Can victims of a criminal offence be compensated?

by Findlaw Australia

In a perfect world, we’d all live in harmony and no person will ever become a victim of a crime – however, crimes do occur and the unfortunate flipside of this reality is that there will also be victims. If found guilty, an accused will face the appropriate sentence: But what about the victim? Legislative instruments do exist which allows the court to order a convicted person to pay money to a victim for injury or loss suffered from a criminal act but before delving deeper into the topic of compensation for crime, we should emphasise that this article is a very general overview of some of the laws which exist in Australia, and that legislation differs significantly between the jurisdictions regarding compensation for victims of crime.

The general principle

Perhaps the essential thing to keep in mind is that the loss suffered must be connected to a criminal act. However, what readers should also be aware of is that compensation against an offender is not a form of punishment, as Vincent JA noted in DPP v Energy Brix Australian Corp (2006) 14 VR; 162 A Crim R 363 (CA) where his Honour said:

“It must be borne in mind that an award for compensation is not made as a form of punishment, but an endeavour to address through the payment of money, the injury and loss sustained by the applicant. It follows that broadly the principles applicable to an appeal against an assessment of damages would be those to which the Court should direct attention. Nevertheless, the fact that that injury and loss has resulted from the commission of a crime cannot be ignored. It is one thing, for example, for a person to lose through natural causes someone to whom the individual is deeply attached, another where death has resulted from civil wrongdoing, and another again where it has been brought about by criminal conduct. The grief and distress occasioned in the third situation, which often is experienced against a background of a sense of understandable outrage, may be in some situations even more acute and its impact upon the life of the individual more long lasting.”

Furthermore, in R v Ross (2007) 17 VR 80 (CA) the Court did accept that a sentencing judge can take into account the financial circumstances of the offender, and whether or not any order may affect their rehabilitation, with Vincent JA also noting:

“[I]n fixing the amount of that order, and bearing in mind that the section requires the judge to have regard to the offender’s financial circumstances, the extent to which the order may detrimentally affect his prospects of rehabilitation would have to be taken into account. That, I would add, is a very different thing from saying that the civil liability which the offender has incurred through his conduct is to be taken into account in the determination of the appropriate sentence to be handed down for his breach of the criminal law.”

Allow us to again re-emphasise that the legislation varies between the jurisdictions; however, we can look at s 85B of Victoria’s Sentencing Act 1991 as an example:

“(1) If a court-

(a)  finds a person guilty of an offence; or

(b)  convicts a person of an offence-

it may, on the application of a person who has suffered any injury as a direct result of the offence, order the offender to pay compensation of such amount as the court thinks fit for any matter referred to in paragraphs (a) to (d) of subsection (2).

(2) 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 counselling 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.

(3) In subsection (2) offence includes, in relation to a person who has been found guilty or convicted of an offence that was treated by the court as a representative or sample charge, any other occurrence of the same offence involved in the course of conduct of which the charge was representative or a sample.

(4) In making a compensation order the court may direct that the compensation be paid by instalments and that in default of payment of any one instalment the whole of the compensation remaining unpaid shall become due and payable.”

This article should be in no way construed as legal advice and is only a general outline of the law regarding compensation. If you do have a matter that needs to be dealt with, please seek the assistance of a lawyer. 



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