Reparation Order (WA)
When a person is sentenced for an offence in Western Australia, the court may make a reparation order. A reparation order can be either a restitution order or a compensation order. It requires the offender to pay a specified amount to reimburse the victim for their loss or for the damage caused. Reparation orders are made under Part 16 of the Sentencing Act 1995.
When are reparation orders made?
A reparation order is made as part of the sentencing process but is separate to the sentence imposed. However, an offender can appeal against a reparation order as if it were part of a sentence.
A sentence must not be reduced because a reparation order is made, but an order can be considered a mitigating factor in sentencing.
A court can still impose a reparation order when no sentence is imposed.
A reparation order can be made by the court on its own initiative, or on application by the victim or prosecution. When deciding on an order, the court can consider as evidence any:
- evidence given during proceedings for the offence;
- record relevant to the offence;
- statement, deposition or exhibit presented at committal proceedings;
- evidence given by the victim in the making of the reparation order;
- pre-sentence report;
- victim impact statement;
- mediation report.
A court can decide against making a reparation order or to reduce the amount to be paid under a compensation order if:
- any behaviour, condition, attitude or disposition of the victim contributed to the loss or damage suffered;
- the offence was not reported promptly to police;
- the victim did not take reasonable steps to help identify, apprehend or prosecute the offender;
- it would be just in light of any link or relationship between the offender and victim.
The court cannot make a reparation order if the offender does not have the means to comply with the order, or if paying the compensation would unduly prejudice the welfare of the offender’s dependants.
It also cannot make payment of compensation or restitution a condition of a community-based order or intensive supervision order.
A victim can appeal a decision not to make a reparation order. If the decision was made in a Magistrates Court, an appeal must be lodged within 28 days. If a decision was made in the District or Supreme Court, the period is 21 days.
A reparation order does not preclude a victim from taking civil action against an offender for injury, loss or damage, or from making an application for compensation. However, the offender’s level of compliance with a restitution order can be a factor in awarding damage or compensation.
A compensation order requires an offender to pay a certain amount of money to the victim as compensation for the loss of, or damage to, the victim’s property, or any expense incurred as a result of the offence. In assessing the amount payable, it is irrelevant whether the loss or damage was foreseeable by the offender.
If a court makes a restitution order against a person other than an offender (a third party), the court can make a compensation order for the third party. The compensation can be a payment for property the third party must give the victim for restitution and any expense reasonably incurred by the third party to comply with the restitution order.
If the amount payable under a compensation order is not paid within 28 days, the person to be paid can lodge a copy of the order, and an affidavit, with a court to enforce the order. If a court believes the offender is able to pay the order, it can order the amount be paid by a certain date and if it is not paid, the offender will be jailed until it is. The period of imprisonment is determined by dividing the amount of compensation by $50, rounding up to the nearest whole number of days. Imprisonment does not absolve the offender from paying the compensation.
A restitution order requires an offender to return misappropriated property to a victim by a set time. The court must be satisfied the offender or a third party has the property, and an order must not be made against a third party unless the third party has been allowed a hearing by the court.
If the property is not returned under the order, the victim can request the property be seized and delivered to them by the Sheriff of Western Australia. The costs of this can be recovered by the person who did not comply with the order. The victim also has the option to apply to a court to enforce the order. The court can then:
- amend the order;
- cancel the order and make a compensation order for the victim;
- dismiss the application.
A person who does not comply with an order, and does not have a lawful excuse for non-compliance, can be punished by the Supreme Court for contempt, or face a fine of $10,000 and imprisonment for 12 months.
For advice or representation in any legal matter, please contact Armstrong Legal.