10. Compensation and restitution

Introduction

  1. 10.1 The impacts of crime are diverse and can be long term. Common effects of crime include psychological injury, emotional harm, physical injury and financial loss.1 Victims may have to pay for psychological treatment, counselling, medical treatment and incur costs related to security or relocation. They may also need to take time off work and therefore lose earnings or leave entitlements.
  2. 10.2 The modern adversarial trial was not designed to be reparative or compensatory. Rather, reflecting the characterisation of crime as a wrong against society, criminal laws and trials have been focused on determining guilt and meting out just punishment. Traditionally, where a person suffers an injury or loss caused by another, his or her recourse is through the civil jurisdiction of the Victorian courts as a private action for damages.
  3. 10.3 Part 4 of the Sentencing Act 1991 (Vic) provides victims with a right to apply for an order for compensation or restitution against the offender as part of the sentencing process but separate to the offender’s punishment. It is in effect a civil remedy ‘tacked on’ to the end of a criminal trial for the benefit of victims.2
  4. 10.4 In addition, the Victims of Crime Assistance Act 1996 (Vic) (VCAA) establishes a state-funded compensation scheme, designed to provide financial assistance to victims of violent crime to help with recovery where adequate compensation cannot be obtained from the offender or another source.3
  5. 10.5 An award of compensation or financial assistance4 can have a validating effect on victims, especially where an offender has not been convicted. There is evidence to suggest that some victims prefer to receive compensation from offenders rather than the state,5 and that victims place value on what offenders can do to repair harm, rather than how much compensation they can pay.6 This is connected to victims’ need for offenders to recognise the impact of their crime.

 

  1. 10.6 This chapter looks at the system for obtaining compensation and restitution orders directly against an offender under the Sentencing Act. Consistent with the terms of reference and the general approach in this consultation paper, the focus will be on procedural matters, both in respect of how and when applications are made in conjunction with the trial process, and a victim’s options for enforcement. Limited consideration is given to the role of victims in applying for financial assistance from the state through the VCAA.7

The current system in Victoria

  1. 10.7 Victims in Victoria may seek compensation, restitution or financial assistance orders through three avenues:
  • compensation or restitution orders against the offender pursuant to Part 4 of the Sentencing Act
  • state-funded financial assistance through the Victims of Crime Assistance Tribunal (VOCAT)
  • civil proceedings in court against the offender.
  1. 10.8 The first two options fulfil the requirements of the Victims’ Charter Act 2006 (Vic).8

Sentencing Act restitution and compensation orders

  1. 10.9 One of the purposes of the Sentencing Act is ‘to ensure that victims of crime receive adequate compensation and restitution’.9
  2. 10.10 Restitution and compensation orders under the Sentencing Act are not sentencing orders. This means that they cannot form part of a judge’s determination of the appropriate punishment for an offender. Rather, Sentencing Act restitution and compensation orders are non-punitive orders that can be made in addition to sentencing orders. The purpose is to provide a quick, efficient and cheap means ‘for the recovery of civil recompense by victims’.10
  3. 10.11 In addition, if a compensation or restitution order is made, this cannot act as a mitigating factor in the determination of a sentence.11 The rationale for this is that wealthy offenders should not be able to buy their way out of more punitive penalties.12
  4. 10.12 A victim can seek orders for restitution or compensation for loss or injury caused as a direct result of the offence. This means that a broad category of victims may make applications, including witnesses and parents.
  5. 10.13 Sentencing Act restitution or compensation orders can only be made if an offender has pleaded guilty or been found guilty. This reflects the public interest in using the sentencing process to ensure that those who have been found guilty are held financially accountable.13
  6. 10.14 Further, for each type of restitution and compensation order described below, there needs to be sufficient evidence from the hearing of the charges, admissions or from prescribed available documents before a judge can make an order.14 This reflects the intention for such orders to be made through a relatively straightforward and accessible procedure.

Restitution for loss of property

  1. 10.15 Restitution orders under the Sentencing Act relate specifically to restoration of stolen goods connected to theft. A restitution order may require an offender to:
  • return stolen goods to a victim entitled to them
  • transfer goods representing the proceeds of the disposal or sale of stolen goods to a victim
  • pay money to a victim representing not more than the sum of the value of the goods.15
  1. 10.16 The application for restitution may be made by the victim, or by the Director of Public Prosecutions (DPP) on behalf of the victim.16

Compensation for loss of property

  1. 10.17 The court may also make a compensation order against the offender for the value of any loss, destruction or damage to property as a result of an offence.17 Unlike restitution orders, compensation orders are not limited to offences connected to theft.
  2. 10.18 Such an order may be made on the application of the victim, the DPP or on the court’s own motion.18

Compensation for injury

  1. 10.19 Compensation orders may also be made against an offender for any injury directly caused to a victim by an offence.19
  2. 10.20 The offence has to be a direct cause of the injury, but does not have to be the sole cause.20 Injury is defined as one of, or a combination of:
  • bodily harm
  • mental illness or disorder
  • pregnancy
  • grief, distress, trauma or other adverse shock.21
  1. 10.21 A compensation order may be made for:
  • pain and suffering
  • expenses incurred, and future expenses reasonably likely to be incurred, for medical treatment or counselling
  • other expenses incurred, and reasonably likely to be incurred in the future, as a direct result of the offence.22

 

  1. 10.22 A compensation application may be made up to 12 months after the conviction of the offender.23 The application may be made by the victim or by the DPP on the victim’s behalf.24 The victim and offender may appear in person or be represented by a lawyer.25
  2. 10.23 In assessing the amount of compensation to be ordered, the judge may be guided by principles that apply when a person sues for damages in the civil jurisdiction.26 However, in Director of Public Prosecutions v Energy Brix Australia Corporation Pty Ltd, Justice of Appeal Vincent alluded to the need for caution to ensure that any differences arising from the way that a crime impacts on an individual, compared to a non-criminal action (such as a negligent wrong), are taken into account.27 In addition, if the victim has been awarded financial assistance by VOCAT, this amount is to be deducted.28
  3. 10.24 The victim and the offender can call witnesses or give evidence at the hearing of the compensation application.29 The court must give an offender a reasonable opportunity to be heard in relation to an application for compensation for injury.30

Director of Public Prosecutions policy

  1. 10.25 The Director of Public Prosecutions (DPP) will only apply for a restitution or compensation order on behalf of a victim if all of the following are satisfied:
  • The offender pleads guilty or is found guilty.
  • There is sufficient evidence to justify the application.
  • The quantum can be readily determined.
  • The application is not opposed by the offender.
  • The offender’s financial circumstances are such that there is a reasonable prospect that at least a substantial amount of the order could be enforced against the offender.
  • In the case of a child or a person incapable of managing their affairs, a suitable person is available to act as a litigation guardian.31
  1. 10.26 If the DPP decides not to pursue a restitution or compensation order on behalf of a victim, the victim must be given a referral to another service for help.32
  2. 10.27 For compensation applications, the Sentencing Act requires each party to bear their own legal costs, unless the judge orders otherwise. Thus, if an application is made by the DPP for the victim as part of the sentencing hearing, the victim benefits from not having to bear the costs of the application.33

Comparison with civil proceedings

  1. 10.28 The only other option for pursuing compensation for loss and injury directly from an offender (as opposed to state-funded assistance from VOCAT) is to sue for tortious damages in the civil jurisdiction of the court. This would require commencing separate proceedings and retaining a private lawyer, potentially at significant cost. Civil litigation can be a difficult process, requiring understanding of rules of evidence, legal principles, disclosure obligations and costs rules.
  2. 10.29 The Sentencing Act compensation provisions are intended to provide a faster and less expensive alternative to civil proceedings.34 The Sentencing Act does not specify procedures that must be followed by a party making an application.35 This has been stated to allow for flexible and fair procedures.36
  3. 10.30 A victim who receives an order for compensation or restitution under the Sentencing Act can still pursue civil action against the offender for any amount of loss or damage that was not met by the Sentencing Act orders.37

Financial circumstances of the offender

  1. 10.31 In determining an application for compensation for property loss or personal injury (but not for a restitution order), the judge may take the financial circumstances of the offender into account as far as practicable, and ‘the nature of the burden’ that the amount and method of payment of compensation would cause if ordered.38
  2. 10.32 Compensation orders are not intended to constitute punishment. They are intended to restore the damage or loss experienced by a victim.39 There is a clear tension between the interests of the offender in not being left with a crushing financial burden (a punishment in effect rather than intent), and the interests of victims in accessing adequate compensation through the sentencing process and avoiding the necessity of starting separate civil court proceedings.40
  3. 10.33 While the judge should deliberate on the extent to which a compensation order may detrimentally affect the offender’s ‘prospects of rehabilitation’,41 the judge can still make an order of compensation that might affect the offender’s rehabilitation.42 The courts have recognised that in some cases, the victim’s interests in receiving an appropriate order for compensation take priority.43
  4. 10.34 The Australian Law Reform Commission (ALRC) considered this issue in 2006. The ALRC noted that if a victim were to seek compensation through separate proceedings in the court’s civil jurisdiction, the financial circumstances of the offender would be irrelevant to the court’s assessment of damages.44 The ALRC considered that judges should not be permitted to take into account an offender’s financial circumstances with a view to reducing the quantum of an award. Doing so was seen as undermining the central purpose of compensation and restitution orders, which is to ensure that victims of crime receive adequate compensation for the loss they have suffered.45

 

Enforcement

  1. 10.35 As noted above, restitution and compensation orders are not sentencing orders. They are not intended to be punitive although they may cause financial hardship.
  2. 10.36 The difference between a sentencing order and a restitution or compensation order is also reflected in the way in which such orders are enforced. The failure by an offender to comply with a sentencing order, such as a fine, will attract a punitive response. In contrast, the failure of an offender to fulfil a compensation order or a restitution order that requires payment of a sum of money, results in a judgment debt.46 The failure to fulfil a compensation or restitution order will not impact on the offender’s sentence.
  3. 10.37 A judgment debt can then be enforced through the civil jurisdiction of the court that made the order.47 In Josefski v Donnelly,48 Justice of Appeal Nettle noted that options for enforcement include instalment orders under the Judgment Debt Recovery Act 1984 (Vic) or petitioning for bankruptcy under the Bankruptcy Act 1966 (Cth).49

Appeals against restitution and compensation orders

  1. 10.38 An appeal of a restitution or compensation order can only be made by the DPP and only in cases where the DPP is satisfied that an error has occurred and that it is in the public interest to appeal.50 Victims themselves do not have a statutory right to appeal. Rather, a dissatisfied victim can commence proceedings for damages in the court’s civil jurisdiction.51
  2. 10.39 A victim ‘may be heard’ in an appeal if the Court of Appeal has set aside an offender’s conviction and is considering whether a compensation or restitution order made as a result of that conviction should not take effect.52

Victims of Crime Assistance Tribunal (VOCAT)

  1. 10.40 VOCAT was established by the Victims of Crime Assistance Act 1996 (Vic) (VCAA).53 The VCAA in turn sets out a financial assistance scheme for victims of crime, administered by VOCAT.
  2. 10.41 The VCAA provides victims of violent crimes with an avenue for state-funded financial assistance to assist with recovery where victims cannot obtain financial assistance from an offender or another source. Awards of financial assistance also act as a symbolic expression of the community’s sympathy and recognition of the adverse effects of crime.54

 

  1. 10.42 Primary victims, witnesses and family members may be eligible for varying levels of financial assistance.55 For each category of victim, eligibility is dependent on there having been an act of violence. However, it is not required that the offender was convicted or was even charged.56 An ‘act of violence’ captures ‘a criminal act or series of related criminal acts’ committed in Victoria, which has ‘directly resulted in injury or death of one or more persons’.57 The criminal acts encompassed by the VCAA scheme are limited to:
  • offences punishable by imprisonment that involve an assault, injury or threat of injury
  • prescribed sexual offences
  • stalking, child stealing, and kidnapping offences
  • any offence of conspiracy, incitement or attempting to commit one of the above offences.58
  1. 10.43 The definition of ‘injury’ includes physical and psychological injury and pregnancy.59 Less serious and non-violent offences are generally excluded. Injury suffered or expenses incurred as a result of loss or damage to property are specifically excluded.60
  2. 10.44 Financial assistance can cover medical and counselling expenses, lost earnings, safety expenses and other expenses, up to a maximum of $60,000 for primary victims.61 An additional award of ‘special financial assistance’ between $130 and $10,000 can be made to primary victims if VOCAT is satisfied that the victim has suffered ‘significant adverse effect’ as a result of a prescribed act of violence.62

Electing to attend a hearing

  1. 10.45 When making an application, victims can elect whether they want VOCAT to hold a hearing or have their application determined without a hearing.63 VOCAT describes the option of a hearing for victims as ‘an opportunity for victims to give voice to the impact of the crime and to receive acknowledgement and validation of their trauma’.64
  2. 10.46 The victim applying for financial assistance (or their lawyer) is considered to be a party to the proceeding. Victims are entitled to appear and be heard by VOCAT at the hearing.65
  3. 10.47 If VOCAT wishes to notify an offender of the time and place of the hearing, VOCAT must first give the victim applying for financial assistance the opportunity to be heard about whether the offender should be given notice.66
  4. 10.48 The VCAA provides alternative ways for victims to give evidence, including by way of closed-circuit television or with a support person.67 VOCAT can also order that a hearing, or part of a hearing, be conducted in a closed court and can restrict the publication of material.68 VOCAT is not required to conduct itself in a formal manner and is not bound by the rules of evidence.69
  5. 10.49 A victim dissatisfied with VOCAT’s decision has a right to apply for a review by the Victorian Civil and Administrative Tribunal within 28 days. The victim is a party to those proceedings. VOCAT must take into account any other financial assistance received by the victim and may order a victim to refund assistance already paid if the victim subsequently receives money by way of a compensation order.70
  6. 10.50 The Sentencing Act gives the state the right to recover the amount of any VOCAT payment made to the victim from the offender.71 This order is made for the benefit of the state, not the victim.
  7. 10.51 VOCAT made financial assistance orders totalling $42,315,273 (including special financial assistance awards of $11,798,837), and legal costs orders totalling $5,542,800 during 2013–14. The average amount of financial assistance awarded was $7,336.72

Alternative processes and procedures

  1. 10.52 Many jurisdictions have schemes allowing victims to obtain compensation from the offender as well as state-funded financial assistance schemes. The following section considers procedures and practices in other jurisdictions that are distinctly different to or more broad in application than those in place in Victoria.

Compensatory orders against offenders

Presumption in favour of reparation

New Zealand
  1. 10.53 New Zealand’s sentencing laws contain a robust presumption in favour of a reparation order73 being made by a sentencing court, as follows:

If a court is lawfully entitled … to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.74

  1. 10.54 A judge is lawfully entitled to make a reparation order where the offender has caused a victim to suffer emotional harm, property loss or damage, or loss or damage that is consequential to any emotional or physical harm or property loss or damage (consequential losses).75
  2. 10.55 As noted in Chapter 9, a reparation order in New Zealand can be made as a sentencing order, which shapes its character as both punitive for the offender and financially restorative for the victim. This has implications for how the reparation order is enforced, discussed below.
  3. 10.56 In New Zealand, victims of personal injury can seek financial assistance through the Accident Compensation Act 2001 (NZ). Victims of crime may have entitlements under this Act. Any consequential losses that are covered by the Accident Compensation Act are to be excluded from reparation orders.76

 

  1. 10.57 Where an offender has limited financial resources, the judge may elect not to make a reparation order. Alternatively, the judge may reduce the amount and/or order payment by way of instalments.77 If the judge does not make a reparation order, he or she must provide reasons.78 Reparation orders must be prioritised by the judge where the offender cannot afford to pay both a fine and reparation.79
  2. 10.58 The sentencing judge can order that a reparation report be provided detailing a range of matters, including the value of the victim’s property loss, emotional harm or consequential losses, and the offender’s financial capacity to pay reparation.80 If a reparation report is ordered by the judge, the person preparing it must try to get the offender and victim to agree to the amount the offender should pay.81 The victim cannot be compelled to meet with the offender or participate in the preparation of the report.82 If no agreement is reached, the person writing the report has to inform the court about a number of matters, including the offender and victim’s respective positions on the question of compensation for emotional harm.83 The victim must be given a copy of the reparation report and a copy of any subsequent reparation order.84
The impact of restorative justice outcomes
  1. 10.59 As highlighted in Chapter 9, in New Zealand a judge takes into account the outcomes of a restorative justice conference when determining sentencing orders, including reparation orders. In determining an offender’s reparation obligation, the judge must take into account a number of factors, including a proposal by an offender, or agreement reached with the victim, to make amends financially or through the performance of work or a service, or any efforts by the offender to apologise.85 The judge can adjourn proceedings until an offender completes the actions that he or she committed to, thus leaving open the option of court-ordered reparation.86

Enforcement of compensation and restitution orders

New Zealand
  1. 10.60 A reparation order in New Zealand is enforceable in the same way as a fine.87 This fundamental distinction, when compared to Victoria, appears to relate to the availability of reparation orders as a sentencing option, rather than as an additional non-sentencing order as in Victoria.
  2. 10.61 Offenders make payments towards a reparation order to the court. The court then forwards the payment to the victim.88
  3. 10.62 In Victoria, it is left to the victim to enforce a compensation or restitution order made under the Sentencing Act. In New Zealand, the court pursues the offender for outstanding money owed on a reparation order. The court registrar has a range of powers where a reparation order remains outstanding, including to:89

 

  • give the offender more time to pay
  • arrange for the offender to pay by instalments
  • make an order for compulsory deductions from the offender’s wages or a bank account
  • issue a warrant to seize the offender’s property.90
  1. 10.63 The details of offenders in ‘serious default’ can be shared with customs and immigration officials for the purposes of enforcement action, including arrest.91
  2. 10.64 If the reparation order remains unsatisfied, or if the court registrar does not consider the reparation order enforceable, the registrar can order an offender to appear and may issue an arrest warrant.92 In addition to the enforcement options above, a High Court or District Court judge then has a broad range of powers, including to order:
  • that the total amount owing be enforced as if it were a civil judgment debt93
  • a warrant of commitment that requires the offender to be imprisoned for a specified time
  • home detention
  • community detention
  • community work.94
  1. 10.65 An order for reparation can be cancelled or substituted in situations where an offender’s financial circumstances change, or where an offender lied about his or her financial circumstances, rendering the reparation order unenforceable.95 In such cases, the victim must be notified and provided with the opportunity to be heard by the judge before the judge can make a determination.96

State-funded compensation schemes

Administrative assistance scheme

Northern Territory
  1. 10.66 The Northern Territory’s scheme for state-funded financial assistance to victims provides an example of an administrative scheme which can be contrasted to Victoria’s tribunal scheme. Similar to Victoria, different levels of assistance can be sought by primary, secondary, family and related victims. For primary victims, the most that can be received, either to cover expenses or lost earnings, and/or as a symbolic award of special financial assistance for injury, is $40,000.97
  2. 10.67 Applications for financial assistance are managed by the Crime Victims Services Unit (CVSU) and assessed by legally qualified assessors as an administrative act.98
  3. 10.68 Victims do not need to attend any form of court or tribunal hearing for the assessment of their application. While this might be a relief for some victims, it offers no forum for those who seek to give voice to the impact of the crime on them.

 

  1. 10.69 There is no requirement to provide detailed submissions. There is also nothing preventing a victim from providing submissions about the impact of the offence on their life. Submissions can only be made in writing.
  2. 10.70 The Director of CVSU may elect to send a copy of the application to the offender and alert the offender to the right to make a submission within 28 days.99 The Director may also send a notice of the final decision to the offender. As at December 2012, CVSU had not given a copy of an application to an offender.100
  3. 10.71 The Northern Territory victim assistance scheme is unique in the way that it deals with monetary awards (called ‘special financial assistance’ in Victoria), in sexual assault cases.101 A victim of sexual assault can seek an award based only on the fact of their victimisation, without needing to prove additional injury or ‘significant adverse effect’ (as required in Victoria), or attending a medical examination.102 The fact of victimisation is sufficient. There are three categories of sexual offence. The range of financial assistance available increases from $7,500–$10,000 for a Category 1 offence to $25,000–$40,000 for a Category 3 offence.103
  4. 10.72 A victim’s application and any document given to CVSU that was ‘prepared solely for the application’ are not admissible as evidence in any civil or criminal proceeding.104 This is in contrast with Victoria, where VOCAT has discretion whether to release material filed as part of a victim’s VOCAT application in circumstances where an accused seeks access.105 Such material, if released, could potentially be used by an accused at trial or to appeal a conviction.106

Civil party procedure as part of the trial

Civil law inquisitorial criminal systems

  1. 10.73 Victims can appear as civil parties in inquisitorial trials in a number of European jurisdictions.107 As a civil party, a victim can pursue a civil claim for compensation as part of the criminal trial process. The same court decides both the civil claim and the criminal charges.108
  2. 10.74 Permitting victims to present a civil claim for compensation as part of the trial process aims to provide ‘the victim with a relatively easy, fast, cheap procedure for recovering his [or her] losses’ from the offender.109 This reflects the aim of Victoria’s Sentencing Act restitution and compensation provisions.
  3. 10.75 France is the jurisdiction most commonly associated with the civil party procedure.110 For ease of comparison, the Commission will focus on the civil party procedure in France.
  4. 10.76 To join the proceedings, the victim must provide a statement to the court setting out the losses and injuries suffered as a result of the alleged crime.111
  5. 10.77 Trials for serious crimes are heard by three judges (one of which is the president) and nine lay jurors.112 Victims are permitted to ask questions of witnesses ‘through the intermediary of the president’.113 Following the presentation of evidence, arguments are heard, first from the victim or the victim’s lawyer, then the prosecutor and lastly the accused’s lawyer.114 At this stage, the victim is entitled to present a claim for damages.115
  6. 10.78 The judges and lay jurors decide whether the accused is guilty or innocent, but only the judges (without the jury) decide the claim for compensation, after a finding of guilt.116
  7. 10.79 The civil party procedure affects the way in which the victim can give evidence. Specifically, where victims appear as civil parties, they are not permitted to give evidence on oath. Instead, they can only give their evidence informally. This causes a dilemma because in many cases the evidence of the victim is critical to the case against the accused. Usually, this problem is resolved by having the victim first give evidence on oath as a non-party, before being accepted as a civil party to the proceedings.117
  8. 10.80 Appearing as a civil party can save victims time and money by allowing them to attach their civil proceedings to state-run criminal proceedings. Although the victim’s civil claim relies on establishing the accused’s guilt, the prosecutor and not the victim is responsible for obtaining a conviction.118

The International Criminal Court (ICC)

  1. 10.81 The ICC has a regime for providing redress to victims of crimes being prosecuted by the Court. It has two main components:
  • orders for reparations made against a particular offender
  • the Trust Fund for Victims, which can provide assistance to victims other than court-ordered reparations.119

Reparations

  1. 10.82 Orders for reparation are made after the accused has been found guilty, and in favour of the victims who have applied to participate in the case in question.120
  2. 10.83 When making a reparations order, the Court is empowered to ‘determine the scope and extent of any damage, loss or injury to, or in respect of, victims’ and establish principles for reparation, restitution, compensation and rehabilitation.121
  3. 10.84 To be eligible for reparations, victims must ensure they have provided certain information to the Court’s registry. The formal proceedings to determine the principles to be applied when making orders for reparations, and the scope of such orders, generally occur at the end of the trial.122

 

  1. 10.85 It has been suggested that victims may be able to play a greater role in reparations proceedings when compared to trial proceedings. This is in part because there is no need to balance victims’ interests against the rights of the accused, the accused having already been found guilty.123 Participation in reparations proceedings may involve calling witnesses and submitting documentary evidence.124
  2. 10.86 In its limited jurisprudence on reparations proceedings, the Court has indicated that:

victims of the crimes, together with their families and communities should be able to participate throughout the reparations process and they should receive adequate support in order to make their participation substantive and effective.125

  1. 10.87 Reparations proceedings are also part of, and run parallel with, the trial process to some extent.126 In part, this is because evidence pertinent to reparations, such as the amount and nature of harm caused, can be impossible to detach from questions related to the accused’s guilt.127
  2. 10.88 Allowing evidence pertaining to reparations to be introduced during the trial benefits victims by removing the need for them to give evidence in two separate proceedings. However, evidence about the harm caused to victims may also infringe the accused’s right to be presumed innocent. In Prosecutor v Lubanga, the Trial Chamber considered this issue and ruled that it would be able ‘without difficulty, to separate out the evidence that relates to the charges from the evidence that solely relates to reparations, and to ignore the latter until the reparations stage (if the accused is convicted)’.128 Nevertheless, some commentators remain concerned that hearing evidence relating to reparations could have the effect of prejudging the guilt of the accused.129

Trust Fund for Victims

  1. 10.89 As noted above, the Trust Fund for Victims is part of the ICC’s framework for providing redress to victims. Reparations may be directed through the Trust Fund to victims, and it can use its own resources to ‘supplement’ a reparation order. The Trust Fund can also assist in the ‘design and implementation of reparations awards’.130
  2. 10.90 An important feature of the Trust Fund is that assistance can be provided to victims who are not eligible for reparations and is not contingent on a finding of guilt.131

Discussion and options for reform

Evidence about compensation and restitution at the trial

  1. 10.91 In determining whether to make a compensation order in Victoria, judges can look at a range of evidence and findings of fact, from both the trial and sentencing. In the case of Sentencing Act applications for compensation for injury, the victim and offender can give evidence and call witnesses.
  2. 10.92 An option for reform could be to allow victims to join their application for compensation or restitution at an earlier stage of proceedings, for the purposes of allowing the trial judge to hear evidence relating to compensation as part of the trial process. This would reflect the procedures for civil parties in inquisitorial jurisdictions and the approach taken at the ICC. Consideration would need to be given to whether victims would be permitted to call witnesses and make submissions. Court procedures would also require significant change, in order to incorporate victims’ actions for compensation without undermining the right of the accused to be presumed innocent.
  3. 10.93 This problem is most prominent in adversarial criminal trials, where juries determine whether an accused is guilty. In principle, legally trained judges are more capable of separating evidence relevant only to the consequences of the crime from evidence relevant to guilt.

A stronger presumption in favour of compensation and restitution orders against offenders

  1. 10.94 In Victoria, an application must be made for compensation for injury or restitution orders before the judge will consider making such an order. A judge cannot make these orders of his or her own motion. However, orders for compensation for property loss or damage can be made on a judge’s own motion and the court is required to ask the prosecution if it intends to make an application for such an order.
  2. 10.95 Creating a statutory presumption in favour of orders for compensation and restitution, as occurs in New Zealand, is an option for reform. This option encourages judges to turn their mind to making a restitution or compensation order in all cases and raising it with the parties. It also avoids victims relying on the DPP making them aware of the possibility of applying for a compensation or restitution order. Instead, it could be a matter raised as part of (but ancillary to) the sentencing proceedings.
  3. 10.96 This approach would eliminate a separate application having to be made in cases where the DPP elects not to apply on the victim’s behalf, which may require the victim to engage private legal representation. The victim could retain the ability to apply for compensation or restitution orders after the sentencing hearing, if further information became available about the victim’s loss or the offender’s financial circumstances change.
  4. 10.97 Orders made using this presumption may be subject to the offender’s financial circumstances, or such a requirement could be removed completely, as recommended by the ALRC in the context of federal sentencing laws in Australia.132

Enforcement by the state

  1. 10.98 If a victim succeeds in obtaining an order for the payment of money as compensation or restitution, the victim is responsible for taking action to enforce the order where the offender does not pay. Where an offender refuses to pay, a victim’s only option is to commence further proceedings in a court’s civil jurisdiction to enforce the debt.
  2. 10.99 An alternative option is to shift the burden of enforcement to the state, as occurs in New Zealand. In considering such an option, it should be noted that in New Zealand compensation and restitution orders are made as part of sentencing orders. Enforcement of compensation and restitution orders is therefore essentially enforcement of the offender’s punishment. In Victoria such orders are made in addition to sentencing and are not considered a means for punishing the offender.
  3. 10.100 If the burden of enforcement is shifted to the state, an additional option would be for the state to advance the victim money from a central fund. The offender would then have an obligation to repay the state. This would ensure that victims could receive compensation quickly and without prolonged contact with the offender.133 The New Zealand Law Commission deliberated on such a proposal in 2010, but rejected it based on concern about the substantial costs involved and the prospect of judges making compensation orders that could not be enforced against impecunious offenders.134

Appeals by victims

  1. 10.101 Sentencing Act compensation and restitution proceedings are ancillary to the criminal proceedings. In limited cases, the DPP may make an application on behalf of the victim, but in the absence of the DPP making an application, it is the victim who makes the application to the court.
  2. 10.102 A possible reform would be to give victims the right to appeal against compensation or restitution orders that they consider to be manifestly inadequate. Permitting victims to appeal such unsatisfactory orders is consistent with the fact that victims are parties to the original application. It also avoids victims having to sue the offender through separate court proceedings.

Expanding victim eligibility for accessing VOCAT

  1. 10.103 VOCAT represents an important option for victims to obtain some financial assistance with medical costs, lost earnings and other recovery-related expenses. For victims who meet VOCAT’s eligibility requirements, VOCAT may be the only avenue for financial assistance where an offender has no income or assets or was not convicted or charged.
  2. 10.104 One of the ways in which eligibility for VOCAT is restricted is through the definition of ‘relevant offence’, which prescribes the offences for which financial assistance may be made available, subject to other eligibility requirements.135 There are many offences that are excluded, predominantly property-related and non-violent offences.
  3. 10.105 One justification for excluding non-violent property offences from VOCAT is that the loss or damage to property is something that can be covered by insurance. While not all victims will be in a financial position to insure (or adequately insure) their property, arguably, incorporating non-violent property offences into VOCAT could act as a disincentive to individuals taking out private property insurance. The effect could be to shift the costs of insuring private property to the state.136
  4. 10.106 An argument in support of extending VOCAT to non-violent offences is that recent research suggests that victims of property offences, including online fraud, can and do suffer from the same type of psychological, emotional and social impacts as victims of crimes against the person (albeit usually less severely).137

 

Restorative pathway

  1. 10.107 Research suggests that some victims place greater value on what offenders can do as a form of compensation, rather than the amount they can pay. For these victims, a possible reform option would be to promote the use of restorative justice, such as mediation or conferencing, as part of applications for compensation or restitution orders under the Sentencing Act 1991 (Vic). In cases considered appropriate, a restorative justice process would not be limited to considering what monetary payment an offender can make. Such a process could also consider actions that the offender could take to promote the emotional restoration of victims, as an alternative or in addition to compensation.
  2. 10.108 This proposal has the potential to remedy the problem of limited financial means in some cases. Limited financial means is a reality for many offenders and can make a compensation order practically unenforceable. The proposal could also have merit where an offender is wealthier, because instead of being able simply to pay the compensation ordered by the court, the offender may be forced to confront the impact of the crime on the victim and consider more emotionally compensatory actions. Non-financial outcomes, such as community work, have value in ‘the appropriation of [the offender’s] time and labour’.138
  3. 10.109 As occurs in New Zealand, proceedings under the Sentencing Act for compensation or restitution could be adjourned to allow an offender time to agree to and fulfil any reparative actions. A failure to do so could be brought to the court’s attention at the later court date, and taken into account in the making of any compensation or restitution orders. The participation of victims in restorative justice processes should always be voluntary and have appropriate safeguards. The challenges associated with restorative justice processes are discussed in more detail in Chapter 3 and at other points throughout this consultation paper.
  4. 10.110 In addition to making restorative justice processes available in applications for compensation and restitution orders under the Sentencing Act, restorative justice could be incorporated into VOCAT processes. VOCAT is already guided by the objects of the VCAA, which include helping victims recover through the provision of financial assistance and symbolic expression of the community’s recognition and sympathy for the victim.139 In addition, VOCAT aims to provide victims with a forum in which they can have a voice.140 This function could be enhanced by giving victims the option of attending a victim–offender mediation, in the same room, or separate rooms or via video-link. This would not only allow victims to have a voice, it would require the offender to hear the victim.
  5. 10.111 A restorative justice pathway within VOCAT would not stop a victim from electing to have VOCAT determine his or her application for financial assistance in the event that the victim did not want to proceed with restorative justice or could not reach agreement with the offender in a restorative justice setting. Consideration would need to be given to the impact that any agreement reached in a restorative justice process would have on VOCAT’s decision-making process.

Questions

  1. 43 Do processes set out in Part 4 of the Sentencing Act 1991 (Vic) deliver on the aim of a swifter, less complex avenue for victim compensation? Are any changes needed to improve outcomes for victims?
  2. 44 Should there be a statutory presumption in favour of compensation and restitution in all cases?
  3. 45 How should the financial circumstances of an offender be taken into account under Part 4 of the Sentencing Act 1991 (Vic)?
  4. 46 Should a victim be given the power to commence appeal proceedings in relation to a restitution or compensation order?
  5. 47 How should restitution and compensation orders be enforced?
  6. 48 Is there a need for restorative justice pathways as an alternative, or in addition to, Sentencing Act 1991 (Vic) orders and VOCAT?
  7. 49 Are there offences not covered by the Victims of Crime Assistance Act 1996 (Vic) that should be?

Footnotes

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