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Reparation Orders (WA)

Written by Courtney Ashton

Courtney Ashton holds a Bachelor of Laws and a Bachelor of Criminology and Justice from Edith Cowan University and a Graduate Diploma of Legal Practice from the College of Law. Courtney was admitted to practice in the Supreme Court of Western Australia on 13 December 2019. Prior to her admission as a lawyer, Courtney engaged with various law firms as a volunteer and took part in university mooting competitions

When dealing with a person who has been found guilty of criminal offences, courts may impose reparation orders. A reparation order is made in addition to (not as part of) the sentence imposed on an offender. Reparation Orders are governed by Part 16 of the Sentencing Act 1995, which provides that courts may impose two types of reparation orders. These are compensation orders and restitution orders. 

While a compensation order seeks to compensate a victim for lost or damaged property or for expenses incurred as a result of the offence, a restitution order requires an offender to give back property that has been misappropriated from a victim. 

When are reparation orders made?

A reparation order must be made during the sentencing proceedings or within 12 months of the date when the offender was sentenced. 

Reparation orders may come about in three ways:

  1. At the court’s own initiative;
  2. On application by the victim; or
  3. On application by the Prosecution. 

In determining whether it is appropriate to make a reparation order, the court may consider:

  1. Any evidence given during proceedings for the offence;
  2. The content of any record relevant to the offence;
  3. Any statement tendered, or disposition made, or exhibit tendered at committal proceedings; and
  4. Any evidence given by a victim or the offence in relation to the making of a reparation order. 

Further, the court may consider:

  1. Any pre-sentence report given to the court;
  2. Any victim impact statement given to the court; and
  3. Any mediation report given to the court. 

When is it not appropriate to make a reparation order?

Pursuant to section 113 of the Sentencing Act, a court may decide not to make a reparation order or to reduce the amount to be paid under an order if:

  1. Any behavior, condition, attitude or disposition of the victim contributed directly or indirectly to the loss or damage suffered;
  2. The offence was not reported to the police promptly; 
  3. The victim did not take reasonable steps to assist with the identification, apprehension or prosecution of the offender; and
  4. The relationship or connection between the offender and the victim means it would be just to do so. 

Compensation Orders

Pursuant to section 117(1) of the Sentencing Act, a court sentencing an offender may make a compensation order in favour of a victim of the offence. A compensation order requires the offender to pay an amount of money set by the court to the victim.

Whether or not a compensation order should be made is a matter of discretion. 

Compensation Orders may be made to lover the loss of, or damage to, the victim’s property and any expenses reasonably incurred by the victim as a direct or indirect result of the commission of the offence. The loss or damage suffered by the victim need not be reasonably foreseeable. 

In making such an order, the court will consider whether the offender has the means to pay. If the compensation order is not paid within 28 days, the order may be enforced. If the offender does not pay the compensation order, the offender may be imprisoned until the compensation is paid. A term of imprisonment does not discharge the offender’s liability to pay the compensation. 

In R v Grein [1989] WAR 178, Chief Justice Malcolm declined to make a compensation order as there was no prospect of recovery and that it would only make the defendant liable to an additional term of imprisonment in the event of a default. 

A Compensation Order under the Sentencing Act must not be made in respect of injury or loss within the meaning of the Criminal Injuries Compensation Act 2003. However, the victim may be eligible to make a claim for Criminal Injuries Compensation.

Restitution Orders

Pursuant to section 120(2) of the Sentencing Act, a restitution order requires the offender or a third party to give possession of property to a victim within a period set by the court. 

A court may make an order for an offence which involves the misappropriation of property. 

Such an order may be made if the court is satisfied that:

  1. The offender is in possession of the property; or
  2. The person other than the offender (a third party) is in possession of the property.

Enforcement 

Pursuant to section 120A and 121 of the Sentencing Act, a restitution order may be enforced by the Sheriff or by the court. 

Persons who do not comply with Reparation Orders without a lawful excuse is guilty of an offence. This offence is punishable:

  1. By the Supreme Court as for contempt; or
  2. After summary conviction by the court that imposed the order. 

If you require legal advice or representation in any legal matter please contact Go To Court Lawyers. 

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