9 Financial reparation

 

Introduction

  1. 9.1 Victims have an interest in how the harm to them can be repaired as part of the criminal justice system’s response to the crime. Reparation refers to the action of making amends for a wrong or injury.1 Reparation may be made through the payment of compensation, the return of stolen goods, the performance of work, an apology or other means, depending on the harm caused. Non-monetary forms of reparation may be obtained through the criminal trial process or a restorative justice process. This chapter focuses on financial reparation and the victim’s role in the making of restitution and compensation orders against offenders.2
  2. 9.2 Restitution and compensation orders can be made against offenders for the benefit of victims under the Sentencing Act 1991 (Vic). These orders directly respond to the interest of victims in repairing harm. While it is the Sentencing Act that allows the court to make these orders, they cannot form part of an offender’s punishment. Rather, they are ‘ancillary orders’; that is, they are in addition to the sentence, not part of it. They are civil in nature, but are made at the end of criminal proceedings where an offender has been found guilty. Victims can also pursue compensation by starting a legal action against the offender in a court’s civil jurisdiction, unconnected to the criminal trial. This is beyond the scope of the Commission’s review.
  3. 9.3 Victims can also seek state-funded financial assistance from the Victims of Crime Assistance Tribunal (VOCAT). VOCAT orders financially assist a large number of victims who cannot obtain compensation from the offender. The orders can also validate an individual’s experience of harm. The Commission’s terms of reference do not provide
    for an extensive review of VOCAT. VOCAT is addressed in so far as it has an impact
    on a victim’s participation in the criminal trial process.

Financial reparation for victims

Expectation and experience

  1. 9.4 The impacts of crime can be devastating and long-term, especially for victims of serious and violent crime. Crime can cause psychological injury, emotional harm, physical injury and financial loss. Victims may have to pay for treatment and incur costs for lost or damaged goods, security or relocation. They may lose work earnings or leave entitlements.
  2. 9.5 The traditional criminal trial process was not designed to respond to all of these impacts. Once guilt was established, the task was to determine just punishment, although an aggrieved person was able to seek compensation for loss and damage to property.3
  3. 9.6 Since 2000, victims have been able to seek compensation for injury, pain and suffering, as well as property loss, as orders against an offender at the end of the criminal trial process.4 These provisions recognise that the victim’s interest may not be satisfied through punishment and public denunciation of the offender alone. The victim may also reasonably expect to have an effective pathway to seek financial repair of harm.5
  4. 9.7 Some victims want nothing to do with an offender once criminal proceedings are finalised. They may not want to receive money from the offender, particularly over a long period.6 The prospect of further court proceedings will also deter some individuals from pursuing compensation.7 Moreover, many offenders cannot afford to pay compensation. In these circumstances the victim may only seek financial assistance from the state.
  5. 9.8 Other victims prefer to receive compensation directly from the offender rather than the state.8 Some place more value on what the offender can do to repair or acknowledge the harm than on how much the offender can pay.9 For example, the parent of a victim described it as ‘a matter of principle’ to pursue the offender for compensation, as he had failed during criminal proceedings to acknowledge the harm he had caused.10

Legal framework

  1. 9.9 Victims can seek financial reparation for harm directly from offenders in two ways:
  • At the end of the criminal trial, they may seek a restitution or compensation order under Divisions 1 and 2 of Part 4 of the Sentencing Act (restitution and compensation orders). These orders are discussed in the next section.
  • They may make a civil law claim for compensation through the civil jurisdiction of Victoria’s courts, rather than as part of the criminal trial process. This is an entirely separate legal action governed by rules of civil procedure. Civil litigation can be a difficult and costly process, requiring understanding of rules of evidence, legal principles, disclosure obligations and costs rules.11 It is outside the Commission’s terms of reference to examine civil actions by victims.12
  1. 9.10 Victims can seek financial assistance from the state rather than from the offender by applying to VOCAT under the Victims of Crime Assistance Act 1996 (Vic).13 The victim’s eligibility for assistance does not depend on a plea or finding of guilt. Financial assistance is provided to cover certain expenses and small symbolic awards can be made. The state can then pursue an offender to recover money paid to a victim.14  

Restitution and compensation orders against offenders

  1. 9.11 One of the purposes of the Sentencing Act is ‘to ensure that victims of crime receive adequate compensation and restitution’.15 However, in the criminal courts, a sentence cannot be imposed for the purpose of compensating a victim.16
  2. 9.12 Restitution and compensation orders can be made as ‘ancillary orders’ under the Sentencing Act; that is, they are in addition to the sentence. They are characterised as non-punitive orders and should not act as a mitigating circumstance when determining the appropriate sentence for an offender.17 Although made in connection with the criminal trial process, they are in effect civil orders that respond to the harm experienced by the individual rather than the harm to the state.18
  3. 9.13 These orders are only relevant to sentencing when the court is considering ordering a fine. Where an offender cannot pay both a fine and a restitution or compensation order, the restitution or compensation order has priority.19
  4. 9.14 The Court of Appeal has described Sentencing Act compensation orders as a quick, efficient and cheap means for victims to obtain a civil compensation order at the end of criminal proceedings.20 Applications are subject to the lower civil standard of proof (the balance of probabilities), rather than the standard applied to criminal proceedings (beyond reasonable doubt). There is no legislatively prescribed cap on the amount of compensation, although awards for loss of earnings cannot be sought.21

The Sentencing Act process for making orders

  1. 9.15 The Commission’s consultation paper asked whether, in practice, the process under the Sentencing Act provides a swifter and less complex avenue for victims to obtain compensation orders against offenders than making a civil law claim. Most of the responses to this question said that it does not,22 although the Law Institute of Victoria sees no need for reform.23
  2. 9.16 The Commission was unable to obtain reliable data from the Supreme or County Courts about how often applications for restitution or compensation orders are made by victims, or granted. Such data would not, in any case, take into account matters that resolve by way of private settlement. Anecdotal information received by the Commission suggests that the provisions are infrequently used.24 A discussion paper released by the Department of Justice in 2009 noted that fewer than 20 orders were made in the County Court, and ‘less than a handful’ in the Supreme Court, each year.25
  3. 9.17 Arnold Dallas McPherson Lawyers stated that Sentencing Act compensation orders have very limited value.26 The Victorian Bar and Criminal Bar Association submitted that Part 4 of the Act, under which the orders are made, is ‘fairly infrequently used’.27 Part of the problem is that many offenders have little money, which means that orders cannot be enforced.28
  4. 9.18 The next section considers difficulties in applying for the orders, before turning to challenges associated with enforcing them. The Commission considers that the application process can be reformed, making it a faster and simpler avenue for compensation.

Procedure

  1. 9.19 Restitution and compensation orders can be made for loss or injury that is a direct result of offences for which an offender has been found guilty. Although applications can be determined at the sentencing hearing, they are typically determined after it. A victim usually makes an application, either personally or through their lawyer. The Director
    of Public Prosecutions (DPP) can apply on the victim’s behalf.29
  2. 9.20 Three types of financial reparation order can be sought by victims through the
    Sentencing Act:
  • Restitution for loss of property, which relates specifically to restoration for stolen goods connected to theft (restitution).30
  • Compensation for property loss, damage or destruction, which compensates for the value of loss, destruction or damage to property, and is not limited to any particular offence (compensation for property loss).31
  • Compensation for injury, which can compensate victims for pain and suffering, medical and counselling expenses and other expenses directly resulting from an offence (compensation for injury).32
  1. 9.21 The Sentencing Act sets out different procedures, and uses different terminology, for each type of order. For example:
  • Only compensation orders for property loss can be made by the court on its own initiative. The court must ask the prosecution if an application will be made if evidence has been presented of property loss, damage or destruction.33 In contrast, orders for restitution and compensation for injury can only be made following application by the DPP or the victim.
  • There is a 12-month limitation period to apply for compensation for injury, starting from the date the offender is found guilty or convicted.34 This does not apply to applications for restitution or compensation for property loss.
  • If an application is made for compensation for injury, the court must not refuse to determine the application, except where relevant facts do not sufficiently appear from prescribed material.35 In contrast, where an application relates to restitution or compensation for property, the court’s power is described as one that must not be exercised unless the relevant facts appear from a list of prescribed sources.36
  • The financial circumstances of the offender, and the burden imposed by a compensation order, may be taken into account when making an order for compensation for injury or property loss.37 The offender’s financial circumstances are not relevant to restitution orders.
  • For compensation applications, the Sentencing Act requires each party to bear their own legal costs, unless the judge orders otherwise.38 There is no costs provision for restitution orders.
  • The hearing procedure for restitution and compensation orders does not have to follow any specific format, except as described in section 85G, which relates only to compensation for injury. This is intended to allow for flexible and fair procedures39
    and to promote an efficient and low-cost procedure.40

A more accessible process for victims

  1. 9.22 The above description shows that different terminology and procedures are used for the different orders. There is no clear justification for these differences. The procedure for applying for orders has been described as ‘both lengthy and complicated’ and in need of streamlining.41 Arnold Dallas McPherson Lawyers noted that an application for Sentencing Act compensation orders can be more expensive than commencing separate civil proceedings for compensation.42
  2. 9.23 The former victim representatives on the inaugural Victims of Crime Consultative Committee submitted that the procedure should be simple enough that victims do not need to retain a lawyer.43 The Victims of Crime Commissioner told the Commission that:

Expedient and efficient processes are vital when considering the compensation and restitution of victims of crime, as delays and complicated procedures often add to a victim’s stress and trauma, deny them justice and hamper their recovery.44

  1. 9.24 It can be expensive and complex to seek compensation by commencing separate civil proceedings against offenders. Some victims will prefer to pursue this path, and it should remain open to them.45 Others, however, will consider their interests best served by having the matter dealt with quickly through the Sentencing Act, even if it means less compensation. To facilitate this latter option, the Commission’s recommendations below aim to:
  • ensure a process that is not overly difficult to navigate
  • encourage courts and the prosecution to properly consider the interest of victims
  • make sure victims are aware of their entitlements and can access legal advice.

Consistent statutory provisions

  1. 9.25 The Commission considers that the Sentencing Act provisions for the making of restitution and compensation orders should be consolidated. It would make applying for these orders simpler for victims who seek to pursue this option. Comparable legislation in Queensland provides a single set of procedures for restitution and compensation orders.46
  2. 9.26 As part of creating a simpler set of provisions and a more accessible process for making orders, the following matters, discussed below, should be addressed:
  • application procedures
  • the court’s powers to make orders
  • hearing procedures
  • the financial circumstances of offenders.
Applications
  1. 9.27 Varying degrees of procedural guidance are provided for the different types of order. Where compensation for injury is sought, a general application form must be filed, and there is a list of matters to be addressed in the application.47 In contrast, there is no form or guidance for those who apply for restitution or compensation for property loss, nor for applications in the Supreme Court. It has been suggested that the lack of forms or procedural guidance causes confusion for both victims and lawyers.48
  2. 9.28 The Commission agrees that the procedure should enable victims to apply for restitution or compensation without legal assistance and, for this reason, considers that there should be a standard application form for Sentencing Act restitution and compensation orders. However, legal assistance should be available to those who need it. In Chapter 6, the Commission recommends a legal service be established to provide legal advice and assistance to victims in relation to substantive legal entitlements connected to the criminal trial process.
Powers of the court
A requirement on courts to make orders
  1. 9.29 The Commission’s consultation paper asked whether there should be a presumption in favour of making restitution and compensation orders. This would require courts to make an order, subject to exceptions, and would not require an application being made by or on behalf of the victim.
  2. 9.30 This is the approach taken in New Zealand. There, the court must make an order of reparation in favour of a victim where lawfully entitled to make such an order, subject to the offender’s financial circumstances or other special circumstances.49 The court can order that a report be prepared addressing relevant matters, including the offender’s financial means.50
  3. 9.31 The Victims of Crime Commissioner favours a presumption on the basis that victims currently lack support for making applications.51 Victoria Police also favours a presumption and has suggested that the interest of victims in restitution and compensation orders would then be viewed as an ordinary part of the criminal trial process.52 Arnold Dallas McPherson Lawyers stated that the value of the Sentencing Act provisions is limited because the orders are not automatically made following conviction.
  4. 9.32 The idea of a statutory presumption did not receive universal support. Concern was expressed about the risks and it was suggested that a presumption would be unworkable in Victoria.53 The DPP opposed a statutory presumption on the grounds that, as a ‘quasi-civil matter’, restitution and compensation should be addressed separately to sentencing.54
  5. 9.33 At a practical level, requiring courts to make restitution or compensation orders could lead to orders being made that victims do not want, and without proper consideration being given to compensation as distinct from sentencing. It may be in a victim’s interest to pursue compensation through separate civil proceedings, rather than through the Sentencing Act. In addition, large numbers of orders could be made that cannot be enforced because of the offender’s financial circumstances.55 The Law Institute of Victoria suggested that a model similar to New Zealand’s could act as a disincentive to pleas of guilty, and therefore potentially increase the number of trials and contested hearings.56
  6. 9.34 The presumption in favour of making reparation orders in New Zealand was introduced after reparation became a sentencing order, which resulted in reparation being ordered as part of a sentence more frequently.57 The criminal justice system of New Zealand is different from Victoria’s in three fundamental ways:
  • reparation orders are part of an offender’s sentence and the reparation of victims
    is a purpose for which a sentence may be imposed58
  • sentencing may be preceded by a restorative justice conference, the outcomes
    of which must be taken into account at sentencing59
  • reparation orders are enforced punitively like a fine.60
  1. 9.35 In Tasmania, sentencing courts are obliged to make a compensation order for loss suffered as a result of burglary, stealing or unlawful injury to property offences.61 The Tasmania Law Reform Institute has described the provision as unwise, unrealistic and as creating ‘false hopes’ and disillusionment for victims. It recommended that the provision be replaced by a requirement that the courts consider making a compensation order for all offences, as occurs in England.62
Orders on the court’s own motion
  1. 9.36 One victim told the Commission that she simply wanted a process in which judges could make compensation orders without victims first being required to make an application.63
  2. 9.37 Since 2012, courts in Victoria have been able to make compensation orders for property loss without an application being made. The court is also obliged to ask the prosecution whether an application for compensation will be made if an offender is convicted or found guilty and evidence of loss, damage or destruction has been presented. Importantly, the making of orders on the court’s own motion (that is, on its own initiative) is conditional on the consent of the person in whose favour the order is to be made.64
  3. 9.38 In contrast, orders for restitution and orders for compensation for injury still require an application to be made.
Conclusion
  1. 9.39 The Commission considers that courts should have the power to make restitution and compensation orders of their own motion, but should not be required to do so. The exercise of this power should be subject to the consent of the injured person. This would be additional to the court’s existing powers to order restitution or compensation where an application is made by or on behalf of the victim.
  2. 9.40 This would create consistency across all restitution and compensation orders under
    Part 4 of the Sentencing Act and also align with most other jurisdictions in Australia.65 Courts would be empowered to make orders where there is clear evidence about the victim’s loss without victims first being required to make an application. Requiring consent allows victims to determine what is in their best interests. Of course, victims need to be advised about their options, as discussed at [9.58]–[9.65].
  3. 9.41 The Commission acknowledges that determining compensation for injury can be complex, particularly the question of what is an appropriate amount for pain and suffering. Courts will need to consider updating practice notes to give parties guidance on the material the court requires to determine an application.
  4. 9.42 In addition, the existing obligation on courts to ask the prosecution whether a compensation order for property loss will be sought should be extended to restitution and compensation orders for injury. This does not require the court to make orders after enquiring; and in many cases, if a victim is not aware of their entitlements, they will need time to seek legal advice.
  5. 9.43 An obligation to enquire forces the court and the prosecution to turn their minds to whether the victim is aware of their entitlements upon an offender being found guilty. This is especially important if compensation for injury is sought because the Sentencing Act requires applications to be brought within 12 months.66 Furthermore, it could encourage the police and the Office of Public Prosecutions (OPP) to discuss with victims at an early stage the possibility of restraining the offender’s assets to pay for any subsequent restitution or compensation order.
  6. 9.44 The following recommendation is directed to the Supreme and County Courts, consistent with the terms of reference. As a matter of principle, the Commission considers that it is applicable to the determination of restitution and compensation order applications in the Magistrates’ Court.

Recommendation

  1. 45 Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) should be consolidated to provide a consistent set of procedures for restitution and compensation orders in the Supreme Court and County Court, and include
    the following elements:

(a) The court may make restitution and compensation orders on its own motion.

(b) The court must make inquiries as to whether an application for restitution or compensation orders will be made.

(c) A simple form prescribed in the Sentencing Regulations 2011 (Vic)
to assist victims and their representatives in making an application for restitution or compensation orders.

 

 
Financial circumstances of offenders
  1. 9.45 In determining an application for compensation for property loss or injury, sections 85H and 86(2) of the Sentencing Act state that the court may consider the financial circumstances of an offender and the burden that a compensation order would impose.67 Victoria Police, the Victims of Crime Commissioner and Arnold Dallas McPherson Lawyers submitted that the financial circumstances of offenders should not be taken into account. They said that if the primary purpose of these orders is to restore victims and ensure they receive adequate compensation, the offender’s financial circumstances are irrelevant.68
  2. 9.46 If a victim elects to pursue a separate claim for compensation in a civil court, the offender’s financial circumstances will not be relevant to the making of orders. In 2006, the Australian Law Reform Commission made a similar observation and recommended that judges should not be required to take the financial circumstances of offenders into account in the context of federal offences.69
  3. 9.47 The Victorian Bar and Criminal Bar Association and the Law Institute of Victoria did not consider there to be a need for change.
  4. 9.48 The Law Institute of Victoria noted that its ‘members report that often orders are made regardless of the offender’s financial circumstances’.70 Indeed, while courts may consider how a compensation order will affect an offender’s prospects for rehabilitation, an order can still be made that may compromise the prospect of rehabilitation.71 There have been cases in which a victim’s interest in receiving an appropriate order for compensation has taken priority over an offender’s lack of financial means.72
Conclusion
  1. 9.49 There is clearly an interest in not leaving offenders with a crushing financial burden that, realistically, they cannot pay off. For victims, large compensation orders that cannot be paid may cause disappointment.73 On the other hand, it is clearly in the interests of victims and the community that victims are adequately compensated, and that offenders take some responsibility for this rather than leaving it all to the state.74 Besides, while an offender may lack means at the time of a sentencing hearing, they may be able to pay later on. Compensation orders can be enforced as a judgment debt for 15 years.75 Under the current approach, orders that could be fulfilled at a later date may be discounted.
  2. 9.50 In contrast to sentencing, orders for compensation are not made for the purposes of punishing an offender. They are civil orders made in the interests of victims to repair harm suffered by the victim.76 Consistent with this purpose, the Commission considers that taking into account the impact of a compensation order on an offender is conceptually flawed and may explain the different approaches taken by courts to different cases.77 If Sentencing Act compensation orders are designed to provide victims with a quick and efficient means of obtaining civil recompense, an offender’s financial circumstances are not relevant. However, if they were to become a sentencing option, then taking an offender’s financial circumstances into account would be justified as an aspect of determining an appropriate punishment.
  3. 9.51 Repealing sections 85H and 86(2) of the Sentencing Act would not limit the court’s discretion to take into account disadvantage suffered by an offender as a result of the summary nature of Sentencing Act procedures.78
  4. 9.52 Concerns about managing the expectations of victims in the face of orders that cannot realistically be enforced at the time they are made can be addressed by ensuring that victims are adequately informed about the process and have access to information and legal advice. A legal service is recommended in Chapter 6 to advise and assist victims of violent indictable crimes about their legal entitlements, including the feasibility of pursuing compensation orders.

Recommendation

  1. 46 Sections 85H and 86(2) of the Sentencing Act 1991 (Vic) should be repealed to the extent that they apply to applications made by individuals in the Supreme Court and County Court under Division 2 of Part 4 of that Act.

 

Legal assistance for victims

  1. 9.53 The DPP is authorised by the Sentencing Act to apply on behalf of victims for restitution and compensation orders.79 The DPP’s policy, Victims and Persons Adversely Affected by Crime (Victims Policy), sets out criteria that considerably limit the circumstances in which the DPP will do so. Unless all the criteria are satisfied, the OPP solicitor must refer the victim to another service for assistance.80
  2. 9.54 One criterion is that it not be too difficult to determine the amount of restitution or compensation that a victim should claim. The offender needs to be in a financial position to pay at least a substantial amount of the order and not oppose the application.81 Offenders therefore need only oppose an application and the process becomes more complicated for victims.82
  3. 9.55 When the DPP applies for restitution or compensation orders for a victim, the victim is represented by an institution that is already familiar with their matter. The DPP can apply at the start of the prosecution to restrain the offender’s assets to satisfy a compensation claim.83 In addition, the victim does not have to pay legal costs for the application.84
  4. 9.56 However, the DPP told the Commission that it does not have the capacity or expertise to apply for restitution and compensation orders for victims in all cases. The DPP also expressed concern about creating the impression that it acts on behalf of victims.85 Making an application for a restitution or compensation order does require the DPP to act on the victim’s behalf and, in doing so, give priority to the victim’s legal interests over the public interest. This could conflict with the DPP’s responsibility to provide an impartial public prosecutions service.
  5. 9.57 In practice, the DPP seldom acts on behalf of victims and most have to retain a private lawyer and pay legal costs.86 Finding lawyers in regional areas to take on victims’ compensation or VOCAT matters is more difficult than in metropolitan areas.87 Victoria Legal Aid indicated in its submission that it can assist with restitution and compensation applications.88 Community legal centres told the Commission that they are rarely approached for assistance.89
Access to legal advice and assistance
  1. 9.58 Victims are not always told about the option of applying for restitution or compensation orders through the Sentencing Act, or are being told late in proceedings.90 The parent of a child victim stated:

I understood there was the option of applying to VOCAT or enduring a civil action against the offender. The option of the processes in Part 4 of the Sentencing Act were never articulated to me. It is therefore clear that the full array of compensation options should be conveyed to victims at multiple times during the investigation, trial, sentencing process … A legal advocate for the victim will ensure that this process is completed.91

  1. 9.59 The Victorian Bar and Criminal Bar Association suggested that victims’ lack of awareness and infrequent use of the Sentencing Act to obtain restitution and compensation orders could reflect the focus of criminal proceedings on the determination of guilt and imposition of penalties, rather than on compensating victims.92
  2. 9.60 It is in the interests of victims and the community that victims are aware of, and able to access, a legal procedure that holds offenders accountable for the repair of harm they have caused. Some victims will be capable of negotiating Part 4 of the Sentencing Act themselves, but the process cannot operate on an assumption that everyone can do this. The Supreme Court put the view that it is highly desirable for victims to have access to legal assistance where the law protects their interests, such as in providing the right to seek compensation.93
  3. 9.61 The Commission agrees with the Supreme Court and considers that a state-funded legal service to advise and assist victims with applications for Sentencing Act restitution and compensation orders can be justified by its connection with the criminal trial process.
    The same cannot be said for claims that victims pursue separately in the civil courts.
  4. 9.62 In Chapter 6, the Commission has recommended that a legal service should be established at Victoria Legal Aid to assist victims of violent indictable crimes in pursuing their substantive legal entitlements, including Sentencing Act restitution and compensation orders. Victoria Legal Aid could continue to provide assistance with VOCAT applications in light of the overlap between the two forms of financial reparation and the fact that the state covers the victim’s VOCAT costs.94
Making victims aware of the availability of legal assistance
  1. 9.63 The DPP’s Victims Policy requires OPP solicitors to ensure that victims are informed that they may be entitled to restitution and compensation and to financial assistance from VOCAT.95 There is no express obligation in the Victims’ Charter Act 2006 (Vic) to do so. Instead, the Act contains a general obligation to provide information about ‘possible entitlements and legal assistance’ and to refer the victim to relevant services.96
  2. 9.64 Some victims told the Commission that they were not told until some time into the criminal trial process, or not told at all, about their right to seek an order for restitution or compensation as an additional order to sentencing.97 The delay may mean that an opportunity to restrain the offender’s assets is missed.98
  3. 9.65 Restitution and compensation orders are substantive legal entitlements for victims. The Victims’ Charter Act is the most visible statutory instrument stating victims’ entitlements. It should therefore include an express obligation on investigatory and prosecuting agencies to inform victims of their possible entitlements under Divisions 1 and 2 of Part 4 of the Sentencing Act, and to refer victims to legal assistance. The police informant and OPP solicitors are in the best position to ensure that victims know that legal assistance is available, and are referred to it early. The victim, or their lawyer, should be given materials in the OPP’s possession that are relevant to an application for restitution or compensation.

Recommendation

  1. 47 The Victims’ Charter Act 2006 (Vic) should be amended to require investigatory and prosecuting agencies to inform victims of their possible entitlements under Part 4 of the Sentencing Act 1991 (Vic) and refer them to available legal assistance.

 

Appeals and enforcement

Appeals

  1. 9.66 The DPP can appeal a restitution or compensation order where an error has occurred and it is in the public interest to appeal.99 Offenders can commence appeal proceedings to challenge the making of the order.100
  2. 9.67 Dissatisfied victims cannot appeal a restitution or compensation order at all, nor a decision by the court not to make one. Their remaining option is to commence proceedings for compensation in the court’s civil jurisdiction.101 Western Australia is the only jurisdiction the Commission is aware of that allows victims to appeal against a restitution or compensation order, or a court’s refusal to make one.102
  3. 9.68 The DPP, among others, expressed support for giving victims in Victoria the right to commence appeal proceedings where the court has refused to make an order or if they consider the order inadequate.103 Victims and offenders would avoid the time and expense associated with commencing proceedings in the court’s civil jurisdiction.104
    One victim suggested that this right could be exercised in consultation with the DPP.105
  4. 9.69 The Law Institute of Victoria, the Victorian Bar and the Criminal Bar Association oppose such reform.106 They consider existing civil procedures sufficient. In their view, granting victims a right to appeal would be fundamentally inconsistent with Victoria’s adversarial system of criminal justice, in which decisions about appeals are made only by the DPP
    and the offender.
  5. 9.70 While permitting victims to appeal decisions regarding restitution and compensation would depart from current appeal procedures in the criminal justice system, it would retain the distinction between sentencing decisions and restitution and compensation orders. Sentencing decisions concern the offender’s punishment for committing the offence. Restitution and compensation orders are civil remedies that are additional to sentencing and provide for direct reparation by the offender to the victim. The Commission therefore considers it conceptually sound that victims have a right to seek leave to appeal decisions regarding restitution and compensation orders. It may lead
    to a small increase in appeals, but the resources taken up by this increase may be offset by the costs avoided by victims not commencing civil proceedings.
  6. 9.71 The Commission’s recommendation below is restricted to appeals by a victim against restitution and compensation orders by the Supreme or County Courts, in line with the terms of reference. As a matter of principle, the Commission considers that the proposed amendment could be extended to such orders made in the Magistrates’ Court.

Recommendation

  1. 48 The Criminal Procedure Act 2009 (Vic) should be amended to enable victims
    to seek leave to appeal, independently of the Director of Public Prosecutions:

(a) a refusal by the Supreme Court or County Court to make an order pursuant to Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic)

(b) orders made by the Supreme Court or County Court pursuant to
Divisions 1 and 2 of Part 4 of the Sentencing Act 1991(Vic).

 

A right to be heard where a conviction is set aside
  1. 9.72 If the Court of Appeal sets aside an offender’s conviction and is considering whether
    a restitution or compensation order made in connection with that conviction should
    not take effect, Supreme Court rules state that victims ‘may be heard’ in the appeal.107
  2. 9.73 The fact that a victim may be heard by the Court of Appeal is not articulated in the DPP’s policies. Although the DPP’s Victims Policy instructs OPP solicitors to inform victims that restitution or compensation orders are suspended pending an appeal and will be ineffective if a conviction is set aside, they are not instructed to inform victims that they may be heard in the appeal.108 This omission should be rectified by the DPP.

Enforcement of orders

  1. 9.74 The fact that restitution and compensation orders are not sentencing orders affects how they can be enforced. A court-ordered fine, which is a sentencing option for some criminal offences,109 is enforced by the state. In contrast, the state cannot punish an offender for failing to fulfil a compensation order. Instead, victims have to take the offender to court to enforce the order as a judgment debt.110 If an offender has no income and no assets, or is imprisoned for a long time, attempts to enforce the order
    are likely to be futile.111
  2. 9.75 Judgment debts can be enforced in a number of ways, including through:
  • an instalment order
  • a warrant to seize and sell assets
  • an order requiring a portion of an offender’s employment income to be paid towards the debt or petitioning for bankruptcy.112
  1. 9.76 The enforcement process ‘prolongs what is already a very traumatic situation’ and may have an impact on the victim’s recovery.113 It can also require ongoing contact with offenders. The DPP noted that the victim may need to engage a lawyer. A lawyer acting for a victim in this situation submitted that there are major barriers to enforcing an order, including significant legal costs.114 A victim of childhood sexual offences told the Commission that she obtained a compensation order with the assistance of one solicitor but then needed to fund a separate solicitor to attempt to enforce the order.115 The stress, cost and time dedicated to trying to enforce orders may be compounded by other factors, such as disability, language barriers and living in a regional location.
Enforcement by the state
  1. 9.77 The Commission’s consultation paper considered whether restitution and compensation orders should be enforced by the state. In effect, they would be treated like court-ordered fines for the purposes of enforcement, as occurs in New Zealand.116 South Australian and Queensland laws also provide for state enforcement.117 Importantly, in each of these jurisdictions, a compensation order forms part of an offender’s punishment.
  2. 9.78 In Tasmania, compensation orders are described as ancillary orders, but are enforceable as fines. If deemed uncollectable, they can be enforced as a judgment debt in the court’s civil jurisdiction.118 In 2008, the Tasmania Law Reform Institute noted that only Magistrates’ Court compensation orders were being enforced in this way and that recovery rates were poor.119
  3. 9.79 A number of stakeholders supported the transfer of the enforcement burden from victims to the state.120 Victoria Police, a magistrate and the parent of a victim suggested that the government could advance to the victim the amount of compensation that an offender cannot pay and then the offender could be ordered to pay the state.121 The Law Institute of Victoria did not support any change.122
Conclusion
  1. 9.80 From the perspective of victims, there is a compelling case, supported by precedent in other jurisdictions, for having the state enforce restitution and compensation orders. However, if these orders were enforced by the state like a fine, offenders who do not pay would be doubly punished. Poorer offenders could be exposed to a greater punitive burden than wealthier offenders. This is not desirable.
  2. 9.81 For this reason, it could be argued that restitution and compensation orders enforced using the resources of the state and the threat of further punishment should be made a sentencing option to reflect their punitive character.123 Having restitution and compensation as a sentencing option would suit some victims because they may not need to commence separate proceedings.124 However, state enforcement would come with considerable costs for the community, and marginalised and disadvantaged offenders would still be at risk of being differentially punished because of their financial circumstances.
  3. 9.82 Such a reform could have a significant impact on sentencing practices and outcomes, especially in the Magistrates’ Court, which are matters beyond the Commission’s terms of reference. In addition, the Commission does not have data indicating how frequently restitution or compensation orders are made by courts or satisfied by offenders, which would enable the Commission to assess the costs and benefits of state enforcement.
  4. 9.83 The enforcement of restitution and compensation orders is best considered within the broader question of whether they should be treated as sentencing orders, and whether the purposes of sentencing should include compensating victims.
  5. 9.84 This broader question was considered in 1994 by the Victorian Parliamentary Law Reform Committee. The Committee concluded that it was premature to make the reparation of victims a sentencing order, but considered that ‘reparation will be more fully integrated into the criminal justice system as increased recognition continues to be given to the importance of promoting the interests of victims’.125
  6. 9.85 A 2009 discussion paper published by the Department of Justice also inquired into this issue, but a final report was not published. This issue needs to be addressed squarely, considered in detail and resolved. It should be subject to a separate and dedicated review. In view of its expertise in conducting research on sentencing policy, and its responsibility to advise the Attorney-General on sentencing issues,126 the Sentencing Advisory Council
    is best placed to conduct such a review.

Recommendation

  1. 49 The Attorney-General should ask the Sentencing Advisory Council to review whether orders made under Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) should become a sentencing option. The review should consider:

(a) whether the purposes of sentencing should include the financial reparation of victims

(b) whether there should be a presumption in favour of courts making
such orders

(c) whether such orders should be enforced by the state in the manner
of a fine.

 

State-funded financial assistance

Victims of Crime Assistance Tribunal (VOCAT)

  1. 9.86 VOCAT administers a state-funded scheme for the award of financial assistance to eligible victims of violent crime as set out in the Victims of Crime Assistance Act 1996 (Vic). The objects of the Act are:
  • to assist victims in their recovery from crime by paying for financial expenses incurred or reasonably likely to be incurred
  • to pay certain victims special financial assistance ‘as a symbolic expression by the State of the community’s sympathy and condolence for, and recognition of, significant adverse effects experienced … as victims of crime’
  • to give victims recourse to financial assistance where compensation for an injury cannot be obtained from an offender or another source.127
  1. 9.87 Applications for financial assistance can be made to VOCAT at any time up to two years after the alleged offending occurred.128 Victims may be awarded financial assistance even if an offender has not been charged or found guilty of the crime.
  2. 9.88 An award of financial assistance can be made where a person suffers physical or psychological harm or pregnancy. However, loss or damage to property is excluded from the definition of injury.129
  3. 9.89 This financial assistance scheme affects the victim’s role in the criminal trial process
    in a number of ways:
  • Victims may be required to put their application to VOCAT for financial assistance
    on hold while the criminal trial process is under way.
  • Victims may be cross-examined by the defence about their application to VOCAT.
  • The defence may seek to subpoena VOCAT material in preparing for criminal proceedings.
  • An award of financial assistance by VOCAT must be reduced by any amount received through a Sentencing Act compensation order.130 A Sentencing Act compensation order for injury must be reduced by the amount ordered by VOCAT.131
  • Some victims cannot pursue Sentencing Act restitution or compensation orders,
    or a civil claim for compensation, because of the costs or complexity involved.
    Their only option may be to apply to VOCAT.
  • Some victims cannot enforce Sentencing Act compensation orders because the offender does not have the financial means to satisfy the order or has disposed
    of assets. Their only option may therefore be to apply to VOCAT.
  1. 9.90 The scheme established by the Victims of Crime Assistance Act is not a compensation scheme. It is not intended to reflect compensation orders that might be made under
    the Sentencing Act or through a civil claim. However, where the criminal trial process does not lead to an acknowledgment of harm or public accountability through a finding of guilt, an award by VOCAT is an acknowledgment by the state of the harm caused.132 This may have an emotionally restorative effect. The lower burden of proof that applies to VOCAT proceedings means that victims of violent crimes may be awarded financial assistance despite an offender having been acquitted or a decision being made not
    to prosecute.133
  2. 9.91 Applying to VOCAT for financial assistance can be a validating and restorative process
    for many victims, although it can also be difficult or stressful, depending on whether
    the application is successful and on the attitude of the presiding tribunal member.134 VOCAT is not required to conduct proceedings in a formal manner and is not bound
    by rules of evidence.135 VOCAT describes its hearing process as ‘an opportunity for victims to give voice to the impact of the crime and to receive acknowledgement and validation for their trauma’.136

Offences

  1. 9.92 Primary victims, secondary victims and related victims may be eligible for different levels of financial assistance under the Victims of Crime Assistance Act.137 Currently, eligibility depends on an ‘act of violence’ having been committed. An act of violence is defined
    as a ‘criminal act or series of related criminal acts’ committed in Victoria that ‘directly resulted in injury or death to one or more persons’.138 The criminal acts covered are:
  • offences that involve assault, injury, or threat of injury, and which are punishable
    by imprisonment
  • prescribed sexual offences (including rape, indecent assault, incest, and a sexual offence against a child or person with a cognitive impairment)
  • stalking, child stealing and kidnapping offences
  • conspiracy, incitement or attempting to commit one of the above offences.139
  1. 9.93 Part 4 of the Sentencing Act and the Victims of Crime Assistance Act are inextricably linked. If a victim seeking financial reparation is not eligible to apply for financial assistance from VOCAT, their options are limited to applying for compensation under
    Part 4 of the Sentencing Act (subject to the offender being found guilty) or commencing civil proceedings. Against this background, the Commission sought comments on whether any offences that are currently excluded from the VOCAT scheme should be included.
Family violence
  1. 9.94 In a roundtable with magistrates, the Commission was told that the Victims of Crime Assistance Act does not accommodate the particular dynamics and characteristics of family violence. Instead, the Act is framed around a conception of crime as a single violent act.140 The Commission was referred to the following recommendation that the Magistrates’ Court and Children’s Court put forward to the Victorian Royal Commission into Family Violence:

Include ‘related acts’ occurring in the context of family violence as a circumstance in which the category A Special Financial Assistance award amount (currently $10,000)
is available for category B, C or D acts of violence pursuant to Rule 7 of the Victims
of Crime Assistance (Special Financial Assistance) Regulations.141

  1. 9.95 The Victorian Royal Commission into Family Violence subsequently recommended that
    the matters raised regarding assistance under the Victims of Crime Assistance Act should be addressed either as part of this Commission’s review or as part of a separate review
    of VOCAT.142
  2. 9.96 The proposal by the Magistrates’ Court and Children’s Court addresses an important issue of equity for family violence victims and warrants further consideration. It gives rise to important questions about the amount and timing of awards, including for counselling. These matters are beyond the Commission’s terms of reference. Consistent with the Royal Commission’s recommendation, they should be addressed as part of a separate review of VOCAT, along with the awards and assistance available to victims of other acts of violence.
  3. 9.97 It was also proposed to the Commission that family violence be listed as a relevant factor under section 52 of the Victims of Crime Assistance Act.143 Section 52 requires VOCAT to refuse an application where the act of violence was not reported ‘within a reasonable time’ or where a victim failed to provide ‘reasonable assistance’ with the investigation or prosecution, unless there were special circumstances. This is an important point, which should be addressed as part of a comprehensive review of VOCAT (see below).
Property offences
  1. 9.98 Dianne Hadden proposed in her submission that eligibility for financial assistance under the Victims of Crime Assistance Act be extended to victims of online fraud and non-violent offences, such as property damage and burglary (with intent only).144 Victoria Police was open to this possibility given the substantial impact such crimes can have on victims, but noted that this could act as a disincentive for individuals to obtain property insurance.145
  2. 9.99 In the consultation paper, the Commission observed that expanding the scheme to victims of property offences could shift the costs of insuring private property from the individual to the state. The Magistrates’ Court warned that expanding eligibility to victims of non-violent and property crimes would substantially increase the number and complexity
    of claims and the costs of the scheme.
  3. 9.100 This issue was considered as part of an in-depth review of compensation for victims of crime by the New Zealand Law Commission in 2010. It found no international precedent, fundamental problems and no social benefit to state-funded compensation for property loss.146 Like its New Zealand counterpart, the Commission sees no compelling reason for such an expansion.

Access to and use of VOCAT records in criminal proceedings

  1. 9.101 VOCAT records may be subpoenaed and used by the defence in criminal proceedings
    to demonstrate inconsistencies in a victim’s evidence and to challenge the credibility
    of a victim.
Access to VOCAT records
  1. 9.102 Section 42A of the Victims of Crime Assistance Act prevents access to records that VOCAT has ordered remain confidential. Leave to access a record can be granted
    by VOCAT where it is in the public interest.
  2. 9.103 A VOCAT practice direction sets out special procedures for requests for ‘classified documents’. This guides registrars and tribunal members as to the types of documents that the tribunal may declare confidential pursuant to section 42A.147 Classified documents include:
  • medical, psychological, psychiatric and counsellor reports provided by or on behalf
    of the victim
  • police briefs and related police documents
  • hospital records
  • other documents filed by third parties.148
  1. 9.104 If the defence subpoenas a victim’s VOCAT file, the victim will be notified if the tribunal member considers it appropriate.149 VOCAT’s practice is to provide the documents in a sealed envelope and advise the court hearing the criminal matter that it objects to the release and inspection of the documents, without leave of that court. In objecting to the release and inspection of the documents, VOCAT draws the court’s attention to section 42A, as well as section 65 of the Act (below). It is ultimately for the court hearing the criminal matter to determine whether the documents should be released.150
Use of VOCAT records in criminal proceedings
  1. 9.105 In accordance with section 65 of the Act, evidence of any document prepared solely for the purpose of a VOCAT application, and evidence of anything said on the hearing of an application, will not generally be admissible in criminal proceedings. There are a number of exceptions. Most relevantly, a victim can provide consent if ‘the words or document principally refers or relates’ to them, or the court hearing the criminal matter can rule material admissible if it is ‘in the interests of justice’.151
  2. 9.106 In sexual offence cases, access to and use of medical or counselling records that are
    in VOCAT’s possession, but were not prepared for the purpose of VOCAT proceedings, is subject to the confidential communication provisions of the Evidence (Miscellaneous Provisions) Act 1958 (Vic).152
Restricting access to and use of VOCAT records
  1. 9.107 The above provisions do not stop the defence from issuing a subpoena for VOCAT records. The Commission was told by a number of magistrates that VOCAT records
    are regularly subpoenaed for criminal proceedings.153
  2. 9.108 Once VOCAT receives a subpoena, the victim may or may not be notified that their records have been sought. The court hearing the criminal matter can order that the documents be released to, or inspected by, the defence despite VOCAT’s objection. Evidence of a document prepared for VOCAT and evidence of anything said at a VOCAT hearing can be ruled admissible in the interests of justice. This is a broad test.
  3. 9.109 The Commission considers that, where criminal proceedings are ongoing, the defence’s access to VOCAT records relating to a victim should be restricted. Medical, psychological, psychiatric and counselling records and reports provided to VOCAT should not be accessed or used for the purposes of criminal proceedings without the victim’s consent.154 If such records are considered critical to the defence, subpoenas should be directed to the relevant medical or counselling services. In addition, application forms, statements, medical assessment reports and correspondence between a victim and VOCAT are prepared for a specific purpose—determining eligibility under the Victims of Crime Assistance Act. This Act creates an entitlement to financial assistance for eligible victims
    to assist with their recovery after crime.
  4. 9.110 Victims are entitled to apply for assistance from VOCAT to help them with their recovery. They should not be discouraged from doing so because of fear that an offender will seek to access or use their VOCAT records in criminal proceedings.
  5. 9.111 Section 113 of the Victims Rights and Support Act 2013 (NSW) provides greater clarity and protection. An application for victims’ support, any supporting documents, and any documents provided or prepared in connection with an application, are not admissible as evidence in any other criminal or civil proceeding, except where the applicant is an accused person in criminal proceedings. Further, a person cannot be compelled to produce an inadmissible document.155 The Commission is of the view that such a provision would be appropriate in Victoria in relation to criminal proceedings.

Recommendation

  1. 50 Applications, supporting documentation and documents provided to or prepared for, or on behalf of, the Victims of Crime Assistance Tribunal at any time in connection with an application for financial assistance under the Victims of Crime Assistance Act 1996 (Vic) should be inadmissible as evidence
    in any criminal legal proceedings except:

(a) in criminal proceedings in which the applicant is the accused

(b) in or arising out of proceedings before the Victims of Crime Assistance Tribunal

(c) with the applicant’s consent.

  1. 51 A person should not be required by subpoena or any other procedure to produce any application or document that would be inadmissible following
    the implementation of recommendation 50.

 

Cross-examination about VOCAT applications

  1. 9.112 Victims are sometimes cross-examined about whether they have made an application to VOCAT for financial assistance.156 The defence may seek to suggest that the victim’s allegations are financially motivated.
  2. 9.113 In Queensland, victims who have applied for assistance cannot be cross-examined in criminal proceedings relating to the same offence about whether they made an application for assistance or what the outcome was.157
  3. 9.114 Some magistrates and lawyers told the Commission that cross-examination in relation to VOCAT records during the criminal trial process has no probative value.158 It was suggested that defence lawyers could be required to seek leave from the court before asking a victim questions about a VOCAT application.159 The Law Institute of Victoria opposes such a restriction.160
  4. 9.115 On balance, the Commission considers that more robust provisions regulating access to, and admissibility of, VOCAT materials, as recommended above, would provide victims with sufficient protection. Further, where the defence cannot demonstrate the probative value of questioning a victim about their VOCAT application, a judge or magistrate already has the power to disallow cross-examination on that point.

 

 

Footnotes

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