EMI v Commissioner of Victims Rights

[2021] NSWCATAD 117

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EMI v Commissioner of Victims Rights [2021] NSWCATAD 117

Hearing dates:

9 April 2021

Date of orders:

7 May 2021

Decision date:

07 May 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

The decision of the Senior Assessor dated 20 October 2020 is affirmed.

Catchwords:

VICTIMS RIGHTS AND SUPPORT – administrative review – convicted inmate - eligibility for victims support – special circumstances – whether the convicted innate is seriously and permanently injured as a result of the act of violence

Legislation Cited:

Victims Rights and Support Act 2013
Administrative Decisions Review Act 1997

Civil and Administrative Tribunal Act 2013

Crimes (Administration of Sentences) Act 1999

Cases Cited:

AM v R (2012) 225 A Crim R 481; [2012] NSWCCA 203

BDJ v Victims Compensation Fund Corporation (No2). [2014] NSWCATAD 187

BJR v R 185 A Crim R 360; [2008] NSWCCA 43

BWL v Commissioner of Victims Rights [2015] NSWCATAD 235

BWQ v Commissioner of Victims Rights [2015] NSWCATAD 197 at [16]-[17]

CNB v Commissioner of Victims Rights [2020] NSWCATAD 31

CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32]

CRT v Commissioner of Victims Rights [2017] NSWCATAD 174

CZU v Commissioner of Victims Rights [2017] NSWCATAD 240 at [23]-[24]

Casey v Pel-Air Aviation Pty Ltd; Helm v Pel-Air Aviation Pty Ltd (2015) 89 NSWLR 707; 296 FLR 119; [2015] NSWSC 566

Coleman v Medical Council of NSW [2019] NSWCATAD 207 at [33]

Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]

Director of Public Prosecutions v Smith [1961] AC 290; [1960] 2 All ER 450

European Asian Bank AG v Wentworth (1987) 5 NSWLR 445 at [39], 452; 5 NSWLR 445

Gregson v L & MR Dimasi Pty Ltd (2000) 20 NSWCCR 520; [2000] NSWCC 47

Haoui v R (2008) 188 A Crim R 331 at [138]-[142]; [2008] NSWCCA 209

Jones v Qantas Airways Ltd [2017] NSWWCCPD 11

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; (1998) 72 ALJR 841; (1998) 153 ALR 490; [1998] HCA 28

R v Donovan [1934] 2 KB 498 at 509

R v Overall (1993) 71 A Crim R 170 at 173

R v Remilton [2001] NSWCCA 546

R v Shannon [2003] NSWCCA 106

R v Sumeo [2002] NSWCCA 271

R v Williams [2005] NSWCCA 14

R v Woodland (2007) 48 MVR 360; [2007] NSWCCA 29 at [35]

Singh v Director of Public Prosecutions (NSW) (2006) 164 A Crim R 284; [2006] NSWCCA 333

State Transit Authority of New South Wales v Fritzi Chemler (2007) 5 DDCR 287; [2007] NSWCA 249 at [40]

Vann v Palmer [2001] ACTSC 12

Texts Cited:

Nil

Category:

Principal judgment

Parties:

EMI (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
EMI (Self-Represented)
Victim Services (Respondent)

File Number(s):

2020/00320330

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 4 February 2020, 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 physical and sexual assault that was perpetrated on 24 January 2019, at Junee Correctional Centre. He said that he was assaulted by another inmate when he was locked in his cell at the end of the day and that he was supposed to be “a medical one out”. He named the alleged offender but said that he did not report the matter to Police as he did not know how to do this while in custody. He alleged that he suffered a psychological injury as a result of the act of violence and sought a recognition payment and counselling.

Decision at first instance

3. On 6 August 2020, an Assessor (Client Claims) issued a Notice of Decision, which determined that EMI was not eligible to receive victims support pursuant to s 25 (4) of the Act and dismissed the application. The Assessor stated, relevantly:

Reports of police and court outcomes

11.   I have reviewed police records consisting of COPS (number provided) dated 24 March 2020.

12.   Police records confirm the details reported to Corrective Services at the time of the sexual assault.

Reports to Government Agencies

11.   I have reviewed documents produced by NSW Corrective Services.

14.   An email from NSW Corrective Services confirms that at the time of the sexual assault (EMI) was a convicted inmate.

15.   An Incident Report states that on 30 January 2019 (EMI) approached Corrective Services staff and asked to discuss a matter. (EMI) disclosed that he had been sexually abused by the offender whilst in his cell. (EMI) stated that after lock-down, the offender was watching television before he snapped, grabbed (him) by the throat and sexually assaulted him. (EMI) was escorted to medical where he was medically assessed with no injuries observed and an assault/injury questionnaire was completed.

16. (EMI) signed a Notice pursuant to section 26BA of the Civil Liability Act on 10 March 2019 which stated that on 24 January 2019 he had been physically and sexually assaulted by the offender. The offender also made threats against (him), his fiancé and others. (EMI) stated that he had bad dreams and nightmares and his nerves had been affected.

17.   Case notes dated 30 January 2019 record that (EMI) was seen by staff after having reported a sexual assault. (EMI) stated that he had waited until staff were on duty that he trusted to disclose the assault to. (He) stated that the offender had threatened him to keep quiet and he was aware the offender had a shiv, so he took the threats seriously. (He) was reported to be extremely distressed by the offender threatening to send a letter to his partner. (He) stated that he was grateful that blood tests had been conducted and it is reported that (he) was composed at the end of the session.

18.    ase notes dated 31 January 2019 record that (EMI) received generalised counselling regarding the sexual assault. The notes state that (he) had no immediate safety issues and was happy to be followed up in a few weeks.

19.   On 19 March 2019 case notes report that (EMI) reported that he had difficulty sleeping and was often fearful following the assault.

20.   On 23 March 2020 (EMI) requested that the sexual assault be reported to NSW Police.

21.   Case notes report that (EMI) was seen on 22 April 2020. The case notes state that (he) was in a positive manner which remained consistent throughout. (He) stated that making the police report gave him some closure and that he had no further issues with his thoughts in relation to the assault but there were still issues with the quality of sleep.

Findings

Is (EMI) eligible for support?

22.   Section 25 (4) of the Act states that a person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence if it occurred while the person was imprisoned as a convicted inmate.

23.   Section 25 (5) provided that any such convicted inmate maty, in special circumstances, receive victims support. Any such support is not to be given unless the Commissioner is satisfied that the special circumstances of a case justify an exception being made to the general eligibility of convicted inmates. Section 25 (6) states that without limiting subsection (5), the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.

24.   I have considered whether the available evidence supports a finding of special circumstances to be made to the general ineligibility of convicted inmates. I have reviewed the available evidence and acknowledge that sexual abuse is a serious criminal offence. I also acknowledge that (EMI) reported that the offender made threats against him and other persons which caused him to be fearful. However, I do not determine that these are factors sufficient to give rise to special circumstances as required under the Act.

25.   I have also considered whether (EMI) was seriously and permanently inured as a result of the sexual assault. Based on the available evidence, I am unable to make this finding. The records provided by Corrective Services report that (EMI) had initial distress regarding the threats made by the offender and had sleep difficulties. The available information states that in April 2020 (EMI) reported no further issues with his thoughts in relation to the assault.

26.   As such, I have determined that (EMI) is not eligible to receive victims support in relation to the act of violence claimed pursuant to section 25 (4) of the Act. (EMI)’s application for victims support is therefore dismissed.

4. 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

5. On 20 August 2020, EMI applied for an internal review of the Assessor’s decision, on the following grounds:

I received notice yesterday in relation to claim no. (number provided) where all of my payment was taken to use to cover my debt with you. Now this claim has been denied in full. I was in custody in protection and in a medical one out when I was sexually assaulted. I now have had to endure two sexual assault which have ruined my life and Victims Services award money then keep it or deny applications – how is this allowed?

I know I have dome the wrong thing in my life by sexually assaulting others and have to live with that forever, but am I still not a person who has hurt and pain too? I still suffer from poor sleep and have dreams at times. I hide in my cell cause the noise in the pod upsets me.

I kindly request a review of both my claims and ask if you would consider meeting me half way by payment me $5,000, and keeping $5,000?

…

6. On 17 September 2020, EMI wrote to the respondent and stated, relevantly:

…In the decision you state that one of the reasons it was denied was due to a “case note” saying I am not having issues (nightmares, anxiety etc) anymore – This is not the case. I relive the assault daily. Sadly there is no ongoing support offered in custody. Now that I am at my gaol of classification, I hope to see a psychologist on a regular basis.

I did have an AVL conference with Dr John Macklin, a forensic psychiatrist for sentencing in May this year. I wonder if you could obtain a copy of this via my solicitor (name and email address provided) as I discussed my sexual assault at the age of 14 and the one in custody (2019). One of the reasons I was moved from Junee CC was that I have litigation pending as a result of this assault.

If you do change the decision, could you please consider paying me $5,000 of the $10,000 and using the other $5,000 to pay against my debt with you?

7. On 15 October 2020, a Senior Assessor issued a Notice of Review Decision, which determined that EMI is not eligible for victims support in accordance with s 25 (4) of the Act and dismissed the application. The Senior Assessor stated, relevantly:

Is (EMI) eligible for support?

19.   Section 25 (4) of the Act states that a person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence if it occurred while the person was imprisoned as a convicted inmate.

20.   I have reviewed documents provided by NSW Corrective Services.

21.   An email from NSW Corrective Services confirms that at the time of the sexual assault, (EMI) was a convicted inmate.

22.   Section 25 (5) provides that any such convicted inmate may, in special circumstances, receive victims support. Any such support is not to be given unless the Commissioner is satisfied that the special circumstances of a case justify an exception being made to the general eligibility of convicted inmates. Section 25 (6) states that without limiting subsection (5), the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.

23.   I have considered all of the available evidence. I am not satisfied that the evidence supports any circumstances whereby special circumstances should apply in order to find (EMI) eligible.

24.   I am satisfied that at the relevant time the claimed act of violence occurred (EMI) was a convicted inmate. Therefore, (EMI) is not eligible to receive victims support. The application must be dismissed.

8. I note that a copy of the Senior Assessor’s decision was posted to EMI under cover of a letter from the respondent dated 15 October 2020. However, the date of posting is not indicated in the evidence before me.

Application for administrative review

9. 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.

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

This application relates to a sexual assault whilst in protective custody. If I was not eligible for payment, why was I asked to provide the information Victims Services requested. I receive no counselling in custody, and again arranged only to receive part payment if granted due to my debt with Victims Services. The case note referred to where I am meant to be okay does not relate to my psychological health, but in general. I should not have been assaulted in this way whilst in protective custody.

11. 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.

12. 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.

13. 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.

14. 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…

15. The respondent filed written submissions by post on 26 March 2021.

Consideration

Act of Violence and Injury

16. 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.

17. “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…

18. 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.”

19. The available evidence supports a finding that EMI suffered an injury in the nature of an exacerbation or aggravation of a pre-existing psychological injury as a result of the act of violence.

20. The onus is on EMI to prove his allegations of assault and sexual assault on the balance of probabilities. Based on the available evidence, I am satisfied that he has established that he was a primary victim of an act of violence in the nature of an assault and sexual assault.

Eligibility for victims support and the parties’ submissions

21. Section 25 (4) of the Act states that a person is not, except as provided by subsection (5), eligible to receive victims support in respect of an act of violence if it occurred while the person was imprisoned as a convicted inmate.

22. However, s 25 (5) provides that any such convicted inmate may, in special circumstances, receive victims support. Any such support is not to be given unless the respondent is satisfied that the special circumstances of a case justify an exception being made to the general eligibility of convicted inmates.

23. Section 25 (6) states that without limiting subsection (5), the respondent may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.

24. At the hearing of this application on 9 April 2021, EMI made oral submissions and Ms Douch essentially relied upon the respondent’s written submissions.

25. EMI conceded that he does not have any medical reports that contains a formal diagnosis of the psychological injury that he suffered as a result of the act of violence in 2019 or which indicate that his injury is serious and permanent. However, he argued that he still suffers from nightmares and he has had several sessions with the psychology team at his current correctional centre and was “having cognitive behavioural therapy”. He said that he remains in a “medical one-out cell” and that he recently had a telehealth assessment with a psychiatrist who works with the Justice Health Mental Health Team, who had proposed that he be prescribed medication. He said that the 2019 assault brought back everything that he suffered as a result of the childhood sexual assaults and made his psychological symptoms much worse.

26. EMI also argued that he has been diagnosed with Generalised Anxiety Disorder, Adjustment Disorder, Post Traumatic Stress Disorder (which resulted from an incident that occurred during the Newcastle Earthquake) and Borderline Personality Disorder (which resulted from his childhood trauma). He said that he feels like he is stuck in a circle and that Victims Services counselling is not available in his current correctional centre.

27. On behalf of the respondent, Ms Douch argued that the available evidence does not support a finding that EMI suffered injuries that are serious and permanent as a result of the act of violence. In relation to these issues, the respondent’s written submissions provide, relevantly:

12.   Although the term “special circumstances” is not defined, guidance is provided by section 25 (5) and (6) of the Act. Relevantly section 25 (5) states that victims support is not to be given unless the Commissioner is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted persons.

13.   This suggests that the section is intended to be a narrow exception to the general ineligibility of convicted inmates to access victims support which includes recognition payments for various physical and sexual assaults. This analysis is supported by the reasoning in the matter of DBJ v Victims Compensation Fund No 2 [2014] NSWCATAD 187 in which the Tribunal stated (albeit with reference to the Victims Support and Rehabilitation Act 1996) that:

40.   Other references in the old Act to the term “serious” or “seriously” coupled with the term “injury” or “injured” arise at section 24 (5) of the old Act. That section concerns the narrow exception to the ineligibility of convicted inmates to recover victims compensation irrespective of the type of assault inflicted upon them. The provision provides that (in such instances) the ineligible applicant only becomes eligible if the Tribunal Member determines that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned. (emphasis added)

14.   Further guidance is provided by section 25 (6) of the Act which states that the Commissioner may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence. This requires consideration of the injury sustained by the applicant as a result of the act of violence to ascertain whether it is both serious and permanent.

The applicant’s injuries are not “serious and permanent”

15.   While the material before the Tribunal indicate (sic) that the applicant may have suffered a psychological injury as a result of the act of violence, there is no evidence that indicates that the injury was both serious and permanent.

16.   The incident assault report dated 30 January 2019 indicates that “nil injuries” were raised by the applicant or otherwise observed. This is confirmed in the report conducted by operations manager (name provided) dated 30 January 2019 which further states that the applicant raised no concerns in regard to his placement or welfare.

17.   In terms of psychological damage, on 10 March 2019, the applicant recorded that he was “suffering from bad dreams and nightmares” and that his “nerves are affected still”.

18.   The case notes dated 22 April 20200 record the following:

He stated that he had no further issues with his thoughts in relation to the assault. He however still reported issues with the quality of his sleep, for which he had asked to see JCC’s GP and psychiatrist…

Inmate engaged in conversation in relation to his current coping strategies. He was offered supportive counselling, to which he responded positively, and stated that he no longer felt the need to engage with Psychological Services at this time. He was encouraged to refer again should he feel the need for it, to which he stated he would do.

Plan: PSYCH3: Transition, Coping & Adjustment service line to be closed. Inmate to re-refer as necessary.

19.   Whilst the above note indicates that the applicant may have suffered psychological injury as a result of the act of violence, there is no evidence that the injury was both serious and permanent.

The applicant has not demonstrated any other “special circumstances”

20.   The applicant has not demonstrated that there are other “special circumstances” that justify an exception being made to the general ineligibility of convicted inmates.

21.   Whilst there is limited guidance on what constitutes “special circumstances” in section 25 of the Act, “special circumstances” was defined in the matter of Coleman v Medical Council of NSW [2019] NSWCATAD 207 at [33] as follows:

Special circumstances are circumstances that are out of the ordinary but need not to be those which are exceptional or extraordinary: Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120 at [11]; Commissioner for Fair Trading v Edward Lees Imports Pty Ltd (No 2) [2019] NSWCATAP 222 at [8]; CPD Holdings Pty Ltd t/as The Bathroom Exchange v Baguley [2015] NSWCATAP 21 at [32].

22.   Whilst sexual assault if a very serious criminal offence, in assessing whether “special circumstances” exist, the Tribunal should consider whether the facts of this case are out of the ordinary in the context of applications for victims support. This approach in (sic) supported by the case of Project Blue Sky v Australia (sic) Broadcasting Authority (1998) 194 CLR 355 in which Brennan CJ noted the following matters (emphasis added):

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute [45]. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole"[46]. In Commissioner for Railways (NSW) v Agalianos [47], Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

23.   By reason of the operation of section 25 (6), it is our view that “special circumstances” will generally involve an injury that is both serious and permanent. In the absence of such, there are limited circumstances in which the Tribunal would be satisfied that the circumstances of the case justify an exception being made to the general ineligibility of convicted inmates.

24.   On review of the material before the Tribunal, the Tribunal cannot be satisfied that the circumstances of the case justify an exception being made to the general ineligibility of convicted inmates.

Conclusion

…

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

28. I am satisfied that EMI was a convicted inmate within the meaning of the Crimes (Administration of Sentences) Act 1999, as s 3 of that Act defines “convicted inmate” as meaning a person referred to in sections 4 (1) (a), (b), (c), (c1), (d1) or (d2). Section 4 (1) (a) provides that Part 1 of that Act applies to “any person the subject of a warrant under section 62 of the Crimes (Sentencing Procedure) Act 1999 by which a court has committed the person to a correctional centre to serve a sentence or the remainder of a sentence by way of full-time detention, other than a person who is on release on parole”. Therefore, I am satisfied that s 25 (4) of the Act applies to EMI.

29. Accordingly, by operation of s 25 (5) of the Act, EMI is ineligible for victims support unless he establishes that special circumstances exist that justify an exception being made to his ineligibility. In relation to this issue, the respondent argues that special circumstances are circumstances that are out of the ordinary, but need not to be those which are exceptional or extraordinary and whilst sexual assault if a very serious criminal offence, in assessing whether “special circumstances” exist, the Tribunal should consider whether the facts of this case are out of the ordinary in the context of applications for victims support.

30. I note that s 25 (6) of the Act provides that without limiting ss 25 (5), the respondent may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence.

31. In my view, there is merit in the respondent’s submissions and it is necessary to consider the circumstances of the act of violence and the nature of the resulting injury.

32. In response to a question posed by the Tribunal, Ms Douch stated that “serious” may have a similar meaning to “‘grievous” as it is used in the context of the nature of “bodily harm” in s 35 (3) (c) of the Act.

33. I note that “grievous bodily harm” covers the most serious types of injury and has been defined by the common law as ‘really serious harm’: DPP v Smith [1961] AC 290; Haoui v R (2008) 188 A Crim R 331. Some guidance regarding the meaning of ‘grievous bodily harm’ may be obtained from the decision of the Court of Criminal Appeal (Beazley JA, as her Honour then was, Johnson and McCallum JJ agreeing) in Haoui v Regina [2008] NSWCCA 209 (Haoui) at [138] – [142]:

138 The question whether an injury amounts to “grievous bodily harm” has been considered in a vast number of cases. It is not difficult to determine cases at the more serious end of the scale. The following cases fall within that category: complex skull fractures: R v Remilton [2001] NSWCCA 546; R v Williams [2005] NSWCCA 14; severe multiple fractures to a leg and nerve damage to the right side of the face; a closed head injury and facial neurological damage, as well as severe injuries to a knee: R v Shannon [2003] NSWCCA 106 (two victims); fractures to the “middle third” of the face with a complicated laceration of the right ear requiring steel plates and screws, causing ongoing headaches and continuing treatment to the eyes which were sunken as a result of the injury: R v Sumeo [2002] NSWCCA 271; rib fractures in a child: BJR v R [2008] NSWCCA 43.

139 However, there are other injuries, which although “really serious injuries”, are nonetheless less severe than those to which I have just referred. The fact that the concept of “grievous bodily harm” encompasses a range of injury was recognised in R v Woodland [2007] NSWCCA 29; [2007] 48 MVR 360 at [35]. In that case, the victim had sustained significant facial fractures, including a right orbital complex fracture. Simpson J accepted that the victim’s injuries were not “the worst case of grievous bodily harm” but were far from the low end of the range of injuries amounting to “grievous bodily harm”. Other examples include: a fracture to the left orbit received in a violent kicking incident where it was said that the victim was “seriously injured”, that he had suffered “significant injury”, and where the offence was described as involving “gratuitous cruelty”: Singh v Director of Public Prosecutions (NSW) [2006] NSWCCA 333; 164 A Crim R 284; and facial fractures, including fractures to the victim’s cheekbones and nose which required reconstructive surgery, extending to the insertion of metal plates under the lower eyelid and inside the lining of the mouth the plates to remain in situ permanently: Vann v Palmer [2001] ACTSC 12…

142 In the appellate context in which I am considering whether the injury in this case constituted “grievous bodily harm”, two fundamental matters have to be kept in mind. The first is that there is a range of “really serious injury” and that it is irrelevant that some injuries may not be as serious as others. Provided the harm is “really serious injury”, then there is “grievous bodily harm”. Secondly, the question whether particular harm amounts to “grievous bodily harm” is a question of fact for the jury.

34. I also note that in CZU v Commissioner of Victims Rights [2017] NSWCATAD 240, the Tribunal applied the above principles and held (at [23]-[24]):

While I accept that the act of violence had a significant impact upon CZU and that she has required psychological treatment for her depressive disorder and symptoms of post-traumatic stress, there is no evidence before me that supports a finding that her condition required either treatment by a specialist psychiatrist or medication. I also note that while the treating psychologist referred to symptoms of post-traumatic stress, she did not formally diagnose post-traumatic stress disorder.

As a result, I am satisfied to the required standard that the act of violence resulted in actual bodily harm and that CZU is eligible for a Category D recognition payment pursuant to s 35 (4) of the Act.

35. In my view, the decision in CZU is distinguishable from the current matter as the applicant was not a convicted inmate and was therefore not ineligible for victims support under s 25 (4) of the Act.

36. In Jones v Qantas Airways Ltd [2017] NSWWCCPD 11 (Jones), the Workers Compensation Commission considered the meaning of “serious and permanent disablement” in the context of s 261 (6) of the Workplace Injury Management and Workers Compensation Act 1998. His Honour President Keating DCJ Honour applied the test that was stated by Burke CCJ in Gregson v L & M R Dimasi Pty Ltd [2000] NSWCC 47; 20 NSWCCR 520 (Gregson), as follows:

78. In this matter the question becomes whether Mr Gregson suffers a serious and permanent disablement. Does he have a disability, is it serious, is it permanent, does it impinge adversely upon his capacity to work? If all questions were answered in the affirmative then he would satisfy that requirement. The basic question then presenting is the degree of the applicant's incapacity and losses before a considered answer to those previous questions is available

37. His Honour held that based on the available evidence, it was open to the Senior Arbitrator to conclude that the worker, who had been assessed as suffering 12% whole person impairment as a result of noise-induced hearing loss, suffered serious and permanent disablement.

37. Although s 25 (6) of the Act uses the phrase “seriously and permanently injured”, rather than “seriously and permanently disabled”, and the test in Gregson raises issues of a resulting incapacity for work, which is not relevant to the current matter, I consider that the decisions in Jones and Gregson provide this Tribunal useful guidance regarding the meaning its meaning.

38. In the current matter, there is no medical evidence that supports a finding that EMI has suffered a psychological injury that is both serious and permanent. While EMI submits that psychological counselling is not available at his current Correctional Centre and that he has not had access to proper treatment for his injury, he also submitted that he has recently consulted a psychiatrist through the Justice Health Service and that he may be prescribed medication. However, there is no medical evidence before me in the form of a medical report or case note from that psychiatrist and there is no evidence before me that provides a current diagnosis and prognosis for recovery or otherwise from the injury resulting from the act of violence.

39. In order for EMI to succeed in his application, I must feel an actual persuasion on the available evidence that he has been seriously and permanently injured as a result of the act of violence. For the reasons provided, I am not satisfied to the required standard and pursuant to s 25 (6) of the Act, I find that EMI is not eligible for victims support in the nature of a recognition payment.

Orders

41. The decision of the Senior Assessor dated 15 October 2020 is affirmed.

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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: 07 May 2021