Law Institute Journal (Victoria)
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by DR CHRIS CORNS
The Victims of Crime Assistance Act
1996 (Vic) (the VCA Act) provides the
most extensive reforms to the Victorian system of criminal injuries compensation since the introduction of compensation for crime victims in 1972.1 This new legislation repeals the whole of the Criminal Injuries Compensation Act 1983 and literally rewrites the entire model of crimes compensation in Victoria, including amendments to the Sentencing Act 1991. The general approach taken in this legislative package is to:
provide greater specificity as to who is entitled to make an application for compensation and what they should be compensated for; and
f shift responsibility for the provision of compensation from the state to the offender.
Some of the reforms contained in the Act are to be welcomed, while others will operate against the interests of most crime victims and appear to be little more than a blatant cost cutting exercise on the part of the government. These reforms need to be seen in the broader context of the current government's approach to law and order and criminal justice.' Given the length and complexity of the VCA Act, the purpose of this article is to examine three of the more significant and controversial reforms introduced by this legislation.
Under the former Criminal Injuries Compensation Act 1983 a victim was defined, in summary, as "a person injured or killed in Victoria by the criminal act of another". The definition included people injured or killed while trying to arrest an offender, prevent the commission of a crime or rescue or aid a victim: s3. It is not surprising that the generality of this definition resulted in a body of case law attempting to clarify the meaning of the terms "criminal act"' and "injury".4 At the same time, within the victimological literature and research findings, the "`ripple" effect of crime had been clearly established and typologies or categories of victims developed.' The most widely accepted typology was the notion of "primary", "secondary" and "tertiary" victims - the primary victim being the person directly affected, the secondary victims being the family or others close to the primary victim, and the tertiary victims being service providers (e.g. police and medicos) and others who come into contact with the primary or secondary victims.'
Part 2 of the VCA Act recognises, to some extent, this typology of victims. Section 7 defines a "primary victim" of an
act of violence as "a person who is injured or dies as a direct result of an act of violence committed against him or her". Section 7(2) includes people injured or killed while carrying out an arrest or trying to prevent the commission of a crime, or trying to rescue another from an act of violence (essentially the same as the definition in the 1983 Act). Section 9(1) defines a "secondary victim" as "a person who is present at the scene of an act of violence and who is injured as a direct result of witnessing that act". Section 9(2) extends the definition to a person who "is injured as a direct result of subsequently becoming aware of an act of violence" and who is the parent or guardian of the primary victim and the primary victim was under the age of eighteen at the time of becoming a primary victim. Section 11 defines a "related victim" as a person who at the time of the crime was:
Section 9(1) is unobjectionable in that it recognises that trauma can be suffered by witnesses to a crime of violence. The onus will be on these applicants to show that their "injury" was a direct result of witnessing the violence. However, s9(2) severely limits the range of potential applicants to parents or guardians of child primary victims. Presumably this means that the spouse of a rape victim could not apply, nor the children of primary victims of non-fatal offences, nor close friends and other relatives. Similarly, related victims are limited to cases where the primary victim has died and do not include a range of people who were previously eligible to apply. In summary, the VCA Act has de-creased the range of crime victims eligible to apply for compensation.
Under Division 1 of the VCA Act the Tribunal can award a maximum of $60,000 to a primary victim for counselling services, medical expenses, loss of earnings (up to $20,000), and damage to clothing worn at the time of the offence. In "exceptional circumstances" an amount can be allowed for other expenses to assist in the recovery of the primary ~ictim.T~h ese expenses must be "reasonable" and must either have been actually incurred or be reasonably likely to be incurred. The most obvious omission is any amount for "pain and suffering". Under the former legislation all applicants were eligible for a maximum of $20,000 for pain and suffering. The decision to exclude any amount for pain and suffering is difficult to justify.
According to relevant parliamentary debates and judicial interpretations, the quintessential reason for the establishment of a crimes compensation scheme in Victoria (and in other jurisdictions) has been to provide some form of solatium by the state for the victim's suffering in order to assist in the victim's recovery. In Fagan v CCP the High Court confirmed that the Criminal Injuries Compensation Act 1972 (Vic) is remedial, meant to provide solatium, and should be construed liberally.
The High Court endorsed the following dicta of Anderson J (the lower court judge) of the Victorian Supreme Court: "Payment of compensation . . . is not determined by the gravity of the injuries, i.e. it is not proportionate to the gravity of the injuries sustained, for there is a statutory limit . . . there is no suggestion in the Act that common law principles governing liability in damages, or any principles analogous thereto, are to apply."
In relation to the purpose of the Act the High Court endorsed the following dicta of Anderson J: "It is to give to the victim of a criminal act or omission some solatium by way of compensation out of the public purse for the injuries sustained".
Payments for pain and suffering have nothing to do with financial restitution, which is a different concept concerned with restoring victims of property crime back to their pre-crime position. All available research data indicates that for those victims wishing to apply, the compensation hearing provides a forum not only to recognise the suffering of the victim but also to "close" the victimisation process, at least to the extent that the individual can recover from the trauma.''
Significantly, payments by the Tribunal for pain and suffering have always represented the major item of expenditure in the operation of the Tribunal1' and the scrapping of this basis will save the government millions of dollars each year. It will also seriously prejudice the recovery process for most primary victims.
The basis of awards for secondary victims has also been narrowed: under sl0 payments will only be made for counselling services and medical expenses. Only in "exceptional circumstances" will loss of earnings be compensated (up to a maximum of $20,000) and again no payments will be made for pain and suffering.
For related victims, severe limitations exist. The maximum amount that can be awarded is $100,000 for all related victims of any one primary victim and the maximum amount for any individual is $50,000. Payments can be made for counselling services, medical and funeral expenses, loss of money that the related victim would have received from the primary victim, and "other expenses" reasonably incurred. Under s13(2)(c) an amount can be paid for "distress experienced", but the only victims eligible for such a payment are a close family member of, dependant of, or intimate personal relationship with, the deceased primary victim. In summary, the VCA Act has radically decreased the amounts victims of crime will be able to receive from the Tribunal.
The policy of the government in the VCA Act is to make offenders more accountable for compensation payments and conversely to reduce the state's financial commitments. The former is an ideological position while the latter is a manifestation of economic rationalism. In principle, the idea of making offenders pay compensation to their victims for personal injuries is fundamentally sound as a form of accountability.
Such a practice already operates in many jurisdictions and was recommended by the Victorian Parliamentary Law Reform Committee in its recent analysis of restitution.12 There has, however, always been an assumntion that most offenders are too poor to pay any compensation. While there may be some validity to this claim in relation to property offenders, there is no logical reason why sexual and violent offenders would be impecunious. This is not, however, to say that making offenders financially liable will be simple to implement or indeed improve the position of crime victims. In any event, the two policies of reducing government expenditure and making offenders financially responsible are neatly aligned in the VCA Act.
The VCA Act employs three basic mechanisms to achieve these policies. First, s74 amends s86 of the Sentencing Act 1991 to empower a court, on the application of the victim within six months of the offence, to order an offender to pay compensation for pain and suffering. This is a significant change in penal policy in that compensation could previously only be ordered in respect to property offences. The new compensation order is not, however, part of the formal sentence of the court13 and in any event this reform is unlikely to be of any great practical advantage to victims. The making of such an order requires a specific application to be made by the victim or prosecutor, the court is required to take into account the offender's financial position (s9A), and the only way to enforce the order is as a judgment debt (s87 Sentencing Act 1991). In short, this type of order suffers from the same defects as restitution and compensation orders made for property offences.
The second mechanism to shift responsibility to the offender is pursuant to a new s87A in the Sentencing Act 1991 which permits a court, on the application of the state, to order an offender to repay to the state any amounts paid by the Victims of Crime Assistance Tribunal in relation to the respective victim. Such an application must be made within six months of the conviction or finding of guilt.
Before making such an order the court must permit the offender to be heard on the application and must have regard to the offender's financial position. Again, enforcement of the order is by way of a judgment debt: s87B(l). Under the Criminal Injuries Compensation Act 1983 the Tribunal could make a similar order (s27) on the application of the DPP, but it appears that such applications were rarely made.14 The third mechanism introduced is to permit the victim "on or before the making of an award, to assign to the state their right to recover from any other person, by civil proceedings, damages or compensation in respect of the injury or death to which the award relates": s51. Any amount recovered by the state from the offender is to be paid into consolidated revenue and any amount in excess of the award paid to the victim by the Tribunal will be paid to the victim.15 In these circumstances, the state is acting as an agent of the victim in obtaining damages under civil law. The idea of the victim taking civil action against the offender is not novel, and indeed was recognised in the Criminal Injuries Compensation Act 1983 (s10) .I6 However. transference to the state of the victim's right to sue appears to be a novel concept in Australia. It is interesting to note that in 1977 Nils Christie published an influential article entitled "Conflicts as property" in which he argued that the state had stolen the conflict (i.e. the crime) from the victim, thus depriving victims of their rights and powers.17 It will be interesting to see how the Victorian government proceeds by way of civil litigation against the offender and whether the enforcement of any subsequent orders will be tendered out by the state to the private sector. .
1. In 1972 the Victorian government first introduced a statutory based system of compensation for crime victims with the Criminal Injuries Compensation Act 1972 which was subsequently amended by the Criminal Injuries Compensation Act 1983. For an overview of these early developments see P Sallmann, "Victim compensation in Australia: the Victorian experience" (1978) 6 lnternational Journal of Criminology and Penology 203-219 and D Chappell, "Providing for the victim of crime: political placebos or progressive programs?' (1971-1972) The Adelaide Law Review 294.
2. See C Corns, "Claiming the victim territory: the politics of law and order" (1990) 8(1) Law in Context 106; R Fox,"Victoria turns to the right in sentencing reform: the Sentencing Amendment Act 1993 (Vic)"(1993) 17(6) Criminal LawJournal 394-415.
3. See for example McGrath (1987) 2 VAR 389; Carrol(1987) 2VAR 231; and Jewell(1987) 1VAR 370.
4.The term "injury" was defined as actual physical bodily harm, mental illness or disorder, pregnancy or any combination of these: s3. Most of the cases involve the definition of mental illness or disorder; see for example, Fagan v CCT [1982] HCA 49; (1982) 150 CLR 666 and Newitt v CCT(unreported, 10 September 1990, Smith J).
5. For example HVon Hentig, The Criminaland His Victim, 1948, Yale University Press; H Hoffman, "What did Mendelson really say?" in S David and G Kirchhoff (eds), lnternational Faces of Victimology, 1992, WSV Publishing Monchengladbach; M McShane and FP Williams, "Radical victimology: a critique of the concept of the victim in traditional criminology" (1992) l(4) Journal of the Australasian Society of Victimology 33- 44; STremellen, Murder and Culpable Driving: A report on the needs of families bereaved through violent crime, Victim Survivor Project, 1992, Victorian Court Information and Welfare Network.
6. See for example S Brown-Greaves,"Police as victims of crime", unpublished paper given at Victims of Crime Seminar, Melbourne, 1989.
7.This probably allows for claims such as installation of burglar alarms or moving costs, see In re PT (1989) 3VAR 132.
8.The original maximum for pain and suffering in 1972 was $3000, which was increased to $7500 in 1984 and from 1 August 1988 was increased to $20,000 following the Queen Street and Hoddle Street massacres.
9. [1982] HCA 49; (1982) 150 CLR 666. For other cases to this effect see Savage v CCT [1990] VR 96; Bonny (1989) 3 VAR 127; and Newitt v CCT (note 4 above).
10. See S Browne- Greaves, "Psychological issues in preparing a crimes compensation matter", paper presented at Workshop on Crimes Compensation, Leo Cussen Institute, 1995; S Garkawe,"The decision to transfer the jurisdiction of criminal injuries compensation to magistrates" (1993) Law Institute Journal 46-50; 1 Freckelton "Criminal injuries compensation for domestic sexual assault: obstructing the oppressed" in C Sumner, M Israel, M O'Conner and R Sarre (eds), No. 27 International Victimology: selected papers from the 8th lnternational Symposium, 1994, 241-254; D Greer, Compensation for Criminal Injuries, 1991, Sweet & Maxwell; T Newburn and H de Payregave, Victims' Attitudes to Courts and Compensation, UK Home Office Research and Planning Unit Research Bulletin No. 25.
11. Crimes Compensation Tribunal 19th Annual Report 1990-91 p24 states that payments for pain and suffering "represent 90-95% of all compensation paid by the Crimes Compensation Tribunal"; andT Kearney,"Overview of the Crimes CompensationTribunal from an administrative perspective", paper presented by R Capuana to Leo Cussen Institute, September 1995, 1.2.
12. See for example Powers of Criminal Courts Act 1973 (UK) s35; Penalties and Sentences Act 1992 (Qld) s35; Criminal Code (WA) s719 and Criminal Code 1924 (Tas) s425A(l); Parliament ofvictoria, Law Reform Committee, Restitution for Victims of Crime: lnterim Report, October 1993 at 173 and Final Report, June 1994.
13. At common law restitution orders have never constituted part of the sentence, see R v Braham (1977lVR 104, a policy adopted by statute invictoria whereby restitution and compensation orders are contained in Part 4 of the Sentencing Act 1991 headedNOrdersIn Addition to Sentence".
14. In New South Wales the courts can order the offender to repay money paid to the victim by the Crimes CompensationTribunal (see Part 5 Victims Compensation Act 1987) but it appears this scheme has not been particularly successful: see Victorian Parliamentary Law Reform Committee lnterim Report (note 12 above) at 7.5.
15. Under the previous legislation the right of a victim to recover damages by civil proceedings was expressly recognised (s28(1)) as well as the requirement of the victim to refund payments to the Tribunal if damages were in fact recovered (s28(2)).
16. See also practice direction published in Law Institute News No.10/1989, Clause 8, which required all applicants to immediately investigate the possibility of civil action against the offender.
17. (1977) 17(1) British Journal of Criminology 1-15.
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