Compensation Order (Vic)
When a person is sentenced for an offence in Victoria, a court can also make a compensation order against an offender for loss of property or injury. The order requires the offender to pay a specified amount to reimburse the victim for their loss or for the damage caused.
A court has the power to make a compensation order under Part 4 of the Sentencing Act 1991. A compensation order is made as part of the sentencing process but is separate and added to the end of a criminal trial to benefit victims.
Why is a compensation order made?
The power to make a compensation order recognises the impacts of crime can be psychological, physical or financial, as well as diverse, far-reaching and long term.
One purpose of the Act is to “ensure the victims of crime receive adequate compensation and restitution”. A compensation order provides a fast, efficient and cheap way to compensate victims compared to civil proceedings against an offender.
A compensation order cannot be considered a mitigating factor in sentencing, because this could allow a wealthy offender to buy their way out of punishment.
Making an order
An order can be made on application after the offender is found guilty or convicted of an offence. The application can be made by the victim, or on the victim’s behalf by the prosecution (Director of Public Prosecutions or DPP) or another person if the victim is a child or incapable of making an application. The category of affected people is broad and can include witnesses and parents. An application can be made up to 12 months after the conviction.
In making a compensation order, the court may consider the financial circumstances of the offender and the nature of the burden an order would impose on them.
If an offender fails to comply with a compensation order that requires payment of money, this results in a judgment debt. Such a debt order can be enforced by the court that made the order, such as by an instalment order which requires the offender to pay off the debt in instalments. Non-compliance does not affect the rest of an offender’s sentence or expose them to further criminal penalties.
Compensation for injury
For a compensation order to be made in relation to an injury, the offence must be a direct cause of the injury, but does not have to be the sole cause. Injury is defined as one of, or a combination of:
- bodily harm;
- mental illness or disorder, or exacerbation of a mental illness or disorder;
- grief, distress, trauma or other adverse effect;
- any combination of the above.
A compensation order can be made for:
- pain and suffering;
- expenses incurred and likely future expenses for medical treatment or counselling;
- other expenses likely to be incurred as a result of the offence.
There is not limit to the amount of compensation that can be awarded.
Conditions for an order to be made
The DPP can apply for a compensation order only if:
- the offender pleads guilty or is found guilty;
- there is enough evidence to justify an application;
- the amount can be easily determined;
- the offender does not oppose an application;
- the offender’s financial situation allows for at least some of the order to be enforced;
- in the case of a child or a person who cannot manage their affairs, a suitable person is available to act as a litigation guardian.
If the DPP chooses not to apply for a compensation order on behalf of a victim, the victim must be referred to another service for help.
The Act requires each party in a compensation application to bear their own costs, unless the court orders otherwise.
If a victim receives an order for compensation, they can still pursue civil action against an offender for any amount that was not met by the order.
An appeal of a compensation order can be made by the DPP only, and only when the DPP is satisfied there has been an error and in is in the public interest to appeal. A victim cannot appeal an order but can be heard in the Court of Appeal if a court has set aside an offender’s conviction and a compensation order made as a result of that conviction is in doubt.
Other help for victims
A court can also make a restitution order against an offender for loss of property. An order can be made on application by the DPP or the victim.
A victim can pursue compensation for loss of property or injury directly from an offender, via suing for damages in a civil case.
The Victims of Crime Assistance Tribunal (VOCAT) administers a financial assistance scheme for victims of crime, under the Victims of Crime Assistance Act 1996. The Act entitles victims of serious crime to state-funded compensation to help recovery when the victims cannot obtain help from the offender or another source. The criminal acts covered by the scheme are limited and include stalking, child stealing, kidnapping, prescribed sexual offences and serious assault.
For advice or representation in any legal matter, please contact Armstrong Legal.