This article was written by Sally Crosswell
Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.
Restitution Order (NSW)
When a person is sentenced for a “relevant” offence in New South Wales, the court may make an order of restitution for property that was lost, damaged or destroyed in the offence. The order requires the offender to pay a specified amount to reimburse the victim of the crime for their loss or for the damage caused. It is made as part of the sentencing process but is separate and added to the end of a criminal trial to benefit victims.
Legislation
The power to make an order for restitution is found in Part 5 of the Victims Rights and Support Act 2013.
A “victim of crime” is someone who suffers harm as a direct result of an act committed, or apparently committed, by another person in the course of a criminal offence. Harm can be physical or psychological harm to a person’s body, or harm to a person’s property if it is deliberately taken, destroyed or damaged.
A “relevant offence” means:
- an offence in which an act of violence was committed;
- an offence for which counselling, financial support or a payment for trauma was given;
- any other offence that was considered when sentencing the offender for the principal offence.
An act of violence means an act (or series of related acts) that has:
- apparently occurred during an offence;
- involved violent conduct against a person or people;
- resulted in injury or death to that person or those people.
This violent conduct also includes sexual assault or domestic violence.
Why is a restitution order made?
The power to make an order recognises the impacts of crime can be psychological, physical or financial, as well as diverse, far-reaching and long term.
A restitution order provides a fast, efficient and cheap way to compensate victims compared to civil proceedings against an offender.
Making a restitution order
The Commissioner of Victims Rights must make a restitution order within 2 years of the offender’s conviction. They must not make an order if a civil case has been launched against the offender for damages arising from the same act of violence.
If the Commissioner believes an offender has disposed of property in a bid to avoid liability, the Commissioner can make a restitution order against anyone involved in the action.
The restitution order notice must be served on the offender personally or by post and explain that the offender has the right to object within 28 days of the notice. If no objection is lodged within 28 days, the order is confirmed. If an objection is lodged, the Commissioner has options including to:
- allow all or part of the objection;
- disallow the objection;
- confirm the order;
- vary the amount of the order;
- reverse the order.
If the offender is not satisfied with the Commissioner’s decision, they can apply to the NSW Civil and Administrative Tribunal for an administrative review of the decision within 60 days of the decision. The tribunal can confirm, reverse or vary the order, and make any other orders it thinks fit.
A restitution order cannot be considered a mitigating factor in sentencing.
Compliance with a restitution order
If an offender fails to comply with a restitution order that requires payment of money, this results in a judgment debt. The amount can be transferred to Revenue NSW which will begin enforcement action. This can include:
- cancelling or suspending the offender’s driver’s licence or vehicle registration;
- deducting money from the offender’s wages or bank account;
- authorising the seizure of property;
- placing a charge on any land or property owned by the offender.
Non-compliance does not affect the rest of an offender’s sentence or expose them to further criminal penalties.
Other support for victims
An application can be made for a compensation payment, known as victims support, from the state’s Victims Support Fund. An application can be made by:
- the victim of an act of violence;
- the parent, step-parent or guardian of a primary victim who is a child;
- any other person, on behalf of a victim, who has a genuine interest in the welfare of that victim.
A primary victim is a person who is injured or dies as a result of the violence. It can include a person who tries to prevent violence, rescue someone from violence or arrest a person who is committing a violent act.
The time limit to make an application varies from two to 10 years of the act of violence, depending on the reason for the application, which can include the covering of expenses such as medical, dental, or counselling costs, or loss of earnings as a result of the act of violence.
For advice or representation in any legal matter, please contact Armstrong Legal.