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Should sentencing include victim compensation?

Should sentencing include victim compensation?

By Karin Derkley

Courts Sentencing 

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Getting money out of offenders to compensate their victims for injury or loss can be like getting blood out of stone, with no more than two per cent of restitution and compensation orders ever paid, says chair of the Sentencing Advisory Council Professor Arie Freiberg.

But criminal lawyers are worried that measures proposed to increase the chances of victims receiving money owed them may further entrench inequality, criminalise poverty and make things worse for victims.

Restitution and compensation orders are made in the criminal court to require offenders to pay victims for property loss and injury they have suffered. These orders are currently in addition to, but separate from, the sentence imposed upon an offender.

The problem is that because the orders are taken under civil law, it has historically been very difficult to get offenders to pay up. That's because in many cases offenders don't have money to pay restitution. But even if they do, it's up to the victim to chase up what theyare owed through the civil court. Most victims lack the resources to do that.

After concerns about how little is being recovered from criminals to compensate victims of crime the Sentencing Advisory Council was asked to advise on whether sentencing should include the financial reparation of victims, amongst other options.

This would require expanding the purposes of sentencing beyond its current framework of punishment, deterrence, rehabilitation, denunciation and community protection. In effect this would add the payment, or some other penalty such as a community order or extended imprisonment time, to the offender's sentence.

The Law Institute believes such a reform would create a disproportionate sentencing practice between offenders in different socio-economic positions.

"This is tantamount to a suspended sentence, but the breach is dependent on capacity to pay," says co-chair of the LIV Criminal Law section Mel Walker. "In effect what it will do is criminalise poverty."

There is a further risk of unintended consequences for people who don't have the capacity to pay that could lead to further dishonesty offences and undermine the chances of rehabilitation, she says.

Ms Walker believes the proposal would also have a negative impact on victims because the standard of proof that would be required to make an order for compensation or restitution into a sentencing order would have to reach the criminal standard of beyond reasonable doubt.

"This may cause additional trauma for victims should they be required to be cross-examined or where additional material required to be disclosed to the defence."

In jurisdictions that have compensation or restitution orders as sentencing orders there have been cases where these reports have been relied upon as fresh evidence and formed the basis of an appeal, Ms Walker says.

The LIV will in its submission to the SAC argue that compensation or restitution orders should remain ancillary stand alone orders, and that the focus should be on improving the enforcement process.

Ms Walker says that rather than victims having to use civil remedies to chase up orders for compensation or restitution as is now the case, the State, as the representative of victims of crime, should extend that assistance to recover compensation from offenders.

The deadline for submissions to the SCA's consultation is April 20. The Issues and Options Paper can be found here.


Disclaimer: Views expressed by commentators are not necessarily endorsed by the Law Institute of Victoria Ltd (LIV). No responsibility is accepted by the LIV for the accuracy of information contained in the comments and the LIV expressly disclaims any liability for, with respect to or arising from any such views.

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