Restitution Orders (Qld)

When a person is sentenced for property offences in Queensland, the court may make an order of restitution or compensation for property lost, damaged or destroyed in connection with the commission of the offence. This means the offender must pay a specified amount to reimburse the victim for their loss or for the damage caused. This power is contained in section 35 of the Penalties and Sentences Act 1992. This article deals with restitution orders in Queensland.

Orders for restitution and compensation

Section 35 states that an order for restitution or compensation can be made in a number of circumstances. The court may order:

• That the offender make restitution of property—

(i) in relation to which the offence was committed; or

(ii) taken in the course of, or in connection with, the commission of the offence; and

• pay compensation to a person for any loss or destruction of, damage caused to, or unlawful interference with, property—

(i) in relation to which the offence was committed; or

(ii) in the course of, or in connection with, the commission of the offence; and

• pay compensation for personal injury suffered by a person (whether or not the person is the victim against whom the offence was committed) because of the commission of the offence

When is a restitution order made?

A judge or magistrate will normally make an order for restitution at the time of sentence. An order for restitution can be made as a standalone order or as part of a community-based order. At a minimum, these orders will stipulate the amount to be paid by the convicted offender, the person to whom the payment will go, and the timeframe within which the payment must be received.

What is the difference between restitution and compensation?

Although often used interchangeably in practice, there is a distinction between an order for restitution and an order for compensation. An order for restitution is made to restore a victim who has suffered a financial loss as a result of the offending to their previous position. For example, a person who commits an offence of willful damage by destroying the personal belongings of another person will likely be ordered to pay restitution to that victim in the value of the destroyed item. Normally, a restitution order can only be made in favour of a person who has suffered as a direct result of the offending (a victim).

Compensation, on the other hand, can be ordered to provide relief to any person who has suffered a loss or injury in connection with the commission of the offence. This may not be the person who was the primary victim, but someone who was affected indirectly by the offender’s actions.

Restitution and sentence structure

Under section 14 of the Penalties and Sentences Act, a court must give preference to an order that compensates the victim if the offender cannot afford to pay both a fine and restitution/compensation. Further, in the Court of Appeal decision of R v Allison [2012], it was determined that the imposition of a term of imprisonment and an order for restitution/compensation may be inappropriate in most circumstances –

“In the absence of cogent evidence that an offender has the capacity to pay compensation after release from a term of actual imprisonment imposed as part of a sentence, courts are reluctant to order offenders to pay compensation after serving a term of imprisonment. To do so may jeopardise the offender’s prospects of rehabilitation; it would amount to a crushing sentence…”

Restitution and juvenile offenders

In the case of UVB v Commissioner of Police [2017], a similar standard to the one above was put in place. It was determined that, unless it has been shown that a juvenile offender has the capacity to pay, it is inappropriate to make a restitution order against them. The rationale emphasized in the decision is that if juveniles are not working, they cannot be reasonably expected to come up with a sum of money for payment of compensation. It is worth noting, however, that in some cases, the court has determined that it is appropriate to order that the legal guardians of a juvenile offender be ordered to pay restitution to a victim.

Failing to comply with an order for restitution

Failure to comply with the conditions of a restitution order may result in further penalties up to and including imprisonment (maximum of six months for those convicted of summary offences and maximum of one year for those convicted of indictable offences). Further, a person may be brought before the court to be resentenced for the original offence(s) if the restitution order is not complied with.

SPER

Like other monetary penalties, an order of restitution can be referred to the State Penalties Enforcement Registry, pursuant to the State Penalties Enforcement Act. Once referred, SPER will make a direct payment to the court in the sum ordered, and an offender can arrange a payment plan with SPER for the repayment of the sum.

If you require legal advice or representation in any legal matter please contact Armstrong Legal.