Restitution Order

What is the effect of a restitution order?

The effect of a particular restitution order will depend on the authority relied upon in its application (i.e., one of the applications described above). In a broad sense, the court will have the authority to order the property to be returned to the DPP or an entitled individual. If the property has since been exchanged, the equivalent property or monetary value for which it was exchanged will be sufficient to satisfy a restitution order. 

The entitlement to a restitution order for an entitled person under the Sentencing Act 1991 (Vic) follows relevant property rights (s 84(1)). A restitution order may, therefore, be executed upon innocent third parties, including the police (e.g. DPP (Vic) v Garland [2016] VCC 10, [39]).

Guilty of an Offence Connected to the Theft of Stolen Goods?

• Section 84 of the Sentencing Act 1991 (Vic) allows the court to order that:
  • the goods be returned to the entitled person (s84(1)(a));
  • the goods that directly or indirectly represent the stolen goods be delivered or transferred to the entitled person (s84(1)(b));
  • the value of the stolen goods be paid to the person entitled out of money in the offender’s possession at the time of arrest (s84(1)(d));
  • the purchase price of the stolen goods be paid to a third party out of money in the offender’s possession at the time of arrest if the stolen goods were purchased in good faith or money was lent on the security of the stolen goods (s84(4)).
• For the more specific situations described above, the following may apply:
  • Child Defendant: Section 417 of the Children, Youth and Families Act 2005 (Vic) outlines that an order that a child make restitution pursuant to s 360(3)(a) must be no more than $1000.
  • Wage Theft: Section 84(4A)-(4B) of the Sentencing Act 1991 (Vic) allows the court to order that, in instances of wage theft, the employer pays the affected employee entitlements withheld due to the commission or the offence.
• In relation to offences under sections 26-32 of the Summary Offences Act 1966 (Vic) regarding possession of stolen property, section 33(4) of that act allows the Magistrates’ Court to make an order in relation to the particular property in question which it considers just. Examples of the kind of orders that the Magistrates’ Court may make under subsection (4) are:
  • that property be sold;
  • any money derived from the property be paid into a Consolidated Fund;
  • that the whole or part of the property (as dictated by an entitled person’s ownership) be transferred to an entitled person; or
  • that an entitled person retains the whole or any part of the property for a specified period of time (s 33(5)).
• Retaining or disposing of property as workmen: In relation to an offence of retaining or disposing of property as workmen under section 34(1) of the Summary Offences Act 1966 (Vic), subsection (2) of that section allows the court to order that the stolen property either be returned to its rightful owner or, should they be unknown, be sold and the funds paid into the Consolidated Fund. 

Convicted of a Federal Offence?

• Section 21B(1) of the Crimes Act 1914 (Cth) allows the court to make an order against a person convicted of a federal offence requiring them, either by way of payment or other means, to:
  • make reparation to the Commonwealth or like public authority in respect of any expense incurred or loss suffered as a result of the particular offence; or
  • make reparation to any person with respect to any loss suffered by reason of the offence.