GPR v Commissioner of Victims Rights

[2025] NSWCATAD 32

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

GPR v Commissioner of Victims Rights [2025] NSWCATAD 32

Hearing dates:

6 December 2024

Date of orders:

3 February 2025

Decision date:

03 February 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

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

2. The restitution orders dated 13 March 2024 in matters 2024/00326035 and 2024/00325920 are confirmed.

3. However, the total restitution payable is reduced to $15,230.72, as follows:

(a) The restitution order in matter 2024/00326035 is reduced to $14,320.

(b) The restitution order in matter number 2024/00325920 is confirmed as $910.72.

4. The restitution sum is payable within six months of the date of this decision.

Catchwords:

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

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 Compensation Act 1987 (NSW)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148

Texts Cited:

None

Category:

Principal judgment

Parties:

GPR (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Solicitors:
Women’s Legal Service NSW (Applicant)
Victims Services (Respondent)

File Number(s):

2024/00326035 & 2024/00325920

Publication restriction:

Section 64 (1) Civil and Administrative Tribunal Act 2013 – Restriction on publication of information that will identify the applicant or 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 (who is known by the pseudonym “GPR”) applied to this Tribunal for administrative review of a Determination of Objection in relation to two restitution orders that were made on 1 August 2024 by the Commissioner of Victims Rights (the respondent) under the terms of the Victims Rights and Support Act 2013 (NSW) (the Act), as follows:

2024/00326035

2. In this matter, the respondent approved victims support in the sum of $24,474.85 for a family victim in respect of an act of violence that occurred in 2019.

3. The respondent issued a restitution order in the sum of $24,474.75 and GPR lodged an objection. However, the respondent confirmed the restitution order under s 64 of the Act and ordered GPR to pay this by 7 October 2024.

2024/00325920

4. In this matter, the respondent approved victims support in the sum of $910.72 for a family victim in respect of an act of violence that occurred in 2019.

5. The respondent issued a restitution order in the sum of $910.72 and GPR lodged an objection However, the respondent confirmed the restitution order under s 64 of the Act and ordered GPR to pay it by 7 October 2024.

Victims support approved for GPR

6. On 28 February 2022, the respondent approved victims support for GPR totalling $20,000, each approval represented a Category B recognition payment in the sum of $10,000, with respect to acts of sexual violence that were perpetrated upon her as a child by two named offenders.

7. However, the respondent set off a restitution debt of $5,309.97 in respect of an act of violence that GPR committed in 2018.

8. In November 2023, GPR lodged two further applications for victims support, with respect to acts of violence in the nature of domestic violence and sexual assault, which were perpetrated by her ex-partner.

9. On 27 September 2024, an Assessor (Client Claims) determined that those acts of violence were a series of related acts and approved victims support for GPR in the form of a Category B recognition payment in the sum of $10.000.

10. However, the respondent applied this approval by way of set off against the restitution debt, which reduced the outstanding restitution debt to $15,385.57.

Orders for restitution

11. Part 5 of the Act is concerned with the recovery of victims support payments from offenders. The object of that Part is set out in s 57:

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

12. 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).

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

Relevant offence means the following:

(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.

14. 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 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.

15. I am satisfied that GPR was convicted of relevant offences and that both restitution orders are properly based on those convictions.

16. GPR was legally represented in relation to the objections to the restitution orders. However, it appears that the respondent posted the Restitution Orders to GPR directly at the correctional facility, rather than upon her solicitors. Service in this manner did not comply with the requirements of the Act and GPR’s solicitors were granted an extension of time to lodge an objection to each restitution order.

17. I further note that while an Assessor subsequently determined each objection, by confirming the restitution order, those decisions were also sent directly to GPR rather than to her legal representatives. Service in this manner did not comply with the requirements of the Act and an extension of time was granted to GPR’s solicitors to apply for administrative review of the determinations of the objections.

Applications for administrative review

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

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

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

(b) make any other orders it thinks fit.

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

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

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

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

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

19. On 3 September 2024, GPR’s solicitors filed the current applications for administrative review, which alleged that the decision maker erred in finding that the restitution order should be confirmed in full under s 64 of the Act, and in failing to apply a beneficial approach to the Act.

The hearing

20. The matter came before me for hearing on 6 December 2024. Ms A Blacket appeared for GPR and Ms K Douch appeared for the respondent. GPR attended by way of AVL.

Application for an order under s 64(1) of the NCAT Act

21. GPR applied for a non-publication order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act.

22. The respondent did not oppose an order being made under s 64 of the NCAT Act.

23. The Tribunal made an order pursuant to s 64(1)(a) of the NCAT Act, to protect the identities of the victims and the applicant.

GPR’s case

24. On 8 November 2024, GPR’s solicitors filed written submissions, in which they identified the following evidence that their client relied upon:

1. Affidavit sworn by GPR on 6 November 2024;

2. Report of Dr K Eagle dated 27 November 2020;

3. Psychological Assessment report by Ms M Godbee dated 27 February 2019;

4. Revenue NSW Account Statement dated 8 April 2024;

5. Bank account statement for August/September 2024; and

6. Inmate Trust Account statement for the period from 1 October 2024 to 24 October 2024.

25. GPR’s solicitors also relied upon the sentencing decision of the court(which convicted GPR).

26. GPR’s solicitors noted that GPR expressed remorse for her offending, her personal circumstances comprising of her intergenerational trauma history, her own history as a victim of ongoing trauma and abuse and the psychological impacts that the abuse had upon her. They argued that these matters and her financial circumstances are relevant factors which the decision maker should have taken into account in determining the objections.

27. GPR’s solicitors argued that the Tribunal is not precluded from looking at GPR’s financial and personal circumstances and her victim history for the purposes of determining whether restitution should be paid and, if so, whether there are circumstances that warrant a reduction. The Act states:

1. Section 59 gives the respondent a discretion as to whether to make a restitution order against a person convicted of a relevant offence;

2. Section 64(1) gives the respondent the power to allow the objection in whole or in part and to confirm the decision to which the objection was made, with or without variations;

3. Section 64(2A) gives the respondent the power to vary the order by reducing the amount payable under it, before confirming the order;

4. Section 67(1) gives the Tribunal the power to confirm the original decision the subject of review, with our without variations, or reverse that decision and make any order it sees fit;

5. Section 69(1) gives the Tribunal power to reduce the amount to be paid under an order for restitution that it confirms having regard to the financial means of the defendant and any other matters that it considers relevant.

28. GPR’s solicitors conceded the issue of relevant offence. However they argued that the Tribunal should either waive or reduce the restitution debt under ss 67 and 69 of the Act in view of GPR’s remorse for the offending and her personal and financial circumstances. This submission as based on the sentencing decision, which considered her extraordinary history of abuse and trauma and found that this was casually connected to the offending and impacted on the assessment her moral culpability. The Court sentenced her under the Bugmy principles.

29. Further, whilst incarcerated (before the relevant offences occurred), GPR was a primary victim of an act of violence, which is subject to a class action.

30. The medical evidence indicates that GPR has been diagnosed with complex post-traumatic stress disorder (PTSD), substance abuse disorder and substance-induced psychotic disorder and that she likely satisfies the criteria for borderline personality disorder, as well as depression and anxiety. GPR has sought treatment for her drug use and mental health and continues to see a Victims Services counsellor for therapeutic support. She has now been “clean” for 3.5 years.

31. In relation to GPR’s financial circumstances, the evidence indicates that she owes $11,592.30 to Revenue NSW; her bank account is overdrawn and she has $1,486.15 in her inmate trust account. She is a long-term prisoner and has few opportunities to engage in Work Development Order programs that might enable her to reduce the debt to Revenue NSW. She has no other financial means and enforcing the restitution orders would cause undue financial hardship. The debt would be transferred to Revenue NSW for enforcement upon GPR’s release from prison.

32. GPR’s solicitors also argued that the respondent erred by failing to apply a beneficial approach to the Act and that there is precedent for a restitution order to be reduced to nil: Scott v Victims Compensation Fund Corporation [2000] NSWSC 1148. This decision was made in relation to the provisions of the Victims Compensation Act 1987 (NSW) (the 1987 Act), but they argued that there is similarity in the factors to be considered.

33. GPR’s solicitors argued that when GPR is released, she should be given an opportunity to reintegrate to society, form relationships with and support her children and become a productive member of society, but compounding her debts will significantly stymie this process. Therefore, the Tribunal should interpret the Act beneficially and uphold the objections in full.

Respondent’s case

34. The respondent filed written submissions on 27 November 2024.

35. In relation to reduction of restitution under s 69 of the Act, the respondent stated, relevantly:

17. The respondent understands that the applicant seeks a reduction due to financial hardship, the difficulties she experienced in her childhood, her mental health and addiction and abuse while in prison. Most of these issues were also raised at the criminal hearing and resulted in the finding and conviction for murder. Such factors were relevant to, and considered in, sentencing.

18.. In relation to her capacity to pay the restitution debt, reference is made to the applicant’s claims for victims support.

19. On 28 February 2022, the applicant was approved two category B recognition payments of $10,000 each, in relation to historic sexual abuse by two perpetrators. At that time the applicant had a pending restitution debt of $5,309 unrelated to the current restitution orders. That debt was paid off pursuant to the provisions of section 45 of the Act.

20. On 26 September 2024, the applicant was approved a further category B recognition payment in relation to a series of acts involving sexual assault that occurred between 1 January 2012 and 1 January 2017. This amount has similarly assisted in reducing the applicant’s current restitution debt by setting off a sum of $10,000.

21. Should the applicant be unable to satisfy the remainder of the restitution debt by the due date, it will be transferred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 (NSW). Following this transfer, the applicant may request a payment plan with Revenue NSW.

36. In relation to the decision in Scott, the respondent noted that s 47(2) of the 1987 Act made culpability a relevant factor, but s 69 of the Act does not specifically refer to culpability.

37. The respondent concluded that the Tribunal should confirm the original decisions under s 67(1) of the Act and the restitution orders under s 67(2A) of the Act, without any reduction under s 69 of the Act.

Relevant legislative provisions

38. Section 59 of the Act provides:

Commissioner's discretion to make provisional order for restitution by offender

(1) If the Commissioner is of the opinion that, before or after an approval for the giving of financial support or making of a recognition payment is given, a person has been convicted of a relevant offence, the Commissioner may make an order for restitution against the person.

(2) An order may not be made against a person if-

(a) 2 years or more have elapsed since-

(i) the end of the period in which a claim may be made under an application for victims support under section 40 (6), or

(ii) the date on which the person was convicted of the relevant offence,

whichever is the later, or

(b) civil proceedings have been commenced or are being maintained against the person, by or on behalf of the State, in respect of an action for damages arising from substantially the same facts as those on which the relevant approval was based.

39. Section 61 of the Act provides:

Notification of decision

(1) The Commissioner must serve notice of an order for restitution personally or by post on the person against whom it was made.

(2) The notice must-

(a) set out the terms of the order, and

(b) include a statement of the grounds on which the order was made, and

(c) set out the effect of sections 63 and 64, and

(d) set out an explanation of-

(i) the right to object, within 28 days after the notice is served to the order and the procedure for objecting, and

(ii) the effect of objecting or failing to object.

40. Section 62 of the Act provides:

Objection to order

(1) A person served with notice of an order for restitution may lodge a written objection to the order with the Commissioner.

(2) The objection must be lodged within 28 days (or such longer period, not exceeding 90 days, as the Commissioner may allow) after the notice was served.

(3) The grounds for the objection must be stated fully and in detail in the objection.

(4) On an objection, the defendant has the onus of proving the defendant's case.

41. Section 64 of the Act provides:

Powers of Commissioner on objection

(1) After considering an objection, the Commissioner may-

(a) allow the objection in whole or in part or disallow the objection, and

(b) confirm the decision to which the objection was made (with or without variations) or reverse that decision.

(2) The Commissioner may confirm the order for restitution if the Commissioner confirms the decision to which the objection was made (with or without variations).

(2A) Before confirming the order, the Commissioner may vary the order by reducing the amount payable under it.

(3) The Commissioner must revoke the order for restitution if the Commissioner reverses the original decision.

(4) For the purpose of enabling a defendant to apply to the Tribunal for an administrative review, the Commissioner is taken to have failed to determine an objection if 90 days have passed since the objection was lodged with the Commissioner.

(5) The Commissioner's failure to determine an objection within the period referred to in subsection (4) does not prevent the Commissioner from continuing to deal with the objection after that period has expired.

(6) In calculating a period referred to in subsection (4), the period between the date on which the Commissioner requests further information or supporting evidence from the defendant in relation to the objection and the date on which that further information or supporting evidence is furnished is excluded.

42. Section 66 of the Act provides:

Administrative reviews by Tribunal

(1) The defendant may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision (the original decision) to which an objection was made if-

(a) the defendant is dissatisfied with the Commissioner's determination of the objection, or

(b) 90 days have passed as referred to in section 64 since the objection was lodged with the Commissioner and the Commissioner has not determined the objection.

(2) The applicant's and respondent's cases on an application for an administrative review are not limited to the grounds of the objection.

(3) The applicant has the onus of proving the applicant's case in an application for an administrative review.

(4) An application for an administrative review-

(a) following a determination by the Commissioner of an objection-must be made not later than 60 days after the date of issue of the notice of the Commissioner's determination of the objection, or

(b) following a failure of the Commissioner to determine an objection within the relevant 90-day period-may be made at any time after the end of that period (but must be made as required by paragraph (a) following a subsequent determination of the objection by the Commissioner).

(5) The Tribunal may extend the time for making an application for an administrative review.

(6) The following provisions of the Administrative Decisions Review Act 1997 do not apply to an application made under this section-

(a) Part 2 of Chapter 3,

(b) section 55 (3)-(6),

(c) Division 2 of Part 3 of Chapter 3.

(7) For the purposes of section 58(1)(a) of the Administrative Decisions Review Act 1997-

(a) the obligation of the Commissioner under that paragraph to lodge a statement of reasons with the Tribunal in respect of an application is limited to providing the Tribunal with a statement of reasons only in respect of the matters arising from the grounds specified in the application, and

(b) if one of the grounds specified in the application relates to a matter raised in an objection determined by the Commissioner-the Commissioner may rely on reasons previously given to the defendant by the Commissioner under this Act for the determination of the objection in explanation of that part of the original decision.

(8) In any review proceedings, a person who is a victim of the relevant offence to which the proceedings relate is competent, but not compellable, to give evidence or produce documents.

Note-

See also section 113 which provides that an application for victims support and any documents supporting the application are, subject to that section, not admissible as evidence in any legal proceedings.

43. Section 67 of the Act provides:

Powers of Tribunal on administrative review

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

(a) confirm the original decision the subject of review (with or without variations) or reverse that decision, 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.

(2A) The Tribunal may confirm the order for restitution the subject of the review proceedings if the Tribunal confirms the decision to make the order (with or without variations).

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

(4) The Tribunal may confirm an order for restitution 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.

Consideration

44. Based on a consideration of all of the available evidence, I am satisfied that the victims support for which the respondent seeks restitution was approved with respect to a relevant offence with respect to which GPR was convicted.

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

46. In this matter, the evidence before the Assessor supported the respondent's decision to approve victims support totalling $25,385.57 for family victims of the deceased primary victim. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the family victims.

47. In considering the application of s 69(1) of the Act to this matter, I note that GPR’s current financial circumstances are precarious as the applicant is a long-term inmate in a correctional facility and has an overdrawn bank account. While she has an inmate trust account, she is unable to transfer any funds out of that account.

48. The medical evidence also indicates that she suffers from multiple psychological conditions, for which she continues to receive treatment by way of counselling, and that she was also the primary victim of acts of violence for which victims support was approved. However, I note that the respondent applied a category B recognition payment of $10,000 that was approved for her towards the restitution debt by way of set-off. As a result, the current balance of the restitution debt is $15,385.57.

49. In my view, it is appropriate to exercise the Tribunal’s discretion to reduce the amount of the restitution debt in all the circumstances and particularly the fact that GPR, as well as being incarcerated, continues to suffer from psychological conditions that resulted from acts of violence that were perpetrated against the applicant.

50. For these reasons, I have decided that the correct and preferable decision is to vary the restitution orders under s 69(1) of the Act, to reduce the total amount payable to $15,231.34. This represents a reduction 40% on the restitution order, which reflects the factors raised by GPR upon administrative review, including her prior history of trauma and abuse and her precarious financial circumstances.

51. This is to be effected as follows:

1. Matter number 2024/00326035 – reduce to $14,320; and

2. Matter number 2024/00325920 – confirmed as $910.72.

Conclusion and orders

52. I make the following orders:

1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013, publication of information that will identify the applicant or any victims or evidence given and received in this Tribunal hearing or in relation to the proceedings which is likely to identify those persons is prohibited.

2. The restitution orders dated 13 March 2024 in matters 2024/00326035 and 2024/00325920 are confirmed.

3. However, the total restitution payable is reduced to $15,230.72, as follows:

1. The restitution order in matter 2024/00326035 is reduced to $14,320.

2. The restitution order in matter number 2024/00325920 is confirmed as $910.72.

3. The restitution sum is payable within six months of the date of this decision.

4. The restitution orders dated 13 March 2024 in matters 2024/00325 and 2024/00325920 are confirmed.

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: 03 February 2025