Starr v Commissioner of Victims Rights

[2024] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Starr v Commissioner of Victims Rights [2024] NSWCATAD 171

Hearing dates:

7 June 2024

Date of orders:

25 June 2024

Decision date:

25 June 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Riordan, Senior Member

Decision:

(1) Pursuant to 67(1)(a) of the Victims Rights and Support Act 2013 (NSW), the restitution order dated 2 August 2023 is confirmed.

(2) However, the restitution order is varied as follows:

(a) The restitution sum is reduced to $7,500 pursuant to s 67(2A) of the Act; and

(b) The restitution sum is payable within six (6) 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)

Victims Rights and Support Act 2013 (NSW)

Cases Cited:

None cited

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Matthew Starr (Applicant)
Commissioner of Victims Rights (Respondent)

Representation:

Applicant (Self-Represented)
NSW Victims Services (Respondent)

File Number(s):

2024/00089749

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 Determination of Objection to Restitution made on 11 December 2023 by the Commissioner of Victims Rights (the respondent). This required him to pay restitution in the sum of $10,000, being the full amount of victims support that was approved in respect of an act of violence committed by him. The order was made under s 64 of the Victims Rights and Support Act 2013 (NSW) (the Act).

Award of victims support to the victim

2. On 20 November 2018, an Assessor determined an application for victims support, in which the victim alleged that she was the primary victim of an act of violence involving physical and indecent assaults in the context of domestic violence perpetrated by the applicant over a period of time from 1 January 2014 to 31 October 20216. The victim suffered injury as a direct result of the act of violence.

3. The Assessor approved victims support in the sum of $10,000, for a Category B recognition payment under s 35(2)(b) of the Act.

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:

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.

5. 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).

6. “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.

7. 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.

8. In this matter, Court documents indicate that the applicant was charged with the offences of assault occasioning actual bodily harm and contrive prohibition/restriction in AVO (Domestic) with respect to the victim.

9. On 3 April 2017, Raymond Terrace Local Court convicted the applicant on both offences and he was sentenced to a period of 4 months’ imprisonment, which was suspended on condition that he enter into a Good Behaviour Bond for a period of 4 months under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act), upon certain conditions.

10. On 2 August 2023, the respondent made an order for restitution against the applicant in the sum of $10,000, being the full amount of victims support that was approved for the victim. A copy of the order was posted to the applicant under cover of a letter from the respondent dated 2 August 2023.

11. I am therefore satisfied that the order for restitution was served on the applicant as required by s 61 of the Act.

12. 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).

13. On 12 September 2023, the applicant submitted an objection to the restitution order, on the ground of financial hardship. He asserted that he was currently receiving the Disability Support Pension and therefore had limited income and was currently “living below the poverty line”. He stated that due to “mental and physical impairment” he is unable to attain employment and that he is “currently repaying SPER fines” out of his pension. He also stated:

Additionally, it is my personal belief that the amount for restitution is higher than expected. I am willing to pay restitution but feel a lesser amount would be a fair arrangement…

14. On 11 December 2023, an Assessor issued a Notice of Determination of Objection under s 65 of the act. The Assessor confirmed the restitution order and stated, relevantly:

Should the Order be confirmed, either with or without variation?

16. Based on the evidence, the defendant was convicted of an offence in respect of which victims support was approved.

17. That is, the victim was approved victims support related to an act of violence occurring between 1 January 2014 and 31 October 2016. The defendant was convicted of a relevant offence as per s 58 of the Act, in that the offence for which they were convicted gave rise to an approval for victims support. The facts underlying the conviction and the facts underlying the approval of victims support involve an offence of the same nature, against the same person, at the same time, by the same offender.

18. It is important to point out that the restitution process carried out against the defendant is not connected to the criminal proceedings. Restitution proceedings are separate as they are a ‘civil’ process and arise from the giving of victims support.

19. Under the Act, if a person has been convicted of a relevant offence, restitution can be sought by Victims Services to recover that money from the offender. The offender may therefore be ordered to pay back all or some of the victims support payment.

20. In stating the above, and in addressing Mr Starr’s restitution liability, I exercise my discretion under s 64(2) of the Act and vary the Order for Restitution that was originally issued to Mr Starr by including an additional conviction that relates to the violence that the victim was approved victims support for, being the offence/conviction relating to an assault with an act of indecency (along with physical violence and the contravention convictions).

Objections specifically raised by Mr Starr

…

22. In respect of the issue of Mr Starr’s financial capacity to meet the debt due and owing, I have taken into account his Centrelink statement and his advices of being unbale to afford the debt. While I am mindful of this, I note aside from the Centrelink statement, he has not provided any other documentation that supports and provides insight into his financial circumstances, there is no evidence of his assets and liabilities, nor an affidavit or similar that documents his income and outgoings. In the absence of this evidence, while I am prepared to accept the notion that he may not receive extensive income, I am unable on the limited evidence to accept he is unable to meet the debt due and owing.

23. Secondly, I note the objection that the support approved to the victim is excessive. In this regard, I can advise Mr Starr that support is approved to a victim of an act of violence based on the nature and extent of the violence perpetrated and the impact of the violence perpetrated. The evidence supported the Assessor, under delegation from the Commissioner, to approve a Category B recognition payment on account of the documentation establishing that the victim had been indecently assaulted by Mr Starr and additionally, that she had been physically assaulted, It is not my role in determining Mr Starr’s restitution liability to go behind the decision of the Assessor when it was duly and appropriately made on evidence provided in support of the violence experienced by the victim of Mr Starr’s violence. What is important us that the victim was approved support for violence perpetrated on her by Mr Starr. Mr Starr was convicted of relevant offences for which the victim received support. On this basis, the law states that Mr Starr is liable to pay the restitution due and owing.

24. I have not reduced Mr Starr’s restitution debt on the basis of the objection issues he raises,

25. Noting the above, I am of the view that the Restitution Order should be confirmed under the provisions of section 64 of the Act.

15. The Assessor ordered the applicant to pay the restitution debt in full on or by 18 March 2024, failing which the debt would be referred to the Fines Commissioner (Revenue NSW) for enforcement under the Fines Act 1996 (NSW) without further notice.

16. The Assessor also advised the applicant of external review rights to this Tribunal under s 66 of the Act and that this right must be exercised within 60 days of the date of the determination.

17. I note that a copy of the Notice of Determination of Objection was posted to the applicant under cover of a letter from the respondent dated 20 December 2023. I am therefore satisfied that the decision was served in accordance with the provisions of the Act.

Application 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 8 March 2024,the Tribunal received the current Application for Administrative Review, which sought a review of the Determination of Objection to Restitution dated 11 December 2024 on the following grounds:

I’m seeking review of the decision of the Notice of Determination of Objection because I do not have the financial capacity to pay the restitution liability. I am not employed at the moment and my only source of income is Disability Support Pension payment. My DSP payment is only able to sustain me with my daily expenses, hence, won’t have the capacity to pay such amount due.

This is a resubmission of an earlier application lodged thru post on the 9^th of February 2024.

20. The application was filed out of time and the applicant asserted that this was because he failed to lodge a Fee Waiver with the application that he posted on 9 February 2024 and that the Tribunal rejected it and advised him to relodge it.

Procedural matters

21. The matter came before me for Directions on 12 April 2024. The applicant appeared in person and was assisted by his Social Worker, Ms C Ofrecio. Ms K Douch, Victims Services, appeared for the respondent. I made the following orders:

1. The time for the applicant to lodge the application is extended to 8 March 2024;

2. The respondent is to file and serve documents under s 58 of the ADR Act by 26 April 2024;

3. The applicant is to file and serve an affidavit of his financial circumstances by 10 May 2024;

4. The respondent is to file and serve submissions by 24 May 2024; and

5. The applicant is to file and serve any submissions in reply by 7 June 2024.

22. I listed the matter for hearing on 7 June 2024 by way of AVL.

The hearing

23. The matter came before me for hearing on 7 June 2024. The applicant appeared by way of AVL and was assisted by Ms Ofrecio (who was on a separate phone link). Ms K Douch appeared for the respondent.

24. I noted that the applicant had filed and served additional evidence, namely:

1. Financial Statement declared 7 May 2024;

2. Bank Statements for the period from 2 January 2024 to 16 April 2024;

3. Superannuation statement from “Military Super” dated 1 July 2022; and

4. Centrelink statements dated 1 January 2024, 1 February 2024 and 1 March 2024.

Applicant’s submissions

25. The applicant did not file written submissions.

26. The Tribunal noted that the bank statements indicate a large number of deposits made by electronic funds transfer from “Raymond Monaghan” and asked the applicant what those payments were for. The applicant replied to the effect that Mr Monaghan is his best friend and that he has loaned him money. I asked if there were any loan agreements evidencing these loans, but the applicant replied “No”. The applicant then stated that he used Mr Monaghan’s “loans” for gambling and owed him more than $5,500.

27. The applicant then volunteered that he had “started repaying” Mr Monaghan, but when questioned about this, he said that he was not sure how much he had repaid. He then stated that Mr Monaghan had told him that he was only required to repay $3,300, but there is no documentation evidencing this.

28. The applicant said that he moved to Brisbane seven years ago, after which he worked as a labourer “before I hurt my back”. He said that he wants to retrain as a truck driver but that he needs $2,000 in order to obtain a HGV licence. He said that he also needs to undertake paid courses in order to get work because he does not have a resume and Centrelink only has “so many free courses”.

29. The applicant then said that he gives money to his son “when I can”. He then volunteered that he has been using recreational drugs on a regular basis (mainly “ICE”) and that this “Is not cheap” The Tribunal asked the applicant how he funds this habit and he replied to the effect that sometimes the funds come from Mr Monaghan and that not all of the money that he received from him was used for gambling.

30. However, the applicant then stated that he last used ICE “a while ago” and this was because he and his son are now talking.

31. Otherwise, the applicant stated that he had an interest-free loan from Centrelink, which he was paying off at the rate of $100 per week, although this was paid off recently.

Respondent’s submissions

32. The respondent filed written submissions on 4 June 2024, which argued that the original decision and Restitution Order should be confirmed without variation pursuant to s 67 of the Act for the following reasons:

1. As Assessor was satisfied on the balance of probabilities that the victim was the primary victim of an act of violence between 1 January 2014 and 31 December 2016 and approved a Category B recognition payment in the amount of $10,000. The act of violence was comprised of a series of related acts involving both sexual and physical violence.

2. On 3 April 2017, the applicant was convicted of assault occasioning actual bodily harm and contravene provision/restriction of an AVO. He was also convicted of an act of indecency on 30 September 2019, which was perpetrated by the applicant on the victim from 30 April 2015 to 1 June 2015. In the Determination of the Objection, the Assessor exercised their discretion under s 64 of the Act to vary the Order to include this as a relevant offence. Accordingly, the applicant has been convicted of an offence in respect of which an act of violence was found to have been committed.

3. The Restitution Order was issued within time. Section 59(2)(a)(ii) of the Act requires the respondent to make an order for restitution within seven years from the date of the application for victims support. As the Restitution Order was made before 11 November 2023, the Restitution Order was made within time.

33. The respondent also queried the payments/transfers made from Mr Monaghan to the applicant, noting that the applicant had not served any further evidence when the submissions were filed with the Tribunal.

Relevant legislative provisions

34. 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.

35. 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.

36. 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.

37. 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.

38. 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.

39. 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

40. Based on a consideration 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 that was committed by the applicant.

41. However, while the applicant sought administrative review of the Determination of Objection, which confirmed the Order for Restitution, I am of the view that the appropriate decision for the current review is in fact the Order for Restitution dated 2 August 2023.

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

43. In this matter, the evidence before the Assessor supports the respondent’s decision to approve a Category B recognition payment for the victim in the sum of $10,000. On that basis, I am satisfied that there was a reasonable basis for the approval of victims support for the victim.

44. Section 69(1) of the Act provides that the Tribunal may reduce the amount to be paid under an order for restitution that it confirms having regard to—

(a) the financial means of the defendant, and

(b) such other matters as are, in the opinion of the Tribunal, relevant to the determination.

45. Based solely on the applicant’s financial statement, the applicant’s current financial circumstances are precarious, on the basis that he currently receives a Disability Support Pension and is allegedly unable to work because of a back injury.

46. However, I am concerned that the applicant contradicted himself as to the alleged loans that he has received from Mr Monaghan and the purposes for which he used those funds. For example, he initially told the Tribunal that he used those funds for gambling, but he subsequently said that he used some of those funds to support his recreational drug use (ICE). He then further contradicted himself and asserted that he has not used recreational drugs “for a while”, because he and his son are now on speaking terms, and that he gives money to his son when he can.

47. As there is no documentary evidence before the Tribunal to support that the payments from Mr Monaghan are loans, rather than gifts, and no medical evidence to support the applicant’s allegation that he is unable to work because of a back injury, I am not satisfied that the applicant’s financial circumstances are as precarious as he alleges in these proceedings.

48. Accordingly, while I am satisfied that the applicant may currently be suffering some financial hardship, it is apparent from his oral submissions that he has nevertheless been able to engage in discretionary spending, including gambling, using recreational drugs (ICE) (which he said “is not cheap”) and giving money to his son.

49. The applicant also stated that he requires money for training to enable him to obtain a Heavy Goods Vehicle licence, which strongly suggests that his capacity to undertake employment is not as dire as he submitted to the Tribunal and that his capacity to earn may increase in the foreseeable future.

50. On that basis, I have decided that the correct and preferable decision is to vary the Restitution Order under s 69(1) of the Act, to reduce the total amount payable to $7,500 (a reduction of 25%).

Conclusion and orders

51. .I make the following orders:

1. Pursuant to 67(1)(a) of the Act, the restitution order dated 2 August 2023 is confirmed.

2. However, the restitution order is varied as follows:

1. The restitution sum is reduced to $7,500 pursuant to s 67(2A) of the Act; and

2. The restitution sum is payable within six (6) months 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: 25 June 2024