Restitution Order (Vic)
When a person is sentenced for a property offence in Victoria, the court may make an order of restitution or compensation 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 for their loss or for the damage caused.
The power to make an order for restitution generally is found in section 84 of the Sentencing Act 1991. If a person is found guilty of a commonwealth offence, section 21B of the Crimes Act 1914 allows a local court to make a reparation order.
The power to make an order for restitution for property offences committed by adults is found in sections 33 and 34 of the Summary Offences Act 1966. The equivalent law for children is found in section 360(3)(a) of the Children, Youth and Families Act 2005.
A restitution 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 restitution order made?
The aim of a restitution order is to restore the victim to their original position as much as is practicable. 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. An order can have a validating effect for a victim, especially when an offender has not been convicted of the offence.
One purpose of the Sentencing Act is to “ensure the victims of crime receive adequate compensation and restitution”. A restitution order provides a fast, efficient and cheap way to compensate victims compared to civil proceedings against an offender.
Making an order
The Sentencing Act allows a court to make several types of orders:
- an order that the person who has possession or control of stolen goods return them to the person entitled to them;
- an order that an offender deliver or transfer to another person goods that directly or indirectly represent the stolen property i.e. goods that are the proceeds for any sale or realisation of the stolen property;
- an order that the offender pay the value (and nothing more) of the stolen property to another person.
If a person has in good faith bought stolen property, or loaned money on the security of the stolen property, the buyer or lender can apply to the court for an order that the offender pay to them the purchase price or amount loaned.
A restitution order cannot be considered a mitigating factor in sentencing, because this could allow a wealthy offender to buy their way out of punishment.
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 person affected or on that person’s behalf by the prosecution (Director of Public Prosecutions or DPP). The category of affected people is broad and can include witnesses and parents.
If an offender fails to comply with a restitution 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.
Conditions for an order to be made
The DPP can apply for a restitution 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 restitution order on behalf of a victim, the victim must be referred to another service for help.
If a victim receives an order for restitution, they can still pursue civil action against an offender for any amount that was not met by the order.
An appeal of a restitution 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 restitution order made as a result of that conviction is in doubt.
Other help for victims
A court can also make a compensation order against an offender for loss of property or injury. An order can be made on application by the DPP or the victim, or the court’s own motion.
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.