Victims of Crime Assistance Tribunal

 

Victims of Crime Assistance Tribunal (VOCAT) works through Magistrates’ Courts and hears applications for financial assistance from victims of violent crime. Maximum amounts are payable. There must have been an act of violence that caused injury and was reported to police within a reasonable time. Primary, secondary and related victims can apply. VOCAT may take into account other sources of assistance and the criminal history and conduct of the victim.

Overview

The Victims of Crime Assistance Tribunal (VOCAT) replaced the Crimes Compensation Tribunal on 1 July 1997. VOCAT’s role is to provide financial assistance to victims of violent crime committed in Victoria. VOCAT assists victims to recover from a crime by providing financial assistance for expenses incurred, or reasonably likely to be incurred, as a direct result of the crime.

VOCAT can provide:

financial assistance for victims’ medical, counselling, safety-related and funeral expenses;

financial assistance for other reasonable expenses incurred by victims in exceptional circumstances;

up to $60,000 to “primary” victims, including up to $20,000 for lost earnings;

special financial assistance to primary victims:

up to $7500 for crimes that occurred between 1 July 2000 and 30 June 2007,

up to $10,000 for crimes that occurred on or after 1 July 2007;

up to $50,000 to “secondary” and “related” victims; and

financial assistance to a relative, where the victim dies as a result of the criminal act.

For more information about the financial assistance VOCAT can provide, seeWhat financial assistance is available?”.

VOCAT operates from most Victorian Magistrates’ Courts; applications must be lodged at the court closest to where the victim lives.

Victims of Crime Assistance Tribunal

Level 1, 233 William Street, Melbourne Vic 3000

Tel: 9628 7855; 1800 882 752

Email: help@vocat.vic.gov.au

Web: www.vocat.vic.gov.au

Who can apply to VOCAT?

A person may apply for financial assistance from VOCAT if:

1 a violent crime was committed against them (in Victoria); and

2 they suffered an injury as a result of that violent act.

A person can apply for assistance if they are a primary, secondary or related victim of a violent crime, or a person who has incurred funeral expenses as a direct result of the death of a primary victim.

1  A violent crime

The violent act must be a criminal act (or omission) punishable by imprisonment. The VOCA Act only covers violent crimes, including armed robbery, aggravated burglary, sexual assault, homicide, assault, threat to kill, culpable driving, assault and robbery. It does not include economic crime, such as theft or fraud.

For the purposes of the VOCA Act, a series of related criminal acts may constitute a single act of violence. This means that multiple criminal acts that have some similarity and are committed against the same person over a period of time (e.g. a person who has been repeatedly sexually assaulted by the same offender over a period of time) may be treated as one act of violence that can be the subject of only one award of financial assistance.

Under the VOCA Act, a victim can still apply for financial assistance even if the offender will not be charged because of some incapacity (e.g. mental impairment, age, drunkenness), and even if there is a lawful defence to the charge (s 3(1) VOCA Act).

It should also be noted that, even if no-one is charged as a result of a criminal act, the applicant may still be eligible for an award of assistance from VOCAT (s 50(4) VOCA Act). This recognises the fact that some crimes remain unresolved and that in some cases further police action is not in the best interest of all concerned, including the community.

2  Injury

As a result of the act of violence, the victim must have suffered one or more of the following (s 3 VOCA Act):

physical harm;

a mental illness or disorder, or an exacerbation of a mental illness or disorder (whether or not flowing from nervous shock); and/or

pregnancy.

This does not include injury arising from loss or damage to property.

Primary, secondary and related victims

The VOCA Act (s 18) distinguishes between primary, secondary and related victims.

A primary victim is a person who is injured (physically or psychologically) or dies as a direct result of:

a violent crime committed against them;

trying to arrest someone they believe has committed a violent crime;

trying to prevent the commission of a violent crime;

trying to aid or rescue someone they believe is a victim of a violent crime (s 7(2) VOCA Act).

A secondary victim is a person who is injured (physically or psychologically) as a direct result of:

being present at the scene of a violent crime and witnessing that crime

subsequently becoming aware of a violent crime where they are the parent/guardian of the primary victim who was under the age of 18 at the time the criminal act was committed (s 9(2) VOCA Act).

A related victim is a person who, at the time of the violent crime:

was a close family member of a deceased primary victim;

was a dependent of a deceased primary victim;

had an intimate personal relationship with the deceased primary victim (s 11(1) VOCA Act).

A victim of an act of violence can only apply to VOCAT under one of these three categories (e.g. a person can be a primary/secondary/related victim).

Report a crime to the police

VOCAT cannot award financial assistance to the victim if the crime was not reported to the police within a reasonable time or if the victim failed to provide reasonable assistance to any investigation, arrest or prosecution arising out of the act of violence.

The VOCA Act (s 53) clearly sets out the factors that VOCAT may consider when deciding whether a crime was reported within a reasonable time. These include:

the age of the victim;

whether the victim has an intellectual disability or was mentally ill at the time of the offence;

whether the victim was intimidated or threatened by the offender;

whether the offender was in a position of power, influence or trust in relation to the victim;

the nature of the injury suffered by the victim.

It is envisaged that victims of sexual assault in certain circumstances may invoke these provisions to extend the reasonable time limitations for reporting a crime. For example, in the case of Arnold v CCT (unreported, VSC, 10 December 1992), the applicant had been sexually assaulted on a number of occasions between 1974 and 1978, and again in 1981, by a family friend. She said she suppressed the memory of those assaults until she revealed them in counselling during 1987. She reported the assaults to police in December 1988, and this was held by the Crimes Compensation Tribunal to be sufficiently special circumstances to overcome the delay in reporting the matter to the police.

However, VOCAT may still consider an application related to an unreported crime if there are “special circumstances” for that crime not being reported to the police (for more information about such special circumstances, contact VOCAT).

What financial assistance is available?

Under the VOCA Act, the following financial assistance may be awarded.

Primary victims

Primary victims may be awarded up to $60,000 (s 8(1) VOCA Act) to help cover:

lost earnings (up to $20,000) (s 8(2) VOCA Act) for up to two years after the crime occurred (s 17 VOCA Act);

medical and reasonable counselling expenses (s 8(2) VOCA Act);

reasonable safety related expenses (s 8(2) VOCA Act) (since 1 July 2010, safety related expenses form a separate category and no longer require the establishment of exceptional circumstances; the term “safety related expenses” is not defined in the VOCA Act);

the costs of loss, or damage to, clothing worn at the time of the crime (s 8(2) VOCA Act);

other expenses actually and reasonably incurred in the recovery from the act of violence in exceptional circumstances (s 8(3) VOCA Act) (e.g. VOCAT has awarded primary victims financial assistance to cover the installation of security systems, moving house costs, tutoring fees, and self-defence classes).

Special financial assistance for primary victims

In addition to the $60,000, VOCAT can provide special financial assistance to primary victims:

of up to $7500 for crimes that occurred between 1 July 2000 and 30 June 2007;

of up to $10,000 for crimes that occurred on or after 1 July 2007.

In some cases, special financial assistance is available to victims of crimes that occurred before 1 July 2000. Retrospective financial assistance is available for victims of sexual offences when the victim was under 18 and the crime occurred after 1 July 1997. If the crime occurred before 1 July 1997, the offender must have been committed to stand trial or have been charged with a sexual offence after 1 July 1997.

In relation to special financial assistance, the VOCA Act sets out four categories of acts of violence (categories A, B, C, D, with A being the most serious). If the victim has suffered a physical or psychological injury they are entitled to receive up to the maximum amount for that category. If the victim has suffered significant adverse effect (which is grief, distress or trauma that falls short of a psychological injury), the victim is entitled to the minimum amount for that category, as set out in the following tables.

Crimes committed after 1 July 2000 and up to 30 June 2007

Category

Maximum

Minimum

A

$7,500

$3,500

B

$2,500

$1,000

C

$1,000

$500

D

$500

$100

Crimes committed on or after 1 July 2007

Category

Maximum

Minimum

A

$10,000

$4,667

B

$3,250

$1,300

C

$1,300

$650

D

$650

$130

The Victims of Crime Assistance (Special Financial Assistance) Regulations 2000 (“VOCA Regulations”) set out the acts of violence that come within categories A, B, C and D. Some examples are:

Category A: attempted murder, any offence involving the sexual penetration of a person;

Category B: attempted sexual penetration of a person, indecent assault of a person, armed robbery, aggravated burglary;

Category C: an attempt to commit a category B act of violence, a death threat, conduct endangering life, inflicting serious injury, robbery;

Category D: an attempt to commit a category C act of violence, a threat of injury, assault, an act of violence not otherwise specified as a category A, B, C or D act of violence.

VOCAT decides which category a particular act of violence falls into; it does not matter if an offender has been convicted of a lesser offence or if no person has been charged with any offence.

The VOCA Regulations (regs 6, 7, 8) also allow VOCAT to “upgrade” lower categories, depending on the age or any impairment of the applicant and other specified circumstances.

Special financial assistance is available to victims where the act of violence occurred after 1 July 2000. In the case of sexual offences where the victim was under 18, they are entitled to retrospective special financial assistance if the crime occurred after 1 July 1997. If the crime occurred before 1 July 1997, the offender must have been committed to stand trial or have been charged with a sexual offence after 1 July 1997.

Secondary victims

Secondary victims may be awarded up to $50,000 (s 10(1) VOCA Act) to cover the cost of:

medical expenses and reasonable counselling expenses (s 10(2) VOCA Act);

lost earnings up to $20,000 (for up to two years after the crime), but only in exceptional circumstances (s 10(3) VOCA Act); and

expenses related to the recovery of a secondary victim who is a family member of a child victim, but only in exceptional circumstances (s 10(A1) VOCA Act).

Related victims

A related victim may be awarded up to $50,000 (s 13(1) VOCA Act) to cover the cost of:

medical and funeral expenses and reasonable counselling expenses (s 13(2) VOCA Act);

assistance for distress experienced as a result of the death of the primary victim, in the form of a lump sum payment (s 13(2) VOCA Act);

compensation for the loss of money that, but for the death of the primary victim, would have been received from the primary victim (for up to two years after the crime) (s 13(2) VOCA Act);

other expenses reasonably incurred as a direct result of the death of the primary victim (s 13(2) VOCA Act);

expenses to assist the related victim in their recovery from the death of the primary victim, but only in exceptional circumstances (s 13(4) VOCA Act).

A person who has paid the funeral expenses of the primary victim is also entitled to be reimbursed for these expenses (s 15 VOCA Act), whether or not they are a secondary or related victim.

The maximum amount payable to all the related victims of a deceased primary victim is $100,000, less any funeral expenses that may have been paid by someone who was not a related victim. However, this limit can be exceeded in exceptional circumstances.

The differences in the kinds of financial assistance available to different categories of applicants are summarised in the table “Financial assistance from VOCAT: a summary”.

Financial assistance from VOCAT: a summary

Type of expense

Primary victim

Secondary victim

Related victim

Loss of earnings

Yes (see Pham v VOCAT [2016] VSCA 102 as to how this figure is calculated if amounts have been received from another source (e.g. TAC))

Yes, but only in exceptional circumstances

No

Loss of income from primary victim

No

No

Yes, for the loss of money which, but for the death of the primary victim, the related victim would have received from the primary victim (for up to two years after the primary victim’s death)

Counselling expenses (already paid or likely to be spent)

Yes

Yes

Yes

Medical expenses (already paid or likely to be spent, and not claimable elsewhere)

Yes

Yes

Yes

Safety related expenses

Yes, from 1 July 2010

No

No

Expenses incurred to assist recovery from an act of violence

Yes, in exceptional circumstances

Yes, in exceptional circumstances (family member; from 1 July 2000)

Yes, in exceptional circumstances (from 1 July 2000)

Special financial assistance

Yes, from 1 July 2000 (and some victims of childhood sexual assault) but not for primary victims deemed pursuant to section 7(2) of the Victims of Crime Assistance Act 1996 (Vic). See Hall v Victims of Crime Assistance Tribunal [2004] VCAT 1359

No

No

Other

Cost of clothing lost or damaged

No

Yes, for distress experienced, or likely to be experienced, and other expenses incurred, or likely to be incurred, as a direct result of the death of the primary victim

Funeral expenses

A person who has paid the funeral expenses of a primary victim and who is not a related victim may be awarded assistance to cover such costs

A person who has paid the funeral expenses of a primary victim, and who is not a related victim, may be awarded assistance to cover such costs

A person who has paid the funeral expenses of a primary victim, and who is not a related victim, may be awarded assistance to cover such costs

The effect of other sources of assistance

In considering giving financial assistance to a victim, or the amount of assistance to be given, VOCAT must take into account any other damages, compensation or assistance received by the victim. VOCAT may also take into account any compensation, assistance or payments that the victim has not received but would be entitled to receive if they apply for them (s 16 VOCA Act). If a victim has received, or is eligible to receive, any of these other sources of compensation or assistance, VOCAT may limit or reduce an award.

For example, every victim has a right to sue the offender in a civil court for damages for pain and suffering (seeRecovering compensation from the offender”). Victims might also be eligible for payments from WorkSafe (if the injury occurred at work), from the Transport Accident Commission (if a motor vehicle was involved), Medicare, private health insurance, or the Police Assistance Compensation Act 1968 (Vic) (if the victim was injured assisting the police).

If there are possible claims arising from a criminal act, advice should be sought from a lawyer before lodging an application for assistance with VOCAT. For further information about these avenues for compensation, see Transport accident injuries, and Work injuries.

Criminal history and conduct of the victim

In considering an application for assistance, VOCAT is required to take into account the character, behaviour and attitude of the victim before, during and after the criminal act (s 54 VOCA Act). In this context, any criminal history – convictions or findings of guilt – of the victim is taken into account. The effect of this requirement is that a victim with a prior criminal history may be less likely to receive financial assistance, or may receive a reduced amount.

Similarly, VOCAT must consider whether the applicant provoked or contributed to the act of violence, or whether any condition or disposition of the applicant may have contributed to their injury. If any contributing factors are found, VOCAT may refuse the application or reduce the award.

Making a claim to VOCAT

The application form

The procedure for making a claim for financial assistance starts by filling in a VOCAT application form. These forms are available at all Magistrates’ Courts and from VOCAT’s website (www.vocat.vic.gov.au). The application must:

be on the official VOCAT application form and be verified by the applicant by a statutory declaration;

be accompanied by any documentary evidence (e.g. medical certificates, statements of earnings) required to support the claim, although they can be sent later;

set out the circumstances in which the injury or death occurred, including date, time and place of the alleged criminal act;

state whether the applicant is claiming as a primary, secondary or related victim or as a person who has incurred funeral expenses;

state the nature of the injury or the cause of death;

state whether any criminal proceedings arising out of the alleged criminal act have been commenced;

specify the amount and type of assistance sought;

record any other applications for assistance under the VOCA Act for the same act of violence;

record any application made elsewhere for damages, compensation, assistance or payments of any kind;

state details of relevant insurance (including any life and health insurance) or superannuation benefit entitlements; and

give VOCAT the authority to obtain any further information it requires.

If the applicant requires urgent counselling or medical treatment, a medical or psychological report outlining this need must be attached to the application. The application will then be dealt with immediately by way of an interim award (s 56 VOCA Act). Registrars can make interim awards of up to $1,000 in certain circumstances. A report from the police must be provided to VOCAT before a registrar can make an interim award.

On the application form, related victims must provide VOCAT with details of every other person whom the applicant believes may be a related victim and of any person who may incur the funeral expenses of the primary victim (s 30 VOCA Act). This is to ensure that all eligible victims are aware of their right to make an application and that such applications are all heard at the one time.

Lodging an application

VOCAT applications can be filled in and lodged online via VOCAT’s website (www.vocat.vic.gov.au). Or, hardcopy application forms can be posted to the registrar of VOCAT closest to where the victim lives (VOCAT operates from most Victorian Magistrates’ Courts). Related victims must lodge their application at the Melbourne Registry. There is no fee payable to VOCAT to lodge or hear an application.

Time limits

An application must be lodged within two years of the occurrence of the act of violence or, in the case of an application by a related victim or a person who has incurred funeral expenses, within two years of the death of the primary victim (s 29(1) VOCA Act).

However, VOCAT may accept out-of-time applications (i.e. after two years) in particular circumstances. In deciding whether or not to accept out-of-time applications, VOCAT may consider the age of the victim, whether the victim has an intellectual disability, the physical or psychological effect of the crime on the victim, and whether the delay in hearing the application would threaten VOCAT’s ability to make a fair decision.

VOCAT will not accept out-of-time applications where the only reason for the delay was the victim’s lack of awareness of their rights to apply to VOCAT (s 29(4) VOCA Act).

Applications for counselling

Applications for financial assistance for counselling expenses must be made in writing by completing the official “application for counselling” form (available at www.vocat.vic.gov.au) and lodging it with VOCAT.

The initial request for counselling may be for up to five hours or more than five hours. After an initial application for counselling has been approved, a further application for counselling can be made, accompanied by a report. Retrospective payment for counselling after the first five sessions will not usually be made by VOCAT unless special circumstances exist.

More information is available on VOCAT’s website at www.vocat.vic.gov.au.

Hearing and determination of VOCAT

Once an application has been lodged with VOCAT, applicants will receive a letter acknowledging receipt of the application and providing instructions on what to do next. VOCAT requires that all documentation upon which the application relies be filed within four months of the date of their confirmation letter. VOCAT must be notified in writing that the application is ready to proceed or the application may be struck out. If more time is required, a written request may be made outlining what material is still outstanding and how much time will be required to obtain it. VOCAT can then extend the time limit for filing the material.

The practice of VOCAT appears to be that, if the application is straightforward and claims, for example, only counselling and medical expenses, the application will be dealt with administratively on the basis of the evidence before it and without a hearing. The applicant would need to agree to this. A hearing would only take place when there is a substantive issue to determine, such as an application for loss of earnings, where there are a number of expenses being claimed, or if the applicant specifically requests a hearing of the matter (s 33 VOCA Act).

At the hearing, the applicant and anyone else with a substantial interest in the matter is entitled to appear (s 35 VOCA Act). This may include a member of the victim’s family or a close friend. It may also include the offender (seeNotifying the offender”).

An applicant may appear personally or may be represented by a lawyer or, with the leave of VOCAT, by any other representative. A VOCAT officer may also appear at the hearing to assist VOCAT. The hearings are open to the public unless ordered otherwise by VOCAT (s 42 VOCA Act), but are almost always conducted as closed hearings. Applicants may apply to VOCAT to close the hearing to the public if they feel distressed or intimidated by a public hearing.

Hearings are conducted in an informal manner, with all parties being given an opportunity to give evidence. Witnesses may have someone beside them to offer emotional support. In the few cases where the offender attends the VOCAT hearing, VOCAT has closed-circuit television facilities or screens that allow people to give evidence away from the offender.

Notifying the offender

VOCAT can notify the alleged offender of the victim’s application for financial assistance, where any of the following apply:

the police brief has not been authorised;

the applicant has not proceeded with their complaint to the police about the act of violence;

the applicant has refused to assist the police;

the alleged offender was found not guilty; or

the charges were withdrawn or dismissed.

VOCAT will advise the victim that they are considering notifying the alleged offender, and will allow 21 days for the victim to respond. If an objection to the notification is lodged, VOCAT will consider all the relevant factors before deciding whether or not to proceed with notifying the alleged offender.

If VOCAT decides to proceed and notify the alleged offender, they will be sent a letter by registered mail. If no response is received from the alleged offender within 14 days, the application will be listed and the applicant will be advised that the alleged offender will not be attending the hearing. If the alleged offender elects to participate in the hearing, the application will be listed for a directions hearing.

Evidence

VOCAT is obliged to act fairly, expeditiously and according to the merits of the case (s 32 VOCA Act). Questions of fact are decided by VOCAT on the balance of probabilities (s 31 VOCA Act).

VOCAT usually relies on documentary evidence when making a determination. Applicants should provide VOCAT with all relevant documentary evidence to support their application. In a loss-of-earnings application, VOCAT may wish to see previous taxation returns, statements of loss of income, employment records or business financial reports. In an application for medical expenses, it will require medical reports, hospital records and medical invoices and accounts. All expenses or potential expenses must be able to be substantiated by the applicant with invoices or receipts.

VOCAT will also rely on the police file, which may include witness statements to police, a summary of the offence and police observations. If required, VOCAT will generally make this file available to the applicant or the applicant’s legal representative.

VOCAT’s powers

In considering an application, VOCAT has the power to initiate an inquiry or investigation (s 39 VOCA Act). It may also require the preparation and submission to VOCAT of a medical report or counselling report. If this is not agreed to by the applicant, the application may be adjourned or refused. Similarly, VOCAT may require the applicant to provide an additional statement containing more information within a specified period.

Notification of decision

VOCAT must notify the applicant of its decision (s 33 VOCA Act), including details of:

the amount, if any, of assistance awarded;

the purpose(s) for which the assistance is awarded;

any conditions to which the award is subject;

the person(s) to whom assistance is payable; and

any other order made by VOCAT.

Applications for further assistance

Victims are entitled to apply to vary an existing award made by VOCAT. For example, applications can be submitted seeking further financial assistance for counselling, medical or other expenses.

An award can be varied up to six years from the date of the original award or, where the applicant was under 18 years old at the time of the making of the original award, until the applicant turns 24.

An application for variation must be made in writing to VOCAT and must contain supporting material. The request must demonstrate the link between the criminal act and the need for further assistance.

These applications are usually determined by VOCAT by examining the documents supplied (i.e. there is no hearing). However, applications for variation may be listed for a short hearing where the application is complicated.

Lawyers’ fees

Usually, lawyers’ (reasonable) costs and expenses are paid by VOCAT – even when the application is refused. However, the question of whether legal costs are paid, and how much is paid, is entirely at the discretion of VOCAT (s 48 VOCA Act).

Appeals

VOCAT decisions can be appealed in the Victorian Civil and Administrative Tribunal (see Appealing government and administrative decisions). Applications for review must be made within 28 days of VOCAT’s decision. A decision can only be appealed if it (s 59 VOCA Act):

refuses to award financial assistance;

determines the amount of assistance on an application;

refuses to vary an award of financial assistance; or

requires the refund of financial assistance (s 62 VOCA Act).