Compensation Applications Require a Watching Brief

Law Institute Journal, Vol. 83, No. 10, p. 40, 2009

Monash University Faculty of Law Legal Studies Research Paper No. 2010/04

10 Pages Posted: 10 Sep 2010 Last revised: 30 Apr 2011

Date Written: 2009

Abstract

In 1996 and again in 2000 the Sentencing Act 1991 (Vic) (“the Act”) was amended as part of a major realignment of the rights of victims of crime in Victoria away from financial awards from the state toward enabling victims to seek compensation directly from offenders. The enhanced rights of victims implement Clause 8 of the 1985 United Nations Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power which provides that, where appropriate, offenders should make fair restitution to victims, including by payment for the harm and loss they have suffered. Section 16(1) of the Victims Charter Act 2006 (Vic) too provides that “a victim may apply to a court for an order that the person convicted of or found guilty of the criminal offence that gave rise to the injury suffered by the victim pay compensation to the victim.”

Sections 85A-M of the Act enable applications by victims of crime for a variety of forms of pecuniary compensation against perpetrators of criminal acts. Given the limited sums payable by the Victims of Crime Assistance Tribunal (VOCAT) to those adversely affected by criminal conduct, s85B applications, have come to play a vital role in providing redress for victims of crime against offenders who have, or may at some stage acquire, the means to satisfy compensation orders. However, utilisation of the provision by victims has been patchy, as victims’ rights in this regard are still comparatively little known and the practice involved sits uneasily between criminal and personal injury law. The extent of offenders’ assets has proved an important practical and legal issue in terms of the making of applications for s85B compensation by victims and the quantum of compensation awarded by courts. This article reviews the significance and complexities of s85B applications. It addresses the substantial case law that has evolved and the ethical/disciplinary risks for legal practitioners who fail to assist victims to take suitable action both to make s85B applications professionally on their clients’ behalf and to preserve offenders’ assets against which s85B orders may need to be enforced.

Keywords: Sentencing Act, Sentencing, criminal law, legal procedure, victim rights, compensation

JEL Classification: K00, K1, K14, K4, K41, K42, K43

Suggested Citation

Freckelton, Ian Richard, Compensation Applications Require a Watching Brief (2009). Law Institute Journal, Vol. 83, No. 10, p. 40, 2009; Monash University Faculty of Law Legal Studies Research Paper No. 2010/04. Available at SSRN: https://ssrn.com/abstract=1674339

Ian Richard Freckelton (Contact Author)

University of Melbourne ( email )

Parkville, Victoria 3010
Australia
61 3 92257666 (Phone)
61 3 99142790 (Fax)

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