Singh v Commissioner of Victims Rights

[2017] NSWCATAD 196

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Singh v Commissioner of Victims Rights [2017] NSWCATAD 196
Hearing dates:	28 April 2017
Date of orders:	20 June 2017
Decision date:	20 June 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	M Riordan, Senior Member
Decision:	(1) The decision of the Commissioner’s delegate dated 25 October 2016 is confirmed.
Catchwords:	Victims Rights and Support – administrative review - restitution order against person convicted of relevant offence – dispute regarding culpability despite a plea of guilty and conviction – fresh evidence suggesting that the approval of victims support was based upon fraud – application of s 56 of Victims Rights and Support Act 2013 - alleged financial hardship and impecuniosity
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 Crimes (Sentencing and Procedure) Act 1999
Category:	Principal judgment
Parties:	Jagvinder Singh (Applicant) Commissioner of Victims Rights (Respondent)
Representation:	Solicitors: In Person (Applicant) S Sabesan, Victims Services (Respondent)
File Number(s):	2017/00026923
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

REASON FOR DECISION

Background

1. In this matter, Mr Jagvinder Singh (“the Applicant”) has made an Application for Administrative Review of a Restitution Order made on 25 October 2016, by the Delegate of the Commissioner of Victims Rights (“the Commissioner”) in relation to an Objection lodged by the Applicant. That decision varied the amount payable under a Provisional Order for Restitution dated 20 July 2016, which related to two (2) separate approvals of Victims Support, and which was made pursuant to s 64 of the Victims Rights and Support Act 2013 (“the Act”).

2. The Applications for Victims Support were as follows:

RT190639

3. On 15 October 2012, the victim (the applicant’s wife) made an Application for Compensation under Part 2 of the Victims Support and Rehabilitation Act 1996 (“the old Act”), in which she alleged that he had been the victim of domestic/family violence that was perpetrated by the Applicant over a period of time from 6 October 1992 to 31 July 2012. She claimed compensation for the compensable injury of “domestic violence”.

4. The Police COPS Event report indicates that on 6 August 2012, the victim reported that she had been married to the Applicant for the past 20 years and that their marriage had been violent in the past, but that this had not been reported. The victim also reported an incident that occurred on 29 July 2012, as a result of which the Applicant was charged with “Stalk or intimidate intending to cause fear of physical or mental harm” and “common assault”.

RT190683

5. On 5 October 2012, the victim (the applicant’s son) 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 domestic/family violence that was perpetrated by the Applicant on 31 July 2012, when he was “beaten with tennis racket. Injuries on arms and neck”. He claimed compensation for the compensable injury of “domestic violence”.

6. The Police COPS Event report indicates that on 1 August 2012, the victim reported that the Applicant had assaulted both himself and his mother with a tennis racquet. As a result, the Applicant was charged with “common assault” and “assault occasioning actual bodily harm”.

Award of victims support to the victims

7. 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 the Act and cl 5 (1) of sch 2 of the Act 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.

RT190639

8. On 17 December 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D Recognition Payment pursuant to s 35 (3) (c) of the Act in the sum of $1,500 and a special grant pursuant to sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor’s reasons included (relevantly):

8. According to the application form, during the period 6 October 1990 to 31 July 2012 the applicant was a victim and sustained injury as a result of domestic violence committed by the alleged offender at Glendenning in NSW.

9. In addition to the application form, I have considered the police reports, court information, medical evidence and other documents on the applicant’s file.

10. In response to a request from Victims Services for police information pertaining to the applicant and the alleged offender during the relevant period, police COPS report (number provided) has been obtained. This report states that on 6 August 2012 the applicant attended (location stated) Police Station to report a domestic incident involving the alleged offender. The applicant reported that on 29 July 2012 the alleged offender behaved in a verbally aggressive and threatening manner towards the applicant. The applicant further reported that violent domestic incidents involving the alleged offender had occurred in the past however these had not been reported to police.

11. On 9 August 2012 the alleged offender attended (location provided) Police Station in relation to another matter. The alleged offender was arrested in relation to the incidents occurring on 29 July 2012, declined to be interviewed and was subsequently charged with a number of offences.

12. According to information obtained from Parramatta District Court, the alleged offender was charged with multiple counts of ‘stalk/intimidate’ in relation to the incident. I note that he was subsequently convicted and placed on a bond.

13. The report of clinical psychologist (name redacted) dated (date redacted) indicates that the applicant sustained psychological harm as a result of the incidents that are the subject of the application. The report states that a further violent domestic incident reportedly occurred on 19 March 2012.

14. Considered on the balance of probabilities, I am of the opinion that during the period 19 March 2012 to 29 July 2012 the applicant was the primary victim of an act of violence, pursuant to sections 19 and 20 of the Act, consisting of related acts…

Recognition Payments

…

19. A category D recognition payment is payable under section 36(1)(e) of the Act, and pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under Category D is $1,500.00.

Special Grant from the Victims Support Fund

20. Clause 5(3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years from the date of the Act of violence (or two years after the applicant reached 18 years of age).

21. Noting the applicable dates the applicant is therefore eligible to receive a special grant, pursuant to Schedule 2, Clause 5(3) of the Act.

9. The Tribunal notes that the Applicant was convicted of the charge of common assault in the District Court of New South Wales at Parramatta on 1 February 2013 and that he was placed on a good behaviour bond under s 9 (1) of the Crimes (Sentencing and Procedure) Act 1999 for a period of 3 years.

RT190683

10. On 17 December 2014, an Assessor (client claims) approved payment of victims support to the victim in the sum of $6,500 (comprising a Category D Recognition Payment pursuant to s 35 (3) (c) of the Act in the sum of $1,500 and a special grant pursuant to sch 2, cl 5 (3) of the Act in the sum of $5,000). The Assessor’s reasons included (relevantly):

8. According to the application form, on 31 July 2012 the applicant was a victim and sustained injury as a result of domestic violence committed by the alleged offender at Glendenning in NSW.

9. In addition to the application form, I have considered the police reports, court information, medical evidence and other documents on the applicant’s file.

10. Police COPS report (number provided) has been obtained and states that on 31 July 2012, the applicant became angry at the applicant, accusing him of lying, and punched the applicant to the face and abdomen approximately four (4) times with a closed fist. The alleged offender reportedly proceeded to hit the applicant with a tennis racquet, causing the applicant to feel pain and collapse on the floor.

11. On 1 August 2012, the alleged offender reportedly once again approached the applicant and punched him in the abdomen four (4) or five (5) times with a closed fist.

12. On 2 August 2012 police attended the residence of the applicant and the alleged offender where the alleged offender was placed under arrest and conveyed to (location provided) Police Station. The alleged offender reportedly made a number of admissions regarding his actions towards the applicant and was subsequently charged.

13. According to information obtained from Parramatta District Court, the alleged offender was charged with “assault occasioning actual bodily harm” and “common assault” in relation to the incident. I note that the alleged offender was convicted of the charges and placed on a bond.

14. Although no medical evidence has been submitted in support of this application, I note that police observed the applicant to have sustained ‘scratches, red marks and bruising to (his) left forearm’ following the incidents on 31 July and 1 August 2012.

15. Considered on the balance of probabilities, I am of the opinion that on 31 July and 1 August 2012 the applicant was the primary victim of an act of violence, pursuant to sections 19 and 20 of the Act, consisting of related acts…

Recognition Payments

…

20. A category D recognition payment is payable under section 36(1)(e) of the Act, and pursuant to clause 12 of the Regulation, the prescribed amount of recognition payment under Category D is $1,500.00.

Special Grant from the Victims Support Fund

21. Clause 5(3) of Schedule 2 of the Act provides for a special lump sum grant of $5,000 to primary victims of an act of violence who lodged their application for statutory compensation under the previous Act within two years from the date of the Act of violence (or two years after the applicant reached 18 years of age).

22. Noting the applicable dates the applicant is therefore eligible to receive a special grant, pursuant to Schedule 2, Clause 5(3) of the Act.

11. The Tribunal notes that the Applicant was convicted of the charges of common assault and assault occasioning actual bodily harm in the District Court of New South Wales at Parramatta on 1 February 2013 and that he was placed on a good behaviour bond under s 9 (1) of the Crimes (Sentencing and Procedure) Act 1999 for a period of 3 years.

Provisional order for Restitution

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

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.

13. 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 the Act).

14. “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,

(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.

15. 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 the Act.

RT190639

16. On 20 July 2016, the Commissioner made a provisional order for restitution against the Applicant in the sum of $6,500, being the full amount of victims support that was approved for the victim.

17. A copy of the Provisional Order was posted to the Applicant on 22 July 2016 under cover of a letter from the Commissioner dated 20 July 2016. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.

18. S 62 of the Act gives a person upon 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 the Act) and the objector bears the onus of proving their case (see: s 62 (4) of the Act).

Objection to Provisional Order

19. On 7 August 2016, the Applicant signed an Objection to the provisional order for restitution, which set out the following grounds of review:

1. There was no assault.

2. My former wide said she would not make any claim against me if I pleaded “guilty”.

3. Because she was a teacher she was afraid she may be convicted of making a false statement.

4. In April 2012 she received injury from a minor car accident. Later she claimed I did it.

5. My son will testify to the truth of above.

20. The Applicant also stated:

1. There was no assault.

2. My wife smashed my car & damage it.

3. We had an argument.

4. She made false allegations.

5. She said: I do not want to get into trouble for lying. Just plead guilty and I will not do anything against you.

6. We went through a difficult property settlement & divorce.

7. She was afraid of getting a conviction herself as she was a school teacher.

21. On 11 August 2016, the Commissioner wrote to the Applicant, advising that the Objection had been listed for determination at the first available opportunity on or after 26 September 2016 and that any further evidence to be relied upon should be lodged by 12 September 2016.

22. On 13 September 2016, the Commissioner received a letter from the Applicant, which submitted a Statutory Declaration from his son (the Applicant in RT190683). I note that the declarant stated, relevantly:

..

2. I can confirm that my mother (name provided) was never assaulted by my father on the day in question.

3. The alleged assault charge by my mother happened at a time shortly after my mother had one of her many tantrums and damaged her car in a motor vehicle accident and she received injuries as a result. This bade (sic) her quite sore and very depressed.

4. She made a false claim to police and said my father caused the injuries, when they were actually caused from her motor vehicle accident and not as a result of my father assaulting her – what she said was a lie.

5. At the time my parents were going through property settlement proceeds and my mother was suffering severe mood swings and depression.

6. My father was going to defend all the charges but my mother realised that if she did not win she may be charged with making a false complaint. She told this to my father and said:

I do not want to have a criminal record, as it may affect my employment as a teacher. If you just plead guilty I will not do anything against you – please, you must help me.

7. My father then pleaded guilty as he felt sorry for my mother and did it for our family. Further, he did not want my mother to suffer even more depression.

8. But later my mother did not keep her end of the “bargain”.

9. My mother asked me:

“(name), I am going to make a claim against your father for Victim Compensation money. I want you to do the same.

I said: Why are you doing this, you know he never assaulted you. You made a false allegation against dad and you damaged your car and got injuries from this and then toy claimed to police that they were caused by dad. Now you want to do this – why?

She said: I do not care; I need the money. If you do not do what I say you can get out of this house.

I said: OK, I will sign it – but I feel like I am being blackmailed.

She said: You will also need to go and see a counsellor, as I was told this is the best way to get the money – I will do the same.

10. I then went to see a counsellor and later completed and signed the application.

11. Whilst I had a legal right to claim, I felt a great deal of pressure from my mother.

12. Sometime later, I recall my mother saying to me:

(Name), I received the compensation money. Did you receive yours?

I said: Yes

She said: You should give it to me for our household expenses.

13. Over a period of time all of the money ended up with my mother…

23. The deponent then alleged that he was the victim of domestic and family-type violence that was perpetrated by his mother after the Applicant left the family home. Those matters are not the subject of an application for review before this Tribunal. However, he concluded:

29. Although I am doing this in defence of my father and what I have said is true, I do not want my mother to get into trouble as her job as a teacher may be effected (sic) and if so she will not be able to pay the mortgage and may end up selling her house.

24. I am concerned at the nature of the evidence set out in this Statutory Declaration, as the deponent has effectively admitted that he was aware that his mother made a false report to Police and that she claimed victims compensation based upon those false allegations and that he felt pressured (or “blackmailed”) into making his own application for victims compensation based on allegations of violence against the Applicant. However, he did not resile from or seek to modify the allegations that were set out in his own application for compensation.

Determination of Objection

25. On 25 October 2016, the Commissioner’s Delegate determined the Objection and decided the Applicant was convicted of a relevant offence, but decided to vary the amount of the restitution order by reducing it to $3,500, and ordered the Applicant to pay this by monthly instalments of $100. The Delegate’s reasons included:

Introduction

…

On 10th August 2016 the defendant lodged objections to those provisional orders. The defendant’s objections have been delayed awaiting the defendant’s release from custody. These reasons deal with the defendant’s objections.

Summary of Facts – RT190639, D093482

6. On 13th August 2012 the defendant was convicted of the offence of common assault at the Mount Druitt Local Court.

7. The facts giving rise to the conviction are stated in facts tendered to the Local Court.

8. The defendant and his wife (the victim) were at premises in Glendenning when the defendant became angry.

9. The defendant then approached the victim and threatened to hit her.

10. The facts giving rise to the award of statutory compensation are stated in the Assessor’s determination dated 17th December 2014…

Grounds of Objection, Submissions and Evidence in Support

…

18. The defendant details that his son never sought restitution money and this money went to his ex-wife.

19. The defendant has also provided a statutory declaration from his son detailing that the defendant never assaulted his former wife on the day in question.

20. Whilst I note the submissions made by the defendant concerning his culpability I also note that the defendant was charged and convicted of offences the subject of these restitution proceedings.

21. In the light of the defendant’s circumstances and particularly noting submissions concerning the circumstances of the subject offences I have determined to make reductions on the amounts payable for restitution.

RT190683

26. On 20 July 2016, the Commissioner made a provisional order for restitution against the Applicant in the sum of $6,500, being the full amount of victims support that was approved for the victim.

27. A copy of the Provisional Order was posted to the Applicant on 22 July 2016 under cover of a letter from the Commissioner dated 20 July 2016. I am satisfied that the Provisional Order was served on the Applicant as required by s 61 of the Act.

28. S 62 of the Act gives a person upon 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 the Act) and the objector bears the onus of proving their case (see: s 62 (4) of the Act).

Objection

29. On 7 August 2016, the Applicant signed an Objection to the provisional order for restitution, which set out the following grounds of review:

1. My son never wanted to seek any restitution.

2. My son said his mother (who also sought restitution) put a great deal of pressure on him to get restitution money.

3. My son told me all the money was given to my wife (name provided).

4. My son is now living with me because of abuse by mother.

30. On 11 August 2016, the Commissioner wrote to the Applicant, advising that the Objection had been listed for determination at the first available opportunity on or after 26 September 2016 and that any further evidence to be relied upon should be lodged by 12 September 2016.

Determination of Objection

31. On 25 October 2016, the Commissioner’s Delegate determined the Objection and decided the Applicant was convicted of a relevant offence, but decided to vary the amount of the restitution order by reducing it to $3,500, and ordered the Applicant to pay this by monthly instalments of $100. The Delegate’s reasons included:

Introduction

…

On 10th August 2016 the defendant lodged objections to those provisional orders. The defendant’s objections have been delayed awaiting the defendant’s release from custody. These reasons deal with the defendant’s objections.

…

Summary of Facts – RT190683, D083483

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

12. On 1st February 2013 the defendant was convicted of assault occasioning actual bodily harm and common assault at the Parramatta District Court.

13. The facts giving rise to the conviction are stated in facts tendered to the Court.

14. The defendant and his son (the victim) were at premises in Glendenning when the defendant became angry concerning an incident involving the victim.

15. The defendant punched the victim and then hit the victim with a tennis racquet.

16. The facts giving rise to the award of statutory compensation are stated in the Assessor’s determination dated 17th December 2014.

Grounds of Objection, Submissions and Evidence in Support

…

18. The defendant details that his son never sought restitution money and this money went to his ex-wife.

19. The defendant has also provided a statutory declaration from his son detailing that the defendant never assaulted his former wife on the day in question.

20. Whilst I note the submissions made by the defendant concerning his culpability I also note that the defendant was charged and convicted of offences the subject of these restitution proceedings.

21. In the light of the defendant’s circumstances and particularly noting submissions concerning the circumstances of the subject offences I have determined to make reductions on the amounts payable for restitution.

Service of Determinations of Both Objections

32. A copy of the Determination of both Objections was served upon the Applicant by post under cover of the Commissioner’s letter dated 28 October 2016. I am satisfied that this document was properly served upon him, but the date upon which it was posted is not indicated in the documents before me.

33. However, in relation to this issue I note that s 76 (1) (b) of the Interpretation Act 1987 (NSW) deems the Applicant to have received the Commissioner’s letter dated 28 October 2016 on the fourth clear business day after posting. If the letter was posted on 14 October 2016, the earliest date that the Applicant is deemed to have received it is 3 November 2016. This is significant when determining whether the current Application was lodged in a timely manner.

Application for Administrative Review

34. The powers of the Tribunal upon administrative review are set out in s 67 of the Act, 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…

35. On 20 December 2016, the Tribunal received an Application for Administrative Review dated 12 December 2016, which sought review of the decision made by the Commissioner’s delegate in relation to matter no. RT190639 only. This set out the following grounds:

(I) made no physical harm and no assault to (his wife). The injuries were due to a motor vehicle accident. Please see attached documents. Therefore, in the summary of facts provided by Victims Services, points 6 and 9 are incorrect. So I am seeking a review for case RT190639 D093482. She is a temporary teacher and she was afraid she would be convicted of making a false statement. I only pleaded guilty so she would not be convicted.

36. The application indicates that the Applicant received the determination of the Objection on 11 November 2016. I am therefore satisfied that it was lodged within 60 days of the date upon which the Applicant is deemed to have received the Determination of the Objection from the Commissioner.

37. On 20 February 2017, the Commissioner lodged the bundle of relevant documents under s 58 of the Administrative Decisions Review Act 1997 (“the ADR Act”). These were comprehensive and complete and were served upon the Applicant.

38. The current Application came before me for a directions hearing on 3 March 2017. The Applicant appeared in person and Ms Sabesan appeared for the Commissioner. The Applicant stated that he wished to file an Affidavit of Financial Circumstances and the Tribunal ordered that he file and serve this by close of business on 21 April 2017. The matter was listed for hearing on 28 April 2017.

39. On 18 April 2017, the Tribunal received written submissions from the Commissioner.

40. On 20 April 2017, the Tribunal received a letter from the Applicant dated 18 April 2017 and an Affidavit of Financial Circumstances declared on 17 April 2017. In the letter, the Applicant stated:

I am writing to you regarding my application of financial circumstances. I am experiencing financial hardship due to which I am unable to pay the agreed amount of $7,000.

The main reason I am unable to pay the above amount is because my total expenditures are much greater than my total earnings. This can be clearly seen in my Affidavit of Financial Circumstances. I had purchased a block of land to build a house and the land settlement will complete in May. The $388,000 that I have declared in my Affidavit of Financial Circumstances will contribute to this land payment. In addition, I will have a mortgage of$100,000 (approximately $450 per month repayments). Considering these repayments and my additional expenditures provided in my Affidavit of Financial Circumstances, I believe that I am unable to pay the agreed amount of $7,000.

I also have 2 dependent children, both of whom I support financially. My first son (name provided) resides with me... Additionally, I pay monthly child support to my ex-wife, to financially support my second son (name provided) … Due to this financial burden on me, I am unable to pay Victims Services.

I received a letter from Victims Services on 11 April 2017. After reading the respondent’s submissions in the letter, I believe that the decision to approve victims support for (the victim) was made incorrect. This is because (she) suffered injury as a result of a motor vehicle accident, not due to physical assault…

41. At the hearing of the matter on 28 April 2017, the Applicant again appeared in person and Ms Sabesan appeared for the Commissioner.

Applicant’s Submissions

42. The Applicant maintained his denial of guilt for the offence upon which the current Administrative Review Application is based, despite the fact that he pleaded guilty to a relevant offence in the Local Court of NSW. He also made submissions to the effect that he believes the restitution order is unfair and he stated that he wants the total amount of the restitution order “reduced to less than $3,500”.

Commissioner’s Submissions

43. Ms Sabesan relied upon the written submissions filed on 18 April 2017, which provided (relevantly):

2. Where an applicant requests that the Tribunal review a decision to issue a provisional order, the Commissioner submits that the Tribunal must ask itself these questions:

a. Was a victim awarded compensation, and if so, upon what facts?

b. Was the applicant found guilty of an offence, and if so, upon what facts?

c. Having regard to a. and b., was the offence with which the applicant was convicted a relevant offence under section 58 of the Victims Rights and Support act 2013 (the Act)?

d. If the answer to c. is “yes”, is there any reason why the applicant should not reimburse the State for the money that was paid to the victim, such as financial circumstances?

Provisional orders for restitution can be made under the Act

3. The questions at paragraph 2 above are based on the Commissioner’s interpretation of the Act, which is as follows.

4. The Commissioner’s power to make provisional orders for restitution comes from Part 5 of the Act. The purpose of Part 5 of the Act is, broadly, to allow money paid to victims by the State to be recovered from persons found guilty if the crimes giving rise to those payments (s 57 of the Act).

5. The Commissioner may make a provisional order if she (or one of her delegates (s 9 (2) of the Act; s 49 Interpretation Act 1987) is of the opinion that a person has been convicted of a relevant offence and, generally speaking, no more than two years has passed since either the conviction or payment to the victim, whichever is the later (s 59 of the Act).

6. A “relevant offence” includes an offence involving one or more acts of a series of related acts in respect of which a payment has been made to a victim. It also includes a conviction for substantially the same facts as those upon which the payment to the victim was approved (s 58 of the Act).

7. To be of the opinion that a person has been convicted of a relevant offence requires an understanding of both the facts giving rise to the court’s finding of guilt and also the facts giving rise to payment of victims support. Those facts are “jurisdictional facts”. They ground the Commissioner’s jurisdiction to make a provisional order. In the absence of either, the Tribunal cannot confirm the provisional order.

Compensation was awarded to victims of crime

File RT190639

8. On 17 December 2014, the victim (name provided) was awarded total $6,500 victims support. This was made up of $1,500 Category D recognition payment and $5,000 special grant. The decision maker found that (the victim) was a primary victim of an act of violence, in the form of domestic violence from 19 March 2012 to 29 July 2012, perpetrated by the applicant, her ex-husband.

9. The decision refers to police reports, including police report (event number provided), which states that on 29 July 2012 (the victim) was a victim of physical assault after a verbal argument between the victim and the applicant. The applicant was charged with common assault (domestic violence related) and stalk or intimidate intending to cause fear of physical or mental harm on 9 August 2012.

10. The decision to approve victims support was made on the basis that the victim suffered an injury as a result of the act of domestic violence committed by the applicant.

…

The applicant was convicted of offences

14. On file RT190638, the applicant (was) convicted of common assault (domestic violence related) and stalk or intimidate intending to cause fear of physical or mental harm on 1 February 2013. The applicant received a section 9 bond.

…

The applicant was convicted of relevant offences

16. The Assessor found that (both victims) were eligible for victims support as they were both victims to acts of violence by the applicant. The Commissioner submits that the applicant has been convicted of a relevant offence because, in substance, the facts underlying the convictions and the facts underlying the approval of victims support in both applications are substantially the same. They involve an offence of the same nature, against the same person, at the same time, by the same offender.

14. The correct and preferable decision is to confirm the decision under review.

44. During the hearing of the matter, Ms Sabesan advised the Tribunal that the Commissioner was prepared to reduce the amount of restitution to a total of $5,000, payable by monthly instalments. She also stated that both victims had applied for reassessment of their claims under the 2015 Transitional Regulation.

45. At the completion of submissions from the parties, the Tribunal reserved its decision.

Consideration

46. The Commissioner’s discretion under s 59 (1) of the Act to make a provisional order for restitution is dependent on the person against whom the order is made being convicted of a relevant offence.

47. 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.

48. Despite the Applicant’s objections and submissions in the current matter, this Tribunal lacks jurisdiction to review the Commissioner’s decision to approve victims support for the victim.

49. In my view, the further evidence relied upon by the Applicant in support of his objection and particularly the Statutory Declaration made by his son, which raises significant concerns regarding the veracity of the victim’s allegations that based the approval of victims support in her favour, should properly be investigated by the Commissioner with a view to determining whether the approval of victims support was obtained by means of fraud, or false pretence or by means of a wilfully false or wilfully misleading statement, or an offence in relation to the obtaining of such approval of a kind prescribed by the regulations.

50. However, the only issue for determination by this Tribunal is the Applicant’s financial capacity to make restitution to the Commissioner. This requires the interpretation of his evidence regarding his financial circumstances.

51. In relation to this issue, I note that in his Affidavit of Financial Circumstances, the Applicant declares total income of $4,500 per month and total expenditure of $4,214 per month. The listed expenditure is not supported by any financial records. Further, I note that during the hearing on 28 April 2017, the Applicant stated that since completing his Affidavit, he had sold his house for $545,000.

52. For the reasons that the Tribunal raised with the Applicant during the hearing, and set out previously in this decision, the Tribunal rejects the assertion that he lacks the financial means to meet the Restitution order.

53. Based on a consideration of all of the available evidence, I am satisfied the Applicant was convicted of a relevant offence on 1 February 2013.

54. On 17 December 2014, victims support was approved for the victim in the sum of $6,500, comprising a Category D recognition payment ($1,500) and a Special Grant ($5,000). The provisional order was made on 20 July 2016. The Tribunal is therefore satisfied that the provisional order was made within the time prescribed by s 59 of the Act.

55. However, the Commissioner exercised her discretion in determining the Applicant’s Objection to the provisional order and she reduced the amount of restitution to $3,500.

56. After considering all of the available evidence and the parties’ submissions, the Tribunal is satisfied that it is appropriate to confirm the restitution order. Determination

57. Pursuant to Section 67 (1) (a) of the Act, I confirm the order made by the Commissioner on 25 October 2016, which requires the Applicant to make restitution in the sum of $3,500 by way of instalments of $100 per month.

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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: 20 June 2017