In Victoria, if you have been found guilty and been convicted of an offence, you may be liable for victims compensation. Under the Sentencing Act, victims can apply for compensation if they have suffered injury as a result of the offender’s crime. Such orders differ from a Victims of Crime Application, as under the Sentencing Act, the offender themselves may be liable.
Sentencing Act Legislative Framework
According to Section 85B of the Sentencing Act, the Court has the authority to order an offender to compensate a victim upon application by a victim who has directly suffered injury as a result of the offence for which the offender was convicted. A compensation order may be made up of amounts—
(a) for pain and suffering experienced by the victim as a direct result of the offence;
(b) for some or all of any expenses actually incurred, or reasonably likely to be incurred, by the victim for reasonable counseling services as a direct result of the offence;
(c) for some or all of any medical expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence;
(d) for some or all of any other expenses actually and reasonably incurred, or reasonably likely to be incurred, by the victim as a direct result of the offence, not including any expense arising from loss of or damage to property.
The determination is made on the civil burden of proof (on the balance of probabilities). This means that it must be more likely than not that the offender’s action caused the injury for which the victim is seeking compensation. Often compensation orders will be preceded by restraining orders, restraining property owned by the offender so that he or she cannot dispose or deal with the property until the trial or plea proceedings are concluded.
The Director of Public Prosecutions will regularly apply for restraining orders over property and bank accounts of offenders who have committed sex offences, offences of violence or dishonesty offences, where there are victims who have suffered a loss. If the offender is then convicted after a trial, or pleads guilty, the victim is advised and given the opportunity to make an application for compensation that can be paid from the restrained property or offender.
Considerations when Determining if an Order is Appropriate
Section 86 of the Sentencing Act delineates the conditions for potential orders. According to section 86(1A), an order under subsection (1) may be granted:
(a) upon the request of a person who has suffered loss, destruction, or damage to property as a result of the offence; or
(b) subject to subsection (1B), at the court’s discretion.
Under section 86(1B), a court may only issue an order under subsection (1) at its own initiative if:
(a) the individual in whose favor the order is to be made does not oppose it; and
(b) the court has afforded the offender the opportunity to present their views regarding the order.
Moreover, if a court decides to make an order under subsection (1) it may in determining the amount and method of payment of the compensation take into account, as far as practicable, the financial circumstances of the offender and the nature of the burden that its payment will impose (section 85H and section 86(2)). A court is not prevented from making an order under subsection (1) only because it has been unable to find out the financial circumstances of the offender (section 85H and section 86(3)).
Lastly, in making an order under subsection (1) the court may direct that the compensation be paid by installments and that, in default of payment of any one installment, the whole of the compensation remaining unpaid shall become due and payable (s86(4)).
The compensation application must be filed within 12 months of the court’s ruling and should be submitted to the court that conducted the offender’s sentencing. Additionally, the court holds the authority to compel the offender to cover the victim’s medical, counseling, and related expenses.
Once the court has ordered the offender to pay the victim, it becomes a judgment debt. The recovery of the debt depends on whether the offender has assets and on the enforcement process.
Enforcement
If an offender does have the means, but refuses to pay, it is up to the victim to seek enforcement. Unlike court-ordered fines (which are enforced by the state), restitution and compensation orders can only be enforced by the victims themselves.
If the offender does not pay an order for restitution or compensation, the debt that is owed becomes a judgment debt. The judgment debt can then be enforced through the civil jurisdiction of the court that made the original order. If this is unsuccessful, the victim may also take legal action seeking to have the offender declared bankrupt. The victims options to enforce judgment debt are:
- oral examination of the offender;
- installment order;
- warrant for seizure and sale of property;
- order for the attachment of earnings or a debt;
- charging order over shares.
What if the Offender Cannot Pay?
If an offender lacks substantial assets, enforcing a judgment debt against them may prove challenging. In cases where the offender does not own a home, a car valued over $7,800, or assets beyond typical household items, and relies solely on Centrelink payments for income, they may be deemed “judgment proof.”
In such instances, while the victim can still obtain a judgment debt against the offender for the owed amount, enforcement becomes contingent upon any improvement in the offender’s financial situation. Although the victim may secure the judgment debt for a period of at least 15 years, payment cannot be compelled unless the offender’s financial circumstances evolve positively, and the victim becomes aware of these changes within that timeframe.
Differences with Sentencing Act and Victims of Crimes Assistance Orders:
The key distinctions between the Sentencing Act 1991 (Vic) (‘Sentencing Act’) and the Victims of Crime Assistance Act 1996 (Vic) (‘VOCA Act‘) are:
- Compensation awarded under the Sentencing Act can encompass an amount for pain and suffering that exceeds the limited sums available for special financial assistance under the VOCA Act.
- In the Sentencing Act, compensation is borne by the offender, with the court considering the offender’s financial circumstances when making the order. Conversely, under the VOCA Act, financial assistance is provided by the state.
- For compensation to be granted under the Sentencing Act, the offender must have been found guilty or convicted by a court.
Having property restrained as a result of criminal proceedings, and the resultant compensation applications, can be very stressful. This is particularly so for individuals serving a term of imprisonment. It can affect the financial future of the offender and the offender’s family.
How Galbally Parker Lawyers can Help
As soon as you become aware that there is a restraining order in place, the purpose of which is to secure property for payment of compensation, make a time to speak with an experienced lawyer about your options. At Galbally Parker, we are here for you. We assist clients across Melbourne with their criminal matters, including Frankston, Moorabbin, Werribee and Dandenong.
