11.3 Injuries and damage caused by crime

30 Aug 2016 - 12:26 | Version 8 |

Contributed by SteveWheelhouse and current to 1 May 2016

Introduction

As of 1 May 2007 the Victims of Crime Assistance Act (VCAA) applies to persons who claim compensation as a result of crime. It implements a scheme which is administratively based rather than adversarial in nature. There are three main types of assistance - counselling assistance, financial assistance for economic loss and assistance payable for physical or psychological injury as a direct result of a violent act. Both those who suffer directly as a result of crime as well as extended family members are eligible for free crisis counselling.

Who is a victim?

Compensation is only payable to applicants who can show an injury that has resulted from a violent act. The offences for which compensation is payable are referred to, under section 5 of the VCAA,as violent acts.

Injury is defined in section 6 of the VCAA. It is a physical illness or injury, psychological or psychiatric disorder, pregnancy or a combination of these, but not an injury that arose from the loss of or damage to property. Under section 7 of the VCAA, exactly what injuries are compensatable by way of financial assistance are prescribed by the regulations, for either a primary or secondary victim of a violent act.

Violent acts are defined in section 5 of the VCAA as a criminal act that constitutes a criminal offence.

Categories of victim

The VCAA defines four types of victim who can get assistance: primary victims, secondary victims, family victims, and related victims. These are the persons entitled to make a claim as a result of a violent act which results in an injury.

A primary victim, under section 9 of the VCAA, is a person who suffers an injury or death directly as a result of the violent act. Primary victims are also persons who suffer injury as a result of preventing or attempting to prevent a violent event; helping a person suffering a violent act or attempting to arrest a person committing a violent act.

A secondary victim under section 11 of the VCAA is a person who is present at the scene of the violent act or suffers an injury as a direct result of witnessing the violent act. A secondary victim is also a person who suffers an injury as a result of becoming aware of a violent act afterwards. However, this type of victim can only be parent, step-parent or guardian of a child who is a primary victim or if the primary victim is not a child, then a child or step-child who is under the guardianship of the primary victim at the time of the violent act.

A family victim under section 13 of the VCAA is a person who is a spouse or de facto partner of a primary victim, a parent, step-parent or guardian of a primary victim, a child or step-child under the guardianship of a primary victim or a person dependant for financial support on the primary victim. The section includes unborn children of the primary victim who survive the primary victim. Unlike the primary, secondary victim or related victim (see below) the family victim need not suffer a physical or mental injury to claim compensation.

A related victim under section 15 of the VCAA is a person who is a relative of the primary victim and who is not a family victim or a person who has an intimate personal relationship with the primary victim. The related victim does not have to prove an injury. All related victims are entitled to counselling.

In all cases of the above categories, the applicant cannot be the perpetrator of the violent act. Such persons are excluded.

Proof required

The applicant may be awarded financial assistance whether they have suffered injury or financial loss as a direct result of a violent act and are otherwise an eligible victim. It is not necessary to establish that a person has been charged or found guilty of the violent act.

Exclusions

Victims who are eligible for compensation under the Return to Work Act or Motor Accident Compensation Act will not be entitled to financial compensation apart from counselling (see sections 17 and 18 of the VCAA).

Under section 19 of the Victims of Crime Assistance Act, if the primary victim suffers death, the estate of the primary victim cannot maintain or have a claim for financial assistance. However, this does not prevent any other person applying for counselling or financial assistance as a secondary victim or related victim of the violent act.

A perpetrator of the violent act the subject of the given application for an award cannot apply for assistance (see sections 13(4) and 15(2)(b) of the VCAA).

Under section 31 of the VCAA, the application for compensation must be made within two years of the injury or death. However the time limit may be extended. Factors relevant to the extension of the time limit include whether the injury or death occurred as a result of sexual assault, domestic violence, child abuse or the age of the applicant at the time of the violent act.

Making a Claim

The Crimes Victims Services Unit is established by the Victims of Crimes Rights and Services Act (VCRSA). Its role is to provide assistance to victims of crime and the counselling scheme.

Applications for compensation are made to assessors under section 24 of the VCAA. Assessors have the function of assessing applications put before them. Further, the position of Director is established under the VCRSA. The body called the Crime Victims Services Unit was established under the VCRSA. Its function is, with assessors and the Director appointed, to assess compensation payments.

Under section 25 of the VCAA, an eligible victim may apply for financial assistance as a primary victim, secondary victim or family victim of a violent act. Only one application for the same act may be made by an eligible victim.

Application for Financial Assistance

Immediate financial assistance

Under section 26 of the VCAA, the eligible victim of a violent act may apply to the Director for the immediate payment of financial assistance. That provision of the legislation outlines exactly what must be accompanied by way of information in respect of the application. A request for immediate payment must contain reasons as to why it is required, the amount of financial assistance sought and whether or not the applicant has also applied for an award of financial assistance or intends to do so. The regulations may prescribe further information required.

Under section 27 of the VCAA, the Director then makes a decision whether to approve immediate payment or to refuse it. The Director must not approve immediate payment unless satisfied it is reasonably likely that the applicant has suffered or incurred, or will suffer or incur, the described financial loss. The financial loss must be the result of a violent act and the applicant must otherwise be an eligible victim. Such an application can be brought even if the Director is given information that no person has been charged or found guilty of a violent act resulting in the applicant's financial loss or a person has been charged or found guilty of a different violent act than described in the application.

The maximum amount payable for immediate assistance is $5000 [VCAA s.27(5)]. The decision to make an immediate payment or otherwise is not subject to a review or appeal but nothing prevents an applicant who is an eligible victim from applying for an award of financial assistance [VCAA s.28]. The payment is to be made within 21 days after the Director approves immediate payment [VCAA s.29].

Under section 30 of the VCAA, an eligible victim of a violent act may apply to the Director for an award of financial assistance. Such an application must be made within two years after the occurrence of the injury or death described in the application. This time limit may be extended [VCAA s.31].

The application must state whether the person applying is a primary victim, secondary victim or family victim of a violent act a description of the violent act itself, the date on which it occurred, whether a statement was made to police, and if no statement was made, the reasons why. If immediate financial assistance is sought for expenses incurred or reasonably likely to be incurred (see above), then a brief description of the applicant's exceptional circumstances would be required. Also relevant is whether or not the applicant has made a claim for benefits under the Motor Accidents (Compensation) Act or Return to Work Act. The application must be accompanied by a copy of the applicant's statement about the violent act, made to a police officer, unless there is a reason why such a statement has not been made and all the documents in the applicant's possession supporting the application, such as medical reports and invoices for expenses (see section 32 of the VCAA).

Once the Director accepts an application he must give it to an assessor for a decision and may give a copy to the offender named in the application or any other person the Director considers to have an interest in the application. Then as soon as practicable, but within 28 days after receiving notice, the offender or other interested person may give written submission in response to the application. Any submissions are then given to the assessor.

The assessor must then decide, in accordance with the legislation, to either award or refuse financial assistance. Otherwise, the assessor may defer the decision until the assessor has obtained further information or reports necessary to make a proper decision or civil or criminal proceedings have been commenced in relation to the applicant's injury, death or financial loss (until that proceeding is determined) or the Northern Territory seeks to recover amounts of money from an applicant in relation to any other application for financial assistance [VCAA s.34].

An assessor may require an applicant to undergo an examination or further examination by medical practitioners, psychologists or psychiatrists in respect of the application [VCAA s.35(1)]. A report can then be produced and given to the assessor. The expenses of such reports are paid by the Northern Territory. An assessor may decide not to award financial assistance if, without reasonable excuse, an applicant refuses or fails to partake in such an examination [VCAA s.35(4)]. Further, under section 36 of the VCAA an assessor may obtain any other information and make inquiries necessary for a proper decision, such as requiring an applicant to give further information or documents.

Assessing Compensation

The primary victim

A primary victim can claim for the injury itself, counselling expenses and financial loss such as loss of earnings, medical expenses, expenses due to loss of clothing and other personal effects and also, in exceptional circumstances, other expenses to assist in recovery (that is, relocation expenses).

The total maximum assistance for a single primary victim is $40,000 [VCAA s.38]. This amount can include up to a maximum of $10,000 for financial loss, such as loss of earnings and medical costs. The maximum compensation, in all, cannot exceed $40,000.

The amount of compensation for the injury itself is determined by a table or list of compensable injuries, which set the amount permitted for specific types of injuries.

To be eligible for a payment of compensation for an injury itself, the applicant must establish a minimum threshold amount for the injury dependent on the category of injury suffered. This threshold can be established by a combination of several separate compensable injuries on the table or list of compensable injuries. The Schedules to the Victims of Crime Assistance Regulations (VCAR) prescribe the threshold (see Sch. 3 Pt. 1).

There is no minimum threshold for financial loss. Of the $10,000 that can be claimed for financial loss, $5000 can be made immediately available for a victim who can show hardship. An application for hardship is made to the Crimes Victims Services Unit (see above).

The secondary victim

A secondary victim can claim for the injury itself, counselling expenses and financial loss such as loss of earnings, medical expenses, but not expenses due to loss of clothing and other personal effects.

The total maximum assistance for a secondary victim is $40,000. However, under section 40 of the VCAA if there is more then one secondary victim, the maximum amount that can be claimed between them is $40,000, in respect of each violent act.

The amount of compensation for the injury itself is determined by a table or list of compensable injuries, which set the amount permitted for specific types of injuries.

To be eligible for a payment for an injury the applicant must establish a minimum threshold for the compensable injury dependant on the category of injury suffered. This threshold can be established by a combination of several separate compensable injuries. The Schedules to the VCAR prescribe the threshold (see Sch. 3 Pt. 1).

There is no minimum threshold for financial loss. Of the $10,000 that can be claimed for financial loss, $5000 can be made immediately available for a victim who can show hardship. An application for hardship is made to the Crimes Victims Services Unit (see above).

The family victim

A family victim can make a claim for financial costs, including funeral costs and medical costs incurred by them. Claims can also be made for loss of support (income that would have otherwise been supplied by the primary victim). Family victims can claim up to a maximum of $10,000 for such costs and in cases of hardship $5000 immediately. An application for hardship is made to the Crimes Victims Services Unit (see above).

Under section 40 of the VCAA however, if there is more then one family victim, the maximum amount that can be claimed between them is $40,000 in respect of each violent act.

Related victims are entitled to counselling costs only.

Reduction of an Award

Under section 41 of the VCAA, an assessor may reduce an award after taking into consideration any behaviour including past criminal activity, condition, attitude or disposition of a victim, that directly or indirectly, contributed to the injury or financial loss of the victim. This applies to primary or secondary victims only. Consideration may also be made on whether the applicant participated in the actual violent act or encouraged another to commit the violent act or gave assistance to an offender. Further, if an applicant has failed to take reasonable steps to lessen the loss or extent of injury, such as seeking appropriate medical advice or treatment or the obtaining of counselling as soon as practicable after the violent act's occurrence, an award can be reduced. If an award is likely to benefit the offender because of a relationship between the applicant and the offender, that may also be relevant. The reduction of the amount of compensation the assessor considers reasonable, in all the circumstances, can then be made.

An award must be reduced under section 42 of the VCAA where the applicant has already received a payment for the injury, death or loss described in the application such as an immediate payment to which the applicant was not entitled, compensation or damages received from the offender or any other person for the offender, private medical insurance, any other benefit compensation or damages or other award under an Act of the Northern Territory, Commonwealth or another State or Territory. The amount of the award is reduced by an amount equal to the payment the applicant has already received.

Under section 43 of the VCAA, the assessor must not award financial assistance to the applicant if the applicant is either:
  • not entitled to an award
  • the violent act was not reported to a police officer within a reasonable time of it happening (unless proof is put forward that the circumstances prevented the report being made)
  • the violent act was not reported to a police officer before the date the assessor decides the application (unless the circumstances prevented the report being made)
  • the applicant failed to assist police to investigate or prosecute the violent act
  • the applicant has colluded with the offender
  • the injury or death occurred during the commission of a crime by the applicant.
Once the application is decided by an assessor, the assessor must give the Director a notice of the decision [VCAA s.44]. The notice includes the total financial assistance awarded and the reason (if any) of a reduction of an award if that is made.

The Director then must give the notice to the applicant and may give a copy of the notice to any offender and any other person who gave a submission in relation to the application of the decision [VCAA s.44(5)].

Within 28 days of the Director giving such notice, the Northern Territory must pay the financial assistance specified in the notice (if an award is made) under section 45 of the Victims of Crime Assistance Act.

Increase of an Award

An application for an increase of the financial assistance may be made by an applicant to the Director under section 46 of the VCAA. Such an application must state the reason why the increase is sought, be accompanied by supporting documentation and must be made within three years after the date of payment if the applicant is an adult, or if the applicant was a child, within three years after they become an adult.

On receipt of the application by the Director, it is referred to an assessor. An assessor will increase the award only if they are satisfied that the circumstances require it and the relevant maximum amount of financial assistance has not already been awarded. Thereafter the assessor gives the Director a notice of their decision to increase the award or refusal to do so. Then the Director gives notice to the applicant and each offender. Within 28 days after the Director gives such a notice to the applicant, the Northern Territory must pay the financial assistance specified in the notice (if an award is made).

Refunds of an award

Under section 47 of the VCAA a refund of financial assistance may be required of a person if an assessor is satisfied a person was not entitled to the award or immediate payment, or any other factors which would otherwise reduce an award have been made out - such as the payment of compensation or damages from the offender, payment of private medical insurance, or a benefit was already received by the applicant under an Act of the Northern Territory, the Commonwealth or another State or Territory. Notice of reduction must be given by the Director to the person requiring the amount to be refunded. Notice must also be given to each offender named in the person's original application. The amount to be refunded becomes a debt owing to the Northern Territory.

Review of Decisions

An applicant for an award of financial assistance under the Northern Territory Civil and Administrative Tribunal Act [NTCATA] may apply to the Northern Territory Civil and Administrative Tribunal [VCAA s.48]. An application for a review of a decision must be made within 28 days from when the person is notified of the original decision by the decision maker or 28 days from when the person is provided with the reasons of the decision (if the person has applied for them). The Northern Territory Civil and Administrative Tribunal can extend the time limits.

An applicant for an award may apply for a review of a decision of the Director to refuse to accept a late application for assistance; a decision of an assessor of an award or their refusal award financial assistance; a decision in respect of the increase of financial assistance or otherwise; or against a decision requiring a refund of an amount to the Northern Territory.

The review of an administrative decision is determined by the Northern Territory Civil and Administrative Tribunal. The Northern Territory Civil and Administrative Tribunal may confirm, vary or set aside a Director's or assessors decision and either substitute its own decision or send the matter back to the decision maker for reconsideration; or make some other decision if this is permitted by the VCAA under which the reviewable decisions was made.

At the conclusion of a review and where the Northern Territory Civil and Administrative Tribunal has made a decision: if the decision is to confirm the original decision, no further review can be sought by the same person or any
other person; if the decision is to vary or substitute the original decision, the new decision is taken to be the decision of the original decision maker and has the effect from the time when the original decision would have had effect under [NTCATA s.51]

Parties can appeal on questions of law to the Supreme Court against decisions of the Northern Territory Civil and Administrative Tribunal exercising its review jurisdiction.

Although a person may be represented by a legal practitioner in making an application, the legal practitioner is not entitled to recover from any person the legal costs incurred except out of pocket expenses in respect of representation [VCAA s.54]. Where however an appeal is brought then an appellant may be represented by a legal practitioner and the regulations to the Act may provide for allowable legal costs for work done on the appeal [VCAA s.55].

Other Claims

The VCAA does not prevent a person making a claim for recovery or damages under any other law or bringing an action at common law for damages against a person from whom the victim has suffered some financial, property or other loss as a result of a criminal act or otherwise.

Northern Territory Victims Register

What is the Victims Register?

The Victims Register is a database which enables the Crime Victims Services Unit to provide victims of violent and sexual crimes, or other concerned persons with certain information about the offender(s). It also allows victims to make written submissions to the Parole Board in relation to the relevant offender. Information you provide will remain strictly confidential and will only be held on the Victims Register. Access to this information is strictly limited to staff with a genuine and essential need to have such access and will not be available to offenders or other persons. The Victims Register is established under Part 4 of the Victims of Crime Rights and Services Act (VCRSA).

Who can register?

The following persons are eligible to be registered in relation to an offender _[VCRSA s.19]:_
  • the actual victim of a violent or sexual offence;
  • a legal guardian of the actual victim if that victim is a child or suffers from a disability.
Applications for registration may also be made as a concerned person, but registration will be subject to meeting certain criteria, including but not limited to the following:
  • a person who has been nominated by the victim to receive information on their behalf;
  • a primary care-giver or family member;
  • a person against who the offender has a history of using domestic violence;
  • a person who has substantial concern with the relevant offence.
You do not have to live in the Northern Territory to apply to be included on the Victims Register.

When can you register?

You can apply to be registered after the offender is sentenced for the relevant offence or before the offender is discharged from the sentence[VCRSA s.20].

What information can be provided to victims of crime?

The following information that can be provided to registered victim or concern person _[VCRSA s.22(1)]:_
  • suspended sentence order (SSO) information, including date of release under SSO, the conditions of the SSO, any variation, revocation, cancellation or discharge of a SSO;
  • parole information, including earliest possible date of release, date that Parole Board is to consider release on parole, actual date of release on parole and any conditions of parole that are considered relevant to the victim, and the revocation or cancellation of a parole order;
  • transfer to another prison interstate or overseas;
  • escape from prison and any recapture;
  • if the offender dies whilst in custody.
A registered victim or concerned person may, however, enquire at any time as to the following information on the offender(s) _[VCRSA s.22(2)]:_ :
  • transfer to another prison in the Northern Territory;
  • status of security ratings or any change in the status;
  • courses or programs being undertaken for the purposes of rehabilitation;
  • any approved leave of absence from prison.

How frequently will I receive information regarding an offender?

Upon acceptance of your registration the Crime Victims Services Unit compiles all relevant information regarding the offender at that point in time. This information forms the basis of the first letter you will receive. We will endeavour to have this information to you in a timely fashion. After receiving your first letter from us, you will receive further correspondence only if any of the previously supplied information changes, i.e. the offender changes location or is allowed leave. It is not possible to predict how often this will happen, however, it is important to remember that notification is only possible after receipt of the information on the change by the Crime Victims Services Unit.

Obligations of registered victims and concerned persons

Within 28 days of a change, the registered victim or concerned person is required to give the CVSU their new personal contact details.A If any event occurs that affects the persons eligibility to be registered they are required to advise the CVSU within 28 days _[VCRSA s.27]._

Requirement of non-disclosure of confidential information by registered victims and concerned persons

The information supplied to registered victims and concerned persons through the Victims Register is confidential. A person must not disclose or release this information for the purpose of public dissemination without the prior approval from the CVSU. Offence provisions apply for natural persons and body corporates for a breach of this provision _[VCRSA s.29]._

What should I do if I do not fully understand the information contained in a letter from the Crime Victims Services Unit?

The Victims Register was established to keep victims of crime, or concerned persons, informed of the progress of an offender through the correctional system. If you are unsure about the meaning or possible impact of information sent to you by the Crime Victims Services Unit, we encourage you to contact the Unit on Free call 1800 221 372.

Where do I get an application form for the Victims Register?

Application forms are available by contacting:

Coordinator
Northern Territory Victims Register
Crime Victims Services Unit
Freecall: 1800 221 372
Email: victims.register@nt.gov.au

Witness Assistance Service
Tel: 08 8935 7500 Darwin
Tel: 08 8951 5800 Alice Springs
Tel: 08 8972 8900 Katherine
Freecall: 1800 659 449
Email: wasdpp.doj@nt.gov.au

Useful Contacts

Crime Victims Services Unit, Department of the Attorney-General and Justice
Free Call 1800 460 363 or interstate callers 08 8924 4080 or fax 08 8981 2083
Email: cvsu.doj@nt.gov.au
Web: www.nt.gov.au/justice/victimcrime.shtml

Anglicare NT Resolve - victims of crime counselling support service
Free Call 1800 898 500
Email: resolve@anglicare-nt.org.au
Web: www.anglicare-nt.org.au

Victims of Crime Northern Territory
Information, advocacy, support, counselling and assistance to resecure your home after an unlawful entry for victims of crime
Free Call: 1800 672 242

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