Chairperson’s Report
2002/2003
ISSN 1444-609X The Hon. Bob Debus MP Attorney General Level 36 Governor Macquarie Tower 1 Farrer Place Sydney NSW 2000
1 October 2003
Dear Attorney As required by Section 83(1) of the Victims Support and Rehabilitation Act, 1996, I submit a report on the work of the Tribunal and Compensation assessors for the twelve months ended 30 June 2003.
Yours faithfully
C. Brahe Chairperson
Level 5, 299 Elizabeth Street, Sydney NSW 2000 Locked Bag A5010, Sydney South NSW 1235 DX 11536 Sydney Downtown www.lawlink.nsw.gov.au/vs TABLE OF CONTENTS
OVERVIEW...... 4
Staff Numbers And Operating Expenses...... 4 Key Facts...... 4 VICTIMS SUPPORT AND REHABILITATION ACT 1996...... 5
Determinations...... 7 Appeals to the Tribunal against the determination of assessors...... 11 Application for leave...... 12 Appeals from the Tribunal to the District Court on point of law...... 14 Approved Counselling Scheme...... 15 Website...... 17 Family Victims...... 18 CONVICTED INMATES...... 18
REVENUE...... 19
Provisional Orders...... 20 Restitution Recovery...... 20 Arrangements with the Director...... 21 Hearings before the Tribunal...... 21 No response orders...... 22 Registration of charge on land...... 23 Section 46A Provisional Orders...... 23 Restraining Orders...... 23 Repayments...... 24 Debtor Management Computer System (DMS)...... 24 SUBPOENAS...... 25
RECOMMENDATIONS...... 25
ACKNOWLEDGEMENTS...... 26 Chairperson’s Report 2002-2003 ______
OVERVIEW
This year marked the 15th year of operation of the Victims Compensation Tribunal and 35th year of State funded victims compensation in New South Wales, following the commencement of the Victims Compensation Act 1987 on 15 February 1988 and the Criminal Injuries Compensation Act 1968 respectively.
The Victims Compensation Tribunal continues to operate out of levels 4, 5 and 6 at 299 Elizabeth Street Sydney.
Its functions and powers are those set out in the Victims Support and Rehabilitation Act 1996 and during the period under review those powers were exercised by Magistrates Walker (until December 2002), Gilmore, Cleary and Brahe as Chairperson.
Staff Numbers And Operating Expenses
Staff employed at Victims Services, which includes the Tribunal, was 2 less than in the previous year namely 81 persons. Employee related expenses rose from $4.05 million to $4.27 million. The estimate for next year is $4.43 million.
Operational expenses fell from $3.08 million to $2.62 million. Next year expenses are estimated to rise slightly to $2.67 million.
There are various reasons for the fall in operational expenditure including fewer outgoings on temporary staff, computers and associated software.
Key Facts
Under the approved counselling scheme, 7144 applications for initial and further counselling were received. Over 20,000 counselling hours were approved for victims of crime at a cost of $1.98 million. Over 500 applications for initial counselling have been received on-line since on-line lodgement was introduced in January 2002.
The number of pending claims for statutory compensation increased from 8097 to 8353.
In 2002/2003, 5693 applications for statutory compensation were received and 5340 claims were determined.
Including total awards, professional costs and counselling payments, $62.79 million was paid out during the year.
The number of pending appeals was reduced from 957 to 274.
$3.14 million was recovered from convicted offenders with 2300 provisional orders issued to convicted offenders.
Victims Compensation Tribunal 4 ______Chairperson’s Report 2002-2003 ______
A debtor management system has been introduced to monitor payment by offenders and approximately 500 debtors have already taken up direct debit payment options.
Over 45 information forums were held throughout New South Wales and a calendar of these is kept on the Victims Services website. In addition 8 forums were held targeting information for victims of crime from a non-English speaking background. The three rural co-ordinators appointed last year have established interagency forums within their particular areas.
VICTIMS SUPPORT AND REHABILITATION ACT 1996
During the period under review the compensation assessors determining claims under the Act were Messrs Hipwell, Keays-Byrne, De Mayo, Blair, Baron, Hosking, Holt, McAteer and Ms. Humphreys, Ms. Madison, Ms. Underwood and Ms. Mobbs. Not all of those persons worked in the capacity of compensation assessors for the whole of the period under review.
Applications: 2001/2002 2002/2003 Received 6204 5693 Pending 8097 8353 Determinations 10958 5340 Dismissals 5721 2952 Total awards $85.74million $60.59 million
It appears that the fall in the number of applications received is due to amendments to the Act which commenced in May 2000 limiting a category 1 psychological/psychiatric disorder to offences of armed robbery, abduction and kidnapping and to the increase in the threshold from $2400 to $7500 effective from 14 July 2000.
The fall in the number of applications determined is substantial. The reason for the big fall is due to the following factors:
a) The annual budget allocation for Victims Services was decreased from $93 million in 2001/02 to $67 million in 2002/03. b) As at 30 June 2002 there was an accrual of over $19 million, that is, there were awards of that value which had not been paid as at 30 June 2002. c) Additional temporary staff was employed in May/June 2002 to reduce the backlog. d) Priority was given to reducing the pending appeals resulting in almost $8million in appeal awards.
These factors meant that the number of claims for compensation which could be determined needed to be adjusted for the remainder of the year to ensure that the budget was achieved.
Victims Compensation Tribunal 5 ______Chairperson’s Report 2002-2003 ______I had indicated in last year’s report that it was estimated that some 8000 claims would be determined in the year.
That has not occurred and I hesitate to project the number of claims anticipated to be determined next year. However it is hoped that that figure would be in the vicinity of 7500.
A graph showing the number of applications received from 1988 when the Victims Compensation Act 1987 commenced to the year ended 30 June 2003 follows:
VCT - APPLICATIONS FOR COMPENSATION
16,000
14,000
12,000
10,000
8,000
6,000
4,000
2,000
0 1988/89 1990/91 1992/93 1994/95 1996/97 1998/99 2000/01 2002/03
A further graph shows the victim profile in respect of claims lodged during the year. The graph shows the age and gender of the applicants.
Victim Profile - Compensation Claims Lodged 2002-2003
30
25
20 %Male 15 %Female 10
5
0 14 & 15-24 25-34 35-44 45-54 55-64 65 & over under
Victims Compensation Tribunal 6 ______Chairperson’s Report 2002-2003 ______It is interesting to note that within the various age groups the percentage of claims by gender is broadly equal.
Age %male %female 14 and under 6.0 9.10 15-24 20.79 20.20 25-34 26.01 24.66 35-44 22.41 23.41 45-54 14.68 14.53 55-64 6.82 5.40 65 and over 3.29 2.70
Determinations
Of the total determinations of 5340, awards were made in 2388 cases. The average payment was $8425. That figure is based on the total average payment under all three Acts as follows: $6060 for the 1996 Act; $6371 for the 1996 amendment Act and $9036 for the 2000 Act.
I again refer to the high dismissal rate and the reasons therefore:
1. Failure to establish an act of violence
2. Section 30 issues
3. Failure to establish a compensable injury – more especially failure to establish a category 2 disorder
4. Award for the established compensable injury fails to reach the threshold of $7500.
The following graphs show:
a) Total compensation paid since the introduction of the scheme in 1988 to the financial year ended 30 June 2003;
Victims Compensation Tribunal 7 ______Chairperson’s Report 2002-2003 ______
COMPENSATION PAID
$100,000,000
$90,000,000
$80,000,000
$70,000,000
$60,000,000
$50,000,000
$40,000,000
$30,000,000
$20,000,000
$10,000,000
$0 1988/89 1990/91 1992/93 1994/95 1996/97 1998/99 2000/01 2002/03
b) The ratio of applications lodged against determinations made for the same period;
Victims Compensation Tribunal - Applications Lodged Vs Determinations Made
16,000
14,000
12,000
10,000
8,000
6,000
4,000
2,000
0 1988/89 1989/90 1990/91 1991/92 1992/93 1993/94 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03
TOTAL Determinations made: Applications Lodged:
Victims Compensation Tribunal 8 ______Chairperson’s Report 2002-2003 ______
c) Pending claims from 1996/7 to 2002/2003;
VCT - PENDING CLAIMS
18,000
16,000
14,000
12,000
10,000
8,000
6,000
4,000
2,000
0 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03
d) Clearance ratios since 1988/89 to 2001/2003.
VCT Clearance Ratios - Time Series Key Performance Indicators
200%
180%
160%
140%
120%
100%
80%
60%
40%
20%
0% 1988/89 1989/90 1990/91 1991/92 1992/93 1993/94 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 2002/03
Victims Compensation Tribunal 9 ______Chairperson’s Report 2002-2003 ______Awards for certain compensable injuries:
In 1999 significant changes were made to victims compensation legislation with new compensable injuries introduced – domestic violence; chronic psychological/psychiatric disorder category 1 or category 2. In 2000 provision restricting the eligibility to claim for a category 1 disorder was enacted.
Consequently there has been a significant reduction in the proportion of awards for a chronic category 1 disorder from 30% to around 20%. The proportion of chronic psychological/psychiatric category 2 claims awarded increased from less than 1% to 2%.
The compensable injury of chronic psychological/psychiatric disorder category 1 disorder is limited to offences of armed robbery, abduction and kidnapping. The fall in the number of awards for this compensable injury has followed that restriction. Because of that restriction, applicants for statutory compensation are claiming a chronic category 2 disorder. As can be seen the success rate for this compensable injury is very low.
When that compensable injury was foreshadowed one criticism was that it was too strict and would probably only cover a handful of victims each year – see Hansard of 24 November 1998, but the change reflected the views of the Joint Select Committee on Victims Compensation.
Persons claiming chronic psychological/psychiatric disorder category 1 or category 2 must provide a report from an authorised report writer. The fact is that applications for a chronic category 2 disorder are made in many claims where they clearly cannot succeed. The cost to the budget in obtaining those reports runs at about $1.5 million. This is a matter that should be addressed.
The proportion of awards for domestic violence increased from 6% to over 15%. I had indicated in earlier reports my concern that this particular compensable injury was far too broad. The Victims Support and Rehabilitation Act adopts the definition of domestic violence offence in the Crimes Act (section 4). When one turns to section 4(6) and considers its terms one can appreciate the scope of persons covered. That concern is borne out by the increase.
In cases where the compensable injuries of sexual assault were established there has been an increase: sexual assault category 1 from 4% to 6%; category 2 from 4% to 8% and category 3 from 11% to 18%.
Some of the increase is attributable to the lodging of historic claims of sexual assault. This too, is a matter in respect of which I have commented in the past.
Victims Compensation Tribunal 10 ______Chairperson’s Report 2002-2003 ______
Appeals to the Tribunal against the determination of assessors
The Act provides for an appeal from a compensation assessor to the Tribunal. During the year 1088 appeals were lodged compared with 1643 in the previous year.
2001/2002 2002/2003 Appeals lodged 1643 1088 Appeals determined 1450 1817 Pending 957* 274
* Pending figure for 2001/02 did not include 46 “stood over generally “ matters that have now been incorporated into the 2002/03 figures.
Of the appeals lodged, 907 (83%) were against dismissal of the application by the assessor; 109 on quantum (10%) and 72 (7%) against refusal to grant leave to file applications out of time.
Before the Tribunal 35% of appeals were successful; 61% were dismissed, 2% withdrawn and 2% remitted to the assessor to be considered and determined again.
The number of appeals lodged is proportional to the number of determinations made by assessors. The determinations by the assessors fell substantially for the reasons outlined and that fall is reflected in the lower number of appeals lodged.
Appeals pending include:
(i) Appeals which have been registered and are awaiting to be allocated a call over date (ii) Appeals in the list for future call overs. (iii) Appeals listed for determination.
Appeals are listed for call over within one week of receipt of the Notice of Appeal and there are approximately 160 matters in the call over list at any one time. The average time for an appeal to be finalised from registration to determination is 3 months.
Appeal determinations: 2001/2002 2002/2003 Allowed 457 602 Dismissed 754 1057 Withdrawn 38 29 Remitted to assessor 105 38 1354 1726
Leave appeals – Leave given 47 24 Refused 49 67 1450 1817
Victims Compensation Tribunal 11 ______Chairperson’s Report 2002-2003 ______
Of the appeals lodged, 23 appeals to the Tribunal were dealt with by way of an oral hearing. Of that number, appeals were allowed in 13 cases, 8 appeals were dismissed, 1 was remitted and 1 withdrawn.
Application for leave
Of all claims for statutory compensation lodged in 2002/03 15% were applications to lodge claims out of time. In the previous year 18% of claims were in respect of late applications. In 85% of the late applications lodged in the current year, leave was granted.
Of the leave claims lodged in 2002/03 59% were claims of sexual assault.
Of all leave claims lodged in 2002/03 the act of violence was alleged to have occurred prior to 1968 in 30 claims.
The following graphs set out:
1. Appeals received and determined;
Appeals Received (1088) & Determined (1817) for the 2002-2003 Financial Year
Received Determ ined
2 4 8 2 4 7
2 1 9 2 1 0 1 9 3
1 4 4
1 1 3 1 5 5 9 8 1 0 0 1 4 9 9 1 8 8
1 0 9 9 9 1 0 2 1 0 2 8 2 7 4 6 6 5 9 6 4 4 4 4 9
Jul-02 Aug-02 Sep-02 Oct-02 Nov-02 Dec-02 Jan-03 Feb-03 Mar-03 Apr-03 May-03 Jun-03
Victims Compensation Tribunal 12 ______Chairperson’s Report 2002-2003 ______
2. Pending appeals
Number of Tribunal Appeals Pending as at the end of the 2002-2003 financial year
897 827
722
584 500 430 376 334 280 274 256 238
Jul-02 Aug-02 Sep-02 Oct-02 Nov-02 Dec-02 Jan-03 Feb-03 Mar-03 Apr-03 May-03 Jun-03
3. Appeal results
Appeal Determination Results for 2002 - 2003 Financial Year
2.2%
34.9% 1.7% Determinations 2001-2002 7.8%
33.8% 2.8%
55.7%
Dismissed Awarded Remitted Withdrawn
61.2%
Dismissed Awarded Remitted Withdrawn
Victims Compensation Tribunal 13 ______Chairperson’s Report 2002-2003 ______
4. Leave appeal results
Appeal Leave Results for Leave 2002 to 2003 Financial Year
73.6 Leave 2001 to 2002
39.1% 60.9%
Dismissed Allowed
26.4
Dismissed Allowed
Appeals from the Tribunal to the District Court on point of law
The number of appeals lodged each month during the year is set out on the accompanying graph. The graph shows that 83 appeals were filed by 76 appellants. There were multiple appeals lodged by the one appellant.
District Court Appeals Received for the 2002-2003 financial year (Total Received 83)
14 11 9 8 6 8 6 8 3 3 3 4
Jul-02 A ug-02 S ep-02 O ct-02 N ov-02 D ec-02 Jan-03 Feb-03 M ar-03 A pr-03 M ay-03 Jun-03
4.22% 4.70% 5.07% 4.97% 4.47% 2.61% 2.84% 2.98% 2.75% 2.94% 3.38% 1.49% N u m b er of District Co u rt Ap p eals Received per M on th P ercen tag e Rate of Ap p eals Received against Tribu n al Determ ination s per M on th
Victims Compensation Tribunal 14 ______Chairperson’s Report 2002-2003 ______
The table hereunder is based on 76 appeals – being the number of appellants - rather than the number of actual appeals lodged.
2001/2002 2002/2003 Remitted to Tribunal 18 15 Dismissed 19 14 Settled/Remitted by consent 3 22 Discontinued 4 5
There are 20 appeals pending and of that number 4 are awaiting the decision of the High Court in the appeal of Brown and Lewis. That appeal is listed for hearing on 2 September 2003.
The bulk of the appeals to the District Court have turned on the issue of the lodging of fresh material pursuant to section 38(3) notwithstanding that the effect of that section was considered by the Court of Appeal in VCFC v Hill (2000) NSWCA 75. There has been a recent trend to appeal to the District Court in respect of chronic psychological/psychiatric disorder category 1 or category 2 and the requirement that the disorder be moderately or severely disabling. So far judges have felt obliged to apply section 39(3) and have held that that question is an excluded question of law. The vexed question of workers compensation has also been the subject of appeal.
The interpretation by the Tribunal of section 24(4) dealing with convicted inmates has been challenged three times in the District Court. In each case the court has been satisfied that no error of law was committed by the Tribunal in determining “special circumstances” and the appeals were dismissed.
Approved Counselling Scheme
This scheme was established under the 1996 Act. Applications for initial 2 hours counselling totalled 3611 compared with 3625 in the previous year. Applications for further counselling totalled 3533 as against 2927.
Some 224 applications for counselling were received by family members of a homicide victim with 3897 hours approved.
The cost of counselling rose to $1.98 million from $1.91 million.
The following graph shows applications for counselling against claims for compensation.
Victims Compensation Tribunal 15 ______Chairperson’s Report 2002-2003 ______
VCT - APPLICATIONS FOR COUNSELLING AGAINST COMPENSATION
14,000
12,000
10,000
8,000
6,000
4,000
2,000
0 1998/99 1999/00 2000/01 2001/02 2002/03 Appl's for Compensation Appl's for Counselling
A further graph shows approved 2 hours and further counselling.
VCT - APPROVED 2HR & FURTHER HR COUNSELLING
4,500
4,000
3,500
3,000
2,500
2,000
1,500
1,000
500
0 1998/99 1999/00 2000/01 2001/02 2002/03 2 Hour Further Hours
Victims Compensation Tribunal 16 ______Chairperson’s Report 2002-2003 ______
Since January 2002 applications for initial 2 hours counselling can be made on line and the graph below shows the number of claims lodged that way.
2 Hour Counselling Applications Lodged Online
60
50
40
30
20
10
0 QÑ ýQÐ øQË øQÀ èQÇ ìQ¸ òQ¨ ÝQ´ ØQ¯ ÚQ£ ÎQ¥ ÉQ ÉQ• ÁQ” ¼Q ¼Q„ ¬Q‹ °Q|
Website
Victims Services Website has over 163 web pages and over 85 attached documents. The material includes guidelines, frequently asked questions, top tips, application forms and brochures, newsletters and annual reports, links to legislation, a calender showing information sessions and forms and list of authorised report writers.
There has been a steady increase in the use of the web as indicated in the graph.
VS Website - Page Views
60000
50000
40000
30000
20000
10000
0 J ul-02 Aug-02 Sep-02 Oct-02 Nov-02 Dec-02 J an-03 Feb-03 Mar-03 Apr-03 May-03 J un-03
Victims Compensation Tribunal 17 ______Chairperson’s Report 2002-2003 ______
Family Victims
The Tribunal received 350 claims from family victims in relation to 153 deceased victims. Family victim is defined as a member of the immediate family of the deceased – the victim’s spouse, or the victim’s de facto spouse, or partner of the same sex who has cohabitated with the victim for at least 2 years, or a parent, guardian or step parent of the victim, or a child or step-child of the victim or some other child of whom the victim is the guardian or a brother, sister, step-brother of step-sister of the victim.
During 2002/03, 266 claims were determined in relation to 88 deceased victims. Interim awards (generally for funeral expenses) were made in 47 cases. The Act provides that if there are two or more family victims they share $50,000 equally.
Eight appeals were lodged to the Tribunal in respect of the death of the two victims. The issue in those appeals was whether the appellants were dependent family members.
The Act provides that if there are dependent family members, non-dependent family members are not eligible for any amount of compensation.
Where a family member lodges an appeal against a determination, the final decision in that appeal may potentially impact on the determinations made to other family members of the deceased that is if the appellant(s) is/are found to be dependent family member(s). In that event the determinations in respect of the other family victims would need to be reviewed. If the Chairperson considers that the determination should be reviewed by the Tribunal, the Director is to refer the application to the Tribunal for re-determination pursuant to section 37(2). This is not an entirely satisfactory method for reconsidering the claims of all relevant family members.
Claims by family victims are expedited and the Act empowers a compensation assessor to determine an application if 3 months has elapsed since the application being determined was lodged, and no other family victim has lodged an application or notified the Director that an application is intended to be made. It has occurred where a claim by a family victim has been lodged outside that period. However because $50,000 had been disbursed no funds were available for the applicant.
CONVICTED INMATES
There are no statistics available for the number of claims lodged by applicants who were convicted inmates at the time of the act of violence.
The Tribunal dealt with 38 claims by convicted inmates and dismissed 31 and made an award in 7 claims.
Victims Compensation Tribunal 18 ______Chairperson’s Report 2002-2003 ______Section 24(4) provides that convicted inmates are not eligible to receive statutory compensation in respect of an act of violence if it occurred while the person was a convicted inmate within the meaning of the Act. However Section 24(5) provides that the Tribunal may make an award if the Tribunal is satisfied that the special circumstances of the case justify an exception being made to the general ineligibility of convicted inmates. The Tribunal may determine that special circumstances exist if the convicted inmate is seriously and permanently injured as a result of the act of violence concerned.
In the 7 instances where an award was made, the Tribunal considered that the convicted inmates were seriously and permanently injured. Any award made to the convicted inmate is set off against any amount for which he is indebted to the Crown as a result of an award of statutory compensation made to a victim. In practice, that may mean that although an award is made in the convicted inmate’s favour no payment is made to that person.
Further, if a convicted offender is paid an award of statutory compensation his right to commence or maintain civil action against the Department of Corrective Services for his injuries sustained whilst in custody is subrogated to the State to the extent of the amount of compensation so paid, that is he is required to refund any award if he is successful in his civil action.
REVENUE
Revenue comes from three sources: Restitution from defendants; Court levies; and Other Revenue.
In the year under review restitution from defendants totalled $3.14 million as against $3.5 million for the year 2001/02; Court levies amounted to $2.65 million as against $2.63 million. Total revenue was $6.01 million as against $6.55 million in the previous year.
A graph showing revenue for 2002/03 follows.
Victims Compensation Tribunal 19 ______Chairperson’s Report 2002-2003 ______
VCT REVENUE - 2002/2003
$7,000,000
$6,000,000
$5,000,000
$4,000,000
$3,000,000
$2,000,000
$1,000,000
$0 Jul-02 Aug-02 Sep-02 Oct-02 Nov-02 Dec-02 Jan-03 Feb-03 Mar-03 Apr-03 May-03 Jun-03
Restitution DC Levies & Other Budget
Provisional Orders
During the year 2,311 provisional orders valued at approximately $30 million were made by the Director, as against 2,938 valued at $49 million the previous year.
The fall in part was due to a diversion of some resources to the introduction of the new debtor management system, which was introduced in November 2002, and the introduction of an increased range of payments options for debtors.
Restitution Recovery
The amount of restitution recovered from convicted offenders totalled $3.14 million for the year, which is a reduction on the $3.5 million recovered during previous year. The reduction is linked to the decrease in provisional orders.
The budget target has again been set at $3.5 million for the 2003/04 year but it is anticipated that a combination of the new debtor management system and new payment options will increase the level of restitution recovered.
The amount recovered in the first 8 months of the year was $1.87 million, with $1.27 million being recovered in the last 4 months, after sending letters to defaulters and the introduction of new payment options. A projection on the average monthly payments for the last 4 months points to an annual recovery level of $3.8 million.
Victims Compensation Tribunal 20 ______Chairperson’s Report 2002-2003 ______From April 2003, offenders have been provided with an increased range of ways to pay their monthly restitution instalments. These options include; direct debit from a financial institution account, deduction from Centrelink social security payments (Centrepay) and by direct payment – where the offender may deposit the instalment directly into the department’s bank account. A deposit book is provided for this purpose. There has been a gradual uptake of these options, with the direct debit type of payment being the more favoured.
Restitution action can only be taken against convicted offenders. In approximately 58% of cases where an award of compensation has been made there is no known offender or no relevant conviction.
Arrangements with the Director
The Act provides that the Director may make a provisional order where a person has been convicted of a relevant offence. Relevant offence includes an offence arising from substantially the same facts as those constituting an act of violence in respect of which the award of statutory compensation was made.
During the year under review, 632 arrangements amounting to $6.6 million were entered into between convicted offenders and the Director. The amount agreed upon represented an average of 73% of the amount provisionally ordered. The majority of this amount will be paid by monthly instalments.
Arrangements are initiated by the offender, who usually acknowledges his/her liability and seeks to settle the matter rather than become involved in a formal hearing. The terms of the arrangement usually reflect both the financial circumstances of the offender and mitigating circumstances.
Hearings before the Tribunal
Approximately 1,600 matters were listed for hearing before the Tribunal, resulting in orders amounting to $17 million; this represents an average of 61% of the amount provisionally ordered. Once again, the majority of this amount will be paid by monthly instalments.
Where an offender has filed an objection to a provisional order, the matter is listed for hearing before a Tribunal Member. There was an appearance in approximately 46% of these matters.
Often the convicted offender appears with legal representation or the assistance or support from family or friends. Legal representatives sometimes appear on behalf of the offender, without the offender being present. Approximately 30% of offenders receive some form of legal assistance.
In 2002/03 there was one Supreme Court Appeal against the decision of a Tribunal Member lodged pursuant to section 55 of the Act. That matter was struck out by the Court prior to hearing, on the application of the Director as respondent.
Victims Compensation Tribunal 21 ______Chairperson’s Report 2002-2003 ______
The Tribunal, in making orders for restitution, may have regard to the offender’s financial circumstances and any relevant issues, in much the same way as arrangements with the Director – section 51.
The Tribunal may only confirm the provisional order if satisfied that the defendant has been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made.
In many instances whilst the defendant has been convicted, he may not have been convicted of an offence arising from substantially the same facts as those constituting the act of violence in respect of which an award of statutory compensation was made. The Director of Public Prosecutions or the Police choose to prosecute those offences where there is a reasonable prospect of success.
An offender may be charged with a number of offences but the Crown may proceed with a lesser number whereas the award for statutory compensation may be made in respect of all.
No response orders
When a convicted offender fails to respond to a provisional order for restitution, the provisional order may be determined by the Tribunal and an order made against the offender. The Tribunal made 492 such orders in the year under review.
Until June 2000, this type of order was referred to the State Debt Recovery Office for enforcement action, with limited results.
During the year under review, the Director has engaged Deloitte Touche Tohmatsu to provide advice and strategies for enforcement of restitution debts, as the recovery of restitution from convicted offenders is difficult and challenging, for a variety of reasons, including:
the majority of convicted offenders come from low socio-economic environments that generally preclude them from the accumulation of assets and most seem to be unemployed and/or unemployable;
many offenders receive prison sentences for the offence(s) that led to the award of compensation (or other offences), some for lengthy periods of time. They are thus often precluded from employment when released and have little ability to make restitution; and
in many circumstances, the award has been made some years after the commission of the underlying offence and the offender is difficult to locate.
The Victims Support and Rehabilitation Act 1996 has provided the Director with additional powers to obtain address information for convicted offenders from other
Victims Compensation Tribunal 22 ______Chairperson’s Report 2002-2003 ______NSW Government agencies. This has assisted in obtaining a greater level of response from offenders than experienced previously, but this of itself will not greatly improve the level of restitution recovery, due to the reasons stated above.
Registration of charge on land
Amendments to the Victims Support and Rehabilitation Act 1996 in 1999 have enabled the Director, where thought appropriate or where an opportunity arises, to apply to the Registrar-General to register a restitution order in relation to the property of a convicted offender.
The Director has applied for the registration of orders valued at $1.5 million against 52 offenders, since the introduction of this facility. This action has resulted in the payment of restitution amounting to $200,000.
There are limited opportunities for the Director to make such applications and sometimes the small amount involved does not make it practical to take this action.
Section 46A Provisional Orders
During 2002/03 the Director made first use of the provisions of section 46A of the Act and issued a provisional order against a person who had not been convicted of a relevant offence (as would ordinarily occur under section 46). This s46A provisional order was issued after information received in response to a Notice of Objection filed under section 47 in response to a Provisional Order. The section 46A defendant was the spouse of the defendant. It appeared that the perpetrator of the act of violence (the defendant) transferred assets to the spouse, leaving the defendant impecunious. After negotiating with the section 46A defendant an agreement was reached with a substantial lump sum paid by the section 46A defendant. This outcome demonstrates the utility of 46A.
Restraining Orders
The above amendments also enabled the Director to apply for a restraining order on the property of a person charged or convicted of an offence that involved an act of violence for which an award of compensation might be made. The main intent of the provision was to prevent a defendant from disposing of property to avoid the subsequent payment of restitution.
One ex-parte injunction was obtained by the Director in the Supreme Court of NSW during 2002/03 under section 58E of the Act. The ex-parte injunction was as a result of investigating information that a person charged with various offences was in the process of urgently disposing of their property. The injunction was successful and when the matter was next before the Court the Director negotiated relevant consent orders to protect sufficient funds to meet any possible future restitution liability.
In all of the Court and Tribunal matters the Director/Tribunal was represented individually by the Legal Officer, Victims Services.
Victims Compensation Tribunal 23 ______Chairperson’s Report 2002-2003 ______
Since the introduction of this provision, the Director has reviewed over 150 matters referred by either the NSW Police or the Office of the Director of Public Prosecutions for consideration of an application for a restraining order. 29 matters have been referred to the Crown Solicitor for advice and 12 matters have resulted in orders being made by the Supreme Court.
Repayments
All awards of statutory compensation are paid pursuant to Standard Conditions of the Director (section 34). Applicants acknowledge these conditions when applying for payment. Essentially if applicants receive monies from any other source which are paid in respect of matters arising out of the act of violence, they are legally obligated to repay their award to the Fund. They are also required to inform the Director of receipt of such monies.
The Director has the statutory power to demand repayment under section 34(1A) (b) of the Act. Rarely do applicants advise the Director in accordance with their obligations. The last 12 months are typical, in that the Director becomes aware of civil proceedings, and subsequent awards, from conducting inquiries/investigations etc. The inquiries usually result from being served with a subpoena (invariably by the defendants in related proceedings), which alerts the Director to civil proceedings on foot. In some instances media information, or information received from defendants when lodging an objection under section 47, allows the Director to embark on a repayment inquiry.
In approximately 200 matters during 2002/03, correspondence was sent to Solicitors reminding them of both the section 34 provisions, and the subrogation powers under section 43 of the Act. Whilst a large number of repayments are received, in the majority of instances, this results from the Director investigating matters, monitoring civil proceedings, and making demands. In two instances during the 12-month period, civil proceedings were commenced against applicants under section 34 (1A) and (1B) seeking the recovery of the VCT award.
Debtor Management Computer System (DMS)
The DMS became operational from November 2002. The system has been tested against some 3,000 offenders recorded on Victims Services’ ‘CARES’ workflow system, identifying 1,352 defaulters. Following a mail-out to those defaulters, approximately 38% responded and recommenced payment. A number of other defaulters have elected to take up a new payment option and their debt has been renegotiated to bring it into order.
Some minor enhancements and changes are required to bring the DMS into full effectiveness and the remaining offenders with restitution debts will be merged into CARES during 2003/04 and become subject to ongoing debtor management.
Victims Compensation Tribunal 24 ______Chairperson’s Report 2002-2003 ______This management tool will enable regular monitoring of an offender’s time-to-pay instalment arrangements and should improve compliance with restitution orders and arrangements and lead to an improvement in the level of recovery of restitution.
SUBPOENAS
There were 214 Subpoenas served on the Tribunal requesting production of documents (usually a VCT file) during 2002/03. Of this total, 26 subpoenas related to proceedings in the criminal divisions of either the Supreme District or Local Court. The production of documents in these matters was successfully opposed and the subpoenas were not pressed. As the rate of subpoenas in Criminal matters being served on the Tribunal was running at over 2 per month, it would appear that practitioners in general remain unaware of the provisions of section 84 of the Victims Support and Rehabilitation Act 1996, particularly the late 2001 amendments to s84 (1) (b). Whilst the amendments have been available in electronic form since their proclamation, when the hard copy of the Act is next reprinted, a further downturn in criminal subpoenas will result.
One Notice of Motion was lodged by the Director in the Supreme Court of NSW during 2002/03 to set aside a subpoena. This notice of motion was successful. There were no subpoenas served on the Tribunal requiring the Registrar, Director or any other officer to attend and give evidence.
Approximately 30% of the subpoenas were responded to after obtaining the agreement of the issuing party, to narrow the scope of the subpoena, and limit the production of material in the interests of both law (legitimate forensic purpose etc) and victims confidentiality. In a matter in the Administrative Decisions Tribunal, the Director was joined to the proceedings against the NSW Police. Whilst costs were not awarded, the outcome had the desired result of limiting access to VCT documents.
RECOMMENDATIONS
1. The Table of Compensable Injuries in Schedule 1 should be reviewed to clarify existing compensable injuries and to add to that list. Clause 8 of Schedule 1 whilst covering injuries not specifically mentioned is limited.
2. The right of victims to apply for a chronic psychological/psychiatric disorder category 2 needs to be considered (a) in light of the increasing claims for this compensable injury; (b) the cost to the State of the ARW report; (c) the low success rate; and (d) except where claims arise out of armed robbery, abduction and kidnapping, the only compensable injury available to persons claiming as secondary victims is that of a chronic category 2 disorder. It seems inappropriate that in some circumstances a secondary victim is eligible for a greater award than the primary victim – for example, a primary victim
Victims Compensation Tribunal 25 ______Chairperson’s Report 2002-2003 ______awarded the compensable injury of sexual assault category 1 – the maximum award is $10,000 whilst for a secondary victim claiming for the same act of violence the range is $30,000 to $50,000.
3. The issue of leave in historic sexual assault and domestic violence claims needs to be considered. In the year 2002/03, 30 claims were lodged where it was claimed that the act of violence had occurred prior to 1968. Section 26 should be amended to limit the time within which such claims might be lodged.
4. The category of persons able to apply for the compensable injury of domestic violence should be limited. Section 4(6) of the Crimes Act which applies to the Victims Support and Rehabilitation Act is far too wide.
5. There should be a scale of professional costs in respect of appeals to the District Court in light of some of the extravagant claims made.
ACKNOWLEDGEMENTS
Once more may I thank the Tribunal and my magisterial colleagues for their continued assistance and support. I acknowledge the assistance of all staff of Victims Services to victims of crime, in particular to the Executive Officer, Andrew Baron, for his article “Helping victims receive compensation” , published in the June 2003 edition of the Law Society Journal. Notwithstanding the occasional difficult applicant, the staff provide a helpful and sympathetic service. I acknowledge the service provided by officers of the appeals section to appellants and to Tribunal members.
Victims Compensation Tribunal 26 ______