The Law Handbook 2024

Chapter 10.6: Assistance for victims of crime 975 in VCAT review cases to be circumstances which are ‘unusual, special, out of the ordinary course and that each case needs to be considered on its merits in light of all the circumstances’ (see RN v VOCAT [2005] VCAT 2651 at [30]). What have been considered exceptional circumstances in VCAT review cases are wide ranging and turn on the particular circumstances of each case. Examples include the nature and gravity of the crime, and the fact the victim has been suffering serious mental injury for many years as a direct result of the act of violence (see NFL v VOCAT (Review and Regulation) [2023] VCAT 877 at [59]). See also QMX v VOCAT (Review and Regulation) [2018] VCAT 614; Curtis v VOCAT (Review and Regulation) [2017] VCAT 1286; and JGD v VOCAT (Review and Regulation) [2019] VCAT 871. When seeking expenses to assist recovery, there needs to be a clear link between the crime and how the item sought will assist the victim recovering from the crime (see PTR v VOCAT [2019] VCAT 1204 at [73]). Quotes for items must be reasonable, so obtain multiple quotes and cheaper items where possible. The number and quantum of items claimed to assist recovery should be proportionate to the crime and the impact on the applicant. It is recommended that all items sought be supported by written psychological and/or medical evidence explaining how it will assist the recovery of the applicant. If a psychologist’s report contains insufficient detail, request further detail. Where possible, ask the expert to explain how the item sought will have a demonstrable and measurable benefit – see Lukeis v VOCAT (General) [2006] VCAT 2473 at [18]. Detailed and up-to-date written instructions from the applicant setting out the impact of the crime, and how each item sought will assist their recovery will be helpful also. VOCAT has awarded a wide variety of items to assist recovery including gym memberships, holidays, yoga, Pilates, tutoring, re-training courses and therapy animals, in appropriate circumstances. Assistance for secondary victims Secondary victims may be awarded up to $50 000. This amount 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) and expenses to assist recovery if it can be established that exceptional circumstances exist (s 10, 10A). Assistance for related victims The total maximum amount payable to all the related victims of a deceased primary victim is $100 000, less any funeral expenses. However, this limit can be exceeded if it can be established that exceptional circumstances exist (s 12). Any related victim may be awarded up to $50 000 for expenses actually incurred, or reasonably likely to be incurred, for counselling, medical and funeral expenses, loss of money the related victim would have received from the primary victim for up to two years after the death, or other expenses. An amount for ‘distress’ experienced or reasonably likely to be experienced as result of the death may also be made. ‘Distress’ is not defined in the VOCA Act but has been interpreted in the leading case of Vita v VOCAT [2000] VCAT 2317 to be given its ordinary meaning as ‘great pain, anxiety, or sorrow; acute suffering; affliction; trouble. It is a very broad concept, more sweeping … than pain and suffering’. Expenses to assist recovery may be made if it can be established that exceptional circumstances exist (s 13). A person who has paid the funeral expenses of the primary victim is also entitled to be reimbursed for these expenses (s 15), whether or not they are a secondary or related victim. Time limits to apply for assistance An application must be filed within two years of the act of violence or, in the case of an application by a related victim or a person who has incurred funeral expenses, within two years of the death of the primary victim (s 29). There is no time limit for crimes consisting of physical or sexual abuse if the victim was under the age of 18 years at the time of the crime (s 29(1A)). VOCAT may accept out-of-time applications (i.e. after two years) if it considers that, in the particular circumstances, the application ought not be struck out. In considering whether or not to accept an out-of-time application VOCAT must have regard to all circumstances it considers relevant, including the age of the victim, whether the victim has an intellectual disability, whether the alleged offender had power, influence or trust over the victim, the physical or psychological effect of the crime on the victim, and whether the delay in