Victims can claim through VOCAT or sue in court for damages as a civil claim. They can also ask the court that sentenced the offender to order compensation. Advice should be sought on the best course of action.
Civil claims for damages
All victims have a right to pursue a civil claim for damages against an offender. These claims are usually heard in the Magistrates’ or County Court, depending on the seriousness of the injury and the amount of damages sought. (The monetary limits in civil matters are listed in An introduction to the courts. For more information about claims for damages, see Negligence and injury.)
If you are considering making a civil claim against an offender, seek advice from a lawyer about the merits and prospects of success of such a claim, as it may be preferable to seek assistance from VOCAT (e.g. if the offender has no assets).
Sections 85A–85M of the Sentencing Act 1991 (Vic) (“Sentencing Act”) allow a victim to seek compensation for pain and suffering from the offender. The offender must have been found guilty. The application for compensation must be lodged within 12 months of the court’s decision, and must be submitted at the court that sentenced the offender. The court can also order the offender to pay the victim’s medical, counselling and other expenses.
Before making such an order, the offender must be given a reasonable opportunity to be heard. The court may take into account the offender’s financial circumstances.
Once the court has ordered the offender to pay the victim, it becomes a judgment debt. The recovery of the debt depends on whether the offender has assets and on the enforcement process (see Are you in debt?).
The main differences between the Sentencing Act and the VOCA Act are:
• compensation under the Sentencing Act can include an amount for pain and suffering that is higher than the limited amounts available for special financial assistance under the VOCA Act;
• under the Sentencing Act, compensation is paid by the offender (whose financial circumstances may be taken into account by the court when making the order); under the VOCA Act, financial assistance is paid for by the state; and
• for compensation to be payable under the Sentencing Act, the offender must have been found guilty, or convicted, by a court.
A victim considering seeking compensation from an offender should seek legal advice.