You may provide a written objection in response to receiving a Provisional Order for Restitution. Objection to a Provisional Order (PDF, 72Kb).
An Objection provides a chance for you to tell your side of the story and explain your reasons for requesting an amount of restitution to be reduced or dismissed. Restitution proceedings are based upon underlying conviction/s and are not an avenue to have the criminal proceedings re-heard.
If the defendant files a written objection, the matter is then listed for a determination by the Commissioner of Victims Rights to determine if the Provisional Order should be confirmed.
The Commissioner's determination is made at Victims Services, however the act does not make provision for an oral hearing. The defendant is not able to be present for the determination, but must provide any written submissions to be relied upon when the Commissioner is determining the matter. The defendant may make submissions as to:
culpability for the injuries to the victim,
other persons also being charged and/or convicted in relation to the same offence and injury
age at the time of the incident, and
If there are two or more defendants in a matter, the amount to be paid may be apportioned between the defendants, evenly or on the basis of approximate levels of culpability. However, the Act does provide for restitution to be a joint and several liability. Where a defendant does not make a written submissions s/he may be liable for the full amount.
When determining the matter, the Commissioner may take the defendant's financial means and any other relevant matters into consideration. The defendant will need to provide Victims Services with an
Affidavit of Financial Circumstances (PDF, 224Kb) if she/he wishes those circumstances to be properly considered.
Relevant issues: the Commissioner can/may take into account any matters that she/he sees as relevant when considering submissions made by the defendant and will make an order for restitution after considering the submissions provided.
The victim is not required to be a party to the proceedings. However where necessary some information from the compensation/victims support payments may need to be provided to the defendant or his/her legal representative for the restitution proceedings. The Commissioner will then give the defendant (or his/her representative) time to make relevant submissions which might include:
information about the circumstances surrounding the act of violence
any mitigating or culpability issues
information about the defendant's circumstances
anything else of relevance
At the determination, the Commissioner will consider:
your written submissions including any supporting documentation provided and
the documents on file.
At the first place you could contact Law Access on 1300 888 529. They may be able to help you with some legal information or advice or they may be able to refer you to a Community Legal Centre for assistance.
Many legal firms provide pro bono (free) services to people facing minor legal proceedings. It may also be possible that the Legal Aid Commission of NSW will assist you with a restitution matter.
You could also call The Law Society of NSW on (02) 9373 7300 for advice about pro bono legal services in your local area.
The defendant may be legally represented during these proceedings. However, the cost of legal representation is not met by Victims Services.