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Compensation And Restitution (SA)

When a person is found guilty of a criminal offence in South Australia, the court may make an order for compensation or restitution to be paid by the offender to the victim. Orders for compensation and restitution may only be made after the offender has been found guilty of the offence. Court-ordered compensation is different from victims of crime compensation, which is funded by the government.

Restitution of property

Under section 123 of the Sentencing Act 2017, where a person has been found guilty of an offence that involves the misappropriation of property, the court may order a person to restore the property to the person to whom in belongs.

If a restitution order is not complied with, a person may ask the Sheriff to enforce the order by entering land and removing the property or by making an order that the defendant must pay for the property.

Compensation

Under section 124 of the Sentencing Act, a court may order an offender to pay compensation for an injury, loss or damage resulting from an offence after the defendant has been found guilty. This may be done on application by the prosecution or at the court’s own initiative.

The compensation ordered will be in the amount the courts thinks appropriate in light of the evidence.

The power to award compensation under this section is subject to the following limits:

  • The court must not award compensation for injury, loss or damage arising from the use of a motor vehicle, except for damage to property;
  • The court must not award compensation to an employee against an employer for a breach of a statutory duty relating to employment where the breach if compensable under the Return To Work Act 2014.

What if other compensation is claimed?

A court may award compensation to a person even if they are also eligible to claim compensation under a specific compensation scheme, such as the victims of crime compensation scheme. If the person receives court-ordered compensation and subsequently claims compensation from another body, the amount of compensation they have already received must be taken into account.

How is court-ordered compensation different?

Courts in South Australia may award compensation for loss and damage, including property damage caused by a criminal offence. In contrast, compensation under the victims of crime compensation scheme can only be paid for injuries (physical and psychological) and in some circumstances, financial losses resulting from a death. Loss or damage to property resulting from a crime cannot be claimed. Court-ordered compensation is the only pathway to obtaining compensation for property that has been stolen or damaged during a criminal offence in South Australia.

Court-ordered compensation in relation to the use of a motor vehicle is limited to compensation for property damage. In contrast, insurance claims for motor vehicle accidents may include compensation for personal injuries as well as for damage to property such as vehicles, clothing and luggage.

Seeking compensation and restitution

If a person has been the victim of a crime, the police will generally invite them to complete a Victim Impact Statement. If the person wishes to seek restitution or compensation via the court, they should state this in the Victim Impact Statement.

Civil litigation

If a person has suffered injury or financial loss as a result of a crime and the offender has the financial capacity to pay damages, suing the offender may also be an option. This would potentially allow the victim to be compensated for both injuries and damage to property resulting from a criminal offence.  However, whether it is worthwhile to take civil action against an offender generally depends on the amount of damages that is potentially recoverable. In some cases, the cost of litigating may outweigh the potential gain.

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

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Author

Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws from Latrobe University, a Graduate Diploma in Legal Practice from the College of Law, a Bachelor of Arts from the University of Melbourne and a Master of Arts (Writing and Literature) from Deakin University. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory. She also practised in family law after moving to Brisbane in 2016.
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