Restitution Order (NSW)

When a person is a victim of certain crimes they are entitled to seek victim support from the Victim Services including financial support or a recognition payment. After either a recognition payment or financial support has been paid out by Victim Services to the victim, the Commissioner of Victim Rights can seek a restitution order under Part 5 of the Victim Rights and Support Act 2013 to recover the funds given to the victims from the person who was convicted of the offence to which the payments relate. 

What is a Restitution Order?

The purpose of a restitution order is to enable financial support and recognition payments made under the Scheme to victims to be recovered from persons found guilty of the crimes giving rise to payment. 

Restitution Orders only apply to the “relevant offences” defined in Section 58 of the Act which are:

1. An offence in respect of which an act of violence is found to have been committed,
2. An offence in respect of which an act of modern slavery is found to have been committed, 
3. An offence for or in respect of which victims support is given under the Act, 
4. Any other offence where an act of violence or an act of modern slavery was taken into account when sentence was passed on the offender. 

Restitution orders are only available to be recovered on behalf of a ‘victim’ under the Act. A ‘victim’ is defined to mean a person to whom an amount has been paid under an approval for giving of financial support or the making of a recognition payment. 

An ‘act of violence’ is defined in Section 19 of the Act to mean an act or series of acts that has apparently occurred in the course of the commission of the offence, involved violent conduct against one or more persons and has resulted in injury or death of one or more of those persons. Section 19(3) clarifies that violent conduct extends to sexual assault and domestic violence with Section 19(8) detailing the specific offence of which a restitution order applies. 

When Can a Restitution Order be Made?

A restitution order can be made up to two years after the person has been convicted of the offence for which the financial support or recognition payment was made. 

A person is taken to be “convicted” of their offence for the purpose of making a restitution order even if they received a Section 10 under the Crimes (Sentencing Procedure) Act 1999 or a Section 33 under the Children (Criminal Proceedings) Act 1987. 

Notice of Provisional Restitution Order:

If the Commissioner makes an order for restitution against a person, they are required to serve notice of the restitution order personally or by post on the person against whom the order is made. Section 61 of the Act requires the notice to set out the terms of the order, include the grounds on which the order was made, explain the effect of objecting to or failing to object to the notice, provide an explanation of the right to object and the effect of failing to object. 

Objecting To Restitution Orders:

A person who is served with a restitution order has 28 days to lodge an objection with the Commissioner objecting to the making of a restitution order. In some circumstances an objection can be lodged up to 90 days after service of the notice. The person objecting to the order bears the onus of proving their case. The objection should contain fully stated and detailed grounds for the objection. 

After considering an objection, the Commissioner may:

• Allow the objection in whole or in part, or 
• Disallow the objection in whole or in part, or 
• Confirm the order for restitution, or 
• Vary the order for restitution, or 
• Revoke the order for restitution. 

Appealing Restitution Orders:

If the person is not satisfied with the outcome by the Commissioner on their objection to a restitution payment, they are entitled to appeal against that decision to the NSW Civil and Administrative Tribunal (NCAT) for an administrative review of the restitution order. 

A review can be filed within:

• 60 days of the date of the decision made by Victim Services, or
• 90 days of filing an objection, if a decision was not made by Victim Services. 

Upon review NCAT can either confirm the original order, vary the original order, reverse the original order or make any order they think fit. 

Consequences of Failing to Comply with Restitution Order:

If an offender fails to comply with a restitution order this will result in a judgment debt and the debt will be transferred to Revenue NSW for enforcement. In response to non-payments of fines, Revenue NSW has the power to impose licence suspensions against the person, cancel registration of vehicles registered to the person, obtain garnishee orders to deduct the debt amount from a person’s bank account and seize property. 

If you have been served with a restitution order or require advice on restitution orders, contact Armstrong Legal.