The Law Handbook 2024

Chapter 10.6: Assistance for victims of crime 973 It is set out in section 3 of the VOCAAct and includes offences punishable on conviction by imprisonment, that involve an assault on, or injury or threat of injury to a person; or sexual offences or common law rape or assault with intent to rape; stalking, child stealing, kidnapping or conspiracy, incitement or attempting to commit any of these offences. Any legal incapacity (e.g. by reason of age or mental impairment) or lawful defence which would render the offender unable to be charged is disregarded for the purposes of the definition, thus enabling victims to claim even though an offender cannot be charged. If the applicant is the victim of multiple offences committed at approximately the same time, or over a period of time by the same person or group of people, or if the multiple offences have other common factors, VOCAT will treat these as a single act of violence. Submissions may be made to treat them as different acts of violence, and VOCAT may do so having regard to the ‘particular circumstances’ of those acts (s 4). Repeated assaults over a period of time by the same offender would therefore be classed under a single application and would result in a single award of assistance. Even if no-one has been charged with, or found guilty or convicted of, an offence, the tribunal may still award assistance in respect of an act of violence (s 50(4)). The VOCA Act distinguishes between primary, secondary and related victims and a person may only apply in one category (s 18). A primary victim is a person who is injured (physically or mentally) or dies as a direct result of an act of violence (hereinafter referred to as a ‘crime’) committed against them. A primary victim is also a person who is injured (physically or mentally) or dies as a direct result of trying to arrest someone they believe has committed a crime, or trying to prevent the commission of a crime, or trying to aid or rescue someone they believe is a victim of a crime, whether or not a crime is actually committed (s 7). A secondary victim is a person who is injured (physically or mentally) as a direct result of being present at the scene of a crime and witnessing that crime; or becoming aware of a crime where they are the parent/guardian of a primary victim who was under the age of 18 at the time the crime was committed (s 9). A related victim is a personwho, at the time of the crime, was a ‘close family member’ of, or dependant of, or had an intimate personal relationship with a primary victim who died as a result of that crime (s 11). ‘Close family member’ is defined as a person who had a genuine personal relationship with the victim at the time of their death and who is a spouse, parent or guardian of the victim; or child or step-child of the victim or some other child of whom the victim is the guardian; or a brother, sister, step-brother or step- sister of the victim (s 3). If the crime occurred before 1 July 1997 (i.e. before the commencement date of the VOCA Act), then clause 5 of schedule 1, being a transitional provision, is triggered. Broadly speaking, for the application to be able to be made under the VOCA Act, no application can have been made under either of the former Acts, and the applicant must have been entitled to make an application under the former Acts. (See J v VOCAT [2002] VCAT 532; DJP v VOCAT [2010] 281.) Assistance for primary victims Primary victims may be awarded up to $60 000 plus ‘special financial assistance’ ( SFA ) (s 8(1)). The amount of $60 000 may be made up of amounts for expenses actually incurred, or reasonably likely to be incurred for counselling and medical expenses, lost earnings (up to $20 000), loss or damage to clothing worn at the time of the crime, and safety expenses (s 8(2)). Assistance can also be awarded to assist the applicant’s recovery if it can be established that exceptional circumstances exist (s 8(3)). Assistance may not be awarded for expenses incurred through loss of or damage to property (s 8(4)). Primary victims falling within section 7(2) are not entitled to SFA unless an act of violence was committed against them, as required by section 8A(2)(a). (See also Hall v VOCAT [2004] VCAT 1359 at [14]). An applicant seeking payment for safety expenses, e.g. CCTV cameras or other security equipment, must ensure that the installer is appropriately registered or licensed pursuant to the Private Security Act 2014 (Vic). (See VOCAT Practice Direction 1 of 2018. ) Special financial assistance SFA may be awarded to primary victims who have experienced or suffered a ‘significant adverse effect’ (ie. grief, distress or trauma) or ‘injury’ as defined (s 8A).