20 May 2020: Sentencing Act Applications: An avenue for redress
For victims of child abuse who participate in the criminal justice process the experience of being believed by police and prosecutors as adults can be a revelation and a transformative experience compared with their childhood experiences of being ignored, disregarded or disbelieved. Nevertheless, participating in the criminal justice process may be alienating; the victim becomes a witness – one piece of the evidence the prosecution will rely on at the trial of an alleged perpetrator – with decision-making power (to charge and prosecute) residing in the police and prosecution. Seeking compensation can, therefore, be an important part of seeking justice, as the victim is the agent who drives the claim.
The Sentencing Act 1991 (Victoria) allows victims to seek compensation directly from the offender where that person has been found guilty of an offence which caused the victim injury. The person applying for compensation (‘the applicant’) must make the application within 12 months of the offender being found guilty or convicted, although an applicant can apply for an extension of time.
The applicant may seek compensation for pain and suffering, counselling or medical expenses, and for ‘other expenses’ incurred or likely to be incurred as a direct result of the offence.
Importantly, the Confiscation Act 1997 (Vic) allows for the Director of Public Prosecutions (DPP) to apply for a restraining order over a person’s assets in order to satisfy an order for compensation. A restraining order protects a victim’s access to compensation, as it stops the offender from selling off his assets.
However, a victim cannot apply for the restraining order. You need the police to investigate whether the offender has any assets and, if they find assets, to send the file to the DPP who will consider whether to apply for a restraining order. The DPP’s policy is to apply for restraining orders only where the applicant is likely to receive $10,000 or more.
Angela Sdrinis Legal has acted for many victims of child abuse in Sentencing Act Applications, obtaining awards ranging from $60,000 - $215,000. If you come to us early in a criminal investigation, we’re able to talk to the police and the DPP for you to protect your rights.
By Nina Vallins
Solicitor at Angela Sdrinis Legal
Some of the above is drawn from an article by Nina Vallins, Solicitor with Angela Sdrinis Legal, entitled: ‘Seeking justice: Compensation from offenders via the Sentencing Act.’ It first appeared in Precedent, the journal of the Australian Lawyers Alliance, issue 155, published in December 2019 (Sydney, Australia, ISSN 1449-7719). It has been reproduced with the kind permission of the authors and the ALA. For more information about the ALA, please go to: www.lawyersalliance.com.au.