The Law Handbook 2024

974 Section 10: Accidents, insurance and compensation SFA is available only for crimes occurring on or after 1 July 2000 (s 77(1)), with the exception of sexual offences where the victim was under 18 years old, which are treated differently. If such an offence occurred on or after 1 July 1997, then SFA applies without the need for charges to have been laid (s 77(3)(d)(i)). Alternatively, if the offence occurred before 1 July 2000 then a person needs to have been committed or directly presented for trial (on or after 1 July 1997) irrespective of the outcome (s 77(3) (d)(ii)). Or, the charges can have been determined summarily irrespective of the outcome, or the person died without the charge having been determined (s 77(3)(d)(iii)). The practical application of this section means that SFA is available for childhood sexual offences occurring at any time before 1 July 1997 if charges have been laid on or after 1 July 1997. The amount of SFA payable is determined according to if whether the crime is classified as a category A, B, C or D act of violence (s 8A). The crimes belonging to each category are set out in schedule 1 of the VOCA Regulations, as follows: • Category A : attempted murder; any offence involving the sexual penetration of a person; • Category B : attempted sexual penetration of a person, sexual assault, armed robbery, aggravated burglary, deprivation of liberty for the purposes of sexual penetration or demanding a ransom; • CategoryC : an attempt to commit a category B act of violence, a death threat, conduct endangering life, inflicting serious injury, robbery; • Category D : an attempt to commit a cate- gory C act of violence, a threat of injury, assault, attempted assault, deprivation of liberty, or an act of violence not otherwise specified as a cat- egory A, B, C or D act of violence. VOCAT ultimately determines which category of crime is appropriate, guided by any criminal charges which have been laid. In the absence of charges, the category of crime is determined by submissions addressing the satisfaction of the elements of the alleged offence on the factual circumstances. An invaluable resource setting out current and past criminal offences and their respective elements is the Victorian Criminal Charge Book located on the Judicial College of Victoria website (www. judicialcollege.vic.edu.au) . Section 8A(5) sets out a range of SFA applicable to each category. The minimum amount within the range may be awarded if the victim has suffered a significant adverse effect; and up to the maximum amount may be awarded for an ‘injury’ as defined in section 3(1). If the crime occurred between 1 July 2000 and 30 June 2007, lower amounts for SFA apply – see table below. Crimes committed between 1 July 2000 and 30 June 2007 Category Maximum Minimum A $7500 $3500 B $2500 $1000 C $1000 $500 D $500 $100 Crimes committed on or after 1 July 2007 Category Maximum Minimum A $10000 $4667 B $3250 $1300 C $1300 $650 D $650 $130 The VOCA Regulations allow for VOCAT to ‘upgrade’ lower categories of crimes to higher categories. Attention is therefore required to see if an uplift is possible. For example, if a crime results in a ‘very serious physical injury’ the definition of which includes physical bodily harm of a permanent or long-term duration involving loss of bodily function or disfigurement of a part of the body, then an uplift to category A is possible (Reg 7). Uplifts are also possible, for example, if the applicant was a child, or elderly, or if the applicant was suffering ‘impaired mental functioning’ at the time of the crime, which is defined as including a mental illness, intellectual disability, acquired brain injury, an autism spectrum disorder or neurological impairment including dementia. Assist recovery expenses Expenses to assist an applicant’s recovery may be granted if ‘exceptional circumstances’ can be established. ‘Exceptional circumstances’ are not defined in the VOCA Act, but have been interpreted