Part 4 — Orders in addition to sentence; Division 1 - Restitution; Division 2 - Compensation

Question 1

84 Restitution order - Part 1

Answer 1

● (1) If goods have been stolen and a person is found guilty of an offence connected with the theft (whether or not stealing is the gist of the offence), the court may make:
○ (a) An order that the person who has possession or control of the stolen goods restore them to the person entitled to them
○ (b) An order that the offender deliver or transfer to another person goods that directly or indirectly represent the stolen goods (i.e goods that are proceeds of any disposal or realisation of the whole or part of the stolen goods or of goods so representing them)
○ (c) An order that a sum not exceeding the value of the stolen goods be paid to another person out of money taken from the offender’s possession on his or her arrest
● (2) Order under (b)/(c) the second two can only be made in favour of a person who would be entitled to receive the goods from offender if still in offender’s possession
● (3) Court can make an order under both of (b)/(c) so long as the person does not recover more than the value of the stolen goods
● (4) If court makes (a) order and there’s a good faith downstream purchaser, can order instead offender pay sum of money be paid to applicant (the purchaser)

Question 2

84 Restitution order - Part 2

Answer 2

● How order made:
● (5)(a) May be made on application ASAP after offender found guilty; and
● (b) May be made in favour of a person on an application made (i) by them or (ii) on their behalf by the DPP (if sentencing court SC or CC) or informant or police prosecutor (if court was MC)
○ (6) Nothing requires the DPP etc to make the application
● (7) A court must not exercise the powers conferred by this section unless in the opinion of the court the relevant facts sufficiently appear from evidence given at the hearing of the charge or from the available documents, together with admissions made by or on behalf of any person in connection with proposed exercise of powers.
○ (8) Available documents means (a) any written statements/admissions which were made for use, and would’ve been admissible, as evidence on the hearing of the charge or (b) the depositions in the committal proceeding.
○ (9)(a) stealing: refer to CA; (b) goods: include references to motor vehicle

Question 3

85 — enforcement of restitution order

Answer 3

● (1) Subject to the confiscation Act, it’s a judgment debt due by offender to applicant – can be enforced in the court in which order made
● (2) May be enforced in court in which it was made by any means available to that court for enforcing an order made by it in a CIVIL proceeding

Question 4

85A Definitions

Answer 4

(1) Compensation order means s 85B(1) order;
injury means—
(a) actual physical bodily harm; or
(b) mental illness or disorder or an exacerbation of a mental illness or disorder, whether or not flowing from nervous shock; or
(c) pregnancy; or
(d) grief, distress or trauma or other significant adverse effect; or
(e) any combination of matters referred to in paras (a)-(d) arising from an offence—
but does not include injury arising from loss of or damage to property;
medical expenses includes dental, optomet., physio, psychology, hospital/ambo expenses.
(2) References to victim must be construed according to above definition of injury.

Question 5

85B — Compensation order

Answer 5

● (1)(a) If a court finds a person guilty of an offence or (b) convicts a person,
it may, on application of person who has suffered any injury as direct result of the offence, order the offender to pay compensation of such amount as court thinks fit
● (2) Compensation order may be made up of amounts for —
○ (a) pain and suffering experienced by the victim as direct result of offence;
○ (b) some/all any expenses actually incurred/reasonably likely to be incurred, by victim for reasonable counselling services as direct result of offence;
○ (c) some/ all of any medical expenses “” “”;
○ (d) some or all of any other expenses “” “”, not including any expense arising from loss of or damage to property
● (3) offence includes uncharged example of representative/sample change
● (4) Can direct payment in instalments - becomes payable in full in event of default

Question 6

85C — Application for compensation order

Answer 6

● (1)(a) Must be made within 12 months after offender’s found guilty/convicted
● (b)(i) May be made by the victim or (ii) on their behalf if victim child or incapable of making the application by reason of injury, disease etc. or (iii) on their behalf by (A) DPP (if court non-MC, (B) informant/ police prosecutor (if court MC)
● (2) Nothing requires the DPP/ police etc to make the app

Question 7

85D — Extension of time for making the application

Answer 7

(1) Court can extend time for making the application if in the IOJ to do so. (2) can extend before or after time expires and whether/not application for EOT made before time expires. (3) But must give offender reasonable opp to be heard on the matter before extending time

Question 8

85E — Proceeding on an application

Answer 8

(1) Party can (a) appear personally / (b)(i) be LR or, (ii) with leave of court, be represented by another person.
(2) Application on behalf of child/other incapable person must be treated as a civil proceeding for the purpose of provision of (a) litigation guardians (b) administration of money ordered to be paid to child or such incapable person

Question 9

85F Court mustn’t refuse to hear / determine app. except in certain circumstances

Answer 9

(1) Can’t unless in its opinion the relevant facts do not sufficiently appear (a) from evidence given or (b) any undisputed (by A) statemnt of material facts given to the court or (c) the AD,
together with any admissions made in connection with the application
(2) AD means: (a) any written statements/admissions etc, (b) depositions, (d) any VIS

Question 10

85G — Evidence

Answer 10

(1) On application for a compensation order:
● (a) the victim or offender may give evidence / call another person to give evidence in relation to the application; and
● (b) victim, offender or other person giving evidence may be X-exam’d + re-exam’d;
● (c) finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
● (d) finding may be proved by production of a document under the seal of the court from which the finding appears; and
● (e) the court may have regard to any evidence or statement referred to in section 85F(1) and, with the consent of the parties to the application, to any available documents or admissions referred to in that section.
(2) Can’t make order w/o giving offender a reasonable opportunity to be heard.

Question 11

85H — Court may take financial circumstances of offender into account

Answer 11

(1) Can take into account when determining amount and method of compo order, the financial circs of the offender and the nature of burden that its payment will impose. (2) Not prevented from making an order only because cant obtain info re: financial circumstances.

Question 12

85I Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996

Answer 12

85I Court must reduce compensation by amount of any award under Victims of Crime Assistance Act 1996

Question 13

85J Court to give reasons for its decision

Answer 13

(1)(a) writing, (b) entered into Court records. (2) non-compliance doesn’t invalidate decision.

Question 14

85K — Costs of proceeding

Answer 14

each party bears own costs unless Court otherwise orders.

Question 15

85L — Right to bring civil proceedings unaffected (eg, to recover damages for any expense or other matter etc. etc.)

Answer 15

85L — Right to bring civil proceedings unaffected (eg, to recover damages for any expense or other matter etc. etc.)

Question 16

85M — Enforcement of order

Answer 16

– compensation order, including costs order, = taken to be judgment debt, payment can be enforced by Court in which it was made.

Question 17

86AA — Court to ask if application for compensation order will be made

Answer 17

(1) If court finds person guilty of, or convicts a person of, offence and evidence is presented in a proceeding for offence that loss/destruction of, or damage to, property has occurred as a result of the offence, the court must ask the prosecution whether an application will be made for a compensation order under s 86 in respect of the loss/destruction/damage.
(2) To avoid doubt, a person is not prevented from making an application for a compensation order under section 86 merely because the court has not taken the action referred to in (1).

Question 18

86 Compensation order

Answer 18

(1) If court finds person guilty of, or convicts a person of, an offence it may order the offender to pay to person who has suffered LDD to property (including motor vehicle (11)) as a result of offence any compensation (not exceeding value of property LDD) that court thinks fit.
(1A) Order may be made—
● (a) on application of a person suffering LDD to, property as a result of the offence; or
● (b) subject to subsection (1B)—on the court’s own motion.
(1B) A court may only make an order under subsection (1) on its own motion if—
● (a) person in whose favour order to be made doesn’t oppose order being made; and
● (b) court has given the offender the opportunity to be heard in respect of the order.
(2) court may in determining amount/method of payment take into account, as far as practicable, financial circs of offender and nature of burden that payment will impose.
(3) not prevented from making (1) order only because it has been unable to find out the financial circs of the offender.
(4) Can say pay in instalments - all becomes payable on default of any one instalment
(5)(a) Have to make order ASAP after offender found guilty and (b)(as above) can be made (i) by the person, (ii) DPP/ Police prosector etc. (6) (but DPP and Police etc not required to)
(7) In determining whether/not order should be made and, if so, the amount payable—
● (a) a finding of any fact made by a court in a proceeding for the offence is evidence and, in the absence of evidence to the contrary, proof of that fact; and
● (b) the finding may be proved by production of a document under the seal of the court from which the finding appears.
● (c) court mustn’t exercise the powers conferred by this section unless in the opinion of court relevant facts sufficiently appear from evidence given at the hearing of charge or from available documents, together with admissions made by or on behalf of any person in connection with proposed exercise of the powers. (9) = AD meaning (a) written statements/admissions, (b) depositions (d) VIS (e) (i) any other document evidence acceptable re: LDD to property, (ii) amt of loss suffered
(9D) Parties to bear own costs unless court otherwise orders
(10) Nothing affects the right to sue to recover damages etc.

Question 19

87 — Enforcement of compensation order

Answer 19

Amount payable including costs = Judgment debt, enforceable in court in which it is made.