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Restitution in Victims Support Matters (NSW)

Written by Michelle Makela

Michelle Makela is one of our Legal Practice Directors and the National Practice Manager. She holds a Bachelor of Laws, a Bachelor of Science (Psychology) and a Master’s in Criminology. Michelle has had a varied career, working in commercial litigation, criminal law, family law and estate planning. Michelle joined Go To Court Lawyers in 2011. She now supervises a team of over 80 solicitors across Australia.

Under the Victims Rights and Support Act 2013 (NSW), a victim of an act of violence may be awarded financial support. An additional recognition payment may also be awarded. After a victim receives support, restitution may be sought from the offender. Restitution is the recovery of the financial support and/or recognition paid to the victim after the offender has been found guilty of an offence relating to the act of violence. 

What is an act of violence?

An act of violence is defined under Section 19 of the Act, as an act that, whether committed by one or more persons:

  • has apparently occurred in the course of the commission of an offence, and
  • has involved violent conduct against one or more persons, and
  • has resulted in injury or death to one or more of those persons.

When a victim has received victims support or a recognition payment and the offender is found guilty of a relevant offence, restitution action may be taken by Victims Services to recover the money paid to the victim, from the offender.

A convicted offender may be ordered to pay back the entirety or part of the money paid by the Victims Support Fund to the victim. This process sees offenders contribute to the assistance of their victims.

First step

Restitution proceedings are instigated by the issuing of a Provisional Order for Restitution against a defendant. This order is made by the Commissioner of Victims Services, informing the defendant that an award for victim support payments has been made to a victim. It also notifies the defendant that the Commissioner is seeking to recover the amount of such an award or victims support payment from them.

What is a Provisional Order?

A provisional order contains the amount of support paid and the date of the award or victims support payment, and the victim’s name. It also sets out the injuries sustained by the victim and the details of the offender’s conviction.

What can a defendant do?

An offender named in a Provisional Order has several options. They can make an offer to settle the matter at any time after the order is made. If such an offer is made, the offender can enter into an arrangement to pay by monthly instalments.

A defendant can also file a written objection to the Provisional Order. An objection provides a defendant an opportunity to explain the reasons for requesting a reduction in the amount of restitution sought or that the Provisional Order be dismissed. The Commissioner will consider the offender’s culpability for the injuries to the victim, as well as their financial circumstances and any other relevant issues. In the case where there are two or more defendants, any amount may be apportioned.

What if an offender does not pay?

When the payment of part of the total amount sought in restitution has been ordered and the offender fails to make payments, the terms of the order may be lost. An order for the full amount may then be provisionally ordered to be paid. The Restitution Order is taken to be a judgment debt and is enforceable as if it were an order made in civil proceedings against the offender. 

Failure to pay the amount of a Restitution Order will result in referral to the Fines Commissioner. Enforcement action for recovery of the amount will then be commenced under the Fines Act 1996 through Revenue NSW. The offender may be liable for further enforcement costs if this occurs.

What if a defendant’s circumstances change?

A defendant’s financial circumstances may improve or become more difficult after an arrangement for the payment of restitution has been entered into, or after an order has been made. If this occurs, a completed Affidavit of Financial Circumstances is required to enable the Commissioner to consider a change in financial circumstances. The Commissioner will consider an adjustment of the instalment amount under the arrangement or order.

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

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