Fahd v Commissioner of Victims Rights

[2023] NSWCATAD 157

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Fahd V Commissioner of Victims Rights [2023] NSWCATAD 157

Hearing dates:

9 June 2023

Date of orders:

19 June 2023

Decision date:

19 June 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) The decision dated 7 December 2022 is confirmed under s 67(1) of the Victims Rights and Support Act 2013 (NSW) (the Act).

(2) The Order for restitution in the sum of $1,500 is confirmed under s 67(2A) of the Act; and

(3) The restitution debt is payable within 90 days of the date of this decision.

Catchwords:

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

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Fines Act 1996 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

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

Representation:

Applicant (Self Represented)
P Srikanth (Victims Services) (Respondent)

File Number(s):

2023/00042238

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons.

REASONS FOR DECISION

Background

1. The applicant made an application for administrative review of a restitution order made on 7 December 2022 by the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $1,500, which represents the amount of victims support in the form of a recognition payment that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Act.

Award of victims support to the victim

2. On 20 September 2019, the victim applied for victims support under the Act and alleged that she was the primary victim of an act of domestic/family violence in the nature of assault, which was perpetrated by the applicant on 11 July 2018, at Kingswood in New South Wales. She claimed victims support in the nature of counselling, financial assistance and a recognition payment.

3. On 29 November 2019, an Assessor (Client Claims) issued a Notice of Decision in relation to the claim for a recognition payment and approved a category D recognition payment in the sum of $1,500.

Order for restitution

4. 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:

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

6. The statutory scheme gives the respondent a discretion to make an order for restitution against a person convicted of a relevant offence, either after a recognition payment or financial support has been paid to a victim of that offence or following approval of such a payment: s 59(1) of the Act.

7. “Relevant offence” is defined in s 58 of the Act, as follows:

Relevant offence means the following (emphasis added):

(a) An offence arising from substantially the same facts as those constituting an act of violence in respect of which an approval for the giving of victims support has been given. (Emphasis added)

(b) Any other offence if an offence referred to in paragraph (a) was taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that other offence,

(c) An offence involving one or more acts of a series of related acts (within the meaning of section 19 (4)) in respect of which victims support is given under this Act.

8. A restitution order cannot be made where civil proceedings by or on behalf of the State to recover damages are on foot, or if more than two (2) years have passed since the later of the date of (a) conviction, or, (b) the expiry of the time in which a claim for victims support could be made under s 40(6) of the Act.

9. In this matter, Court documents indicate that the applicant was convicted of the offence of “common assault” on 10 July 2019, in the Local Court of New South Wales at Penrith. He was sentenced to a period of imprisonment for a period of 4 months under the Crimes (Sentencing Procedure) Act 1999 (NSW).

10. The applicant lodged an appeal, but on 10 June 2020, the appeal was dismissed and the sentence was confirmed.

11. On 20 July 2022. the respondent made an order for restitution against the applicant in the sum of $1,500.

12. I note that a copy of the order was posted to the applicant by the respondent, although a copy of this covering letter is not included in the documents before me. As the applicant subsequently lodged an objection with the respondent, I am satisfied that the order for restitution was served upon him as required by s 61 of the Act.

13. Section 62 of the Act gives a person against whom an order for restitution is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (see s 62(3) of the Act) and the objector bears the onus of proving their case (see s 62(4) of the Act).

14. In this matter, the applicant raised the following grounds of objection:

(a) He served two years of jail and one year of parole;

(b) During his incarceration, he completed a number of EQUIPS and HIPU programs and he is sincerely remorseful for his actions against the victim; and

(c) His personal and financial circumstances.

15. The applicant provided the respondent with written submissions dated 25 July 2022, with which he included a copy of his Pensioner Concession card.

16. On 27 December 2022, an Assessor issued a Notice of Determination of Objection under s 65 of the Act. The assessor confirmed the restitution order in the sum of $1,500. In response to the applicant’s objections, the Assessor stated, relevantly:

Time spent incarcerated and on parole

26. The defendant has objected to restitution on the basis that he has served two years’ incarceration and one year’s parole and that this was in part related to the offence committed against the victim to which this Order for Restitution relates.

27. I acknowledge that the defendant believes that his period of incarceration and period on parole mitigates his responsibility for restitution. However, the Order for Restitution that has been made is not connected to the outcome of criminal proceedings. 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.

28. In light of the above, I affirm that this Order for Restitution has been duly made within the scope of the Act.

Completion of EQUIPS and HIPU Programs

29. The defendant has raised that during his incarceration he completed EQUIPS (assumed to be Explore, Question, Understand, Investigate, Practice, Succeed) and HIPU (assumed to be High Intensity Programs Unit) programs and that he is sincerely remorseful for his actions to the victim.

30. I have considered the EQUIPS and HIPU programs the defendant has completed but I am not of the view that the defendant’s completion of the EQUIPS and HIPU programs is a reason to reduce or expunge the restitution debt sought from him. The recovery of restitution from defendants is an important civil process that forms part of the Victims Support Scheme and is one of the objects of the Victims Rights and Support Act 2013 (NSW). The Victims Support fund relies, in part, on money raised through the recovery of restitution.

Personal and financial circumstances

31. The defendant has advised that since being released from jail, he is the carer for his father who recently had a triple heart bypass and two stents in his leg. The defendant advises that he receives a carer’s pension from Centrelink for his duties as a carer and that he is currently living with his father. The defendant states that he is his father’s full-tome carer as his father struggles with day-to-day activities of daily living.

32. The defendant states that he also has two children he takes care of for half the week and pays for his children’s schooling needs and uniforms, as well as their daily needs whilst they are in his care.

33. The defendant states that he has also experienced his own health issues (numerous surgeries to his knee for “an ACL”) that has resulted from the defendant experiencing septic arthritis which the defendant asserts has resulted in him being unable to work. The defendant states that he also takes medication in relation to his medical issues which is expensive.

34. The defendant asserts that after paying for his medication, food and bills he has no money and is unable to pay any amount of restitution because of this. The defendant further asserts that he will also not have the capacity to pay any restitution in the future.

35. I have considered the defendant’s advice as to his personal and financial circumstances, the defendant has not provided any objective documentation regarding his financial circumstances. Hence, I have no objective information on which I can base an assessment of the defendant’s ability to pay the full amount of the restitution debt.

36. I have considered the defendant’s position that the restitution debt may impact his personal circumstances (caring arrangements of his children and his father) and that he has asserted his ability to undertake employment is compromised. The objective documentation relating to this is limited. Regardless, from the information provided by the defendant, I am not of the view that this is a relevant reason to reduce or expunge the restitution debt sought from him.

37. It is also the case that persons with a confirmed restitution debt can contact NSW Revenue to make arrangements for payment of a debt.

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

17. The Assessor ordered the respondent to pay the restitution debt on or before 6 March 2023 and concluded:

Note: If payment in full is not received by the due date, the debt will be referred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 without further notice to you. Should this occur, you may incur additional costs.

18. The respondent advised the applicant of his right to seek a review of the decision by this Tribunal and that such an application must be filed within 60 days of the date of the decision.

19. I note that the current application indicates that the applicant received notice of that decision on 7 December 2022. On that basis, I am satisfied that this was served upon him as required by the Act.

Application for Administrative Review

20. The powers of the Tribunal upon review are set out in s 67 of the Act as follows:

(1) On an administrative review, the Tribunal may:

(a) confirm, vary or reverse the original decision the subject of review, and

(b) make any other orders it thinks fit.

(2) Subsection (1) does not limit the generality of Division 3 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997.

(3) The Tribunal may confirm a provisional order made under Section 59 if satisfied that the applicant for the administrative review has been convicted of a relevant offence. If the Tribunal is not so satisfied, it must reverse the original decision.

(4) The Tribunal may confirm a provisional order made under section 60 if satisfied that:

(a) a person against whom a provisional order has been made has disposed of property as part of a scheme for the purpose of avoiding a liability (whether actual or potential) under this Division, and

(b) the applicant was a party to the scheme and obtained property under the scheme without giving sufficient consideration. If the Tribunal is not so satisfied, it must reverse the original decision.

21. On 8 February 2023, the applicant filed an application for administrative review under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) in accordance with s 66 of the Act. That section contains a number of important provisions affecting such applications, including that the parties are not limited to the original grounds for objection (s 66(2)) and that the “applicant has the onus of proving the applicant’s case in an application for an administrative review” (s 66(3)).

22. The application set out the following grounds:

I am not able to pay the amount because of serious hardship. I have two dependant children and my father that I care for and im on a carers pension.

23. The matter came before Senior Member McAteer for a directions hearing on 17 March 2023. The Senior Member ordered the respondent to file and serve documents under s 58 of the ADR Act by 31 March 2023. He ordered the applicant to file and serve all material relied upon including information about his financial circumstances on or before 28 April 2023 and he ordered the respondent to file and serve any submissions and material relied upon on or before 19 May 2023. He listed the matter for hearing on 9 June 2023.

24. On 26 April 2023, the applicant filed the following documents with the Tribunal:

1. Pathology report dated 11 January 2023; and

2. Affidavit of Financial Circumstances dated 26 April 2023.

25. The relevance of the Pathology report is unclear as it related to testing for illicit drugs and does not otherwise address the “injuries” or medical conditions asserted by the application in his objection to the restitution order.

26. In the Affidavit of Financial Circumstances, the applicant declared that his sole income is the carer’s pension from Centrelink (totalling $2,155 per month). He also asserted that from this he pays “rent/board” of $500 per month, $100 per month for utilities, $98.58 per month for telephone, $800 per month for food and groceries, $206 per month for fares and/or petrol, $150 per month for clothing and $400 per month for school expenses. As these asserted expenses total $2,154.58, the applicant asserted that he is left with an amount of 42 cents per month. He disclosed a current bank balance of $335.29.

27. At the hearing on 9 June 2023, the applicant was self-represented and Ms P Srikanth, Victims Services, appeared for the respondent.

28. The Tribunal sought to clarify the information in the Affidavit of Financial Circumstances with the applicant, as he did not file any objective evidence regarding the asserted “expenses”. The applicant stated that he lives with his father, who owns the property in which they reside and that this is not subject to a mortgage. He said that his father receives a pension from Centrelink, while he also receives “a pension” of $932 per month and a carer’s allowance of $144 per month. He did not disclose that he receives any family/child allowance for his two children. He asserted that he pays for the groceries for the household (including his father) and that his father does not contribute to those expenses. He also said that he borrows his father’s car and that his petrol bill is high because he is currently regularly travelling to and from the Family Court at Parramatta in relation to a custody dispute. He disputed that he would be able to travel more economically from his current residence to Parramatta by way of a direct train line. He also said that he pays “board” to his father “in cash”. He disclosed a current bank balance of $854.00.

29. The respondent relied upon written submissions filed on 7 June 2023, which argued that the restitution order should be confirmed because the applicant was convicted of a relevant offence and the restitution order was made within time as it was made within 7 years from the date of the application for victims support. Further, the applicant had not filed any documents to verify his actual income, expenditure, savings and/or any assets.

Consideration

30. Based on a consideration of all of the available evidence, I am reasonably satisfied that the compensation for which the Commissioner seeks restitution was awarded with respect to a relevant offence that was committed by the applicant.

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

32. Based on the information before me, I am satisfied that no deduction to the restitution debt should be made under s 66 of the Act.

33. Accordingly, I am satisfied that the correct and preferable decision is as follows:

1. The decision dated 7 December 2022 is confirmed under s 67(1) of the Act; and

2. The Order for restitution in the sum of $1,500 is confirmed under s 67(2A) of the Act.

34. I note that if the applicant fails to pay the restitution debt by the due date, the debt will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act. Following that transfer, the applicant will be at liberty to raise his alleged financial hardship with the Fines Commissioner and request a payment plan or a hold of the restitution debt with State Revenue directly. Any such request will be considered by Revenue NSW and not the respondent.

Orders

35. Therefore, I make the following orders:

1. The decision dated 7 December 2022 is confirmed under s 67(1) of the Act;

2. The Order for restitution in the sum of $1,500 is confirmed under s 67(2A) of the Act; and

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

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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: 19 June 2023