Offender Debt Recovery Decisions

The Applicant was convicted for multiple offences of indecent treatment of a child under 16. The victim subsequently made an application to the respondent for financial assistance pursuant to the VOCAA and an amount of $3,500 was granted to the victim. VAQ exercised its right to recover that amount from the Applicant, who resisted VAQ’s action and sought an internal review of the decision which was rejected. A liability notice was issued to the Applicant, who now seeks the Tribunal’s review of the decision.

Decision

The Tribunal affirmed VAQ’s decision.

Reasoning

The Applicant argued he should not have to pay because he has no assets, he is in poor health and his only income is by way of a fortnightly disability support pension. Neither the Applicant’s age or health are grounds to support any proposition that the amount should be reduced; these are neither grounds for a dispute under the VOCAA nor are they relevant to the decision made by VAQ.

You can read the full decision here:

In 2004, the Applicant was ordered to pay by way of compensation $70,500 to the victim of an offence committed by the Applicant for injuries suffered. The Applicant did not pay the money ordered, and the State of Queensland paid the victim his compensation and sought to recover that amount from the Applicant in 2010. While the original order was made under the repealed Criminal Offence Victims Act 1995 (Qld), the VOCAA provides that the section of the repealed Act relating to compensation paid by the State continued to apply. The Applicant submitted that recovery of the amount would cause extreme hardship due to her circumstances, that she was deprived an opportunity to appeal her original conviction to set aside the compensation orders, that she had paid the victim amounts of money prior to the conviction and that the State’s delay in recovery meant there was a loss of entitlement to recover the compensation; however, the decision was not amended and the Applicant applied to QCAT for a review.

Decision

The decision of the scheme manager was confirmed.

Reasoning

The Tribunal found that the submissions made by the Applicant were not relevant to the issues to be decided. Particularly, the Tribunal held that it could not set aside the conviction found in 2004 regardless of whether or not the Applicant had been properly information of the compensation application at that time and there were no legal basis to permit the Tribunal to set off any amounts either paid previous by the Applicant or for the delay by the State to recover compensation.

The Applicant assaulted a person for which he was convicted of grievous bodily harm on his own admission. He applied for a review of the decision to seek recovery from him of the amount of financial assistance that has been paid to the victim, particularly, to reduce or remove any payment obligation based on his own personal circumstances and financial hardship or in the alternative to direct the money to be paid over time.

Decision

The application for review was dismissed.

Reasoning

The applicant’s case failed as there was no legal justification for making the type of order sought by him. The Tribunal has the power to review the decision of the scheme manager, however the basis upon which the decision can be varied is limited to an argument that the offence in question is not a “relevant offence” under s 115(e) of the VOCAA. In this instance, grievous bodily harm is listed as a category B offence in the VOCAA and therefore is a relevant offence. The amount of money recoverable can only be varied if there was an order made at the time of sentence by way of direct compensation to the victim and the amount could be reduced to the actual amount expensed by the victim under the VOCAA.

You can read the full decision here: Munro v Department of Justice and Attorney-General Offender Debt Recovery Scheme [2016] QCAT 349

The Applicant was convicted of offences and ordered to compensate the victim in the District Court in 2004. The State made payment to the victim where the Applicant failed to do so, and sought to recover the amount from the Applicant in 2017. The Tribunal had to consider whether the Limitations of Action Act 1974 (Qld) applied.

Held: The decision of the Department was confirmed.

Reasoning: The State is able to recover the compensation amount under ss 185 to 1954 of the VOCAA, which does not provide a limitation period. The LAA only applies to actions in a court of law, and the recovery of compensation under the VOCAA is merely an administrative process. On that basis, the Tribunal concluded that the State was able to recover the amount despite the delay.

You can read the full decision here: Chisari v Department of Justice and Attorney General, Offender Debt Recovery Program [2019] QCAT 288

The Applicant assaulted another person and caused bodily harm in 2011, was charged with assault and the victim received $21,179.70 financial assistance under the VOCAA. The Applicant contended that the State was not entitled to recover the amount due to his unfitness for work for a period of time, which was internally reviewed by VAQ and the decision confirmed. The Applicant applied to the Tribunal for a review of the decision to recover the amount from him, not on the usual pathway of disputing that he has been convicted of a relevant offence but rather, the review the fundamental decision to pay $21,179.70 to the victim. The key issue regarded whether the Applicant, as an offender, had a right to review.

Decision

The Tribunal found that the Applicant has standing to seek a review under the VOCAA and a right to seek review of the assessment of quantum of financial assistance.

Reasoning

The Tribunal held that, even though the VOCAA primarily focuses on providing assistance to victims and there is no explicit mention in the Act of giving offenders the right to review, the Act allows offenders to challenge the amount of financial assistance recoverable from them. The Tribunal found that, if there is a right of internal review for offenders for being aggrieved by a decision, then offenders would also have a right to external review. The Tribunal emphasised that the review process is part of ensuring proper administration of public funds and does not detract from the Act’s purpose of assisting victims.

You can read the full decision here: Richardson v Department of Justice and Attorney-General [2014] QCAT 405

This was an appeal by the State against the decision in Richardson v Department of Justice and Attorney-General [2014] QCAT 405 that offenders have a right to seek review under the VOCAA.

Decision

The appeal be allowed and the application for review be dismissed.

Reasoning

The Appeals Tribunal determined that an offender does not have the right to seek external review to QCAT on the issue of quantum. This is because, while the language of the VOCAA allows a personal aggrieved to seek internal review, it only contemplates that an ‘applicant’ may apply for an external review of an internal review decision. An applicant is defined as a person who has applied for financial assistance under the scheme.

Department of Justice and Attorney-General Offender Debt Recovery Scheme v Richardson [2015] QCATA 8

This appeal regarded compensation paid under the VOCAA to the victim of grievous bodily harm inflicted by the Applicant in 1997. The State paid this amount to the victim in 2001, and the Applicant applied for a review of the scheme manager’s decision to allow the State to recover the amount from her. The Applicant’s position was that the State is not entitled to commence recovery proceedings as it has not complied with r 799 of the UCPR relating to enforcement of money orders, that it cannot invoke the relevant recovery process established in the VOCAA, being the State Penalties Enforcement Registry (SPER) process, and that it failed to take into account or give any weight to matters raised by the Applicant regarding her behaviour, lack of knowledge of the proceedings, and inability to pay, which should have led to a reduction in the amount payable.

Decision

The Tribunal confirmed the scheme manager’s decision that the State is entitled to recovery of the full amount.

Reasoning

The Tribunal found that the UCPR did not apply to the recovery process of the VOCAA. Further, it held that the State may lawfully use the SPER recovery process as an alternative to enforcing the original court order, and finally, that the State did not need to consider any matters raised by the Applicant as they were not relevant under the VOCAA.

You can read the full decision here: Mitterbauer v Department of Justice and Attorney-General, Offender Debt Recovery Program [2013] QCATA 159

The Applicant was convicted of threatening violence in 2002 and ordered to pay $7,500 in compensation to the victim. The State paid this amount to the victim in 2009 and sought to recover it from the Applicant in 2013, which the scheme manager determined the State was entitled to do. The Applicant applied to the Tribunal for review of that decision.

Decision

The Tribunal confirmed the decision of the scheme manager to recover the full amount from the Applicant.

Reasoning

The key issue regarded whether the legislation provides discretion to waive recovery of payments to victims by the State. The Tribunal found neither the VOCAA nor the repealed legislation (which the compensation order was made under) allowed for a reduction or waiver of the amount recoverable by the State. Further, the Applicant’s lack of knowledge of original proceedings, victim’s contribution of occurrence of crime, offender’s capacity to pay and the long delay were not matters that the State needed to consider as they were not relevant under the VOCAA. With respect to matters argued by the Applicant about her conviction, the Tribunal held that it did not have the jurisdiction to make its own findings on that matter. The other matters could not be taken into account in determining the amount payable, also noting that the Limitation of Actions Act 1974 (Qld) is only applicable to a proceeding or action and therefore did not limit the time in which the State could seek to recover the compensation.

You can read the full decision here: Cooper v Department of Justice and Attorney-General, Offender Debt Recovery Program [2017] QCAT 28

his case considered the transitional legislative arrangement for offender debt recover programs, and whether any time limits under the Limitations of Actions Act 1974 (Qld) apply to the recovery process for claims made by the State.

Decision

The circumstances of the case were captured by the transitional provisions of the VOCAA. Significant delays do not give rise to a loss of the entitlement of the State to recover compensation paid under the VOCAA.

Reasoning

Under the old system (the Criminal Offence Victims Act 1995 (Qld)), if the State wished to seek recovery of money made pursuant to a compensation order in which it had acquired rights, it needed to initiate proceedings through the Courts. However, the Tribunal recovery process under VOCAA is a purely administrative decision, made by the scheme manager. The Tribunal was satisfied that the LAA, which applies to proceedings in a court, do not apply to the VOCAA recovery process and the VOCAA does not provide for any limitation period.

The Tribunal was persuaded that the VOCAA recovery process is simply a new mechanism to recover from the offender and does not alter the underlying and fundamental existing rights and liabilities of the parties. The Respondent followed the appropriate steps under the administrative recovery process and the delay by the State to pursue recovery of the compensation, albeit significant, was found not to be unconscionable. If the Respondent had instead chosen to enforce the compensation order through proceedings in court, the LAA may apply depending on any relevant time limits, however, this was not a matter that the Tribunal needed to answer.

The Applicants were also concerned about the quality of legal advice received prior to the compensation order and strongly protested their innocence; however, this was held not to be relevant to the scheme manager’s decision to recover money owed to the State.

You can read the full decision here: Bennett and Anor v Department of Justice and Attorney General [2012] QCAT 602