Sentencing Bench Book — Sentencing procedures generally

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:

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:

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:

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.

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].

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:

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.

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.

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]:

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:

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].

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:

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 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):

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).

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:

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:

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.

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].

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

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”.

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.

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 of the Victims Rights and Support Act 2013):

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].

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].

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).

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).

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 16AAAA(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 16AAAA(1)(a). The statement must describe the impact of the offence on the victim, including harm suffered as a result of the offence: s 16AAAA(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 16AAAA(1)(c).

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

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.