As from 1 July 1997, VOCAT replaced the Crimes Compensation Tribunal. VOCAT's role is to consider applications for financial assistance from victims of violent crime. The Tribunal operates from most Magistrates' Courts and applications must be lodged at the court closest to where the victim lives.
The Principal Registry of VOCAT is located at the Melbourne Magistrates' Court, 233 William Street, Melbourne. For full contact details, see "Contacts" at the end of this chapter. Tribunals also operate in most major country Magistrates' Courts.
VOCAT provides the following assistance to help victims recover from criminal acts:
- awards of financial assistance which cover medical expenses and reasonable counselling expenses incurred by victims;
- in exceptional circumstances, awards of financial assistance for reasonable expenses incurred by victims to assist recovery from an act of violence;
- awards of up to $60,000 financial assistance for "primary" victims (see: "What financial assistance is available?", below), including up to $20,000 for loss of earnings;
- awards of up to $7,500 in special financial assistance for primary victim of crimes that occurred after 1 July 2000 up to 30 June 2007, and up to $10,000 for crimes that occurred on or after 1 July 2007, depending on the category of the act of violence;
- awards of up to $50,000 for "secondary" and "related" victims (see: "What financial assistance is available?", below); and
- financial assistance to a relative, where the victim dies as a result of the criminal act.
There are three prerequisites to applying for assistance under the VOCA Act.
The crime against the person — a criminal act or a series of criminal acts — must have occurred in Victoria. The act must have been a criminal act or omission punishable by imprisonment, even if the person committing the act will not be charged because of some incapacity such as mental impairment, age, or drunkenness. Further, the crime may also come within the VOCA Act even if there is a lawful defence to the charge (s.3(1)).
The Act covers only violent crimes, which include 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.
It should also be noted that a related criminal act or a series of related criminal acts may constitute, for the purposes of the VOCA Act, a single act of violence. This means that a number of criminal acts that have some similarity and are committed against the same person over a period of time may be treated as one act of violence, and therefore be the subject of only one award. For example, this may apply to an applicant who has been subjected to repeated sexual assaults by the same offender over a period of time.
As a result of the act of violence, the victim must have suffered one or more of the following (s.3):
- actual physical bodily harm;
- 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.
The act of violence must have been reported to the police within a reasonable time.
The VOCA Act clearly sets out the matters that VOCAT may consider in determining what is a reasonable time (s.53). These include the type of offence, the age of the victim, and whether the victim has an intellectual disability or was mentally ill at the time the offence took place. They also include whether the victim was intimidated or threatened by the offender, and whether the offender was in a position of power, influence or trust in relation to the victim.
It is envisaged that victims of sexual assault in certain circumstances may invoke these provisions to extend the reasonable time limitations. For example, in the case Arnold v CCT (unreported, VSC, 10 December 1992), the applicant when young 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 CCT to be sufficiently special circumstances to overcome the delay in reporting the matter to the police.
It should also be noted that, even if no-one is charged as a result of the criminal act, the applicant may still be eligible for an award of assistance from VOCAT (s.50(4)). 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.
The VOCA Act makes a distinction between primary victim, secondary victim and related victim. The amount and type of financial assistance available will depend on the category of the victim. A victim of a particular act of violence can apply within only one of these categories (s.18).
A primary victim is a person who is injured or dies as a direct result of the act of violence committed against them. This includes a person who is injured or killed while carrying out an arrest or trying to prevent the commission of a crime or who tries to aid or rescue another from an act of violence (s.7(2)).
A secondary victim is a person who is present at the scene of an act of violence and who is injured (whether physically or psychologically by way of, for example, post-traumatic stress disorder) as a direct result of witnessing that act. A secondary victim also includes a person who subsequently becomes aware of the act of violence, but that person must be the parent or guardian of a primary victim who was under 18 years old at the time the act of violence was committed (s.9(2)).
A related victim applies only where the primary victim has died as a direct result of an act of violence. Here, a related victim is a person who at the time of the act of violence was a close family member, a dependant or a person who had an intimate personal relationship with the deceased primary victim (s.11(1)).
Under the VOCA Act, the following financial assistance may be awarded.
Primary victims may be awarded assistance up to a maximum of $60,000 (s.8(1)), which may include:
- up to $20,000 for loss of earnings (s.8(2)) for a period of up to two years after the crime (s.17);
- medical expenses and reasonable counselling expenses;
- in exceptional circumstances, expenses actually and reasonably incurred to assist in the recovery from the act of violence (s.8(3));
- the costs of loss, or damage to, clothing worn at the time of the crime (s.8(2)); and
- in addition to the $60,000 limit, for crimes committed after 1 July 2000 up to 30 June 2007 special financial assistance on a sliding scale up to a maximum of $7,500, and for crimes committed on or after 1 July 2007 up to a maximum of $10,000.
Primary victims or their legal advisers should give consideration to expenses that may fall into the category of exceptional circumstances being reasonably incurred to assist recovery. VOCAT has in some cases made awards to victims for expenses such as security systems, removal expenses, computer equipment, remedial tutoring and self-defence classes.
In relation to special financial assistance, the VOCA Act sets out four categories of acts of violence (categories A, B, C and D, with A being the most serious). If the victim has suffered a physical or psychological injury they are entitled to receive an amount up to the maximum amount for that category. If the victim has suffered significant adverse effect (which is grief, distress or trauma falling short of a psychological injury), the victim is entitled to a 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 |
For crimes committed on or after 1 July 2007 payments of special financial assistance, using the same criteria as to minimum and maximum awards, are set out in the table following.
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 set out the acts of violence that come within categories A, B, C and D.
Some examples are as follows:
- 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 and others;
- Category C: an attempt to commit a category B act of violence, a threat of death, conduct endangering life, inflicting serious injury, robbery; and
- 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.
These Regulations also allow VOCAT to "upgrade" lower categories, depending on the age or any impairment of the applicant and other specified circumstances (rr.6, 7 & 8).
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 may be awarded up to a maximum of $50,000 (s.10(1)), which may include:
- medical expenses and reasonable counselling expenses;
- loss of earnings up to $20,000 (for up to two years after the crime), but only in exceptional circumstances; and
- in exceptional circumstances, expenses to assist the recovery of a secondary victim who is a parent or guardian of a child victim.
A related victim may be awarded up to a maximum of $50,000 (s.13(1)), which may include:
- medical and funeral expenses and reasonable counselling expenses;
- assistance for distress experienced as a result of the death of the primary victim, in the form of a lump sum payment;
- compensation for the loss of money that, but for the death of the primary victim, would have been likely to have been received from the primary victim (for up to two years after the crime) (s.13(2));
- other expenses reasonably incurred as a direct result of the death of the primary victim; and
- in exceptional circumstances, expenses to assist the related victim in their recovery from the death of the primary victim.
A person who has paid the funeral expenses of the primary victim is also entitled to reimbursement of those expenses (s.15).
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. This limit can, however, be exceeded in exceptional circumstances.
The differences in the kinds of financial assistance available to different categories of applicants are summarised in the chart "Financial assistance from the Tribunal" following.
Financial assistance from the Tribunal
Type of expense |
Primary victim |
Secondary victim |
Related victim |
|---|---|---|---|
Loss of earnings |
Yes |
Yes, but only in exceptional circumstances |
No |
Loss of income from primary victim |
No |
No |
Yes, for loss of money which, but for the death of primary victim, the related victim would have been likely to receive from the primary victim during the period of up to two years after that 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 |
Expenses incurred to assist recovery from act of violence |
Yes, in exceptional circumstances |
Yes, in exceptional circumstances (parent or guardian, from 1.7.2000) |
Yes, in exceptional circumstances (from 1.7.2000) |
Special financial assistance |
Yes, from 1.7.2000 (and some victims of childhood sexual assault) but not for primary victims deemed pursuant to s.7(2) of the Victims of Crime Assistance Act 1996. 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 |
In considering giving 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. It may also take into account any compensation, assistance or payments that the victim has not received but would be entitled to receive if they had applied for them (s.16).
For example, every victim has a right to sue the offender in a civil court for damages for pain and suffering and loss of income. (See: "Recovering compensation from the offender", below.) The victim might also be eligible for payments from the WorkCover Authority, if the injury occurred at a workplace, or from the Transport Accident Commission (TAC). In addition, the payments sought from VOCAT might also be payable under an insurance policy.
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. Therefore, 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. See: Chapter 18*2 Transport Accident Injuries, and Chapter 18*3 Work Injuries, for further information about these avenues for compensation.
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). 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 an award of assistance, or may have an award reduced.
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, the Tribunal may refuse the application or reduce the award.
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VICTIMS OF CRIME ASSISTANCE TRIBUNAL (VOCAT) :: Last updated: Wed Jul 1st 2009