Special financial assistance

5 Feb

Section 11 of the FAS Act provides that SFA is available to primary victims if an act of violence was committed against them (i.e. ‘primary victims’ under section 9(1)); or if they are a child injured as a direct result of hearing or witnessing or being exposed to the effects of the act of violence (i.e. ‘primary victims’ under s 9(3)). Primary victims under section 9(2) – being those who are injured as a result of trying to arrest someone or prevent an act of violence; or trying to aid or rescue a victim of an act of violence – are, by implication, ineligible for SFA unless the act of violence was committed against them.

Further, in order to be eligible for SFA, the person must have experienced or suffered a ‘significant adverse effect’ (i.e. grief, distress, trauma or injury) and the act of violence must fall within one of the four categories prescribed by the FAS Regulations (see below).

For the purposes of setting the amounts payable for SFA, schedule 1 of the FAS Regulations prescribes four categories of acts of violence.
Regulation 7 prescribes two tables of payments, each with a minimum and maximum dollar amount, for each category of act of violence. The first range applies if there was a single act of violence. The second (and higher) range applies if there was a ‘series of related criminal acts’ meaning, where there was more than one act of violence.
Section 11(2) of the FAS Act provides that the minimum amount in the category is applicable if the FAS is satisfied the applicant has experienced or suffered any ‘significant adverse effect’ as a direct result of the act of violence; and up to the maximum amount is applicable if the applicant has suffered an ‘injury’ as defined in section 3(1). Part 16.1.3 of the FAS Guidelines, however, helpfully indicates that the FAS will, however, award the maximum amount in the relevant category unless there are ‘character’ issues (see ‘Character considerations’, below).
The FAS may be satisfied that an act of violence occurred in a particular category of act of violence, even if no one was charged with that particular act of violence, or the person was charged or found guilty of or convicted of an act of violence in a different category (FAS Act s 11(4)). Submissions in this regard should address the elements of the alleged offence on the factual circumstances. The Victorian Criminal Charge Book is an invaluable resource setting out current and past criminal offences and their respective elements. It is available on the Judicial College of Victoria website: www.judicialcollege.vic.edu.au.
The four prescribed categories of acts of violence are as follows: (Note that italicised terms below are defined in the FAS Regulations, but only the definitions of the key terms are included below.)

Category A acts of violence are offences that:
- involve offences of sexual penetration;
- involve offences of attempted murder;
- directly result in death;
- directly result in a very serious physical injury (defined in regulation 4 as permanent or long term actual physical harm involving loss of a bodily function; disfigurement of a party of the body; total or partial loss of a part of the body; loss of a foetus or fertility; or infection with a life-threatening disease) and that would otherwise be a category B, C or D act of violence;
- consist of related criminal acts that occur in the context of a pattern of family violence and that would otherwise be a category B act of violence; or
- consist of related criminal acts of sexual penetration or sexual assault and that would otherwise be a category B act of violence.
The maximum amount of SFA is $20 000 for a single act of violence and $25 000 for related acts of violence.
In order to establish that an applicant has lost a bodily function, details ought to be provided of all the functions the applicant cannot now perform, or how they now find that function very difficult to perform. It is noted that physical scarring on a body can be classified as a disfigurement, depending on the placement and extent of the scarring and the impact on the applicant. It is suggested therefore that photographs taken before and after the act of violence ought to be provided, along with detail as to the physical and emotional impact of the scarring on the applicant.
Category B acts of violence are offences that:
- involve attempted sexual penetration;
- involve sexual assault;
- involve non-fatal strangulation;
- involve armed robbery;
- involve aggravated burglary;
- involve aggravated carjacking;
- involve aggravated home invasion or home invasion;
- involve kidnapping;
- involve the deprivation of a person’s liberty for the purpose of sexual penetration or demanding a ransom for their release;
- involve sexual activity with a ‘specified victim’ (defined in regulation 4 as children, the elderly or those with ‘impaired mental functioning’, which is also defined);
- involve administration of an intoxicating substance to a specified victim;
- are a sexual servitude offence;
- are a commercial sexual services offence; or
- directly result in a specified victim suffering a serious injury (defined in regulation 4 as an injury that endangers life; or is substantial and protracted) or becoming a victim of related criminal acts or suffering a deprivation of their liberty – and that would otherwise be a category C or D act of violence.
The maximum amount of SFA is $6500 for a single actof violence and $8125 for related acts of violence.
Category C acts of violence are offences that:
- involve attempts to commit a category B act of violence (other than attempted sexual penetration);
- involve death threats;
- involve threats to commit a sexual offence;
- involve conduct endangering life;
- involve conduct inflicting serious injury;
- involve robbery;
- involve carjacking;
- involve sexual activity or administering an intoxicating substance to a person who is not a specified victim;
- consist of related acts of violence and that would otherwise be a category D act of violence;
- acts of violence in respect of specified victim and that would otherwise by a category D act of violence; or
- consist of related criminal acts that occur in the context of a pattern of family violence and that would otherwise be a category D act of violence.
The maximum amount of SFA is $2600 for a single act of violence and $3250 for related acts of violence.
Category D acts of violence are offences that:
- involve attempts to commit a category C act of violence (other than an attempt to commit a category B act of violence);
- involve a threat of injury;
- involve production or distribution of an intimate image;
- involve assault;
- involve attempted assault;
- involve deprivation of liberty other than for the purpose of sexual penetration or demanding a ransom for their release;
- are offences under division 4A of Part 1 of the Summary Offences Act 1966 (Vic). This is the offence of intentionally observing a person’s genital or anal region with the aid of a device; or
- are acts of violence not otherwise specified as a category A, B, C or D act of violence.
The maximum amount of SFA for a category D act of violence is $1300 for a single act of violence and $1625 for related acts of violence.