Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014
The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 (the amending Act) is proclaimed to commence on 1 July 2014 (s 2 & LW 27.06.14). It applies to the determination of a sentence for an offence whenever committed, unless:
the court has convicted the person being sentenced of the offence, or
a court has accepted a plea of guilty and the plea has not been withdrawn,
before the commencement of the amendments.
The amending Act abolishes the prohibition expressed in R v Previtera (1997) 94 A Crim R 76 and applied in R v Bollen (1998) 99 A Crim R 510 at 529, that “a victim impact statement by a member of the family of the deceased which deals only with the effect of the death of the victim upon the family can never be relevant to the sentence” (per Hunt CJ at CL with reference to the now repealed s 23C Criminal Procedure Act 1986).
The Attorney General’s (NSW) Second Reading Speech for the amending Act makes specific reference to Spigelman CJ’s obiter dictum in R v Berg  NSWCCA 300 at . In that case, his Honour expressed the view that R v Previtera may need to be reconsidered in light of the enactment in 2003 of s 3A(g) Crimes (Sentencing Procedure) Act 1999. Section 3A(g) provides that one of the purposes for which a court may impose a sentence on an offender is “to recognise the harm done to the victim of the crime and the community”. The effect of s 3A(g) was raised again in the five judge bench case of R v Tzanis  NSWCCA 274 but not resolved. R v Previtera was subsequently accepted as good law and followed and applied at first instance and on appeal (see for example MAH v R  NSWCCA 226 at –). More recently SBF v R (2009) 198 A Crim R 219 at – and Josefski v R (2010) 217 A Crim R 183 at  confirmed the position in R v Previtera notwithstanding the introduction of s 3A(g).
The amending Act makes clear that, in applying s 3A(g), a court may have regard to a victim impact statement of a “family victim” (defined in s 26). The amending Act omits s 28(4) Crimes (Sentencing Procedure) Act, which was materially similar to s 23C Criminal Procedure Act (referred to above). Section 28(4)(b) provided that a court:
... must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers that it is appropriate to do so.
The amending Act inserts the following new s 28(4):
(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim’s death on the members of the primary victim’s immediate family is an aspect of harm done to the community.
The text in s 28(4) “is an aspect of harm done to the community” is a reference to s 3A(g) Crimes (Sentencing Procedure) Act.
A new s 29(4) provides that the absence of a victim impact statement given by a family victim does not give rise to an inference that an offence had little or no impact on the members.
There is a broader issue of whether the terms of s 3A altered the common law. The High Court said in Muldrock v The Queen (2011) 244 CLR 120 at  that the purposes of sentencing listed in s 3A were “familiar” and that there is “nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen (No 2) at  in applying them”. It was held in Josefski v R (2010) 217 A Crim R 183 at , – that s 3A(g) was not intended to alter the law that existed and, further, when s 3A(g) is applied, it is limited by the common law rule that a court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen.
It will be a question for the courts to determine how Josefski v R and the common law apply to the amendment to s 28(4) and s 3A(g). For example, before a court can take into account s 3A(g) must it make a finding that the harmful impact of the victim’s death on the members of the victim’s immediate family was intended by the offender or reasonably foreseeable? Consideration will also need to be given by the courts as to how s 3A(g) is to apply to strict liability offences such as dangerous driving causing death under s 52A(1) Crimes Act 1900 and offences committed under the Work Health and Safety Act 2011.
Two other provisions should be noted: a new s 28(4A) provides that s 28(4) does not affect the application of the law of evidence in proceedings relating to sentencing; and s 28(6) which provides:
… a court must not consider or take into account a victim impact statement under this section unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor.
Chapters of the Sentencing Bench Book — Purposes of sentencing and Victims and victim impact statements — will be amended in a forthcoming release.