Reparation Orders

Last Updated: 9 July 2009

Subheadings:

Reparation Orders under the Crimes Act 1914 (Cth)
Definition of Reparation
Scope of s 21B
--- Reparation to the Commonwealth
--- Reparation to any Person
- Definition of Loss
- Causation
Enforcement Under s 21B
Exercise of Discretion
Availability of Civil Proceedings

Commentary on Reparation Orders under the Crimes Act 1914 (Cth)

Under federal legislation, a reparation order is not an independent sentencing option. Professors Fox and Freiberg note that a court is empowered:

...to make an ancillary order of this nature [to order compensation, restitution or reparation] or to add reparation as an element in sanctions involving some form of conditional release. [1]

Reparation orders can be made under the following provisions:

Section 21B: As an Ancillary Order

Reparation orders made pursuant to s 21B are treated as civil debts. [2]

Where:

a person is convicted of a federal offence; or
an order is made to discharge the offender without conviction under s 19B;

the court may, in addition to any penalty, order the offender to make reparation to the Commonwealth or to any other person.

A s 21B reparation order may be made notwithstanding that there is no prior civil liability to make reparation. [3]

Section 19B: Following a Non-Conviction Order

Reparation orders made under s 19B are made a condition of the sentencing order.

The court may discharge the offender without proceeding to conviction on the condition that the offender makes such reparation as the court specifies. [4]

An offender who fails to comply with such a reparation order will be in breach of their sentencing order. Accordingly, the original sentencing order may be revoked and the offender re-sentenced for the original offence pursuant to s 20A.

Section 20(1): Following the Conditional Release of an Offender

Reparation orders made under s 20(1) are made a condition of the sentencing order.

The court may release a person convicted of a federal offence on the condition that the person makes such reparation as the court specifies. [5]

Section 16BA(5): Where Another Offence is Taken into Account

Where other offences are taken into account during sentencing pursuant to s 16BA, the court may make such reparation orders as it would have been able to make if the person had been convicted before the court of the offence.

Section 20AB(4)(b): Where a Sentencing Alternative is Imposed in a Participating State or Territory

Where the court imposes a sentencing alternative pursuant to s 20AB(1), the court may also make a reparation order.

Note: Part IB does not require a court to give priority to a reparation order over a fine where an offender is of limited financial means and is unable to pay both. [6]

[Top]

Definition of Reparation

Reparation is not defined in the Crimes Act 1914 (Cth).

Reparation may be made by money payment or otherwise: s 21B(1)(c) and (d).

The Australian Law Reform Commission defines ‘reparation’ as:

…a broad term used to describe any attempt to make amends for a wrong or injury. It encompasses both restitution and compensation. Restitution in the criminal context refers to the return of its owner of the exact property taken by an offender. Compensation refers to the provision of monetary or other recompense by the offender to another for any loss, damage or injury suffered as a result of the crime. [7]

An order for reparation is not a penalty. [8] Rather, reparation orders are viewed as a means through which a victim of crime is able to achieve a quick and easy civil remedy without needing to institute separate civil proceedings against an offender. [9]

Professors Fox and Frieberg state that the term is wide enough to include reparation in the form of money payment, restitution in specie, compensation by way of money payment, or perhaps even restorative labour or community service. [10]

[Top]

Scope of s 21B

Section 21B can be triggered where:

a person is convicted of a federal offence; or
an order is made under s 19B to discharge the offender

Reparations can be made either to the Commonwealth or a public authority, or to any person.

Reparation to the Commonwealth

Under s 21B(1)(c) a person may be ordered to make reparation to:

the Commonwealth; or
to a public authority under the Commonwealth

with respect of:

any loss suffered; or
any expense incurred

by reason of the offence. (See further below: Causation.)

Reparation to any Person

Under s 21B(1)(d) a person may be ordered to make reparation to:

any person

in respect of:

any loss suffered

as a direct result of the offence. (See further below: Causation.)

Note: a body corporate falls within the definition of 'any person' for the purposes of a reparation order made under s 21B: s 4B(4). See also Donovan v Wilkinson [2005] NTSC 8, [29]; Hookham v The Queen [1994] HCA 52, (1994) 181 CLR 450, [5]. (See further: Corporations.)

[Top]

definition of loss

Loss is not defined in the Crimes Act 1914 (Cth). Broad interpretations of the term 'loss' have been adopted by the Courts.

In Gould v Federal Commissioner for Taxation [1998] WASCA 260, (1998) 147 FLR 173, the Western Australia Court of Appeal explained that, in relation to reparation orders in favour of the Commonwealth:

What triggers the power [in s 21B] is that the Commonwealth has sustained a loss. Once this is established, there is nothing more for the Commonwealth to prove. The end disposition depends on all of the circumstances of the individual case. Matters such as the nature and subject matter of the loss suffered are relevant. But they are not the only considerations and the discretion is a broad one. [11]

Reparation orders have been made to cover losses incurred by the Commonwealth arising from failure to pay income tax deductions, [12] and to recover costs incurred by a corporation following the commission of an offence. [13]

In Hookham, Deane, Dawson and Gauldron JJ explained that, in relation to a loss for the purposes of s 21B(1)(c):

a loss need not involve the transfer from the Commonwealth to someone else of a proprietary interest. The Commonwealth suffered a loss by being deprived of money which it would have been paid had it no been for the commission of the offences in question. There is no reason why that should not be regarded as being a reparable loss. [14]

[Top]

causation

Under s 21B(1)(c), a person may be ordered to make reparation to the Commonwealth or a public authority in respect of any loss suffered:

by reason of the offence.

Under s 21B(1)(d), a person may be ordered to make reparation to any person in respect of any loss suffered:

as a direct result of the offence.

In Davies v Taylor (1996) 140 ALR 245, Slicer J considered the words ‘direct result of’ and ‘by reason of’ to be synonymous. [15] This view has not been followed in subsequent decisions. [16]

In Liaver v Errington [2003] QCA 5, the Queensland Court of Appeal considered the expression ‘by reason of the offence’ to require a relationship of cause and effect, which might consist of multiple causes and involve a number of steps. [17] The Court concluded that possession of excisable tobacco on which the duty was not paid caused a loss to the Commonwealth. [18]

In R v Foster [2008] QCA 90, McMurdo P (with whom Mackenzie AJA and Chesterman J agreed) considered the meaning of the words ‘as a direct result of.’ McMurdo P stated:

It is clear enough from the terms of s 21B that for a court to make a reparation order under s 21B(1)(d) in favour of "any person" requires a closer connection between the offence and the loss than for a court to make a reparation order under s 21B(1)(c) in favour of the Commonwealth. The clear legislative intent in enacting s 21B(1)(d) is as follows. Federal offenders who through their offending have caused a loss to others should be liable to compensate those who have suffered that loss, where there is a sufficiently direct connection between the offence and the loss. [19]

The legislature's use of the term "a direct result", rather than "the direct result" suggests it did not intend to limit the capacity to make a reparation order under s 21B(1)(d) to a single loss arising from an offence, if on the facts, there is more than one direct loss. [20]

McMurdo P further noted that, unlike s 21B(1)(c), the words in s 21B(1)(d) suggest that a reparation order can not be made in favour of a person suffering a secondary loss by way of a ripple effect. [21]

[Top]

enforcement under s 21b

No person may be imprisoned for a failure to comply with an order to pay reparation, restitution or compensation: s 21B(2).

A reparation order made pursuant to s 21B is enforceable as a final judgment of the court of civil jurisdiction in which it is filed: s 21B(3).

An order to make reparation is enforceable where the clerk, or other appropriate officer, of the court signs a certificate specifying:

the amount of money to be paid by reparation: s 21B(3)(b)(i); and
the identity of the person to whom the money is to be paid: s 21B(3)(b)(ii); and
the identity of the person by whom the money is to be paid: s 21B(3)(iii).

The certificate must be filed in a court having civil jurisdiction to the extent of the amount to be paid: s 21B(3).

[Top]

Enforcement of Reparation Orders

State or Territory law regarding enforcement or recovery of a reparation order applies to a person convicted in a State or Territory of an offence against a law of the Commonwealth: Crimes Act 1914 (Cth) s 15A.

Under the Crimes Act 1914 (Cth) the definition of ‘fine’ includes any costs or amounts ordered to be paid by offenders: s 3(2)(b). Therefore, a reparation order falls within the definition of ‘fine’.

breach

No person may be imprisoned for a failure to comply with an order to pay reparation, restitution or compensation: s 21B(2); s 20(1)(2A).

The consequences of breach of a reparation order made under s 21B may be different to those which follow a breach of a reparation order made under s 19B or s 20(1).

Breach of a reparation order made under s 19B or s 20(1) constitutes a breach of the original sentencing order.

The Australian Law Reform Commission notes that:

If an ancillary order has been made a condition of a sentencing order, an offender who fails to comply with the ancillary order will breach his or her sentencing order. Accordingly, the original sentencing order imposed on the offender may be revoked and the offender may be re-sentenced for the original offence. [22]

Section 20A sets down what is to occur when a person has failed to comply with an order made under s 19B or s 20(1). (See further: Conditional Release Bonds After Conviction.)

Breach of a reparation order made under s 21B does not constitute a breach of the original sentencing order.

Reparation orders made pursuant to s 21B are treated as civil debts. [23] Therefore any breach is considered a civil matter.

[Top]

Exercise of Discretion

Courts have judicial discretion in determining whether to make a reparation order and the amount of any such order. [24]

In Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450, Deane, Dawson and Gaudron JJ observed that:

in a context where the Parliament has not expressly identified the considerations to be taken into account in making an order for reparation under s 21B, a trial judge would be excluded from taking account of an offender's personal circumstances and means only if, and to the extent that, "the subject matter and the scope and purpose" of the relevant statutory provisions enable it to be said that those particular considerations were "definitely extraneous to any objects the legislature could have had in view". [25]

There has been some judicial debate about the relevance of an offender's financial means. Part IB does not require the court to consider an offender's financial circumstances when making an order for reparation.

Courts deciding cases brought under s 21B of the Crimes Act 1914 (Cth) have generally found that an offender's financial means is a relevant consideration in the exercise of the discretion to make an order for reparation.

In Gregory v Gregory [2000] VSC 190; (2000) 112 A Crim R 19, the Supreme Court of Victoria when discussing compensation under the Sentencing Act 1991 (Vic), held that:

differentially to award compensation because of the offender's means to pay gives the wholly undesirable appearance that victims with similar suffering are valued differentially by the law. Just as there should not be one law for the rich and one for the poor, so there should not be a sliding scale of compensation for victims of crime because the offender is rich or poor. [26]

In Vlahov v Commissioner of Taxation (1993) 26 ATR 49, the Full Court of the Supreme Court of Western Australia stated that although there is no provision in the Crimes Act 1914 (Cth) requiring the court to consider an offender's financial circumstances before making a reparation order:

the Court has a discretion whether or not to make a reparation order. That discretion is, of course, to be exercised judicially. In the exercise of that discretion, the court may have regard to the personal circumstances and means of the offender.

This decision was followed by the NSW Court of Appeal in R v Hookham (1993) 31 NSWLR 38, the Supreme Court of Tasmania in Davies v Taylor [1997] TASSC 132; (1997) 97 A Crim R 527, the Queensland Court of Appeal in Liaver v Errington [2003] QCA 5, [4] (McMurdo P); the Supreme Court of South Australia in Vadasz v DPP (Cth) [1999] SASC 255; (1999) 42 ATR 347, [41].

Note: earlier bankruptcy proceedings do not act as a bar to the making of a reparation order: Knight v R (1990) 51 A Crim R 323.

[Top]

Availability of Civil Proceedings

A victim's right to institute civil proceedings is not affected by a federal reparation order: s 15F.

[Top]

Footnotes

[1] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [5.102].

[2] Crimes Act 1914 (Cth) s 21B(3). See also Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.22].

[3] Vlahov v Commissioner of Taxation (1993) 26 ATR 49.

[4] Crimes Act 1914 (Cth) s 19B(1)(d)(ii).

[5] Crimes Act 1914 (Cth) s 20(1)(a)(ii).

[6] See further Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.36-8.40].

[7] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.3].

[8] R v Foster [2008] QCA 90; (2008) 183 A Crim R 437, [72].

[9] See Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.15]. See also Inwood v The Queen (1974) 60 Cr App R 70, [73] cited in Gould v Federal Commissioner of Taxation [1998] WASCA 260; (1998) 147 FLR 173; Johannessen & Lee v Collins (1992) 93 ATC 4001; Davies v Taylor [1997] TASSC 132; (1997) 97 A Crim R 527; Donovan v Wilkinson [2005] NTSC 8, [26].

[10] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999), [5.209].

[11] Gould v Federal Commissioner of Taxation [1998] WASCA 260; (1998) 147 FLR 173.

[12] Gould v Federal Commissioner of Taxation [1998] WASCA 260; (1998) 147 FLR 173; Davies v Taylor [1997] TASSC 132; (1997) 97 A Crim R 527.

[13] Donovan v Wilkinson [2005] NTSC 8.

[14] Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450.

[15] Davies v Taylor (1996) 140 ALR 245, 249-250.

[16] R v Foster [2008] QCA 90; (2008) 183 A Crim R 437, [71].

[17] Laiver v Errington [2003] QCA 5, [39]-[50].

[18] Laiver v Errington [2003] QCA 5, [50].

[19] R v Foster [2008] QCA 90, [71].

[20] R v Foster [2008] QCA 90, [73].

[21] R v Foster [2008] QCA 90, [74].

[22] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.22].

[23] Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders, Report 103 (2006), [8.22].

[24] R v Foster [2008] QCA 90, [67].

[25] Hookham v The Queen [1994] HCA 52; (1994) 181 CLR 450.

[26] Gregory v Gregory [2000] VSC 190, [29].