Victims and victim impact statements
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, since then there has been a “new focus on the impact of the criminal justice system on those members of the community most affected by a particular crime …”.
The High Court in Munda v Western Australia (2013) 249 CLR 600 at  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.
[12-800] Common law
The common law requires sentencers to have regard to the effect of the crime on the victim: Porter v R  NSWCCA 145 at , Gleeson CJ, Gummow, Hayne and Callinan JJ in Siganto v The Queen (1998) 194 CLR 656 at  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) 217 A Crim R 183 at –, –. The offender takes the victim as he or she finds the victim.
[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) 217 A Crim R 183 at  (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 , , .
As to the use of victim impact statements (VIS) of third parties in cases where a death has occurred see Special Bulletin 7 and 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 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 .
[12-820] The statutory scheme for victim impact statements
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.
Division 2 Pt 3 Crimes (Sentencing Procedure) Act contains provisions regulating the receipt of victim impact statements.
A “victim impact statement” is defined in s 26 Crimes (Sentencing Procedure) Act as:
a statement containing particulars of:
in the case of a primary victim, any personal harm suffered by the victim as a direct result of the offence, or
in the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.
The statutory scheme applies in the Supreme or District Courts only to offences being dealt with on indictment that result in the death of, or actual physical bodily harm to, any person, or that involve actual or threatened violence, or that are prescribed sexual offences under the Criminal Procedure Act 1986 (previously “or an act of sexual assault”): Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2008 (effective 1 January 2009). A “prescribed sexual offence” under the Criminal Procedure Act includes nearly all offences found in Pt 3 Div 10 Crimes Act 1900. The scheme also applies to offences 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: s 27(2).
In the Industrial Relations Commission it applies to offences found in Pt 2 Div 5 Work Health and Safety Act 2011 or Pt 2 Div 1 Rail Safety Act 2008 which result in the death of, or actual physical bodily harm to, any person: s 27(2A).
Similarly, in the Local Court it applies to offences that result in the death of any person or to an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than if it does not: s 27(3)(a) and (b). The scheme extends to indictable offences dealt with summarily in the Local Court that result in actual physical bodily harm, or that involve an act of actual or threatened violence, or that are prescribed sexual offences referred to in Table 1 of Sch 1 Criminal Procedure Act (previously “or an act of sexual assault”): s 27(3)(c) and (d).
A VIS may be received and considered by the court at any time after it convicts, but before it sentences, an offender: s 28(1). If the primary victim dies as a direct result of the offence the relevant court may receive, acknowledge and appropriately comment on a VIS given by a family victim: s 28(3).
Following the enactment of the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 on 1 July 2014, s 28(4) provides that a VIS 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. This amendment and its effect on the law that existed is discussed in Victim impact statements of family victims at [12-838] below.
While the court may make a VIS available to the prosecutor, offender or to any other person it considers appropriate, subject to conditions, the offender is not permitted to retain copies of the statement: s 28(5).
Section 29(1) provides that the giving of a VIS is discretionary. If the victim or any victims to whom the statement relates objects to the statement being given to the court it may not be received or considered by a court: s 29(2). No inference can be drawn that the absence of a VIS signifies that an offence had little or no impact on a victim: s 29(3). (See also The relevance of the attitude of the victim — vengeance or forgiveness below at [12-850]).
Section 29(4) provides that the absence of a VIS given by a family victim (in s 28(4)) does not give rise to an inference that an offence had little or no impact on the members (see below).
A VIS must be in writing and comply with any other requirements prescribed by the regulations: s 30(1). Previously, the Crimes (Sentencing Procedure) Regulation 2000 (rep) contained specific forms, however, cl 10 Crimes (Sentencing Procedure) Regulation 2017 states:
Note. Victims Services provides information about victim impact statements, including the suggested form of a victim impact statement, on its website at http://www.victimsservices.justice.nsw.gov.au.
For the “Victim impact statement information package”, see www.victimsservices.justice.nsw.gov.au/Documents/BK03_VIS.pdf, accessed 30 August 2017.
Non-compliance with the statutory scheme
The sentencing judge in McCartney v R  NSWCCA 244 at – was entitled to have regard to an undated document inaccurately entitled “Witness Impact Statement” despite the fact that it did not comply with cl 10 of the Crimes (Sentencing Procedure) Regulation 2005 (rep), which is in similar terms to cl 11 Crimes (Sentencing Procedure) Regulation 2017.
A VIS may include photographs, drawings and other images: s 30(1A).
If a primary victim is incapable of providing information for, or objecting to, a victim impact statement about the personal harm he or she has suffered, a person having parental responsibility for the victim, a member of that person’s immediate family or any other representative of that person may act on his or her behalf: s 30(2). A VIS may only be received and considered if it complies with the prescribed statutory requirements: s 30(3).
A victim to whom the statement relates, or a person having parental responsibility for the victim, or a member of the immediate family, or other representative, of the victim, is entitled to read out the whole or any part of the statement to the court: s 30A(1). A victim is entitled to read out their VIS via closed-circuit television if he or she was entitled to give evidence that way during the trial: ss 30A(3), (4).
The Justice Legislation Amendment Act 2017 inserted further provisions with regard to reading out victim impact statements in court. For proceedings for prescribed sexual offences, “the part of the proceedings in which the statement is read out is to be held in camera” unless the court is satisfied that special reasons in the interests of justice require the part of the proceedings to be held in open court; or the victim to whom the statement relates consents to the VIS being read out in open court: s 30A(3A)(b). The victim is entitled to choose a person or persons, including a parent, guardian, friend, relative or support person, to be present near them and within their sight when the statement is read out (whether read in open court, in camera or via CCTV): s 30A(3C).
[12-825] The statutory scheme does not cover the field
Where 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  NSWCCA 145 at . In that case, victims of the offences break, enter and steal and maliciously damage property by fire, tendered VIS at the sentencing proceedings without objection. The court held that the material was admissible whether through VIS or in another form. Justice Johnson stated at  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  NSWCCA 34 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 s 28.
[12-830] Evidentiary status and use of victim impact statements at sentence
A court has to exercise extra care when it makes use of a VIS. A court may receive and consider a VIS “if it considers it appropriate to do so”: s 28.
Simpson J discussed several authorities concerning the use of a VIS in R v Tuala  NSWCCA 8 at – (see below). Her Honour prefaced the discussion by stating that “… this Court is yet to reach a consensus on the use to which a victim impact statement may be put. It may be that it is not possible to reach such a consensus, and that each case will depend upon its own facts and circumstances”: R v Tuala at .
Basten JA in R v Thomas  NSWCCA 269 stated at  that the “Act does not provide how an impact statement is to be taken into account” and later, at  that:
It is unfortunate that the Act gives no greater guidance as to the appropriate use of such a statement, especially where untested, for the purposes of determining sentence.
In R v Wilson  NSWCCA 219, Simpson J stated at :
Victim impact statements are a particular species of evidence available to a sentencing judge. Special provision is made for the admissibility of victim impact statements in Division 2 of Part 3 of the Sentencing Procedure Act. By s 28(1) a court may, if it considers it appropriate to do so, receive and consider a victim impact statement at any time after it convicts, but before it sentences, an offender. Notwithstanding that, by subs (4)(a) a court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor.
The weight which the court should give to the statement is a matter for the court. In R v Thomas, above, Basten JA stated at  “… 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) 198 A Crim R 219 at  that there is no statutory or other restriction on the extent to which a sentencing judge may set out the contents of victim impact statements.
Cross-examination and victim impact statements
Section 30A does not envisage that the author of a VIS will be cross-examined: R v Wilson  NSWCCA 219 at –. 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  NSWCCA 62 at . Clause 9(3) Crimes (Sentencing Procedure) Regulation 2017 is in identical terms to cl 8(3)(rep).
In R v Berg  NSWCCA 300 (at –), Wood CJ at CL said a court which has received a VIS should be careful in finding facts adverse to an offender:
I would sound a note of caution in relation to the proper approach to fact-finding concerning the impact of a crime upon other members of the community or, upon the victim. If that is to be achieved by way of victim impact statements, then an injustice may occur in relation to a person standing for sentence, in so far as the maker of the statement would not normally be available for cross-examination.
I add that caution in support of the general proposition that extreme care needs to be taken by those who prosecute and defend these cases, and also by trial Judges in always ensuring that there is a proper evidentiary basis for any findings of fact which go towards aggravating or mitigating a sentence.
Using a VIS to establish aggravating factors
Aggravating factors under s 21A(2) Crimes (Sentencing Procedure) Act 1999 must be proved beyond reasonable doubt: R v Tuala at . The question of whether aggravating factors can be identified and established by reference to a VIS has been raised in several cases, particularly in relation to substantial harm suffered by the victim under s 21A(2)(g) Crimes (Sentencing Procedure) Act. In order 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  NSWCCA 412 at ; R v Tuala at .
The case for the acceptance of a VIS as evidence of substantial harm is considered to be 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  (after reference to several cases). Thus, it has been accepted that 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  NSWCCA 115 at ; Muggleton v R  NSWCCA 62 at .
Given that a VIS is admissible under s 28 it may be unfair to take a lack of objection to its admission into account. However, the admission of the VIS does not prevent the defence putting arguments as to the weight that should be attributed to it: R v Tuala at .
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 .
Considerable caution must be exercised before a VIS can be used to establish an aggravating factor where any of the following difficulties arise (R v Tuala at , –):
the facts to which the VIS attests are in question
the credibility of the victim is in question (as in the present case);
the harm asserted goes well beyond that which may be expected (see eg RP v R (2013) 234 A Crim R 272); or
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 . 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 . 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 .
In RO v R  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: RO v R at , . 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: RO v R at .
Although courts are entitled to proceed on the basis that serious sexual assaults can be expected to have adverse psychological consequences (see further discussion below) it must also be careful to avoid double counting by adding the aggravating feature of substantial emotional harm in s 21A(2)(g): Stewart v R  NSWCCA 183 at .
[12-832] Victim impact statements and harm caused by sexual assault
Justice Sperling said in R v Slack  NSWCCA 128 at –, after referring to the earlier case of R v RKB (unrep, 30/6/1992, NSWCCA), and the inherent evidential limitations of victim impact statements:
The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.
This statement was disapproved in R v Aguirre  NSWCCA 115 at . 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 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. The suggestion in R v Slack that a court is prohibited from using a VIS because it is an unsworn statement and it is not an “objective” assessment of the crime is no longer good law.
It is important to distinguish between the erroneous evidentiary use of a victim impact statement on the one hand and the ability of a court to accept, without evidence, the effect of the crime on the victim on the other hand. The fact sought to be proved using the VIS in R v Slack was that the digital penetration of the child resulted in her experiencing trauma: R v Slack at . The judge made that finding using the VIS in response to a defence submission that the offence was not accompanied by trauma: at . In rejecting the defence submission, the judge said she had regard to the VIS which “describes how the commission of these offences has affected this young girl”: at .
The approach taken by the court in R v Slack — of requiring the Crown to prove beyond reasonable doubt that the offence caused the child trauma — is now thoroughly discredited. The approach in R v Slack is not dissimilar to that taken in R v Muldoon (unrep, 13/12/1990, NSWCCA) where the court held that to prove harm caused by sexual abuse, the Crown must adduce evidence and, if necessary, a psychiatric assessment.
In R v Tuala  NSWCCA 8 at  Simpson J said of R v Muldoon and R v Slack:
These decisions must be seen in their historical context. In the early 1990s judges had not accumulated the experience of dealing with sexual offences against children that, by 2014, they (regrettably) had. It could scarcely, in 2014, be said that, in order to prove that sexual abuse of children causes substantial damage, the Crown ought to produce “the results of studies conducted over a significantly broad base and over a significant period of time”. In no small measure, this is because those very studies have been conducted and are not only in the public arena but also in the public (and judicial) consciousness. Such damage is now assumed: see R v MJB  NSWCCA 195 per Adamson J.
Her Honour added, however, the underlying principle of the statement holds good. Where it is asserted that the offences caused injury, loss or damage beyond that ordinarily expected of the offence charged, that must be proved beyond reasonable doubt: see R v Youkhana  NSWCCA 412 at ; R v Tuala at .
The deleterious effect on a child of sexual abuse is not a matter that the Crown is required to prove beyond reasonable doubt. Spigelman CJ in DBW v R  NSWCCA 236 at  said of the effect of sexual abuse on a person that “the public and the courts have become much more aware of, and knowledgeable about, the effects of child sexual abuse” and that the “observations in Muldoon are of no assistance today”: at . His Honour said earlier that the judge “… would have been entitled to act on the basis that there was a substantial harm”: at . The court in R v King  NSWCCA 117 at  put the position in the following terms: “It should not be assumed, without evidence to the contrary, that there is no significant damage by way of long-term psychological and emotional injury resulting from a sexual assault of a child …”.
The judge erred in RP v R  NSWCCA 192 at  by attributing excessive weight to a VIS. The judge “uncritically accepted” the victim impact statement and 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 . 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 . Unlike the case of Ollis v R  NSWCCA 155 (supra) the defence had submitted that reduced weight should be attributed to the statement. See also EG v R  NSWCCA 21 and RL v R  NSWCCA 106.
The current position as to harm caused by the sexual abuse of a child was summarised in R v Gavel  NSWCCA 56 at :
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  NSWCCA 5 at . Sexual abuse of children will inevitably give rise to psychological damage: SW v R  NSWCCA 255 at . In R v G  UKHL 37;  1 AC 92, Baroness Hale of Richmond (at ) 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  VSCA 157; 32 VR 361 at 364, 368–372 –.
The high maximum penalty and standard non-parole period for some sexual offences such as s 66A(2) Crimes Act reflects the harm that is caused by this kind of offending: R v Gavel at .
Harm is therefore assumed: R v Tuala at .
Basten JA in R v Nelson  NSWCCA 130 at – 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.
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 VIS, it should have been accepted and relied upon to support the presumptive position that the offending had caused the victim significant harm: R v Nelson at .
In AC v R  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 she expressed support for the applicant and asked that he be returned to her (see AC v R at ). The court held that as a VIS is defined in 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: AC v R at ; 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 , . 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 . 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 , .
[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  NSWCCA 282 at . Details of the conduct of the offender contained in a VIS which would denote a more serious offence cannot be taken into account by the sentencing judge, 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  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 .
In R v H at , 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 :
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, –.
Offences not charged
In PWB v R  NSWCCA 84, RS Hulme J, with whom Harrison J agreed, found at – 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 law was altered by the Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014. (See also Special Bulletin 7 for an explanation of that Act.) The amending Act 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 on 1 July 2014.
In order to understand the amendment of this area of sentencing, it is instructive to repeat what the common law was on the subject.
The common law
In R v MacDonald (unrep, 12/12/95, NSWCCA), the court (Gleeson CJ, Kirby P and Hunt CJ at CL) said:
Sometimes … the personal qualities of a victim of unlawful homicide will serve to focus attention upon this important aspect of sentencing law. This is not because the punishment for homicide varies according to the personal qualities and characteristics of the victim. Rather, the qualities of a particular victim may serve as a useful reminder of the quality of human life itself, and of all that is involved in taking it away.
In R v Previtera (1997) 94 A Crim R 76 (applied in R v Bollen (1998) 99 A Crim R 510 at 529), it was said a VIS by relatives of the victim in a homicide case “can never be relevant to the sentence” (per Hunt CJ at CL). At common law, the notion that it is more serious or more culpable to kill someone who has or is surrounded by a loving and grieving family than someone who is alone, was rejected: see R v Dang  NSWCCA 42 at –. Spigelman CJ, in R v Berg  NSWCCA 300 at , expressed the view that R v Previtera may need to be reconsidered in light of the enactment 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” [Emphasis added.]. 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 accepted as good law and followed and applied at first instance and on appeal (see for example MAH v R  NSWCCA 226 at –). SBF v R (2009) 198 A Crim R 219 at – and Josefski v R (2010) 217 A Crim R 183 at  confirmed the common law position in R v Previtera notwithstanding the introduction of s 3A(g).
The new provisions
The Crimes (Sentencing Procedure) Amendment (Family Member Victim Impact Statement) Act 2014 makes clear that, in applying s 3A(g) Crimes (Sentencing Procedure) Act, a court may have regard to a VIS of a “family victim” (defined in s 26). The amending Act omitted s 28(4) Crimes (Sentencing Procedure) Act. In particular, former s 28(4)(b) provided that a court:
(b) 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 inserted the following new s 28(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) — “an aspect of harm done to the community” — is a reference 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  NSWCCA 162 at – citing R v Halloun  NSWSC 1705 at ; R v Do (No 4)  NSWSC 512 at ; R v Pluis  NSWSC 320 at –. In R v Halloun, McCallum J observed at , in reference to s 28(4), that:
I would construe the new 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.
A new s 29(4) provides that the absence of a VIS given by a family victim does not give rise to an inference that an offence had little or no impact on the members of the primary victim’s immediate family.
Scope of “impact” under s 26
Section 26 Crimes (Sentencing Procedure) Act 1999 defines a victim impact statement to mean, in the case of a family victim, the impact of the primary victim’s death on the members of the primary victim’s immediate family.
Johnson J said in relation to the term “impact” in R v Turnbull (No 24)  NSWSC 830 at –:
 The making of victim impact statements forms a very important part of sentencing, in particular with respect to homicide cases. The law in this State has developed considerably in recent times, so that appropriate recognition should be given to the impact upon the surviving relatives of murder victims of crimes which have deprived them of the primary victim.
 The term “impact” in s 26, in the definition of “victim impact statement”, 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” under s 28(4)
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  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) 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 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 a new s 28(6) 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”.
[12-840] Robbery offences
Chief Justice Spigelman considered the impact upon victims of armed robbery in R v Henry (1999) 46 NSWLR 346 at –. A discussion of that topic appears in the Particular Offences section under Robbery at [20-250].
[12-850] The relevance of the attitude of the victim — vengeance or forgiveness
In R v Palu (2002) 134 A Crim R 174 Howie J, with whom Levine and Hidden JJ agreed, said at :
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  NSWCCA 128 at : “The victim’s attitude towards sentencing of the Respondent ought to have played no part on sentence”.
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  NSWCCA 128 at . 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 .
In R v Dunn (2004) 144 A Crim R 180, Adams J (with whom Ipp JA and Sully J agreed) explained at :
Crimes involving domestic violence have two important characteristics which differentiate them from many other crimes of violence: firstly, the offender usually believes that, in a real sense, what they do is justified, even that they are the true victim; and, secondly, the continued estrangement requires continued threat. These elements also usually mean that the victim never feels truly safe. Unlike the casual robbery, where the victim is often simply in the wrong place at the wrong time, the victim of a domestic violence offence is personally targeted. To my mind these considerations emphasise not only the need for general and personal deterrence but also of denunciation in cases of this kind.
In R v Newman (2004) 145 A Crim R 361;  NSWCCA 102, Howie J, citing R v Bradford (unrep, 6/5/88, NSWCCA), noted at :
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  NSWCCA 56, Bryson JA said at :
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  NSWCCA 58, the court at  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  NSWCCA 107 at [12-832].
Attitude of victim’s relatives
In R v Dawes  NSWCCA 363, a case where a mother, suffering a major depressive illness, killed her autistic son, Dunford J noted at :
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 , 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  NSWCCA 102 at  to  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) 124 A Crim R 300 per Sully J at –. 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 .
[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  NSWCCA 162 at . 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:
other than an offence in respect of the death of a person — means a person who has sustained injury through or by reason of:
an offence for which the offender has been convicted, or
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
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
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:
aggrieved person, or
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.
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:
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,
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,
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:
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:
aggrieved person, or
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) 158 A Crim R 389 at –, Studdert J, McClellan CJ at CL and James J agreeing, outlined the following “relevant considerations” in applying the provisions in s 77B (repealed, now s 97):
the purpose of the statutory scheme is to compensate victims;
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 ;
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;
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  NSWCCA 199 at  cited in R v Wills  NSWDC 1 at .
[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  NSWCCA 162 at , . 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 . The making of such a direction reflects a civil liability, as distinct from an offender’s criminal liability: Upadhyaya v R at . 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 –. 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 .
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: Interpretation Act 1987, s 68(3)(a).
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 $750,000: s 98(b) Victims Rights and Support Act; Upadhyaya v R at . In the latter case, the maximum amount was directed. It has been said that this is the maximum where the court is sentencing for a number of offences as part of a course of conduct: R v Wills at .
Voluntary compensation as evidence of remorse
The significance of the voluntary payment of compensation was considered by the court in R v Burgess (2005) 152 A Crim R 100. 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 :
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  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 , .
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 2018-19 financial year, the levy under s 106(1)(a) for a person convicted on indictment or committed for sentence is $181 and, under s 106(1)(b), the levy for a person convicted otherwise is $81: cl 2, Table, Victims Rights and Support (Victims Support Levy) Notice 2013.
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 (1992) 62 A Crim R 179.
[12-870] Federal offences
The Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection and Other Measures) Act 2013 (Cth) amended the Crimes Act 1914 (Cth) to permit the use of victim impact statements when sentencing federal offenders for offences committed on or after 29 June 2013 (see Sch 2, Pt 3 of the amending Act). Before this date, a court sentencing a federal offender picked up the State or Territory provisions for victim impact statements and took into account:
the personal circumstances of any victim of the offence: s 16A(2)(d) Crimes Act 1914 (Cth)
any injury, loss or damage resulting from the offence: s 16A(2)(e).
The amending Act added a new s 16A(2)(ea) which provides:
if an individual who is a victim of the offence has suffered harm as a result of the offence — any victim impact statement for the victim.
“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, a member of their family (as defined by 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 his or her representative at a reasonable time before the 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 1AD will be available for the reading of, or cross-examination about, the VIS: s 16AB(7).
The offender in B v R  NSWCCA 103 was not permitted to cross-examine the father of a child. The latter had been taken from the jurisdiction against a court order. It was held that 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 that the father had committed criminal offences against his son: B v R at . It is to be noted that s 16AB(6) referred to above did not apply to the proceedings.