The VLRC is conducting an inquiry into the operation of the VOCAT system, and will report in July 2018. The VLRC is specifically consulting on the issue of the introduction of a victims’ levy. Need for coherent approach to victims’ compensation in Victoria The Council acknowledges the need for a coherent approach to reform within the criminal justice system, including the issue of the compensation of victims for the effects of crime. The recommendations of the VLRC’s reference on the VOCAT system may have implications for the use and enforcement of restitution and compensation orders. Ultimately, the government will need to consider the VLRC’s and the Council’s recommendations together, with a view to providing avenues for accessible, equitable compensation to all victims. of re-examination of process and procedure provisions in the Sentencing Act 1991 (Vic) The VLRC report examined the victim’s role in obtaining restitution and compensation orders against offenders (for the benefit of individual victims), within its discussion of the avenues for financial reparation available to victims. The report made a number of recommendations aimed at improving the processes and procedures for restitution and compensation orders. Those recommendations included the following: Recommendation 45: Divisions 1 and 2 of Part 4 of the Sentencing Act 1991 (Vic) should be consolidated to provide a consistent set of procedures for restitution and compensation orders in the Supreme Court and County Court, and include the following elements: may make restitution and compensation orders on its own motion. court must make inquiries as to whether an application for restitution or compensation orders will be made.
Summons for oral examination – 44 – 3 Application for instalment – 9 – 5 Warrant to seize property – 9 – 46 Total number of cases 41,024 68 (orders for restitution or compensation for property loss only) 63 (orders for restitution or compensation for property loss only) 55 (orders for restitution or compensation for property loss only) a. This group of cases does not list the Magistrates’ Court as authorising the enforcement. This may be due to inconsistencies between the datasets kept by the Magistrates’ Court and IMES. Table 3 shows the results of warrants made in order to enforce an order for restitution or compensation for property loss imposed in the Magistrates’ Court. Of these warrants, only a handful were associated with payments recorded by the court. 3: Results for warrants on cases with orders for restitution or compensation for property loss reported by IMES, by known payment status, Magistrates’ Court, 2007–08 to 2016–17 Payment status in Magistrates’ Court for order for restitution or compensation for property loss Warrant result (IMES) Number of cases No payments in Awaiting instructions 4 Expired 76 Paid 7 Returned to court 2 Unprinted 1 90 Some payments in Awaiting instructions 1 Expired 15 Paid 1 Returned to court 1 Unprinted 0 Total 18 Completed payments in court Awaiting instructions 0 Expired 7 Paid 2 Returned to court 1 Unprinted 0 10 Trial
As shown in Figure 14, ACO can enforce an order for restitution or compensation for a victim in circumstances in which: the offender’s assets are restrained; compensation is awarded to the victim in respect of the same offending pursuant to the provisions of the Sentencing Act 1991 (Vic); and the restrained property is forfeited, either because it is tainted or because it is property in which the offender has an interest if the offence is a defined, serious profit-motived offence. Figure 14: Current system of powers the Confiscation Act 1997 (Vic) and enforcement of restitution and compensation orders Restraining order: Asset restrained for purpose of forfeiture, automatic forfeiture or pecuniary penalty order and for purpose of meeting order for restitution or compensation Orders for restitution or compensation and relevant forfeiture orders: Victim (or OPP) makes application for order for restitution or compensation, court makes order for restitution or compensation, assets forfeited Enforcement: Confiscation Operations can liquidate assets following forfeiture of property, victim paid by the state pursuant to priority rules and has priority over the state Restraining order: Asset restrained for sole purpose of meeting order for restitution or compensation Orders for restitution or compensation and relevant forfeiture orders: Victim (or OPP) makes application for order for restitution or compensation, court makes order for restitution or compensation, debt becomes judgment debt Enforcement: Victim must pursue enforcement (financial barriers), assets remain restrained, judgment debt generally enforceable for 15 years
Figure 20: Percentage of cases by type of assets confiscated, and by offence type in the case, 2006–07 to 2016–17 Type of asset Theft (32 cases) Obtain property by deception (31 cases) Obtaining financial advantage by deception (12 cases) Real Property 50.0 45.2 58.3 Bank Account/s 37.5 29.0 33.3 Vehicle/s 21.9 29.0 16.7 Cash 3.1 16.1 16.7 Household effects 9.4 16.1 8.3 Shares 6.3 12.9 – Boat 3.1 3.2 – Jewellery – 3.2 – Pecuniary penalty order – 6.5 – Business – 3.2 – Gold Bullion – – 8.3 Musical Equipment – – 8.3 Superannuation – 3.2 –
Appendix: Preliminary consultations Meetings and teleconferences Date Meeting/teleconference 14 August 2017 Meeting with Victorian Law Reform Commission 18 August 2017 Meeting with Registry, County Court of Victoria 7 September 2017 Meeting with Office of Public Prosecutions 11 September 2017 Meeting with the Chief Magistrate, Magistrates’ Court of Victoria, and Magistrates Charlie Rozencwajg and Susan Cameron 11 September 2017 Meeting with Judicial Registrar Mark Pedley, Supreme Court of Victoria 12 September 2017 Meeting with Victims of Crime Commissioner 13 September 2017 Meeting with Infringement Management and Enforcement Services, Department of Justice and Regulation 19 September 2017 Meeting with Victoria Police 20 September 2017 Meeting with Victoria Legal Aid 21 September 2017 Meeting with Asset Confiscation Operations, Infringement Management and Enforcement Services, Department of Justice and Regulation 4 October 2017 Meeting with Deputy Chief Magistrate Broughton, Magistrates’ Court of Victoria, and Magistrates Johanna Metcalf and Andrew Capell, Joint Supervising Magistrates of the Victims of Crime Assistance Tribunal 9 November 2017 Teleconference with Legal Aid Queensland 28 November 2017 Meeting with Waller Legal 30 November 2017 Meeting with Community Operations and Victim Support Services, Department of Justice and Regulation 4 December 2017 Teleconference with Director of Public Prosecutions, Queensland 7 December 2017 Meeting with Witness Support Services, Office of Public Prosecutions 7 December 2017 Meeting with Victoria Police Prosecutors 11 December 2017 Teleconference with Legal Services Commissioner/Group Manager, National Service Delivery, Ministry of Justice, New Zealand 11 December 2017 Meeting with Victorian Law Reform Commission