Ready v Commissioner of Victims Rights

[2016] NSWCATAD 105

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Ready v Commissioner of Victims Rights [2016] NSWCATAD 105
Hearing dates:	29 April 2016
Date of orders:	31 May 2016
Decision date:	31 May 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	The Restitution Order dated 23 January 2016 is confirmed.
Catchwords:	Victims Rights and Support – administrative review – conviction of a relevant offence
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (No. 2) Victims Rights and Support Act 2013 Victims Support and Rehabilitation Act 1996 Administrative Decisions Review Act 1997
Category:	Principal judgment
Parties:	David Terence Ready (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: David Terence Ready (Applicant in person) Victims Services (Respondent)
File Number(s):	1610142

Reasons for decision

Background

1. In this matter, Mr David Terence Ready (“the Applicant”) has made an Application for Administrative Review of a Restitution Order made on 13 January 2016, by the Delegate of the Commissioner of Victims Rights (“the Commissioner”) upon internal review, which confirmed a Provisional Order for Restitution dated 27 August 2015. That order was made pursuant to s 64 of the Victims Rights and Support Act 2013 (“VRSA”).

2. On 7 August 2012, the victim made an Application for Compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 (“the old Act”), in which he alleged that he had been the victim of sexual assaults that were committed by the Applicant over a period of time between “1 January 2010 and 1 January 2011”. He alleged that he had been “indecently sexually assaulted on numerous occasions” by the Applicant and that he was 13 years old. However, the Application did not allege any specific incidents of violence or otherwise particularise any dates upon which acts of violence occurred. The victim claimed compensation for the compensable injury of sexual assault.

3. The Police COPS Event report indicates that on 3 April 2010 (not 5 April 2010 as pleaded in the Application for Compensation), the victim’s mother reported acts of violence that allegedly occurred on 20 February 2010, 27 February 2010 and 6 March 2010. As a result of the Police investigation the Applicant was charged with one count of indecent assault in circumstances of aggravation (child under 16 and with cognitive impairment) and 3 counts of Possess Child Pornography.

4. However, the Tribunal notes that the indecent assault charge was later downgraded to delete reference to “circumstances of aggravation” and that only one charge of possess child pornography was pressed by the Director of Public Prosecutions (“the DPP”). Agreed Facts were also lodged with the Local Court in due course.

Award of victims support to the victim

5. On 7 May 2013 the New South Wales Government introduced legislation that changed the form of support provided to victims of violent crime in New South Wales. On 3 June 2013, the old Act was repealed and replaced by VRSA and cl 5(1) of sch 2 of VRSA set out the following saving and transitional provision:

5   Applications for compensation under statutory compensation scheme

(1)  An application for statutory compensation that was lodged, but not finally determined, under the repealed Act before the introduction day is to be dealt with under this Act (subject to this clause) as if it were an application for victims support.

6. On 23 April 2014, a Compensation Assessor approved payment of victims support to the victim in the sum of $15,000 (comprising a Category B Recognition Payment pursuant to s 35 (2) (b) of VRSA in the sum of $10,000 and a special grant pursuant to sch 2, cl 5 (3) of VRSA in the sum of $5,000). The Reasons for Decision indicated, relevantly:

10. The offender was charged with numerous sexual assault offences.

11. The offender was convicted of commit act of indecency with person under 16 years and sentenced to a term of imprisonment.

12. I accept the report of Dr Eli Kleiner establishes psychological harm in accordance with section 19 (c) of the Act.

13. Considered on the balance of probabilities, I am satisfied the evidence therefore establishes that during the period from 1 January 2010 to 1 January 2011, the applicant was a primary victim of an act of violence, pursuant to sections 19 and 20 of the Act, consisting of a series of related acts.

7. The Tribunal notes that the Applicant pleaded guilty to both of the charges that were pressed by the DPP.

Provisional order for Restitution

8. Part 5 of VRSA is concerned with the recovery of victim support payments from offenders. The object of that Part is set out in s 57 of VRSA:

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.

9. The statutory scheme gives the Commissioner of Victims Rights a discretion to make a provisional restitution order against a person convicted of a relevant offence, either after a recognition payment (or financial support) has been paid to a victim of that offence, or following approval of such a payment (see: s 59 (1) of VRSA).

10. “Relevant offence” is defined in s 58 of VRSA, as follows:

Relevant offence means the following (emphasis added):

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

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

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

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

12. On 27 August 2015, the Commissioner made a provisional order for restitution against the Applicant in the sum of $15,000, being the full amount of victims support that was approved for the victim.

13. The Tribunal notes that an Affidavit of Service evidences that a copy of the Provisional Order was posted to the Applicant on 2 September 2015. I am therefore satisfied that the Provisional Order was served on the Applicant as required by s 61 of VRSA.

14. S 62 of VRSA gives a person on whom a Provisional Order is served a period of 28 days in which to make a written objection. The grounds of objection must be fully stated (see: s 62 (3) of VRSA) and the objector bears the onus of proving their case (see: s 62 (4) of VRSA). In this matter, the Applicant lodged an Objection on 1 October 2015.

15. In the Objection, the Applicant stated that he had instructed his Solicitor to apply to the Court for leave to appeal against his convictions. He lodged a number of documents in support of the Objection, which I have summarised (relevantly) as follows:

1. His letter to Victims Services dated 14 April 2013.

2. In relation to the victim’s Application for Compensation he stated:

…I am making a submission that the other claim that it’s been adjourned for just didn’t happen, and I ask you to look at the evidence of my case. Even the DPP believed it never happened, and in fact my unprecedented visit to my “so-called” victim to see if they would stop the case. Now I understand why they insisted on going ahead with it, as it’s clear they wanted to make a compensation claim.

Yes, I did plead guilty, but for the following reasons:

1. As part of a plea deal. Two charges were dropped and the remaining two were significantly downgraded.

2. My case was before the Court on the last sitting day of 2011, 16th December, and I was desperate to get out of Long Bay otherwise a not guilty plea would not have been heard until at least March/April 2012. As part of the plea deal, the DPP was happy to ask the judge for “time served”. Unfortunately the judge thought otherwise.

3. I pleaded guilty in order to save me and my family the embarrassment of having minute details of the remaining matters being discussed in an open court (according to my lawyer).

It is clear from the evidence that my “victim” was lying. He stated categorically that the so-called indecent act happened on the 2nd January 2010. It is clear from the boy’s own chat logs in the police brief that I had not seen him between about 17th December 2009 and the 17th January 2010. In the chat logs it was clear that I was putting him off visiting me. In the second week of January 2010 there was a discussion of when he could pick up his ‘Christmas present from me’. All this is in the chat logs in the police brief. He was so clear on the date. I’m surprised that the DPP decided to go ahead with it. My lawyer said they’d try to prove by other means.

It was bad lawyer advice which I received to plead guilty…

So please. Please look at the “evidence” yourself, and you should come to see what I have submitted is correct. Of course I understand that you need to rely on the Police brief and the “evidence” alone. All I’m asking is that you look at it, and ensure that another travesty of justice doesn’t happen.

3. His letter to Victims Services dated 29 September 2015.

He maintained his previous submission that the “victim” is lying and stated that two weeks before he received the Provisional Order, he instructed his lawyer “…to start the process to seek leave to appeal my conviction for the offence involving your “victim”.”

4. He submitted that he suffers financial hardship and is dependent upon the Disability Support Pension. He lodged an Affidavit of Financial Circumstances in which he deposed that his total monthly expenditure exceeds his total monthly income.

16. On 6 October 2015, the Commissioner wrote to the Applicant and advised him that if the convictions were overturned then the restitution proceedings would be terminated.

17. The Applicant responded to the Commissioner’s said letter on 16 October 2015, essentially repeating his previous submissions concerning the issues of guilt and culpability.

Decision upon Internal Review

18. On 11 November 2015, a Legal Officer undertook an internal review of the Applicant’s Objection on behalf of the Commissioner and issued a request for further information or supporting evidence. The Legal Officer determined (relevantly):

Further Information Sought

12. In the circumstances I consider the defendant should be given an opportunity to provide further details in respect to whether an appeal/leave to appeal has been lodged.

13. Unless written confirmation is provided by the defendant confirming an appeal is pending this matter will be determined on current existing information on file on the next occasion.

Determination of the objection was deferred for a period of 2 months.

19. However, the Applicant did not submit any further evidence and on 13 January 2016, a Legal Officer undertook an internal review of the Applicant’s Objection on behalf of the Respondent and issued a Notice of Determination pursuant to s 65 of VRSA. The Legal Officer determined, relevantly:

SUMMARY OF FACTS

...6. The facts relevant to this objection are summarised below, and are based on documents contained in the Victims Services file, including documents submitted by the defendant.

7. The defendant was convicted of the offence of commit act of indecency with person under the age of 16 years at the Sydney District Court on the 22nd March 2011.

8. I note police facts E40176570 on file.

9. Police facts indicate that between February and April 2010 the offender committed an act of indecency towards the victim whilst the victim was at the offender’s premises in Padstow.

10. The facts giving rise to the approval of victims support are stated in the Assessor’s findings dated 23rd April 2013…

And further:

GROUNDS OF OBJECTION, SUBMISSIONS AND EVIDENCE IN SUPPORT

…13. I note that the defendant has not provided any further detail concerning whether an appeal has been lodged.

14. I note listing letter sent to the defendant detailing that the matter would be determined on the 12th January 2016.

15. The defendant has provided an affidavit of financial circumstances (with documentation including bank statements) and made application to pay by instalments.

And further:

CONSIDERATION

Should the provisional order be confirmed or varied?

16. The defendant was convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which the award of victims support was made.

17. I am of the opinion that the restitution order can be varied under the provisions of section 64 of the VRS Act.

18. I note submissions made by the defendant and his application to pay by instalments.

19. In the circumstances I find it appropriate to reduce the amount to be paid under the provisional order to an amount of $8,000.

20. This order will be for the sum of $40 per month to commence on the 15th March 2016…

20. The Tribunal notes that a copy of the Determination of the Objection was served upon the Applicant by post on 22 January 2016. I am therefore satisfied that this was properly served upon him.

Application for Administrative Review

21. The powers of the Tribunal upon administrative review are set out in s 67 of VRSA, relevantly, as follows:

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

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

(b) Make any other orders it thinks fit.

…

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

22. On 1 March 2016, the Tribunal received the current Application for Administrative Review which set out the following grounds:

Having been on a Disability Support Pension since 2011 I cannot afford the sum of $8,000 or the minimum $40 per month Victims Services is ordering me to pay. What pensioner on any type of pension has any level of “disposable income” I ask. The State of NSW is already subsidising both my rent and energy bills as a DSP recipient, and therefore already recognise that I don’t have the ability to pay normal rates for even life’s essentials let alone a Victims Services imposition. Also, I don’t believe VS haven’t taken into account the Agreed Facts of the original case and have relied on the Police version only.

23. The Applicant lodged further written Submissions dated 28 March 2016 (received 31 March 2016) and 18 April 2016 (received 20 April 2016), respectively and an Affidavit that he swore on 29 March 2016.

24. In his Affidavit, the Applicant deposed that he suffers ongoing chronic depression and PTSD for which he has received the Disability Services Pension since October 2012. He submitted that “…to be reminded of this episode, year in and year out for 15 years, by way of a reminder of what is equivalent to a $40 per month fine, is keeping me in a very dark, mental health place. I too, am a victim, acknowledged by Victim Services, and I need to move on…” He argued that the restitution order “is effectively a fine” and that “…it sets a dangerous precedent for an act so minor, and what any adult could be accused of should a child open a door, and/or surprise an adult doing something personal. The Agreed Facts if the offense (sic) shows just how innocuous the so-called act was…”

25. The Applicant repeated his previous submissions to the effect that no act of violence occurred and that he only decided to plead guilty because he was desperate to be released from gaol before Christmas. He also stated, relevantly:

…Even if the offence did happen, the Agreed Facts go to the fact that I wasn’t aware of the boy’s presence. That is, he claims that he saw me do an indecent act, and that he “has run from the offender’s premises”. One must ask just how many adults every day, get sprung in compromising ways by children? That’s all this was. In the popular movie, Meet the Fockers, Bernie Focker reminds his adult son that “the hat on the outside of the door knob on the bedroom door means ‘we’re busy’.” I submit this move (sic) excerpt is indeed a reflection of true life in that is probably a common occurrence…

26. The Applicant lodged further documents in support of his submission that his total monthly living expenses exceed his total monthly income. He concluded that as he was under considerable financial stress, the Commissioner should set aside the restitution order.

27. On 18 April 2016, the Applicant responded to written Submissions that were lodged by the Commissioner. He asserted that the Commissioner used “incorrect facts” to find against him and repeated his previous submissions regarding the issues of guilt and culpability. He also stated, relevantly:

Recognition payment must be set aside

4. I ask that the Recognition Payment be set aside as there was only one indecent act.

a. Section 19(4) of the Victims Rights and Support Act 2013 states “series of related acts” is two or more acts that are related because of 19(4)(a-b).” It was clear from the Agreed Facts, and with what I was convicted, that there was only one act.

b. The Local Court transcript… shows the Agreed Facts before Magistrate Moore confirms that, “it was an isolated incident” (therefore meaning one)…

28. The Applicant again stated that he intends to appeal to a higher court to have both his convictions set aside “…as my appeal in the District Court was unsuccessful and only on one of the convictions. This is still in delay as my original lawyer is stalling the release back to me of the original Police Brief…” He also stated:

I am not only asking a reduction in the monthly payment, but for the Commissioner’s decision to be totally set aside.

8. It’s just not right that somebody can be caught in a compromising position without their knowledge by a child, and have $15000 awarded against them and worse, be gaoled for it.

9. Because of these further submissions, I ask NCAT to set the Commissioner’s Decision/Orders aside in their entirety. Ideally the Commissioner of Victims Rights should totally set their Decision aside before NCAT’s hearing on 27th April 2016.but he did not lodge this with the Tribunal until 17 July 2015. However, in my view he did not make any issues of relevance to the issues to be determined by this Tribunal.

29. On 6 April 2016, the Commissioner lodged written Submissions and the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”). The Commissioner’s submissions were to the effect that:

1. The Applicant was convicted of a relevant offence under s 58 of VRSA, as the conviction arose from substantially the same facts as those constituting the act of violence in respect of which the recognition payment was approved (see: s 58 VRSA);

2. The provisional order for restitution was made no more than 2 years after the later of either the date of conviction or the date of payment to the victim (see: s 59 of VRSA); and

3. Therefore, the correct and preferable decision is to confirm the decision under review “subject to anything the applicant may wish to say about his financial circumstances”.

30. The Application for Administrative Review was lodged within the permitted time. It came before me for hearing on 29 April 2016, when Ms Sebesan appeared for the Commissioner and the Applicant appeared in person (by telephone). The documents provided by the Commissioner under Section 58 of the ADR Act were comprehensive and complete.

31. The Applicant made oral submissions and essentially repeated his previous written submissions. However, he also argued that the Recognition Payment approved for the victim should be reduced to $1,500 (being a Category D Recognition Payment) and he continued to dispute his guilty and culpability. The Tribunal sought clarification of his financial circumstances and particularly how he made up the shortfall between his total monthly expenditure and his total monthly income. The Applicant stated that he “makes up the shortfall by gambling and reducing his discretionary expenses”. He stated that he “does not have a consistent amount available to bet with but if I get $100 to $200 I will have a flutter”. Based upon this evidence, the Tribunal is not satisfied that the Applicant’s Affidavit of Financial Circumstances is an accurate reflection of his current financial circumstances and ability to meet payment of a restitution order.

Consideration

32. The Commissioner’s discretion under s 59 (1) of VRSA to make a provisional order for restitution is dependent on the person against whom the order is made being convicted of a relevant offence. The definition of relevant offence makes it clear that the conviction has to relate to the act of violence concerning which payment is made. This is a central protection offered by the statutory scheme with respect to recovery of payments: i.e. that the person from whom recovery is sought must have been convicted of the offence arising from the act of violence for which statutory compensation (or a recognition payment) has been paid. Without that requirement, provisional orders could be made against persons who have no prior knowledge of all of the acts of violence alleged against them, and who have not been convicted of offences relating to such acts of violence.

33. This Tribunal does not have power to look behind a conviction recorded by a Court and it cannot, in the course of administrative review of a restitution order, review the Commissioner’s decision to approve victims support for the victim. Further, the Applicant’s reasons for his decision to plead guilty to the charges of which he was convicted are not relevant to the current Application.

34. The Tribunal notes that the Applicant has stated on a number of occasions that he intends to seek leave from a higher Court to appeal against his convictions. When he raised this issue in relation to his Objection the Commissioner advised him that if the convictions were set aside the restitution proceedings would be terminated. The Commissioner also deferred the determination of the Objection for a period of two months to enable the Applicant to provide further evidence regarding his application for leave to appeal. However, he did not avail himself of that opportunity. I note that as at the date of the hearing of the current Application he has not yet applied for leave to appeal from the Supreme Court of NSW.

35. Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence. On 16 December 2010, he was convicted of two offences that occurred on 20 February 2010 (committing an act of indecency towards a person under 16 years) and 9 April 2010 (possessing child pornography), respectively. He was sentenced to a period of imprisonment for a period of 21 months commencing on 29 July 2010 and was eligible for release on Parole on 28 November 2011. However, the compensation that is the subject of the restitution order was awarded solely with respect to the offence that occurred on 20 February 2010.

36. On 23 April 2014, the payment of victims support was approved for the victim in the sum of $15,000 and the provisional order was made on 27 August 2015. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of VRSA. In any event, in the exercise of the Commissioner’s discretion upon internal review, the restitution amount was reduced to $8,000.

37. After considering all of the available evidence and the parties’ submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order and I make the following order:

1. Pursuant to Section 67 (1)(a) of VRSA, I confirm the order made by the Commissioner on 13 January 2016, which requires the Applicant to make restitution in the sum of $8,000 by way of monthly instalments of $40 per month, commencing on the fifteenth day of June 2016.

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: 31 May 2016