EMI v Commissioner of Victims Rights

[2021] NSWCATAD 120

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMI v Commissioner of Victims Rights [2021] NSWCATAD 120

Hearing dates:

9 April 2021

Date of orders:

10 May 2021

Decision date:

10 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the Senior Assessor dated 30 September 2020 is affirmed.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – Set off of a recognition payment against a restitution debt

Legislation Cited:

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Administration of Sentences) Act 1999 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Victims Rights and Support Act 2013

Cases Cited:

Ashby v Minister of Immigration [1981] 1 NZLR 222 at 225, 230, 232-233

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 AC 223; [1948] 1 KB 223 at 228, 230, 233-234; [1947] 2 All ER 680; (1947) 177 LT 641; (1948) 92 SJ 26; (1947) 63 TLR 623; [1947] EWCA Civ 1

Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 at 693; 2 WLR 826; [1959] 2 All ER 433

Bread Manufacturers of NSW v Evans (1981) 180 CLR 404; (1981) 56 ALJR 89; (1981) 38 ALR 93 at 96, 106; [1981] HCA 69

CREEDNZ Inc v Governor-General [1981] 1 NZLR 172 at 183, 196-197

Elliott v Southwark London Borough Council [1976] 1 WLR 499; [1976] 2 All ER 781 at 507, 788; [1976] 2 All ER 381

Gronow v Gronow (1979) 144 CLR 513 at 519-520, 534, 537-538; (1979) 29 ALR 129; [1979] HCA 63

Hall & Co Ltd v Shoreham-By-Sea Urban District Council [1964] 1 WLR 240; [1964] 1 All ER 1 at 8, 13, 248, 255

Hanks v Minister of Housing and Local Government [1963] 1 QB 999 at 1020

Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; 92 ATR 156; [2013] NSWCA 180 at [19]

Lovell v Lovell (1950) 81 CLR 513 at 519; 24 ALJR 426; [1950] ALR 944; [1950] HCA 52

Mallet v Mallet (1984) 156 CLR 605; (1984) 58 ALJR 248; (1984) 52 ALR 193 at 200-201, 206-207, 252, 255; (1984) 9 Fam LR 449; [1984] HCA 21

Minister For Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; (1986) 60 ALJR 560; (1986) 66 ALR 299; [1986] HCA 40 at [15]

Minister of Housing and Local Government v Hartnell [1965] AC 1134 at 1173

Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR 1; (1976) 50 ALJR 570; (1976) 9 ALR 199; [1976] HCA 20

Newbury District Council v Secretary of State for the Environment [1981] AC 578 at 599-600, 608; [1980] 1 All ER 731

Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997; [1968] 1 All ER 694; [1968] UKHL 1

Parramatta City Council v Pestell (1972) 128 CLR 305 at 327, 328; (1982) 56 ALJR 697; 41 ALR 221 at 221-222; [1972] ALR 811; (1982) 2 IR 1; (1972) 27 LGRA 72; [1972] HCA 59

Pickwell v Camden London Borough Council [1983] QB 962 at 990

R v Anderson; Ex parte IPEC-Air Pty Ltd (1965) 113 CLR 177 at 205; (1965) 39 ALJR 66; [1965] ALR 1067; [1965] HCA 27

R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd (1979) 144 CLR 45 at 49-50; 54 ALJR 94; (1979) 27 ALR 321; [1979] HCA 62

R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 260; [1984] 2 All ER 27

R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720 at 731-732; [1974] 2 WLR 805; [1974] 2 All ER 643

R v Hunt; Ex Parte Sean Investments Pty Ltd (1979) 180 CLR 322; (1979) 53 ALJR 552; (1979) 25 ALR 497; [1979] HCA 32

Reg v Bishop of London (1889) 24 QBD 213 at 226-227

Reg v Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd [1982] 3 All ER 761 at 769-770

Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375; (1981) 55 FLR 440; [1981] FCA 174

Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014; [1976] 3 All ER 655; [1976] UKHL 6

South Oxfordshire District Council v Secretary of State for the Environment [1981] 1 WLR 1092; [1981] 1 All ER 954 at 960, 1099

Swan Hill Corporation v Bradbury (1937) 56 CLR 746 at 757-758; [1937] ALR 194; [1937] HCA 15

Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492 at 505; [1948] 1 ALR 89; [1947] HCA 21

Texts Cited:

Nil

Category:

Principal judgment

Parties:

EMI (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Applicant (Self-Represented)
Victims Services (Respondent)

File Number(s):

2020/00320883

Publication restriction:

A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them.

REASON FOR DECISION

1. These proceedings were commenced by an Application for Administrative Review (‘the Application”) filed on 6 November 2020, in which the applicant sought administrative review of a decision made by a delegate of the Respondent in respect of an Application for Victims Support. The applicant is known by the pseudonym ‘EMI’.

Background

Application for Victims Support

2. On 16 November 2018, EMI lodged an Application for Victims Support under the provisions of the Victims Rights and Support Act 2013 (“the Act”), which alleged that he was the primary victim of an act of violence in the nature of a sexual assault that was perpetrated on 1 January 1984, at Wallsend in New South Wales. He said that he was sexually assaulted by a youth pastor following a concert and that he suffered both physical and psychological injuries as a result. The matter was reported to Police on 23 November 2015. He sought a recognition payment.

Decision at first instance

3. On 6 August 2020, an Assessor (Client Claims) issued a Notice of Decision, which determined that EMI was the primary victim of an act of violence under ss 19 and 20 of the Act and approved a category B recognition payment in the sum of $10,000.

4. However, the Assessor noted that EMI had a pending total restitution debt of $28,000 and decided that it was appropriate that 100% of the approval of victims support should be applied towards satisfaction of the restitution debt under s 45 of the Act. As a result, EMI did not receive any payment from the respondent.

5. The Assessor stated, relevantly:

Section 45 considerations

26. Section 45 states that if a recognition payment is payable to a person who is also liable for payment of a restitution debt, the Commissioner may authorise the amount payable to be applied towards (EM)’s liability.

27.   (EMI) has a pending total restitution debt of $28,000.

28. The above restitution debt will therefore be applied to the recognition payment made on this determination, pursuant to section 45 of the Act.

29.   When an amount is applied towards discharging (EMI)’s liability, (EMI) is taken to have paid that debt to the extent of the set-off amount. In this case, $10,000 is being paid towards his restitution debt…

6. I note that a copy of this decision was posted to EMI under cover of a letter from the respondent dated 6 August 2020. However, the date of posting this letter is not indicated in the evidence before me.

Internal review

7. On 18 August 2020, EMI applied for an internal review of the Assessor’s decision, on the following grounds:

I received a Notice of Decision regarding my claim for a support payment relating to a sexual assault when I was 14 years old. I am no shocked that the whole payment of $10,000 has been taken to pay restitution debts I have as a result of injuries I have committed.

It was my understanding that I had arranged with you in correspondence of 2 July 2020, when seeking a reduction in the $40,000 I owe, which has been done on 22 July 2020, leaving me with a debt of $28,000. I am awaiting your response to another letter in which I asked if the debt is transferred to Revenue NSW, can it be paid via a Work Development Order, from courses undertaken whilst in custody?

On 2 July 2020 I advised I had 2 claims pending (matter numbers provided) and suggested that if I was granted $10,000 for each of these claims, you would consider taking $4,000 from each payment to apply to my debt, leaving me with $6,000 from each claim.

I would like to ask for a review of the decision made on 6 August, in view of previous correspondence in this matter. I would hope that you could show some compassion and mercy in that regard. The sexual assault I endured in 1984, at the age of 14 has affected my whole life, including leading me to now be a sex offender.

Payment of this $10,000, which I have been waiting for a decision since 2018, would be the first hint or sign of someone acknowledging my pain and suffering for the last 30 plus years. I would loved to have been able to see a professional for help on an ongoing basis, and may not be in the situation I am in now.

Therefore I would like to request that I be paid $10,000 in full for claim (number provided) to help me with general living expenses now and when released, following 10 years in custody. At present I am living on $10.65 and would like to purchase a TV and clothes etc, currently I rent a TV for $5.50 a week.

If this is granted, you can keep the $10,000 paid (if granted) (claim number provided), or would you keep $4,000 of each of the two claims and pay me $6,000 from each claim…

8. On 30 September 2020, a Senior Assessor issued a Notice of Review Decision, which determined that EMI is a primary victim of an act of violence and approved a category B recognition payment in the amount of $10,000. However, the whole of that approval was applied towards payment of EMI’s restitution debt pursuant to Section 45 of the Act and $nil was paid to him by way of victims support. The Senior Assessor stated, relevantly:

Section 45 considerations

15. Section 45 states that if a recognition payment is payable to a person who is also liable for payment of a restitution debt, the Commissioner may authorise the amount payable to be applied towards discharging (EMI)’s liability.

16.   (EMI) has a pending total restitution debt of $28,000.

17.   I have considered (EMI)’s submissions regarding the impact the act of violence has had on his life and his request to be left with some money as a result of this application.

18. Section 45 of the Act states that if a recognition payment is payable the Commissioner may authorise the amount payable to be applied towards discharging a person’s liability for the restitution amount.

19.   In these circumstances, (EMI) is still receiving a benefit by having his restitution amount reduced.

20. Therefore, the above restitution debt will be applied to the recognition payment made on this determination, pursuant to section 45 of the Act…

9. I note that a copy of the Senior Assessor’s decision was posted to EMI under cover of a letter from the respondent dated 30 September 2020. However, the date of posting is not indicated in the evidence before me.

Application for administrative review

10. This Tribunal’s powers in relation to an application for administrative review are governed by s 63 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”), which provides:

(1)   In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a)    any relevant factual material,

(b)    any applicable written or unwritten law.

(2)   For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3)   In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a)   to affirm the administratively reviewable decision, or

(b)   to vary the administratively reviewable decision, or

(c)   to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d)   to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

11. The current application for administrative review raised the following ground:

Re # (number provided): That the application relates to a sexual assault when I was 14, I was advised by the Royal Commission to apply. I had previously written to Victims Services regarding debts I had and asked that they not take the full amount to pay towards the debts, but allowed me some of the funds. I am currently incarcerated (from 2014) until 2024, and could use the funds to help me live a little more comfortably in custody and to have the whole of $10,000 awarded, then kept was like another slap to the face.

12. The matter came before Senior Member McAteer for Directions on 4 December 2020, when EMI appeared in person and Ms P Srikanth appeared for the respondent. The Senior Member made an order prohibiting the broadcast of EMI’s name under s 64 (1) (a) of the Civil and Administrative Tribunal Act 2013. He ordered the respondent to provide an update concerning the set-off matters whereby EMI’s recognition payment was applied against 4 restitution debts and directed the Divisional Registrar to issue a notice under s 77 of the Crimes (Administration of Sentences) Act 1999 for EMI to appear by telephone at a further directions hearing to be held on 18 December 2020. On 18 December 2020, Senior Member Perrignon stood the directions hearing over to 5 February 2021, as EMI failed to appear and it was not possible to communicate with the Correctional Centre.

13. The matter came before me for directions on 5 February 2021, when EMI appeared in person and Ms K Douch appeared for the respondent. The respondent had filed documents provided under s 58 of the ADR Act and I ordered EMI to file and serve any further material upon which he relies by 25 February 2021 and I ordered the respondent to file and serve any material upon which it relies by 19 February 2021. I listed the matter for hearing on 9 April 2021 and granted both parties leave to appear by telephone.

14. On 7 December 2020, EMI wrote to the Tribunal and stated:

Following our telephone hearing on Friday 4^th December 2020, I wish to furnish the following documents to further support by NCAT review application at the next hearing in two weeks.

A1-A3 double sided leaflets provided by Victims Services NSW which they send out to you when you request information and an Application package. Nowhere does it state incarcerated persons cannot apply for support with Victims Services NSW.

B1-B3 letter from Victims Services NSW showing approval for 22 hours counselling in relation to claim 00339130 – my physical and sexual assault in custody in 2019, along with an information sheet about counselling trial for incarcerated persons.

C1-C3 letter from Victims Services NSW in relation to claim 00291902, sexual assault at the age of 14, where I am being requested details of evidence given to the Royal Commission. C2 and C3 are from the Commonwealth Attorney-General’s Department stating when I gave evidence and “consent to disclose” my evidence to Victims Services. Please note that whilst the evidence was held by the Royal Commission’s branch of the Attorney-General’s department it was protected. This protection does not extend to Victims Services NSW now they have my evidence and leaves me open to all matter of trouble if it is ever subpoenaed.

D1 letter from Victims Services NSW stating that my request to reduce my $40,000 debt (4 x $10,000) be reduced to $28,000 (4 x $7,000) was accepted by the Commissioner. This letter further states that upon my release from custody I can request (in writing) to have this debt transferred to Revenue NSW to arrange payment.

E1-E3 Statement from Revenue NSW dated 16 November 2020 showing the four $7,000 debts owing. I at no time made a request for this transfer to occur. You will note that each of the $7,000 debts include an enforcement cost – two for $65.00 and two for $25.00, which I understand will continue to grow as it sits unpaid. Who gets this money?

If Victims Services NSW withheld my $10,000 claim that was awarded me, where is it? Who do I owe $28,000 still?

F1-F3 Victims Services NSW Notice of Review Decision in relation to claim 00291902. Paragraph 6 states that I had made negotiations to have $4,000 paid from the claim (this was done for both claims) and that $6,000 be kept towards paying off my debt. Paragraph 13 & 14 state that evidence showed I was a victim and was awarded $10,000. Paragraph 21 states payment was approved, but kept to pay towards my debt, giving no consideration to paragraph (illegible),

G1–G3 Victims Services NSW Notice of Review Decision in relation to claim 00339130. I have already been approved for 22 hours counselling under this claim for the sexual assault I suffered whilst in custody in 2019 at Junee Correctional Centre. I was in a medical one out cell placement in strict protection. In paragraph 11 Victims Services NSW consider that I was a victim, which resulted in psychological issue (sic).

The whole ordeal of trying to get some closure through Victims Services NSW was made easy to begin with, however now they have kept one payment and declined the other, this has caused me major distress and anxiety. I have complied with every request from Victims Services NSW, obviously being incarcerated has made it difficult to access and research information, so I have only been able to provide certain details.

I have been in custody for six and half years now and I have lived on $15.57 a perk ($20.19 a week at present due to COVID pandemic) from this payment I have to purchase all personal items such as telephone calls… writing pads and toiletries. Being granted access to some of the claim would allow me to live a little bit easier for the remainder of my sentence. Currently my earliest possible released date (if parole is granted) is (date provided) 2024.

My life is damaged as a result of having been sexually assaulted at such a young age, and I still suffer today, diagnosed with Chronic depression (medicated since 1984), Generalised Anxiety, Social Anxiety & PTSD. I still suffer with this today, and the gaol cannot provide any long term, ongoing counselling to assist me, so I live with the trauma daily.

Having been sexually assaulted again in 2019, in custody has only made matters worse, and I live with major trust issues and fear on a daily basis. I am deeply sorry for the hurt, pain and trauma I have caused my victims, and have no issue paying the restitution debt when I am able to. But to not be given any of my claim is like a slap in the face.

I find it hard to accept that Victims Services NSW could be so cruel as to: 1) no (sic) allow me to be given any of my granted claim; 2) not disclose that being incarcerated makes me ineligible for lodging a claim, yet I get approved for 22 hours of counselling; and 3) transfer my debt to Revenue NSW without my authority, which now continues to grow with enforcement costs.

I would ask Victims Services NSW to show some compassion and grant my claims for payment, on the terms previously negotiated $4,000 from each for me and $6,000 from each to cover my debt.

15. On 25 February 2021, EMI wrote to the Tribunal and stated, relevantly:

Please find herewith a letter from Victims Services which I received yesterday, which I would like to add to my evidence provided by email dated 21/12/2020.

This letter shows that the $10,000 which was awarded to me has been given to revenue NSW to offset my restitution debt. In my previous documents lodged, D1 states “these debts can be sent to Revenue NSW upon your release from custody”. I am still in custody until (date provided) 2024.

Secondly, no consideration has been given to my request to Victims Services not to take the whole $10,000, but to allow me to have some of the funds.

I have received the paperwork from Victims Services providing me with the information from NSW Police under summons. I have found it hard to deal with reading his material due to the sensitive nature of it, and not having mental health support. At this stage, I do not believe any of it will be part of my submission, as it will be on file for the member at the hearing…

16. The respondent filed written submissions which were received on 29 March 2021.

Consideration

Act of Violence and Injury

17. Section 23 (1) of the Act provides that a primary victim of an act of violence is eligible for the support under the scheme described in s 26 of the Act.

18. “Act of violence” is defined in s 19 (1) of the Act as follows (relevantly):

(1)   In this Act, act of violence means an act or series of related acts, whether committed by one or more persons:

(a)   that has apparently occurred in the course of the commission of an offence, and

(b)   that has involved violent conduct against one or more persons, and

(c)   that has resulted in injury or death to one or more of those persons.

(2)   For the avoidance of doubt, the reference to an offence in subsection (1)(a) extends to conduct of a person that would constitute an offence were it not for the fact that the person cannot, or might not, be held to be criminally responsible for the conduct because of the person’s age or mental illness or impairment…

19. Section 20 of the Act defines “injury” as meaning “actual bodily harm, grievous bodily harm or psychological or psychiatric harm but does not include injury arising from loss or damage to property.”

20. The onus is on EMI to prove his allegations of assault and sexual assault on the balance of probabilities. The available evidence supports a finding that EMI was a primary victim of an act of violence in the nature of sexual assault, sexual touching or sexual act or attempted sexual assault involving violence that is one of a series of related acts (s 35 (2) (b) of the Act) and that he suffered a psychological injury as a result.

21. As a result, I am satisfied that EMI is eligible for a category B recognition payment in the sum of $10,000.

Section 45 considerations

22. Section 45 of the Act provides:

45 Payments may be applied towards liability for restitution under Part 5

(1)   If financial support or a recognition payment is payable to a person who is also liable for payment of a restitution amount, the Commissioner may authorise the amount payable, or any part of that amount, to be applied towards discharging the person’s liability for the restitution amount.

(2)   any amount that the Commissioner authorises to be applied towards discharging the person’s liability for a restitution amount is a set-off amount.

(3)   When a set-off amount is applied towards discharging a person’s liability for a restitution amount, the person is taken to have been paid financial support or a recognition payment to the extent of the set-off amount.

(4)   f the restitution amount has been referred to the Commissioner of Fines Administration for the making of a court fine enforcement order under the Fines Act 1996, the set-off amount—

(a)   is to be paid to the Commissioner of Fines Administration, and

(b)   is taken to be an amount recovered from the person under a court fine enforcement order made under that Act.

Note -

Section 112K of the Fines Act 1996 provides that amounts recovered under the court fine enforcement order are to be applied firstly towards enforcement costs payable under the order and secondly towards payment of the restitution amount.

(5)   If the restitution amount has not been referred to the Commissioner of Fines Administration for the making of a court fine enforcement order under the Fines Act 1996, the person is taken to have paid the restitution amount to the extent of the set-off amount.

(6)   In this section –

restitution amount means an amount payable under a confirmed order within the meaning of Part 5.

23. During the hearing on 9 April 2021, EMI made oral submissions. He argued that he negotiated with the respondent to try to “sort this out”. He said that he receives monthly demands from Revenue NSW for payment of the restitution debt and while he negotiated with the respondent in good faith, it chose to refer the matter to Revenue NSW. He said that if he was studying, he could pay off $1,000 under a Work Development Order, but the respondent will not accept it and Revenue NSW tells him to speak to the respondent about this. However, he has been told that Work Development Orders need to be approved by Victims Services.

24. Ms Douch relied upon the respondent’s written submissions, which provide relevantly:

3. Following an internal review, on 30 September 2020 the applicant was approved a category B recognition payment in the sum of $10,000. This amount was applied to the applicant’s restitution debts pursuant to section 45 of the Act.

5.   Prior to the payment of the amount set out in paragraph 3, the applicant had four outstanding restitution debts totalling $28,000. The details of each restitution debt is set out in our letter to the Tribunal dated 16 December 2020. A copy of that letter is annexed and marked A to these submissions for ease of reference…

Payment may be applied to liability for restitution debts

Relevantly, section 45 of the Act states:

(1)   If financial support or a recognition payment is payable to a person who is also liable for payment of a restitution amount, the Commissioner may authorise the amount payable, or any part of that amount, to be applied towards discharging the person’s liability for the restitution amount.

(2)   Any amount that the Commissioner authorises to be applied towards discharging the person’s liability for a restitution amount is a set-off amount.

(3)   When a set-off amount is applied towards discharging a person’s liability for a restitution amount, the person is taken to have been paid financial support or a recognition payment to the extent of the set-off amount…

10.   the use of the term “may” indicates that the Commissioner has a discretion in deciding whether or not a recognition payment should be applied towards discharging an applicant’s liability for restitution.

11. As the Act does not expressly set out what must (or must not be considered), there are a range of permissible considerations which the decision-maker may weight or disregard without committing an error of law: (see: Lo v Chief Commissioner of State Revenue [2013] NSWCA 180 at [19].. However, guidance on the exercise of the discretion may also be sought through consideration of the subject matter, scope and purpose of the Act. As stated in the matter Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15]:

…In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505)…

The application of section 45

Restitution from offenders

12.   the operation and purpose of the restitution provisions of the Act should be given considerable weight in determining what is the correct and preferable decision in this matter.

13.   Part 5 of the Act contains provisions relating to the recovery of victims support payments from offenders. This part provides for the cost of support paid under the scheme to be recovered from persons convicted of the crimes giving rise to the approval of the giving of victims support through the issue of restitution orders. The object of this part is expressly stated in section 57 of the Act as set out below:

57 Object of Part

The object of this Part is to enable financial support paid and recognition payments made under this Scheme to be recovered from persons found guilty of the crimes giving rise to the payments.

14.   Pursuant to section 62 of the Act an offender may object to the issue of an order for restitution by lodging an objection. Following the determination of any such objection, if the offender is dissatisfied with the determination, the offender may make an application to the Tribunal pursuant to section 66 of the Act.

15.   The operation of sections 62 to 69 of the Act provide the offender with an opportunity to object to (and challenge) the restitution order and may raise their individual circumstances and financial position should they consider this relevant.

16.   the object of Part 5 to recover victims support made under the Scheme against persons found guilty of the crimes giving rise to the payment is a significant consideration which favours a decision to apply the totality of the recognition payment to the restitution debt.

17.   The mechanisms available to offenders to object to, and seek an administrative review of a restitution order, are also factors that can be considered.

The restitution debt

18.   The size of the restitution debt, the benefit of a reduction of the restitution debt (via set off) and previous variations to the restitution orders (following the lodgement of objections) should be given weight in determining what is the correct and preferable decision in this matter.

19.   There is no dispute that there is an accumulated restitution debt of $28,000 outstanding. Should the approved recognition payment be applied to the restitution debt, this will reduce the outstanding restitution debt to $18,000.

20.   It is clear that applying the amount of the recognition payment to the applicant’s restitution debt represents a benefit to the applicant as it results in a significant reduction of that debt. This is particularly important in circumstances where there is a sizeable accumulated debt. This is a significant consideration in assessing what is the “correct and preferable” decision in this case.

21.   It is also relevant to note that each restitution order has been reduced following consideration of objections lodged by the applicant pursuant to section 62 of the Act. The applicant was initially served with four restitution orders each for an amount of $10,000 (cumulatively $40,000). However, each of these four restitution orders were reduced to $7,000 (cumulatively $28,000) following consideration of the objections lodged by the applicant.

22.   This process provided the applicant with an opportunity to raise personal circumstances and his financial situation. It is our view that this process (and the subsequent reduction based on the personal/financial circumstances of the applicant) should be given some weight in assessing what is the “correct and preferable” decision in this case.

23. Despite this reduction, there remains a significant restitution debt outstanding in the sum of $28,000 (prior to any set off pursuant to section 45 of the Act). The fact that there is a substantial debt outstanding should also be given weight in assessing what is the “correct and preferable” decision of this case.

24.   While the applicant states in his submissions that he has “no issue paying the restitution debt” when he is able, the applicant does not provide any details of his capacity to pay this debt following his release from prison. Accordingly, the time to pay the restitution debt (in the absence of a set off) may be significantly increased. This is a further factor that can be considered in assessing what is the “correct and preferable” decision in this case.

Application for Review

25.   In his application, the applicant notes that he has been incarcerated since 2014 and will be incarcerated until 2024. He requests that part of the recognition payment be paid to him directly to help him live more comfortably in custody.

26. The applicant has been convicted of various offences and sentenced to an aggregate term of imprisonment of 13 years which commenced on 2 April 2014 and expires on 1 April 2027 (with a non-parole period of 9 years). The purposes for which a court may impose a sentence on an offender are set out in section 3A of the Crimes (Sentencing Procedure) Act 1999 and include; ensuring that the offender is adequately punished for the offence; to prevent crime by deterring the offender and any other persons from committing similar offences; to denounce the conduct of the offender; to make the offender accountable for his or her actions; and to recognise the harm done to the victim of the crime and the community.

27.   In consideration of the purpose of sentencing, the respondent submits that accommodating additional comforts for the duration of the applicant’s incarceration should be given little to no weight in considering what is the “correct and preferable” decision in this case.

Conclusion

28. The correct and preferable decision is o dismiss the application and affirm the administratively reviewable decision in accordance with section 63 (3) (a) of the Administrative Decisions Review Act 1997 (NSW).

25. At the conclusion of the parties’ submissions on 9 April 2021, the Tribunal reserved its decision. However, I Ms Douch to make enquiries with a view to responding to EMI’s issues regarding a Work Development Order and she undertook to do so on behalf of the respondent.

26. On 19 April 2021, the Tribunal received a letter from Victims Services dated 15 April 202, which enclosed a copy of its letter to EMI dated 14 April 2021. That letter provided relevantly:

I refer to your enquiry regarding the approval of Work and Development Orders through Revenue NSW.

I advise that approval of a Work and Development Order is determined by the Fines Commissioner after a restitution debt has been referred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996.

As a consequence, Victims Services is unable to provide information concerning Work and Development Orders or the approval process.

Please contact Revenue NSW by phoning (number provided) if you have any questions regarding Work and Development Orders…

27. I note that EMI has not applied to this Tribunal for an administrative review of his restitution debt, which following an internal review based upon his objection was reduced from a cumulative total of $40,000 to orders $28,000. This is a significant reduction which followed the respondent’s consideration of his personal and financial circumstances.

28. Rather, EMI seeks a review of the respondent’s decision to apply the whole of the amount of victims support that was approved for him towards discharge of his restitution debt by way of a set off under s 45 of the Act. His primary reason for this application is to enable him to live more comfortably during the remaining term of his imprisonment.

29. The respondent argues that in the context of this matter, s 45 (1) of the act confers upon it a discretion to authorise the amount of the recognition payment, or any part of it, to be applied towards discharging the restitution debt. However, the Act does not expressly set out what factors must (and must not) be considered in deciding whether that discretion should be exercised. However, guidance on its exercise may be found by considering the subject matter, scope and purpose of the act.

30. The respondent relies upon part of the decision of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 at [15] (Peko-Wallsend). However, I note that the para 15 provides:

(1)   FAILURE TO TAKE INTO ACCOUNT A RELEVANT CONSIDERATION

15. The failure of a decision-maker to take into account a relevant consideration in the making of an administrative decision is one instance of an abuse of discretion entitling a party with sufficient standing to seek judicial review of ultra vires administrative action. That ground now appears in s.5(2)(b) of the ADJR Act which, in this regard, is substantially declaratory of the common law. Together with the related ground of taking into account irrelevant considerations, it has been discussed in a number of decided cases, which have established the following propositions:

(a)   The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (Sean Investments Pty Ltd v. MacKellar (1981) 38 ALR 363, at p 375; CREEDNZ Inc. v. Governor-General (1981) 1 NZLR 172, at pp 183, 196-197; Ashby v. Minister of Immigration (1981) 1 NZLR 222, at pp 225, 230, 232-233). The statement of Lord Greene M.R. in Associated Provincial Picture Houses Ltd v. Wednesbury Corporation (1948) 1 KB 223, at p 228, that a decision-maker must take into account those matters which he "ought to have regard to" should not be understood in any different sense in view of his Lordship's statement on the following page that a person entrusted with a discretion "must call his own attention to the matters which he is bound to consider".

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard (see Reg. v. Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd (1979) 144 CLR 45, at pp 49-50, adopting the earlier formulations of Dixon J. in Swan Hill Corporation v. Bradbury (1937) 56 CLR 746, at pp 757-758, and Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 CLR 492, at p 505). By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.

(c)   Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision (see, for example, the various expressions in Baldwin & Francis Ltd v. Patents Appeal Tribunal (1959) AC 663, at p 693; Hanks v. Minister of Housing and Local Government (1963) 1 QB 999, at p 1020; Reg. v. Chief Registrar of Friendly Societies; Ex parte New Cross Building Society (1984) QB 227, at p 260). A similar principle has been enunciated in cases where regard has been had to irrelevant considerations in the making of an administrative decision (Reg. v. Bishop of London (1889) 24 QBD 213, at pp 226-227; Reg. v. Rochdale Metropolitan Borough Council; Ex parte Cromer Ring Mill Ltd (1982) 3 All ER 761, at pp 769-770).

(d)   The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned (Wednesbury Corporation, at p.228). It follows that, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power (Sean Investments Pty Ltd v. MacKellar, at p 375; Reg. v. Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177, at p 205; Elliott v. Southwark London Borough Council (1976) 1 WLR 499, at p 507; (1976) 2 All ER 781, at p 788; Pickwell v. Camden London Borough Council (1983) QB 962, at p 990). I say "generally" because both principle and authority indicate that in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance. The preferred ground on which this is done, however, is not the failure to take into account relevant considerations or the taking into account of irrelevant considerations, but that the decision is "manifestly unreasonable". This ground of review was considered by Lord Greene M.R. in Wednesbury Corporation, at pp.230, 233-234, in which his Lordship said that it would only be made out if it were shown that the decision was so unreasonable that no reasonable person could have come to it. This ground is now expressed in ss.5(2)(g) and 6(2)(g) of the ADJR Act in these terms. The test has been embraced in both Australia and England (Parramatta City Council v. Pestell (1972) 128 C.L.R. 305, at p.327; Bread Manufacturers of N.S.W. v. Evans (1981) 56 ALJR 89, at p 96; 38 ALR 93, at p 106; Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR 697; 41 ALR 221, at pp 221-222; Hall &Co. Ltd v. Shoreham-By-Sea Urban District Council (1964) 1 W.L.R. 240, at pp.248, 255; (1964) 1 All E.R. 1, at pp.8, 13; Reg. v. Hillingdon London Borough Council; Ex parte Royco Homes Ltd (1974) QB 720, at pp 731-732; Newbury District Council v. Secretary of State for the Environment (1981) AC 578, at pp 599-600, 608). However, in its application, there has been considerable diversity in the readiness with which courts have found the test to be satisfied (compare, for example, Wednesbury Corporation, at p.230, and Parramatta City Council, at p.328, with the conclusions reached in South Oxfordshire District Council v. Secretary of State for the Environment (1981) 1 WLR 1092, at p 1099; (1981) 1 All ER 954, at p 960; Shoreham-By-Sea Urban District Council, and Minister of Housing and Local Government v. Hartnell (1965) AC 1134, at p 1173). But guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. In the context of the latter, it has been held that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice (Lovell v. Lovell (1950) 81 CLR 513, at p 519; Gronow v. Gronow (1979) 144 CLR 513, at pp 519-520, 534, 537-538; Mallet v. Mallet (1984) 58 ALJR 248, at pp 252, 255; 52 ALR 193, at pp.200-201, 206-207). So too in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

(e)   The principles stated above apply to an administrative decision made by a Minister of the Crown (Murphyores Incorporated Pty Ltd v. The Commonwealth (1976) 136 CLR 1; Re Hunt; Ex parte Sean Investments Pty Ltd (1979) 53 ALJR 552; 25 ALR 497; Padfield v. Minister of Agriculture, Fisheries and Food (1968) AC 997; Secretary of State for Education and Science v. Tameside Metropolitan Borough Council (1977) A.C. 1014). However, in conformity with the principle expressed in (b) above, namely that relevant considerations may be gleaned from the subject matter, scope and purpose of the Act, where the decision is made by a Minister of the Crown, due allowance may have to be made for the taking into account of broader policy considerations which may be relevant to the exercise of a ministerial discretion.

31. I find that there is merit in the respondent’s arguments that the discretion conferred by s 45 of the Act is unconfined and that the factors that the decision maker may consider are also unconfined, except in so far as there may be found in the subject matter, scope and purpose of the Act some implied limitation on the factors that they may legitimately have regard to.

32. In the context of administrative review of the respondent’s decision, I note that in Peko-Wallsend (at [15 (b)]), Gibbs J stated, relevantly:

… By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act….

33. In applying the decision in Peko-Wallsend to this matter, I am satisfied that I should have regard to the operation and purpose of the restitution provisions in Part 5 of the Act. Section 57 of the Act states that the object of Pt 5 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.

34. I also consider it relevant to consider that EMI has already had the benefit of a review of the restitution orders and that his cumulative restitution debt was significantly reduced from $40,000 to $28,000. The respondent clearly considered his personal and financial circumstances during that internal review.

35. I also accept the respondent’s argument that the respondent’s decision to apply the whole of the recognition payment of $10,000 towards the cumulative restitution debt provides a benefit to EMI, as it significantly reduces his restitution debt from $28,000 to $18,000.

Conclusion

36. In this matter, EMI is seeking a variation in the set-off order made under s 45 (1) of the Act in order to provide him with funds that would enable him to live more comfortably while he serves the remainder of his sentence. However, in my view, the subject matter, cope and purpose of Part 5 of the Act does not imply that a decision maker is required to consider this matter when deciding to make an order under s 45 (1) of the Act. In my view, this matter is not a consideration to the exercise of the discretion under s 45 (1) of the Act.

37. While EMI clearly feels aggrieved by the respondent’s decision, I am not satisfied that it is appropriate to vary the order made by the Senior Assessor on 30 September 2020.

Orders

38. The decision of the Senior Assessor dated 30 September 2020 is affirmed.

**********

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 May 2021