in which he stated (relevantly):

... I have read through the information that you have and there seems to be a lot of confusion in regards to dates that victims service has indicated and actual events. In regards to the case number that you are seeking a claim for the facts sheet that you have sent me and my statement don’t match as there are a lot of indifference to the event, and until I received my statement from the courts I can’t defend myself.

My side of this event is that at the time I was the stay at home day getting the three children ready for school each day and just like every family kids don’t want to get ready for school, their life is revolved around video games. Whenever I asked them to get ready was told your not my day why do I have to listen to you. I left for work at 5 PM as my wife at the time had come home from her job will stop so the facts of the child going to the doctors is not true as I was in the care of him for the day and there was no sign of whooping cough as indicated on her statement. When I returned home from work around 9 PM on that night I came in through the side gate. I had noticed the dog food sitting out on the bench and I had asked through the sliding door if the dog had been feed. I got not reply as I thought my wife was sitting on the lounge as the TV was on. I walked over to the lounge and my wife was lying on the lounge watching TV, and I asked if the dog had been feed and also commented on would be nice if you could of answered. After feeding the dog I walked upstairs to say good night to my child as he was in bed… And also to say good night to the old older children… I ask the other two children if they could turn off the light when finished in the bathroom as the heat light and all the lights were still on. Once again got a reply of we don’t have to listen to you. I proceeded back downstairs to make myself some tea as I had been at work and went and ate dinner in the study as I ran a small company and had some quotes to do. My wife went upstairs and then came back down going off at me for telling the kids to turn the light of. I just ignored her as I could not see the point of getting into an argument with her. I continued to work on my quotes on the computer. Has she was yelling at me for having a go at the kids she slammed her hand down on my computer causing some of the keys to pop out. I told her to get out and leave me alone and to wake up to herself. She yelled and screamed at me and I just told her to leave. I continue to work on my quotes and she returned to the room several minutes later were she started to go on again about the lights. At this time she was holding a coffee cup. I got up to leave the room and that’s when she smashed the couple over my head. I pushed her away and started to hold my head as it started to bleed. She then had another go at me and with me trying to get away from her I have swung my arm up to push her away. I lost my arm in a workplace accident in 2008 and were a prosthetic arm to help me out with everyday life. It’s made of fibreglass and a steel attachment on the end that acts as a hand. I pushed her away and walked out into the kitchen to get tissues and to stop the bleeding to the cut above my eye. As I walked back to the study she threatened me a game with a Stanley knife that was on the bench. I didn’t react to this and got towels and cleaning equipment to clean the blood from the carpet and floor. I went back to the study and continue with my quoting until the police arrived about one hour later she had called them. I gave my statement at the house was taken away by police. They asked how she obtained the bruising to her face and I explained what had happened and showed them that my arm is made of fibreglass and has a metal attachment on the end that acts like a hand and in the pushing and me trying to get away from her my arm has accidentally hit her. I was given bail the next day and went with the police to the property and collected clothing and other items and moved to my parents place…

I didn’t appear in court for the hearing as I was not in a good place at the time having seriously thought about taking my own life because of the abuse that I had been getting from this person. There were many lies to police and I had lost all faith in them as never wanted to hear my side of things. As indicated in previous letters were incidents had been started and were proven that she had started them.

After the court hearing there was no AVO preventing me from living that the property and we talked about things and tried to sort stuff out, until 2012 were another incident happened. This time I was found not guilty on charges dropped because she had started the incident. This time I had a solicitor involved. To this day I wish I had got a solicitor involved in 2011 as I would not be in this place where I am now.

In 2012 after the last event I left the relationship. An AVO was in place. I was denied access from my son because of this and started the long drawn out battle with the family Law Court. To be able to see my son I went to his soccer games and stood on the opposite sides of the field to prevent any conflict as I knew what she was like. I would keep to myself and at the end of the game might son would come and say hello to me. Several hours later I would get a phone call or a visit from Police stating that I had breached my AVO. I explained the situation at nothing happened, did not even speak with my now ex-wife but still be was still it was classified as a breach. Yes I breached my AVO to be able to see my child and this is the reasoning for the imprisonment not for anything else. I have several cases of depression and drug overdoses because of loosing my arm and my family.

This is where the confusion seemed to be with dates and cases. In 2012 for case number (number provided) a AVO was put in place and the breaches extend from that case where was found not guilty. The AVO still stood for two years…

I asked that this case be dismissed so that we can all move on and live the lives we wish to.

Determination of Objection

24. On 5 May 2017, the Commissioner’s delegate determined the Objection and decided the Applicant was convicted of a relevant offence but varied the amount of the restitution order by reducing it to $5,600 and ordered the Applicant to pay this by monthly instalments of $200. The Delegate’s reasons included:

Consideration

Should the provisional order be confirmed or varied?

12. 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.

13. That is, (the victim) was approved victims support related to an act of violence, in the period between 2008 to April 2012. 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 had been given.

14. While the court has imposed a penalty in the criminal proceedings, this is separate from the restitution proceedings which is a civil process. Under the act, if a defendant has been convicted of an offence that led to the victim’s injury, Victims Services has the right to initiate restitution proceedings to recover the victims support payments from the defendant. The consequence is that, regardless of the defendant’s objection is, he must pay the restitution debt.

15. The defendant has raised the provocative behaviour of the victim leading up to the assault, as well as the history of verbal and emotional abuse from the victim prior to the incident. I acknowledge that he believes these factors partially mitigates this responsibility. However, in determining restitution, I am not in a position to “go behind” the findings of the court. It is most relevant that the defendant was convicted of the assault charge and was sentenced to a term of imprisonment.

16. The defendant has raised an objection of the victim was not in financial need and therefore should not have received as much financial assistance for immediate needs and economic loss she did. However, I cannot “go behind” the original assessor’s decision or to call into question their reasoning or reliability.

17. While I cannot disclose the specifics of the payment, I am able to affirm that any expenses that were approved would need to be considered as being incurred as a direct result of the act of violence, to secure the victims safety, health or well-being pursuant to section 26 (1) (b) of the Act…

19. I am of the opinion that the restitution orders should be confirmed under the provisions of section 64 of the Act.

20. However, I consider it reasonable and appropriate to reduce the amount to be paid under the provisional order to $5,600 payable by monthly instalments of $200.

Service of Determination of Objection

25. A copy of the Determination of Objection was served upon the Applicant by post under cover of the Commissioner’s letter dated 10 May 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.

26. However, in relation to this issue I note that on 15 May 2017, the Applicant sent an email to the Commissioner in which he stated:

I am writing in regards to the letter that I received on 15/5/2017…

I am writing this letter to appeal to the outcomes served by the Justice Victims Service.

This appeal is in regards to point 10(c) were you have used some of the events.

This matter was dropped and I was found not guilty with all other accounts to the matter dropped us well as per the information that was sent to you from the Wollongong court, the victim was found to have started and instigated the event, but now I am being forced to pay victims compensation was something that I was found not guilty for.

I am appealing this matter on grounds that Justice Victims Service have not looked at all the information or the outcomes that was supplied by the courts, but still of me responsible for payments on something that I was found not guilty for.

Please advise be what is the next process for this matter so that my legal team can be notified…

27. I am therefore satisfied that the Applicant received the determination of the objection on 15 May 2017.

28. On 25 May 2017, a delegate of the Commissioner sent an email to the Applicant stating, relevantly:

…Should you wish to appeal the matter you may contact the NSW Civil and Administrative Tribunal... within 60 days of the notice of determination of objection.

Application for Administrative Review

29. 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…

30. On 21 August 2017, the Tribunal received an Application for Administrative Review dated 12 December 2016, which sought review of the decision made by the Commissioner’s delegate on the ground that the victim had “…claims for damages that are not related to the case numbers that victims services are claiming for.”

31. The application was lodged out of time. However, s 41 of the Civil and Administrative Tribunal Act 2013 (the CAT Act) provides:

Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

32. I note that the Commissioner did not provide the Applicant with vetted copies of documentation relating to the victims support application until 23 June 2017 and that the Applicant lodged the current application within 60 days of receiving those documents.

33. In my view, it is appropriate to extend the time for lodgement of the application to 21 August 2017 and I so order.

34. On 18 September 2017, the Commissioner lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”). These were comprehensive and complete and were served upon the Applicant.

35. The current Application came before me for Directions on 29 September 2017. The Applicant appeared in person and Mr Singh appeared for the Commissioner. Neither party sought to file any further evidence and the matter was listed for hearing on 24 November 2017.

36. The Commissioner filed and served Submissions dated 15 November 2017 and 23 November 2017, respectively.

37. At the hearing of the matter on 24 November 2017, the Applicant again appeared in person and Ms Sabesan appeared for the Commissioner.

Applicant’s Submissions

38. The Applicant maintained the submissions that he made in support of the Objection to the Provisional Order, which have been set out previously in this decision. However, he also argued that he was convicted of assault occasioning actual bodily harm at Wollongong Local Court in April 2011 and that this is not the conviction that is the subject of the Provisional Order.

Commissioner’s Submissions

39. Ms Sabesan relied upon the Commissioner’s written submissions, which I have summarised as follows:

1. In determining an application for review of a restitution order, the Tribunal must ask itself the following 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?

2. The Commissioner’s power to make a Provisional Order for restitution comes from Part 5 of the Act, the purpose of which 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).

3. 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) believes a person has been convicted of a relevant offence and 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).

4. 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).

5. 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.

6. On 8 April 2014, the victim was awarded a total of $7,903 by way of victims support, comprising a Category C recognition payment ($5,000) and financial assistance for immediate needs ($2,903). The decision maker found that (the victim) was a primary victim of an act of violence, in the form of domestic violence, which occurred over a period of time from 2008 to April 2012 and was perpetrated by the Applicant.

7. On 31 January 2017, the Commissioner served a Provisional Order for Restitution on the Applicant under s 59 of the Act. This stated that that on 17 May 2013, the Applicant was convicted of a relevant offence – namely Assault occasioning actual bodily harm (AOABH) in the District Court at Wollongong. The submissions dated 15 November 2013 asserted that the conviction was entered on 7 March 2013.

• In relation to this issue, the Commissioner argued (relevantly):

“…4. It has come to the writer’s attention that both these dates are incorrect. DKZ was convicted of AOABH on 1 July 2011 at Wollongong Local Court and received a section 9 bond for two years under the Crimes (Sentencing Procedures) Act 1999.

5. The incorrect date on the order arose from DKZ subsequent breach of the section 9 bond. The breach of Bond raised further Local Court proceedings, in which the Applicant was convicted at Wollongong Local Court and imprisoned for two months on 16 May 2013.

6. On 17 May 2013, the Applicant submitted a District Court appeal. On the same day, Wollongong District Court confirmed the conviction. As such the order listed 17 May 2013 as the date of conviction and Wollongong District Court as the place of conviction.

7. It is submitted that the Commissioner has still exercised her discretion appropriately in issuing the order. As per section 59, if the Commissioner is of the opinion that the victim was approved victims support (in the form of financial assistance and recognition payment), and a person has been convicted of a relevant offence, then the Commissioner may make an order for restitution against the person.

8. As per section 61, the order must set out the terms of the order and include a statement of the grounds on which the order was made. The order as served on the Applicant was within the relevant time limits as per section 59 and correct statement of grounds as per section 61.

9. The Commissioner submits that the Tribunal have (sic) the power as per section 67 of the Act to confirm the order with variation…

10. As per section 67 (3), the Tribunal may confirm an order for restitution made under section 59 if satisfied that the Applicant for the administrative review has been convicted of a relevant offence.

11. In this matter, the Applicant has been convicted of AOABH on 1 July 2011. The circumstances of the conviction are detailed in the prior submissions. In summary, the Applicant was charged with AOABH following an assault on the victim on 28/29 April 2011. He was subsequently convicted at Wollongong Local Court on 1 July 2011 and said to section 9 bond.

12. The substance of the order is correct, that is the Applicant was convicted of AOABH in the victim was approved victims support following being victim of domestic violence from 2008 to 2012 perpetrated by the defendant (sic).

13. As per section 67 (1), on an administrative review, the Tribunal may confirm the original decision the subject of review (with or without variations). As such, it is submitted that given the Applicant was convicted of a relevant offence and the Commissioner has abided by all the relevant time limits, the tribunal has the power to confirm the order, with varying the date and place of the relevant conviction – being 1 July 2011 at Wollongong Local Court.

Ex-Tempore Order

40. Upon the completion of the parties’ submissions, the Tribunal made an order that the Commissioner’s decision requiring the Applicant to make restitution is reversed and stated that its reasons would be published.

Reasons for Decision

41. 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.

42. 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.

43. In the current matter, there is no doubt that the Assessor approved victims support for the victim in respect of an act of violence that occurred over a period of time from “2008 to April 2012”, but the Assessor determined that the victim had suffered an assault occasioning grievous bodily harm and awarded her a category C recognition payment on that basis.

44. However, the Applicant was not convicted of the offence of assault occasioning grievous bodily harm on 1 July 2011, or at any time after the approval for the giving of financial support or making of a recognition payment was given. I am therefore not satisfied that the Applicant was convicted of an offence arising from substantially the same facts as those constituting the act of violence with respect to which an approval for the giving of victims support has been given (s 58 (a) of the Act).

45. I further note that the Provisional Order wrongly asserted that the Applicant was convicted of the relevant offence on 17 May 2013 in the District Court at Wollongong. However, the Commissioner has now conceded that this conviction arose as a result of the Applicant’s subsequent breach of the good behaviour bond that he was placed on as a condition of his conviction on 1 July 2011, in Wollongong Local Court, of the offence of assault occasioning actual bodily harm. The Commissioner conceded that this is not a relevant offence for the purposes of the Provisional Order.

46. The Commissioner has conceded in her submissions, and in my view properly so, that 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 and in the absence of either, the Tribunal cannot confirm the Provisional Order.

47. For the reasons set out previously in this decision, I am not satisfied that the Commissioner has established the jurisdictional facts that are required for the Tribunal to confirm the Provisional Order.

48. The Commissioner has submitted that the Tribunal is empowered by s 67 (1) of the Act to confirm the provisional order while varying the particulars of the relevant offence that is relied upon in the Provisional Order. However, the Commissioner did not cite any authority that supports this submission and I am not satisfied that the provision empowers the Tribunal to vary the terms of a Provisional Order to correct an error regarding a jurisdictional fact.

49. Section 67 (3) of the Act provides:

The Tribunal may confirm an order for restitution made under section 59 if satisfied that the Applicant for administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision.

50. As I am not satisfied that the applicant has been convicted of a relevant offence, the Provisional Order for restitution is reversed.

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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: 20 April 2018