This article was written by Michelle Makela - Legal Practice Director
Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning. Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...
Reparation Orders
A reparation order requires an offender to make reparation to an injured person, by way of a payment of money or otherwise, for the loss or expense.
Definition
Section 19 of the Crimes (Sentencing) Act 2005 provides that, before the court sentences the offender or makes a non-conviction order for the offender, the Director of Public Prosecutions may apply to the court for a reparation order.
On such application, or on its own initiative, the court may make a reparation order requiring the offender to make reparation to the injured person.
If the offence relates to stolen property, a reparation order may also be made under Section 20, which provides for an order that a person having custody or possession of the stolen property restore it to someone entitled to recover it from the person; or an order that the offender pay the value of the stolen property to a person who, if the stolen property were in the custody or possession of the offender, would be entitled to recover it from the offender.
If the court considers that the offender has sold the property to a purchaser who was acting honestly, the court may make an order that the offender pay the purchaser an amount not exceeding the amount paid by the purchaser.
If the court considers that the offender has borrowed money on the security of the property from a lender acting honestly, the court can make an order that the offender pay the lender an amount not exceeding the amount owed to the lender under the loan.
What happens if I don’t agree about the amount of the order?
Section 108 of the Crimes (Sentencing) Act 2005 provides that if an offender and the Director of Public Prosecutions (or any other applicant for the reparation order) do not agree about the amount, the court must decide.
Section 110 applies in relation to facts about the amount the offender is to be ordered to pay under the reparation order. It says that an order must not be made unless the court considers that the order should be made on the basis of facts established by:
- evidence given at trial; or
- available documents; or
- admissions by the offender; or
- submissions made by or for anyone (including the Director of Public Prosecutions).
Available documents are defined to mean any of the following:
- any written statements or admissions made for use as evidence at a trial that would have been admissible as evidence at the trial for the offence;
- depositions taken at any committal proceeding for the offence;
- any written statements or admissions used as evidence in any committal proceeding for the offence;
- any other relevant written documents.
For example, if the value of an object, or the cost of its repair, is relevant to the proceeding for the reparation order, an affidavit by a valuer or repairer about the value of the object or the cost of its repair would be a relevant written document.
Can I pay by instalments?
Yes. Section 109 of the Crimes (Sentencing) Act 2005 provides that if the court makes a reparation order for the payment of money, the court may, in addition, order that:
- the amount be paid by stated instalments; and
- the offender give security, with or without sureties, to the satisfaction of a stated officer of the court for the payment of the amount or of each instalment of the amount.
Official notice of order
Section 113 of the Crimes (Sentencing) Act 2005 provides that as soon as practicable after the court makes a reparation order, the court must ensure that written notice of the order, together with a copy of the order, is given to both the offender and the person in whose favour the order was made.
For an offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility.
However, failure to give the notice as specified does not invalidate the reparation order.
For advice or representation in any legal matter, please contact Armstrong Legal.