Entitlement for Reparation

Considerations

For reparation, the court can consider whether the offender caused a person to suffer:

• loss of, or damage to, property
• emotional harm, or
• consequential emotional or physical harm, or loss of, or damage to property.

If the loss or damage relates to a corporate body, such as an insurance company, bank, school, employer or employing company, then the corporate body becomes the "person".

Reparation for emotional harm

The court can only impose a sentence of reparation for emotional harm - or loss or damage consequential to emotional harm - where the person who suffered is a victim. A victim is defined as:

• a person against whom an offence is committed
• every person who, through or by means of an offence committed by another person, suffers physical injury or loss of, or damage to, property, and
• every member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapacitated.

Victim does not include a person who is party to the commissioning of the offence and who is found guilty or pleads guilty to the offence or an offence related to the same incident.

Legislative reference: Section 4 Sentencing Act 2002.

Consequential loss or damage

The following table gives an example of what might be considered direct loss or damage and what might be considered consequential loss or damage.

Limitations on reparation for consequential loss or damage

The making of reparation in respect of any loss or damage consequential to any emotional or physical harm, or loss or damage to property, cannot be ordered if the court believes that the person who suffered that loss has entitlement under the Injury Prevention, Rehabilitation, and Compensation Act 2001. This applies whether or not the person has chosen to exercise that right.

Reparation cannot be ordered to compensate victims for loss of earnings.

Legislative reference: Section 32 (5) Sentencing Act 2002.

The court must also take into account whether the person has a right to bring any other proceedings, or make any other application in relation to that loss or damage.

Legislative reference: Section 32 (3) and (4) Sentencing Act 2002.

Reporting on reparation

If the victim identifies a loss or damage, either direct or consequential, which may not meet the criteria for reparation, this should be included in the report to the court. The court can then decide whether it meets the requirements of the legislation for reparation.

The level or amount of any actual or potential entitlement under the Injury Prevention, Rehabilitation and Compensation Act 2001 (IPRC Act) must also be stated. Generally, at the time the report is prepared, the information available may indicate the existence of potential entitlements and the level of such entitlement in general terms. If the sentencing has been delayed, and a claim has been made, then information on actual entitlement may be available.

Establishing entitlement to ACC

To establish whether the person who has suffered has entitlement under the IPRC Act one of the following actions should be taken:

• ask the person if they have made a claim and ascertain details of that claim, and
• contact ACC for general information on the type of entitlement such harm or consequential loss or damage might attract.

Reference: Reparation and ACC Entitlement.