Victims and victim impact statements

Note:

Different statutory provisions apply to victim impact statements (VIS) depending on whether the particular proceedings commenced before or on and from 27 May 2019.

[12-790] Introduction

Chief Justice Spigelman, in his “Address to Parole Authorities Conference 2006” (2006) 8(1) TJR 11, noted the historical importance of a crime being regarded as a breach of the “King’s Peace” and an offence against the whole community. The victim was a witness and played “virtually no role in criminal proceedings”. However, the role of victims in criminal proceedings has significantly evolved.

In Munda v Western Australia (2013) 249 CLR 600, the High Court, at [54], referred to the role of the criminal law as including:

the long-standing obligation of the state to vindicate the dignity of each victim of violence, to express the community’s disapproval of that offending, and to afford such protection as can be afforded by the state to the vulnerable against repetition of violence. Further, one of the historical functions of the criminal law has been to discourage victims and their friends and families from resorting to self-help, and the consequent escalation of violent vendettas between members of the community.

In his Honour’s article, “Civil or criminal — what is the difference?” (2006) 8(1) TJR 1 at 7, former Chief Justice Gleeson observed that:

One of the most notable changes in the administration of criminal justice in recent years has been a growing awareness of a need to take account of the impact of offences on victims; in some jurisdictions provision is made for evidence of victim impact to play a formal role in sentencing proceedings.

[12-800] Common law

The common law requires sentencers to have regard to the effect of the crime on the victim: Porter v R [2008] NSWCCA 145 at [54], Gleeson CJ, Gummow, Hayne and Callinan JJ in Siganto v The Queen (1998) 194 CLR 656 at [29] referred to:

the undoubted proposition that a sentencing judge is entitled to have regard to the harm done to the victim by the commission of the crime. That is the rule at common law.

A sentencer is entitled to consider all the conduct of the offender, such as damage, harm or loss occasioned to the victim, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence: The Queen v De Simoni (1981) 147 CLR 383 at 389. The common law rule is that a court can only have regard to the consequences of an offence that were intended or could reasonably have been foreseen: Josefski v R [2010] NSWCCA 41 at [3]–[4], [38]–[39]. The offender takes the victim as they find them.

[12-810] Sections 3A(g), 21A and the common law

Section 3A(g) Crimes (Sentencing Procedure) Act 1999 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 application of s 3A(g) and s 21A(2)(g) (“the injury, emotional harm, loss or damage caused by the offence was substantial”) in a given case are limited by the common law rule cited in Josefski v R [2010] NSWCCA 41 at [38] (see above, at [12-800]). Neither s 3A nor s 21A was intended to alter the common law principles of sentencing: Muldrock v The Queen (2011) 244 CLR 120 at [15], [18], [20].

As to the use of victim impact statements (VIS) of third parties see Victim impact statements of family victims at [12-838] below.

In addition to s 3A(g), s 21A refers to victims in several contexts: see Section 21A factors at [11-000]ff. The factors listed in s 21A(2) and (3) were not intended to operate as an exhaustive code and the text of the section itself makes it clear that existing statutory and common law factors may still be taken into account in determining a sentence, even though they are not listed: Green v The Queen (2011) 244 CLR 462 at [19].

[12-820] The statutory scheme for victim impact statements

Definitions and applications

Part 3, Div 2 Crimes (Sentencing Procedure) Act 1999 contains provisions regulating the preparation and receipt of victim impact statements (VIS). The Division was substantially amended by the Crimes Legislation Amendment (Victims) Act 2018, which commenced on 27 May 2019 and applies to proceedings commenced on or after that date. The discussion below draws distinctions between the current and former legislative regimes as appropriate. Any reference to a former or repealed provision is to one which was in force as at 26 May 2019.

The requirements for the content of a “victim impact statement” prepared by a primary victim or a family victim are summarised as follows:

Statement by Proceedings commenced
before 27 May 2019
Proceedings commenced
on or after 27 May 2019
Primary victim Particulars of any personal harm suffered by victim as a direct result of offence: former s 26 Particulars of:
(a) 

any personal harm

(b) 

any emotional suffering or distress

(c) 

any harm to relationships with other persons

(d) 

any economic loss or harm that arises from any matter referred to in (a)–(c)

suffered by primary victim or by members of primary victim’s immediate family, as a direct result of offence: ss 26, 28(1)

Family victim Particulars of impact of primary victim’s death on members of their immediate family: former s 26 Particulars of impact of primary victim’s death on family victim and other members of primary victim’s immediate family: ss 26, 28(2)

The statutory scheme applies to the following offences being dealt with on indictment in the Supreme or District Courts or summarily in the District Court (s 27(2)):

(a) 

offences resulting in the death of, or actual physical bodily harm to, any person, or

(b) 

offences involving actual or threatened violence, or

(c) 

offences attracting a higher maximum penalty (if the offence results in the death of, or actual physical bodily harm to, any person) than may be imposed if the offence does not have that result, or

(d) 

prescribed sexual offences (see s 3 Criminal Procedure Act 1986), or

(e) 

(when proceedings commenced on and from 27 May 2019) offences against ss 91H, 91J, 91K, 91L, 91P, 91Q or 91R Crimes Act 1900.

The scheme applies to the following offences when dealt with in the Local Court (s 27(4), former s 27(3)):

(a) 

offences resulting in the death of any person, or

(b) 

an offence where a higher maximum penalty may be imposed if the offence results in the death of any person than if it does not, or

(c) 

indictable offences dealt with summarily in the Local Court pursuant to Table 1 of Sch 1 Criminal Procedure Act resulting in actual physical bodily harm, or involving an act of actual or threatened violence, or

(d) 

prescribed sexual offences referred to in Table 1 of Sch 1 Criminal Procedure Act, or

(e) 

offences against ss 91H, 91J, 91K, 91L, 91P, 91Q or 91R Crimes Act.

The scheme only applies to the following offences when dealt with in the Children’s Court (s 27(4A)):

(a) 

offences against ss 91H, 91J, 91K, 91L, 91P, 91Q or 91R Crimes Act, or

(b) 

an offence that is not one referred to in Table 2 of Sch 1, Criminal Procedure Act and the offence

(i) 

results in the death of, or actual physical bodily harm to, any person, or

(ii) 

involves an act of actual or threatened violence, or

(iii) 

is one for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or

(iv) 

is a prescribed sexual offence.

The scheme also applies to offences dealt with by the Industrial Relations Commission under Pt 2, Div 5 Work Health and Safety Act 2011 or Pt 3, Div 3, Subdiv 3 Rail Safety National Law (NSW) resulting in the death of, or actual physical bodily harm to, any person: s 27(3) (former s 27(2A)).

For proceedings commenced on or after 27 May 2019, victims of the above offences may make a VIS if the offence is dealt with on a Form 1: s 27(6).

Consideration of victim impact statements

Proceedings commenced at any time

It is not mandatory for a victim to prepare a VIS: s 29(4) (former s 29(1)). If the victim/s to whom the statement relates objects, the statement may not be received or considered by a court: s 30C(2) (former s 29(2)).

The absence of a VIS does not give rise to any inference an offence had little or no impact on a victim: s 30E(5) (former s 29(3)). (See also The relevance of the attitude of the victim — vengeance or forgiveness below at [12-850]).

Nor does the absence of a VIS by a family victim give rise to an inference an offence had little or no impact on the primary victim’s immediate family: s 30E(6) (former s 29(4)).

Proceedings commenced from 27 May 2019

When a VIS has been tendered, the court must consider it at any after time after conviction, but before sentence, and may make any comment on the statement considered appropriate: s 30E(1). Section 30E is intended to ensure the same requirements to receive, consider and comment on a VIS apply to statements from both primary victims and family victims: Second Reading Speech, Crimes Legislation Amendment (Victims) Bill 2018, NSW, Legislative Assembly, Debates, 24 October 2018, p 74.

The prosecution may provide a copy of a VIS to an offender’s Australian legal practitioner (s 30G(1) who may copy, disseminate or transmit images of it to the extent reasonably necessary to provide it to another practitioner for legitimate purposes related to the proceedings: s 30G(2).) Offenders cannot retain, copy, disseminate or transmit images of the VIS: s 30G(5).

Proceedings commenced before 27 May 2019

A VIS may be received and considered by the court at any time after conviction, but before an offender is sentenced: former s 28(1). If the primary victim dies as a direct result of the offence the relevant court must receive, acknowledge and appropriately comment on a VIS given by a family victim: former s 28(3).

Former s 28(5) provided that the court may make a VIS available to the prosecutor, offender or to any other person it considers appropriate, subject to certain conditions (including that the offender could not retain a copy).

Form and requirements of victim impact statements

A VIS must be in writing and comply with any other requirements prescribed by the regulations: s 29(1) (former s 30(1)). These include that it be legible (either typed or handwritten), on A4 size paper, and (except with the court’s leave) no longer than 20 pages including annexures: cl 10 Crimes (Sentencing Procedure) Regulation 2017.

A specific form was previously prescribed, however, the note to cl 10 currently states:

Note. Victims Services provides information about victim impact statements, including the suggested form of such a statement, on its website at https://www.victimsservices.justice.nsw.gov.au/Documents/guide_victim-impact-statements.pdf, accessed 22 June 2021.

A VIS may include photographs, drawings and other images: s 29(2) (former s 30(1A)). Other requirements and restrictions relating to content are prescribed in cl 11 Crimes (Sentencing Procedure) Regulation.

If a primary victim is incapable of providing information for, or objecting to, the tender of a VIS, a representative may do so on their behalf: s 30(1) (former s 30(2)).

A victim to whom the statement relates, or their representative, is entitled to read out the whole or any part of the statement to the court: ss 30(2), 30D(1) (former s 30A(1)).

Special provisions related to reading victim impact statements

The following table summarises the provisions related to reading a VIS in court depending on when the proceedings commenced.

  Proceedings commenced
before 27 May 2019
Proceedings commenced
on or after 27 May 2019
Persons entitled to read out VIS in closed court Victims in proceedings for prescribed sexual offences (unless victim consents or court satisfied that special reasons for statement being read in open court): former s 30A(3A) Victims in proceedings for prescribed sexual offences (unless victim consents or court satisfied that special reasons for statement being read in open court): s 30I
Any other victim, with the court’s leave: s 30K(1)
Persons entitled to read out VIS via CCTV Victims entitled to give evidence via CCTV during trial: former ss 30A(3), (4) Victims entitled to give evidence via CCTV during trial: s 30J
Any other victim, with the court’s leave: s 30K(1)
Persons entitled to support person when reading out VIS Victims in proceedings for prescribed sexual offences: former s 30A(3C) Any victim: s 30H
Reading out victim impact statements in closed courts and via CCTV

In proceedings that commenced from 27 May 2019, when determining whether victims of offences that are not prescribed sexual offences should be given leave to read their VIS in closed court or via CCTV, the court must consider:

  • whether it is reasonably practicable to exclude the public

  • whether special reasons in the interests of justice require the statement to be read in open court, and

  • any other relevant matter: s 30K(2).

The principle of open justice does not of itself constitute special reasons for requiring the statement to be read in open court: s 30K(3).

In determining whether to grant leave to read the VIS via CCTV the court must also consider whether the necessary facilities are available, or could reasonably be made available, and any other matter the court considers relevant: s 30K(4).

Entitlement to support persons

In proceedings commencing from 27 May 2019, any victim to whom a VIS relates is entitled to have a support person of their choice present near them, and within their sight, when the VIS is read out: s 30H(1). For proceedings that commenced before then, this only applies to victims of prescribed sexual offences: former s 30A(3C).

A support person includes a parent, guardian, friend, relative or person assisting the victim in a professional capacity who can be present whether the statement is read out in open court, closed court or via CCTV: s 30H(2)–(3) (former s 30A(3C)).

Non-compliance with statutory scheme

In proceedings commenced before 27 May 2019, a VIS may only be received and considered if it complies with the prescribed statutory requirements: former s 30(3).

However, the sentencing judge in McCartney v R [2009] NSWCCA 244 at [18]–[21] was entitled to have regard to an undated document inaccurately entitled “Witness Impact Statement” despite the fact it did not comply with the requirements of the regulations (see now cl 11 Crimes (Sentencing Procedure) Regulation 2017).

In proceedings that commence from 27 May 2019, a court must not consider or take into account a VIS unless it was prepared by the victim to whom it relates and is tendered by the prosecutor: s 30F(1). Further, a court must not consider or take into account any material not specifically authorised to be included by Pt 3, Div 2: s 30F(2). This is said to give courts greater discretion to receive a VIS that does not strictly comply with the Act, while still ensuring fairness to the offender: Second Reading Speech, Crimes Legislation Amendment (Victims) Bill 2018, NSW, Legislative Assembly, Debates, 24 October 2018, p 74.

[12-825] The statutory scheme does not cover the field

When the statutory scheme does not apply to particular offences, statements by victims may still be considered relevant and admissible to the sentencing process: Porter v R [2008] NSWCCA 145 at [53]. In that case, statements by victims of the offences of break, enter and steal and maliciously damage property by fire, were tendered without objection. The court held that the material was admissible whether as a VIS or in another form. Justice Johnson stated at [53] that:

The fact that the statements were entitled “victim impact statements”, and were prepared on forms which were not appropriate technically to the offences, does not mean that the content of the statements was inadmissible. This is especially so as no objection was taken to the material tendered. It is not uncommon for material concerning loss and harm to victims of burglary and arson offences to be included in statements taken by police from victims, or in statements of facts used on sentence.

See also Miller v R [2014] NSWCCA 34 at [155]–[156] where the court said evidence of harm occasioned to a victim by an offence has always been relevant and admissible whether or not given by way of VIS or under former s 28.

[12-830] Evidentiary status and use of victim impact statements at sentence

In proceedings that commenced from 27 May 2019, a court must consider a VIS when tendered and may make any comment on it that the court considers appropriate: s 30E(1). In proceedings commenced before then, a court has a discretion to receive and consider a VIS “if it considers it appropriate to do so”: former s 28.

In relation to the latter, Basten JA in R v Thomas [2007] NSWCCA 269 stated at [36] that the “Act does not provide how an impact statement is to be taken into account” later observing, at [37] that it was “unfortunate” the Act gave “no greater guidance as to the appropriate use of [such statements] especially where untested, for the purposes of determining sentence”.

The weight to be given to the statement is a matter for the court. In R v Thomas, Basten JA stated at [37] “… it will often be appropriate to give weight to a victim impact statement where the conduct of the offender is otherwise established beyond reasonable doubt and the statement is restricted to subsequent effects on the victim”.

The court observed in SBF v R [2009] NSWCCA 231 at [88] that there was no statutory or other restriction on the extent to which a sentencing judge may set out the contents of a VIS.

Cross-examination and a victim impact statement

Former s 30A, which is in the same terms as s 30D, was found not to envisage that the author of a VIS would be cross-examined: R v Wilson [2005] NSWCCA 219 at [27]–[28]. The position might be different if the author is an expert who gives an opinion concerning the harm suffered by the victim, that is, a “qualified person” within the meaning of cl 8(3) Crimes (Sentencing Procedure) Regulation 2010 (rep): Muggleton v R [2015] NSWCCA 62 at [44]; cl 9(4) Crimes (Sentencing Procedure) Regulation 2017, which is in identical terms to cl 9(3)(rep).

Using a victim impact statement to establish aggravating factors

Aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act 1999 must be proved beyond reasonable doubt: R v Tuala [2015] NSWCCA 8 at [77]; Culbert v R [2021] NSWCCA 38 at [113]. Although a degree of caution is necessary before doing so, a VIS may be used to identify and establish that a victim has suffered substantial harm under s 21A(2)(g): see, for example, Culbert v R [2021] NSWCCA 38 at [119]–[120] To be “substantial” the harm must be shown to be greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]; R v Tuala at [64].

The case for accepting a VIS as evidence of substantial harm is strengthened where no objection is taken to the VIS, no question raised as to the weight to be attributed to it and no attempt made to limit its use: R v Tuala at [77] (after reference to several cases); Culbert v R at [116], [118]. A VIS can be used to establish whether the emotional harm suffered by the victim amounts to “substantial emotional harm” within the meaning of s 21A(2)(g) where no submissions were made on sentence that the use of, or evidentiary weight given to, the VIS should be limited: Aguirre v R [2010] NSWCCA 115 at [77]; Muggleton v R [2015] NSWCCA 62 at [43]; Culbert v R at [120].

Given that a VIS is admissible under s 28 it may be unfair to take a lack of objection to its admission into account but this does not prevent the defence putting arguments as to the weight that should be attributed to it: R v Tuala at [78].

There is little difficulty with accepting the contents of a VIS where it confirms other evidence or attests to harm of the kind that could reasonably be expected to arise from the offence in question: R v Tuala at [79]; see for example Bajouri v R [2016] NSWCCA 20 at [33]–[39].

Considerable caution must be exercised before a VIS can be used to establish an aggravating factor where any of the following arise (R v Tuala at [77], [80]–[81]):

1. 

the facts to which the VIS attests are in question

2. 

the victim’s credibility is in question (as was the case in R v Tuala)

3. 

the harm asserted goes well beyond that which may be expected (see eg RP v R [2013] NSWCCA 192), or

4. 

the contents of the statement are the only evidence of harm.

In R v Tuala, the VIS could not be used to prove beyond reasonable doubt that the injury, loss and damage caused by the offences was more substantial than could ordinarily be expected of three offences of discharging a firearm with intent to cause grievous bodily harm under s 33A(1)(a) Crimes Act 1900. Substantial physical injury was proved at trial and taken into account by the judge: R v Tuala at [84]. The judge’s considerable doubt regarding the victim’s credibility could be used to assess the victim’s claim of financial loss and ongoing disability: R v Tuala at [83]. The VIS could not be used to extend the assessment of emotional harm and financial loss beyond that which could ordinarily be expected or that which was proved by other evidence: R v Tuala at [84].

In RO v R [2013] NSWCCA 162, it was held there was no evidence to establish the complainant “suffered significant psychological damage as a result of the [sexual] offences” or an aggravating factor under s 21A(2)(g) that “substantial” harm had been caused. Given her family life and drug abuse, the cause of the complainant’s psychological damage was multifactorial and, in the absence of medical evidence to distinguish the effects of the offences, the finding made by the judge was not open: at [90], [91]. However, the judge was entitled to find that some psychological damage was caused but could not, on the evidence before him, make a qualitative or quantitative assessment of the extent of the harm: at [92].

Although courts are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences (see further below) care must be taken to avoid double counting by adding the aggravating feature of substantial emotional harm in s 21A(2)(g): Stewart v R [2012] NSWCCA 183 at [61].

[12-832] Victim impact statements and harm caused by sexual assault

Harm caused to the victim as a consequence of the crime is not necessarily a matter in aggravation. It may simply be an ingredient of the crime admitted by a guilty plea or a finding of guilt following a trial. Nor is harm to the victim necessarily a matter that the Crown must specifically identify and prove beyond reasonable doubt in every case. The Crown may call the victim if there is a factual dispute but the statutory scheme makes clear that a court can make findings about harm caused by the crime that do not depend upon whether the victim is a willing participant in sentencing proceedings.

Where it is asserted the offences caused injury, loss or damage beyond that ordinarily expected of the offence charged, that must be proved beyond reasonable doubt: R v Youkhana [2004] NSWCCA 412 at [26]; R v Tuala [2015] NSWCCA 8 at [57].

However, the deleterious effect on a child of sexual abuse per se is not a matter the Crown is required to prove beyond reasonable doubt. It can be inferred: Culbert v R at [113]. The position as to harm caused by the sexual abuse of a child was summarised in R v Gavel [2014] NSWCCA 56 at [110]:

This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364[3], 368–372 [26]–[39].

The high maximum penalty and standard non-parole period for some sexual offences such as s 66A(2) Crimes Act 1900 reflects the harm caused by this kind of offending: R v Gavel at [111]. Basten JA in R v Nelson [2016] NSWCCA 130 at [17]–[22] reviewed the case law and said:

There may be a risk in overstating the principle in that not every abused child will be profoundly harmed [The Hon P McClellan and A Doyle, “Legislative facts and section 144 — a contemporary problem?” (2016) 12(4) TJR 421 at 447]. However, the sentencing judge should be prepared to have regard to a victim impact statement which may either confirm or contradict the presumption.

Ultimately the question is one of the weight to be given to the content of the statement. The judge erred in RP v R [2013] NSWCCA 192 at [27] by attributing excessive weight to a VIS. The judge “uncritically accepted” the victim impact statement, finding “the victim has suffered profoundly as a result of what happened to her and has experienced psychological problems throughout her entire life as a result of it” quoted at [26]. While the victim undoubtedly suffered harm the statement went well beyond what might be regarded as the type of harm expected from the circumstances of the offending: RP v R at [29]. Unlike the case of Ollis v R [2011] NSWCCA 155, the defence had submitted that reduced weight should be attributed to the statement. See also EG v R [2015] NSWCCA 21 and RL v R [2015] NSWCCA 106.

The judge in R v Nelson omitted any reference to the VIS which confirmed the psychological research and the common experience of the courts. In the absence of any challenge to the VIS, it should have been accepted and relied upon to support the presumptive position that the offending had caused the victim significant harm: at [22].

In AC v R [2016] NSWCCA 107, the Crown tendered an unsigned and undated document from the victim entitled “victim impact statement”. The victim did not disclose that she had suffered any harm as a result of the sexual assaults but expressed support for the applicant and asked he be returned to her (at [43]). The court held that, as a VIS is defined in (former) s 26 as “a statement containing particulars of … any personal harm suffered by the victim as a direct result of the offence”, the statement in question did not meet the statutory definition. A court is only entitled to receive and consider a VIS under the Act if it is given in compliance with it: at [45]; former s 30(3).

Further, the statement could not be used to provide evidence that the offence was mitigated under s 21A(3)(a), because “the injury, emotional harm, loss or damage caused by the offence was not substantial”: AC v R at [47], [54]. While evidence may be called from a victim as to the matters specified in s 21A(3)(a), it is a matter for the court whether it is accepted and what weight it is attributed: AC v R at [49]. The statement in question came from a child who was the victim of extraordinary sexual abuse which exposed her to risks of physical and psychological injury — some of which materialised: AC v R at [50], [67].

[12-836] Victim impact statements and De Simoni

If a VIS is received and considered by the court it should refer only to the impact on the victim of the offence before the court: R v H [2005] NSWCCA 282 at [56] (for proceedings that commenced on/after 27 May 2019, this may include the impact of Form 1 offences: s 27(6)). Details of the conduct of the offender contained in a VIS which would denote a more serious offence cannot be taken into account, even where no objection is taken to the material, as this would breach the principle contained in The Queen v De Simoni (1981) 147 CLR 383. See also De Simoni principle at [1-500].

Chief Justice Gleeson cautioned in R v Bakewell (unrep, 27/6/1996, NSWCCA) that:

particular care may need to be exercised where a sentencing judge is invited by the Crown to receive a victim impact statement, and take that victim impact statement into account for the purpose of the sentencing process. As the facts of the present case illustrate, the victim impact statement may well be based upon an account of the facts which includes circumstances of aggravation of the kind referred to in De Simoni.

When that occurs, it will often be impossible to separate consideration of the impact upon the victim of the events, as he or she describes them, from consideration of what the impact might have been, absent the aggravating features of the case. Indeed, in many cases, as in the present, any attempt to do that would be hopelessly artificial.

The court cited this comment with approval in FV v R [2006] NSWCCA 237, where a VIS (admitted without objection) was inconsistent with the agreed statement of facts. The sentencing judge did not err in considering the statement, as he repeatedly made it clear that the offence for which the applicant was being sentenced was the one which he had been charged with: FV v R at [42].

In R v H at [57], the Crown’s tender of a brief to support the VIS was “misconceived”. It risked breaching the De Simoni principle. Although the victim impact statement itself was not objected to, the sentencing judge erred in making findings of fact on some of the supporting material provided by the Crown which went outside the agreed facts. The judge is not bound by the facts as the parties have agreed to them (Chow v DPP (NSW) (1992) 28 NSWLR 593 at 606), but according to R v H at [59]:

the requirements of procedural fairness commend that when a judge intends to go outside the agreed statement of facts … he or she should inform the parties of that intention in order to give them an opportunity to deal with it: R v Uzabeaga (2000) 119 A Crim R 452 at 458–459, [34]–[38].

Offences not charged

In PWB v R [2011] NSWCCA 84, RS Hulme J, with whom Harrison J agreed, found at [52]–[54] that the sentencing judge erred in her use of the victim impact statements. The statement referred to alleged offences other than those charged. It was only the impact of the charged offence that the judge was entitled to take into account.

[12-838] Victim impact statements of family victims

The impact of offences on family members of victims can be taken into account under s 30E(3) (formerly s 28(4)) as an aspect of s 3A(g) Crimes (Sentencing Procedure) Act 1999 only on the application of the prosecution and if the court considers it appropriate (for proceedings that commenced before 27 May 2019, see former s 28(4)). A “family victim” is defined in s 26.

The text in s 30E(3) (former s 28(4)) — “an aspect of harm done to the community” — refers to s 3A(g). Harm done to the deceased’s family is an aspect of harm done to the community and it is appropriate to take that harm into account in determining the sentence: Sumpton v R [2016] NSWCCA 162 at [153]–[155] citing R v Halloun [2014] NSWSC 1705 at [46]; R v Do (No 4) [2015] NSWSC 512 at [50]; R v Pluis [2015] NSWSC 320 at [102]–[104]. In R v Halloun, McCallum J observed at [46] with reference to the former s 28(4):

I would construe [this] provision as an important mechanism for ensuring that the evidence of family victims is placed before the court to give texture to the undoubted proposition that every unlawful taking of a human life harms the community in some way. In that way, the provision serves the purposes of sentencing stated in s 3A of the Act, one of which is to recognise the harm done to the victim of the crime and the community.

Section 30E(4) (former s 28(4A)) does not affect the application of the law of evidence in sentence proceedings: s 30E(4).

The absence of a VIS given by a family victim does not give rise to an inference an offence had little or no impact on the members of the primary victim’s immediate family: s 30E(6).

Scope of “impact” on immediate family

Section 28(2) (former s 26) Crimes (Sentencing Procedure) Act defines a VIS to mean, in the case of a family victim, a statement containing particulars of the impact of the primary victim’s death on the family victim and other members of the primary victim’s immediate family.

“Immediate family” is defined broadly in s 26 to include the victim’s spouse or de facto partner, a person to whom the victim is engaged to be married, a parent, grandparent, step-parent, child, grandchild, step-child, sibling, half-sibling or step-sibling. For proceedings that commenced on or after 27 May 2019, the definition extends to step-grandchildren, aunts, uncles, nieces and nephews, persons who are close family or kin according to Indigenous kinship systems, or other persons the prosecutor is satisfied is a member of extended or culturally recognised family, or who the victim considered to be family.

Of the term “impact” (see now s 28(2); former s 26), Johnson J said in R v Turnbull (No 24) [2016] NSWSC 830 at [8] that it should not be construed narrowly:

The impact of the death of a person on the members of that person’s immediate family extends to the influence or effect of the death. It is not confined to the immediate impact. It is not confined to immediate issues of grief, but to the devastation that can be caused to the family of a murder victim. It can extend, in my view, to the thought processes of the victims which, at times, may involve strong feelings with respect to the perpetrator, and what (in their view) may have motivated the perpetrator. To exclude matters of that sort, in my view, would narrowly and artificially confine the very process by which victim impact statements are made.

Scope of the concept of “harm”

There is a broader issue as to whether s 3A(g) alters the common law. The High Court said in Muldrock v The Queen (2011) 244 CLR 120 at [20] 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) [(1988) 164 CLR 465 at 476] in applying them”. It was held in Josefski v R [2010] NSWCCA 41 at [4], [38]–[39] 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.

[12-839] Victim impact statements when offenders are forensic patients

Part 3, Div 2, Subdiv 5 Crimes (Sentencing Procedure) Act 1999, applies to proceedings which commenced from 27 May 2019, and permits a court to receive a VIS when there has been a special verdict of act proven but not criminally responsible or a verdict after a special hearing that a person has committed an offence: s 30L(1). The VIS must be prepared by the victim to whom it relates and tendered by the prosecution: s 30L(5). In such circumstances the court:

  • must acknowledge receipt of the VIS: s 30L(2)

  • may take it into account when considering what conditions to impose on the release of the accused: s 30L(3)

  • must not consider a VIS when determining the limiting term to be imposed: s 30L(4).

A court may seek submissions by the designated carer or principal care provider: s 30M. Submissions may be written or oral: cl 12E Crimes (Sentencing Procedure) Regulation 2017.

A VIS under s 30L(1) or submissions under s 30M may refer to, pursuant to cll 11A(2), 12E Crimes (Sentencing Procedure) Regulation:

  • the risk the offender’s release would pose to the victim

  • conditions that should be imposed on the offender’s release and

  • any other matter the victim/designated carer or principal care provider thinks should be considered in deciding the offender’s conditions of release.

A victim may request that a court not disclose a VIS received under s 30L to the accused or that the statement not be read out to the court: s 30N(1). The court must agree unless it considers it is not in the interests of justice: s 30N(2). The court is not prevented from disclosing a VIS to the accused’s legal representative, if it is in the interests of justice to do so, provided it is not disclosed to any other person: s 30N(3). If the court makes a decision resulting in the accused becoming a forensic patient, it must give a copy of the VIS to the Mental Health Review Tribunal as soon as practicable: s 30N(4); cl 12C.

Clause 12D relates to the consideration and disclosure of a VIS by the Tribunal.

[12-840] Robbery offences

Chief Justice Spigelman considered the impact upon victims of armed robbery in R v Henry (1999) 46 NSWLR 346 at [94]–[99]. See further Robbery at [20-250].

[12-850] The relevance of the attitude of the victim — vengeance or forgiveness

In R v Palu [2002] NSWCCA 381 Howie J, with whom Levine and Hidden JJ agreed, said at [37]:

The attitude of the victim cannot be allowed to interfere with a proper exercise of the sentencing discretion. This is so whether the attitude expressed is one of vengeance or of forgiveness: R v Glen (NSWCCA, unreported, 19 December 1994). Sentencing proceedings are not a private matter between the victim and the offender, not even to the extent that the determination of the appropriate punishment may involve meting out retribution for the wrong suffered by the victim. A serious crime is a wrong committed against the community at large and the community is itself entitled to retribution. In particular, crimes of violence committed in public are an affront to the peace and good order of the community and require deterrent sentences: Henderson (NSWCCA, unreported, 5 November 1997). Matters of general public importance are at the heart of the policies and principles that direct the proper assessment of punishment, the purpose of which is to protect the public, not to mollify the victim.

Justice Johnson said with reference to authority in R v Burton [2008] NSWCCA 128 at [102]: “The victim’s attitude towards sentencing of the Respondent ought to have played no part on sentence”.

Domestic violence

In R v Glen (unrep, 19/12/94, NSWCCA), Simpson J stressed the importance, particularly in domestic violence cases, of general deterrence. Her Honour emphasised that:

It must not be forgotten, that, if it is to be accorded weight by the courts, forgiveness by the victim also operates contrary to the interests of other victims. Until it is recognised that domestic violence will be treated with severe penalties regardless of a later softening of attitude by the victim, no progress is likely to be made in its abolition or reduction. Put simply, the importance of general deterrence in such cases overrides any minor relevance that evidence of forgiveness might have.

For too long the community in general and the agencies of law enforcement in particular, have turned their backs upon the helpless victims of domestic violence. Acceptance of the victim’s word that he/she forgives the offender, casts too great a burden of responsibility upon one individual already in a vulnerable position. Neither the community, the law enforcement agencies, nor the courts can be permitted to abdicate their responsibility in this fashion. Protection of the particular victim in the particular case is a step towards protection of other victims in other cases.

R v Glen was quoted at length and with approval in R v Burton [2008] NSWCCA 128 at [103]. Justice Johnson affirmed the need for “… caution where a victim of a domestic violence offence expresses forgiveness and urges imposition of a lenient sentence for the offender” at [105].

In R v Newman [2004] NSWCCA 102, Howie J, citing R v Bradford (unrep, 6/5/88, NSWCCA), noted at [83]:

that there may be the comparatively rare cases where forgiveness of the accused by the victim may be a relevant fact. Most cases, where this issue has been considered, have been in the context of domestic violence.

In R v Kershaw [2005] NSWCCA 56, Bryson JA said at [24]:

In cases involving domestic violence it happens from time to time that a complainant is shown to have a forgiving and optimistic attitude about violence in the relationship which it is difficult for others to understand or share. The sentencing process is not and of course should not be in the hands of complainants, and the merciful or relenting attitude of a complainant does not reduce the gravity of the offence and does not have much effect on the interest of justice in imposing an appropriate sentence.

In Shaw v R [2008] NSWCCA 58, the court at [27] held that the judge did not err in being cautious about giving any weight to those aspects of the victim’s statutory declaration where she addressed her own responsibility for the deterioration in the relationship, her desire to withdraw her statement to police and her desire for her family to be reunited. This was an approach open to his Honour since it is the experience of sentencing courts that victims of domestic violence may be actively pressured to forgive their assailants or compelled for other reasons to show a preparedness to forgive them.

See also discussion of AC v R [2016] NSWCCA 107 at [12-832].

Attitude of victim’s relatives

In R v Dawes [2004] NSWCCA 363, a case where a mother, suffering a major depressive illness, killed her autistic son, Dunford J noted at [30]:

In his Victim Impact Statement read to the District Court, the respondent’s husband referred to what a good mother she had been to Jason over the years, he asked for leniency for her and said that he could see no gain to the community or personal satisfaction in her being sent to prison. It would appear that his Honour took his attitude into account when sentencing the respondent, and in so far as he did so, he was in error, as the attitude of the victim: R v Palu (2002) 134 A Crim R 174 at [37], or in the case of homicide, the victim’s family: R v Previtera (1997) 94 A Crim R 76, is not relevant to the proper exercise of the sentencing discretion for the reasons explained in those cases. For the same reasons, the apparent change of attitude of the respondent’s husband is not a matter which this court can take into account in considering the appeal: see also R v Newman [2004] NSWCCA 102 at [79] to [86] and cases there cited.

The forgiveness of the offender by the victim’s relatives should not be a factor taken into account in determining the sentence to be imposed: R v Begbie [2001] NSWCCA 206 per Sully J at [57]–[59]. The victim’s attitude cannot over-reach the need for strong denunciation and general deterrence in a case involving serious objective circumstances: per Mason P at [43].

[12-860] Statutory scheme for directions to pay compensation

The Victims Rights and Support Act 2013 provides for compensation by a court for injury and loss for an “aggrieved person”. The object of a compensation direction is to compensate a victim, reflecting a civil liability which is distinct from an offender’s criminal liability: Upadhyaya v R [2017] NSWCCA 162 at [9]. The relevant parts of the Act are extracted below.

Compensation for injury

Part 6, Div 2 sets out a statutory scheme for compensation for injury.

Section 93 Definition

aggrieved person”, in relation to an offence:

(a) 

other than an offence in respect of the death of a person — means a person who has sustained injury through or by reason of:

(i) 

an offence for which the offender has been convicted, or

(ii) 

an offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence, or

(b) 

in respect of the death of a person — means a member of the immediate family of the person.

Section 94 Directions for compensation for injury
(1) 

A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a sum not exceeding $50,000 be paid out of the property of the offender to any:

(a) 

aggrieved person, or

(b) 

aggrieved persons in such proportions as may be specified in the direction,

by way of compensation for any injury sustained through, or by reason of, the offence or any other offence taken into account (under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999) when sentence was passed on the offender for that offence.

(2) 

A direction for compensation may be given by a court on its own initiative or on application made to it by or on behalf of an aggrieved person.

Section 99 Factors to be taken into consideration

In determining whether or not to give a direction for compensation and in determining the sum to be paid under such a direction, the court must have regard to the following:

(a) 

any behaviour (including past criminal activity), condition, attitude or disposition of the aggrieved person which directly or indirectly contributed to the injury or loss sustained by the aggrieved person,

(b) 

any amount which has been paid to the aggrieved person or which the aggrieved person is entitled to be paid by way of damages awarded in civil proceedings in respect of substantially the same facts as those on which the offender was convicted,

(c) 

such other matters as it considers relevant.

Other important sections include:
  • s 95: Restrictions on court’s power to give directions for compensation for injury

  • s 100: Payment of sum directed

  • s 101: Enforcement of directions for compensation.

Compensation for loss

Part 6, Div 3 sets out a statutory scheme for compensation for loss:

  • s 96: Definitions

  • s 97: Directions for compensation for loss

  • s 98: Restrictions on court’s power to give directions for compensation for loss.

Part 6, Div 4 sets out some general matters:

  • s 99: Factors to be taken into consideration

  • s 100: Payment of sum directed

  • s 101: Enforcement of directions for compensation

  • s 102: Effect of directions for compensation on subsequent civil proceedings

  • s 103: Directions for compensation not appealable on certain grounds.

Section 97(1) provides:

(1)

A court that convicts a person of an offence may (on the conviction or at any time afterwards), by notice given to the offender, direct that a specified sum be paid out of the property of the offender to any:

(a) 

aggrieved person, or

(b) 

aggrieved persons in such proportions as may be specified in the direction,

by way of compensation for any loss sustained through, or by reason of, the offence or, if applicable, any further offence that the court has taken into account under Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 in imposing a penalty for an offence for which the offender has been convicted.

[12-863] Directions to pay compensation — further considerations

In Connor v R [2005] NSWCCA 431 at [41]–[42], Studdert J, McClellan CJ at CL and James J agreeing, outlined the following “relevant considerations” in applying the provisions in s 77B (repealed; see s 97):

(i)

the purpose of the statutory scheme is to compensate victims;

(ii)

where co-offenders engaged in a joint enterprise cause damage to a victim’s property, each has a liability as a tort feasor for the whole of the damage suffered. A tort feasor liable in respect of that damage may, however, recover contribution from any other tort feasor liable in respect of the same damage: see Law Reform (Miscellaneous Provisions) Act 1946, s 5(1)(c). See also R v Van Hoang (2002) 135 A Crim R 244 and the judgment of Smart AJ at [38];

(iii)

the asserted impecuniosity of an offender against whom a direction is sought pursuant to s 77B of the Victims Act ought not ordinarily be regarded as a reason for declining to make a direction under the section. An offender’s impecuniosity may be temporary. His financial position may change through rehabilitation and hard work or by good fortune. Asserted impecuniosity may, in any event, be later demonstrated to be false;

(iv)

s 77D(a) and (b) direct attention to important considerations on an application under s 77B.

In the present case, of course, the applicant’s criminal conduct directly contributed to the losses sustained by the parties for whose benefit the sentencing judge made the direction under consideration.

It is proper, of course, for a judge entertaining an application under s 77B to have regard to all the circumstances of the case.

A causal nexus between the loss and the crime must exist before an order can be made: R v Skaf [2001] NSWCCA 199 at [35] cited in R v Wills [2013] NSWDC 1 at [10].

[12-865] A direction to pay compensation not a mitigating factor

A direction to pay compensation under s 97(1) Victims Rights and Support Act 2013 is not a mitigating factor at sentence: Upadhyaya v R [2017] NSWCCA 162 at [9], [68]. Section 97(1) requires a “specified sum be paid out of the property of the offender … by way of compensation for any loss sustained through or by reason of the offence” [emphasis added]: Upadhyaya v R at [65]. The making of such a direction reflects a civil liability, as distinct from an offender’s criminal liability: Upadhyaya v R at [9]. It is clearly in the nature of a claw-back or disgorgement of the “ill-gotten gains” the offender derived from the offence and therefore by definition cannot operate in mitigation: Upadhyaya v R at [65]–[66]. It does not matter that directions under s 97(1) do not fall within the ambit of s 24B(2) Crimes (Sentencing Procedure) Act 1999 — the provision which prohibits a court taking into account as a mitigating factor orders imposed under “confiscation or forfeiture legislation”. It would be a peculiar result if a court were precluded from having regard to orders made under confiscation or forfeiture legislation when imposing sentence, but were required to have regard to orders reflecting an offender’s civil liability: Upadhyaya v R at [14].

Compensation can be appealed

Section 2(1)(f) Criminal Appeal Act 1912 defines “sentence” to include “any direction for compensation made by the court of trial in respect of a person under section 94 (Directions for compensation for injury) or 97 (Directions for compensation for loss) of the Victims Rights and Support Act 2013”.

Section 9 Criminal Appeal Act gives the court power to annul or vary any order for the restitution of property or payment of compensation. The power to do so exists even if the conviction(s) for the offence(s) is not quashed on appeal: s 9(5).

Although s 9(5) Criminal Appeal Act refers to the repealed Victims Compensation Act 1996, the reference extends to the Victims Rights and Support Act as a re-enacted Act: s 68(3)(a) Interpretation Act 1987.

Restrictions on power to make compensation directions

Section 98 Victims Rights and Support Act 2013 provides a court may not give a direction for compensation: (a) for economic loss for which financial support is payable under this Act or compensation is payable under Pt 6, Div 2, or (b) for an amount in excess of the maximum amount that, in its civil jurisdiction, the court is empowered to award in proceedings for the recovery of a debt.

The maximum compensation order that the District Court can direct an offender to pay is $750,000: s 98(b) Victims Rights and Support Act; Upadhyaya v R at [4]. In Upadhyaya v R, the maximum amount was directed. It has been said that fairness and justice require that the maximum apply to the total compensation awarded for all offences where the court is sentencing for a number of offences as part of a course of conduct: R v Wills [2013] NSWDC 1 at [7].

Voluntary compensation as evidence of remorse

The significance of the voluntary payment of compensation was considered by the court in R v Burgess [2005] NSWCCA 52. The appellants were convicted of maliciously damaging property by painting the words “No War” on one of the white-tiled sails of the Opera House. The sentencing judge ordered that the appellants pay compensation of $111,000. They had already paid compensation of $40,000. Adams J said at [49]:

It is, I think, undoubted that compensation that has been paid by an offender is often cogent evidence of remorse and, where it is accompanied by actual hardship in the sense of a real cost, is appropriately reflected in some amelioration of penalty, to a greater or lesser extent. In this case it appears that Dr Saunders has undertaken the greater burden of payment that has not been covered by contributions from supporters, since Mr Burgess has, it appears, little means. Of course, the compensation payments cannot be regarded, in the somewhat unusual circumstances of this case, as evidence of remorse. His Honour said that he took into account, as a favourable subjective feature of both cases, the payment and offer of compensation.

In Nash v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96, the appellate court accepted the sentencing judge’s finding that the offending company’s payments to the victim over and above the statutory rate paid by its workers compensation insurer was evidence of remorse: Nash v Silver City Drilling at [26], [61].

See also Restitution at [10-540], Fraud offences in NSW at [19-930]ff and Remorse demonstrated by making reparation of loss under s 21A(3)(i) in Mitigating factors at [20-000].

[12-867] Victims support levies

Part 7 Victims Rights and Support Act 2013 sets out a statutory scheme for the payment of a victims support levy. Part 7 applies to all offences dealt with by the Local, District and Supreme Courts other than any offences of a class prescribed by the regulations. Part 7 does not apply to the following classes of offences: (a) offences relating to engaging in offensive conduct, (b) offences relating to the use of offensive language, (c) offences relating to travelling on public transport without paying the fare or without a ticket, (d) offences relating to the parking, standing or waiting of a vehicle: s 105(2) Victims Rights and Support Act 2013.

A person who is convicted of an offence to which the Part applies is, by virtue of the conviction, liable to pay to the State a levy: s 106(1). Conviction for the purposes of s 106 does not include an order made under s 10(1)(a) Crimes (Sentencing Procedure) Act in relation to an offence that is not punishable by imprisonment: s 105(4) Victims Rights and Support Act 2013.

The amount of the levy is calculated under s 107 (CPI adjustments of victims support levy). The Minister publishes a notice on the NSW legislation website of the amounts that are to apply for the purposes of s 106 for a particular financial year: s 107(3).

For the 2020–21 financial year, the levy under s 106(1)(a) for a person convicted on indictment or pursuant to a committal for sentence is $188 and, under s 106(1)(b), the levy for a person convicted otherwise is $85: cl 2, Table, Victims Rights and Support (Victims Support Levy) Notice 2020.

A levy is in addition to, and does not form part of, any pecuniary penalty or order for payment of compensation imposed in respect of the same offence: s 106(2). A person who is under the age of 18 years is not liable to pay such a levy if the court directs that the person is exempt from liability to pay the levy: s 106(3). If a compensation levy has been imposed on a person and they appeal, the appeal stays the liability of the person to pay the levy: s 108(1).

[12-869] Corporation as victim

It is not a mitigating factor that the victim is a large corporation. It may be more accurate to say that, in that circumstance, it is not an aggravating factor that the victim was some individual who suffered great personal hardship as a result of the offences: R v Machtas (unrep, 7/8/92, NSWCCA).

[12-870] Federal offences

Section 16A(2)(ea) Crimes Act 1914 (Cth) requires a court to take into account any victim impact statement for any individual who is a victim of the offence and has suffered harm as a result of it. The term “victim” should be construed broadly and may include a person recruited and manipulated by an offender to commit an offence: Kabir v R [2020] NSWCCA 139 at [61]–[62]. In that case, the court concluded it was open to find an unwitting friend used by the offender to facilitate the commission of tax fraud was a victim: at [65].

“Victim impact statement” is defined as an oral or written statement describing the impact of the offence on an individual victim, including details of the harm suffered: s 16AAA(1). “Harm” is broadly defined in s 16(1) to include physical, psychological and emotional suffering, economic and other loss, and damage. The statement must be made by the individual victim or, if the court gives leave, a member of their family (defined in s 16A(4)), or a person appointed by the court: s 16AAA(1)(a). The statement must describe the impact of the offence on the victim, including harm suffered as a result of the offence: s 16AAA(1)(b). Where the statement is written, it must be given to the offender or their representative a reasonable time before the sentencing hearing: s 16AAA(1)(c).

Section 16AB is headed “Matters relating to victim impact statements”. It provides:

  • only one VIS may be made per victim, unless the court grants leave: s 16AB(2)

  • no implication is to be drawn from the absence of a VIS for a victim: s 16AB(3)

  • all or part of a VIS for a victim may be read to the court by or on behalf of the victim: s 16AB(4)

  • a VIS is not to be read to the court, or otherwise taken into account, to the extent that:

    • it expresses an opinion about an appropriate sentence

    • it is offensive, threatening, intimidating or harassing, or

    • admitting it into evidence would otherwise not be in the interests of justice: s 16AB(5)

  • the person convicted of the offence may only test the facts in a victim impact statement:

    • by way of cross-examining the maker of the statement, and

    • if the court gives leave to do so: s 16AB(6)

  • the protections for vulnerable witnesses in Pt IAD will be available for the reading of, or cross-examination about, the VIS: s 16AB(7).

The offender who took her child out of the jurisdiction against a Family Court order was not permitted to cross-examine the child’s father on his VIS in B v R [2015] NSWCCA 103. It was held there was no denial of natural justice where the scope of cross-examination bore the hallmarks of cross-examination for collateral purposes, namely, to establish the father had committed criminal offences against his son: B v R at [206]. Section 16AB(6) did not apply to the proceedings.