For those who plead guilty or are found guilty of a criminal offence, the next step is the sentencing date – which is where the magistrate or judge decides the appropriate penalty.
Defendants obviously want the best possible outcome when it comes to their sentence, and will want to do everything possible to get the lowest possible penalty.
One way to help achieve a positive outcome in cases involving damage to property, theft, fraud, or injury to another person is to make a payment for compensation or restitution prior to sentencing date.
This not only demonstrates remorse and an acceptance of responsibility – but also goes to show an attempt to make amends for the injury or damage caused.
How Do I Make a Payment?
If you want to make a restitution or compensation payment, the first step is for you (or your lawyer) to contact the police ‘Officer In Charge’ of your case – also known as the ‘informant’ – whose name and rank will be appear in your Court Attendance Notice (CAN). The CAN will also specify the charging police station.
Once you get in touch, it’s important to ask for written confirmation of the damage or injury caused, as well as a quote.
You should also ask the informant for a method of payment – such as a cheque to police or electronic transfer into the complainant’s (victim’s) nominated bank account. It is crucial to obtain a receipt or record of payment.
Once the matter proceeds to sentence, this receipt can be handed up to the magistrate or judge as proof of your efforts to rectify the damage caused.
Will I Be Forced to Make a Payment?
Some may question whether they can be compelled to make a payment by the court.
Simply put, the answer is ‘yes’ – which is why it can be better to make the payment before the sentence date.
As part of your sentence, the court can order that you make a payment to the Court Registry within 28 days. This is known as a reparation or restitution order. The money collected will then be sent to the complainant.
The logic behind this is that it spares the person whose property was damaged or stolen – or who suffered injury – from having to fight for compensation through the civil court system, which can be costly and time consuming.
Before a court can make a restitution or reparation order, they must have received ‘evidence of the extent and value’ of the loss or damage. The court must also consider the defendant’s financial circumstances and whether they are able to afford to make a restitution or reparation order at all.
Provisional Orders and the Victims’ Support Scheme
If the court does not make a reparation order, don’t assume that you will be able to get away scot-free.
Complainants can choose to initiate civil proceedings to recover medical costs or costs to repair property – which, if successful, may see you paying for the cost of the damage caused as well as hefty legal fees.
Alternatively, they may wish to make a claim to the Victims’ Support Scheme within 2 years of the offence occurring.
Rather than providing “victims of crime” and their families with compensation, the Scheme aims to provide them with money which can be used to access support services such as counselling and to pay medical bills.
The amount that can be claimed by a complainant depends on the offence in question – for instance, assault complainants can claim a maximum of $1,500 while sexual assault complainants can claim up to $15,000.
If a complainant is awarded compensation through the Victims’ Support Scheme, defendants will receive a ‘provisional order’ from the Commissioner of Victims Rights which informs them that the Commission intends to recover some or all of the payment from them.
The provisional order will specify the amount and date of the payment, the complainant’s name, the relevant injuries, and details of the defendant’s conviction.
Once a provisional order is received, a defendant will have several options open to them – they can make an offer to settle the matter by agreeing to pay the amount either in a lump sum or in monthly instalments, or write written submissions to the Commissioner asking for the amount to be reduced.
If there were co-offenders in the case, the defendant can also ask for the payment to be split between them.
If you receive a provisional order, it is important to respond as soon as possible to ensure that you avoid additional fees such as interest and court fees.
If no response is received the Commissioner may decide to confirm the amount stated in the provisional order and make a restitution order to pay the money.
If you don’t pay this amount, the courts can attempt to seize your property, take money out of your bank account, or place a charge against property that you own.
A restitution order can be made even if your matter was dealt with by way of a section 10 dismissal or conditional release order (without a recorded conviction) – but an order cannot be made if you are bankrupt, or if you were convicted of certain less-serious offences like offensive language or conduct offence.