James Cook University Law Review
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DR TYRONE KIRCHENGAST∗[?]
Since 1996 various powers have been introduced into New South Wales law to allow for greater participation by victims of crime in the criminal justice system. The most significant of these developments concerns victim participation in sentencing, namely enabling victims to submit a victim impact statement upon sentencing. The development and reform of the sentencing phase of criminal trials in New South Wales in favour of increased victim participation has been controversial, with the New South Wales Court of Criminal Appeal reading down various provisions which seek to accord the victim of crime some agency in sentencing. This has tended toward a position that despite their tenure, victim impact evidence has little influence on the final sentence to be handed down. This article discusses the nature and consequences of these limitations, and possible avenues for reform.
The 1996 reforms to New South Wales law providing for the greater participation of crime victims in the New South Wales justice system were threefold.[1] First, the Victim Rights Act 1996 (NSW) introduced a Charter of Victim Rights, obliging government agencies to treat victims with dignity and compassion. From the Charter’s inception, the Victims of Crime Bureau has been responsible for its promotion and implementation. The Victim Rights Act 1996 (NSW) also created a Victims Advisory Board, which inter alia seeks to consult victims of crime, community victim support groups and Government agencies on issues and policies concerning victims of crime, reporting such issues to the relevant Minister. The second wave of reforms came with the Victims Compensation Act 1996 (NSW). Later to be retitled the Victims Support and Rehabilitation Act 1996 (NSW), this Act sought the repeal of the Victims Compensation Act 1987 (NSW), re-enacting this legislation to prescribe personal injuries for which compensation is payable, and the standard amount to be paid for each injury.[2] This Act sought to streamline the procedures for the recovery of compensation from persons found guilty of an offence giving rise to an award of compensation, and to provide for the initial determination of claims by Compensation Assessors in the Victims Compensation Tribunal. The Act also allowed for a full appeal to the Tribunal by any person aggrieved by a decision of a Compensation Assessor. Originally introduced in the Victim Rights Act 1996 (NSW), the third development provided for the tenure of a victim impact statement after conviction but before sentencing in the District and Supreme Courts of New South Wales. The Victim Rights Act 1996 (NSW) inserted the current provisions concerning victim impact statements into the Criminal Procedure Act 1986 (NSW) Pt 6A (ss 23A-23E).[3]
Later amendments allowed for the tenure of victim impact evidence in New South Wales Local Courts and the New South Wales Industrial Relations Commission (‘NSWIRC’). The Occupational Health and Safety Act 2000 (NSW) amended s 28 of the Crimes (Sentencing Procedure) Act 1999 (NSW) to provide for the tenure of victim impact statements in the NSWIRC. The tenure of victim impact statements in the New South Wales Local Courts and Children’s Court was provided by the Crimes Legislation Further Amendment Act 1997 (NSW).[4] This Act provided that victim impact statements were only admissible in Local Courts or the Children’s Court where the offence resulted in the death of any person or where a higher maximum penalty could be imposed where the offence did not result in death. Reference to the Children’s Court was omitted when the sections were transferred to the Crimes (Sentencing Procedure) Act 1999 (NSW). The Local Court’s jurisdiction to receive victim impact statements has since been expanded to include all offences in Table 1 of Schedule 1 of the Criminal Procedure Act 1986 (NSW). These are indictable offences that can be disposed of summarily so long as the offence occasions actual physical bodily harm to any person or involves an act of actual or threatened physical violence or an act of sexual assault.[6]
In New South Wales, a victim impact statement may be tendered by a primary victim, or where the primary victim dies as a result of the offence, a family victim of the deceased.[7] In relation to an offence, a primary victim is defined as:
(a) a person against whom the offence was committed, or; (b) a person who was a witness to the act of actual or threatened violence, the death or the infliction of the physical bodily harm concerned, being a person who has suffered personal harm as a direct result of the offence.
A family victim is defined as:
in relation to an offence as a direct result of which a primary victim has died, means a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, and includes such a person whether or not the person has suffered personal harm as a result of the offence.
A victim impact statement is a written statement compiled by the victim of an offence, or their representative, after conviction but before sentencing. The prosecution usually tenders the impact statement during the sentencing hearing. Certain jurisdictions, including New South Wales, allow the impact statement to be read aloud to the court.[8]
The consequence of this third reform to victim agency has been the most controversial, with various decisions of the New South Wales Court of Criminal Appeal (‘NSWCCA’) reading down the provisions that give primary or family victims the ability to provide a report describing the trauma of the offence upon them. The initial case against a liberal reading of the enabling legislation was provided by R v Previtera[9]. This decision ruled that family statements could not be factored into sentencing where the primary victim dies as a result of the offence.[10] This constraint against family statements, according to Hunt CJ at CL, was necessary as death should be viewed as the ultimate harm, unable to be overcome or added to by statements attesting to the victim’s value as felt by others.[11] In his Honour’s view, the harm occasioned to the deceased or primary victim should be assessed in light of the immediate circumstances of the offence, from which family members are generally excluded. R v Slack[12] maintained this line of restrictive interpretation by holding that substantial weight cannot be given to an account of harm in a victim impact statement except where that account is established pursuant to the persuasive burden of criminal law, beyond reasonable doubt.[13] This article focuses on the third of the 1996 reforms, and the ways in which these have been interpreted by the NSWCCA in the context of conventional sentencing approaches. Specifically, the NSWCCA has tended towards a position limiting the victim’s role against the need to phrase a sentence objectively, proportionate to the seriousness of the offence and the offender’s culpability. These developments will be considered in the context of the benefits of victim participation in sentencing, specifically the recognised therapeutic outcomes that may flow from greater victim participation in the criminal trial process.
Victim impact statements provide a vehicle through which a sentencing court may be informed of the consequences of a criminal offence by victims of crime, or their immediate family. Such consequences may include the harm occasioned to a victim, including the degree of injury caused or risked by the offensive conduct.[14] Where a statement is prepared by a family member of a deceased or primary victim, it is likely to include the impact of the victim’s death upon them, including any resultant shock or loss, in addition to an account of the grief and trauma sustained because of the offence. However, the consideration of a victim impact statement towards an offender’s sentence is discretionary on the part of a sentencing court.
In New South Wales, a court, should it consider it appropriate, may receive and consider a victim impact statement after convicting, but before sentencing, an offender.[15] A victim impact statement may also accompany an application under Schedule 1 of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the determination of a fixed term of imprisonment and non-parole period where an offender has previously been sentenced to life imprisonment.[16] If the primary victim dies as a result of an offence, a court must receive and acknowledge a victim impact statement provided by a family member. Once tendered, the sentencing court may make any comment on the statement that it considers appropriate.[17] This means that the tenure of a victim impact statements is discretionary where provided by the primary victim, but mandatory where provided by a family victim. However, despite sections 28(1-3) of the Crimes (Sentencing Procedure) Act 1999 (NSW), a sentencing court must not allow an impact statement to influence sentence save it being tendered by the victim to whom the statement refers, or where tendered by or on the part of the prosecutor.[18] A court must not consider a victim impact statement given by a family victim in connection with the determination of the punishment for the offence unless it considers it appropriate to do so.[19] A court may also provide copies of the victim impact statement to the prosecutor, the offender or any other party. Where copies of a victim impact statement are disseminated to other parties, the court may do so on such conditions as it considers appropriate.[20]
The limitations of Pt 3, Div 2 of the Crimes (Sentencing Procedure) Act 1999 (NSW) lie in two key directions. The first concerns use of family statements in homicide cases. If the primary victim has died as a direct result of the offence, a court must receive and acknowledge a victim impact statement provided by a family victim, and may make any comment on it that it considers appropriate.[21] Thus, in cases where a family member of a deceased victim tenders a victim impact statement, the court must receive it, though a significant line of authority now binds New South Wales sentencing courts in their limited consideration of such material. It is here where R v Previtera seeks to limit the applicability of victim impact evidence in New South Wales homicide cases, restricting the ambit of s 28 to non-fatal offences against the person. Although s 28(4)(b) provides for the discretionary use of family impact evidence as a source informing offence seriousness and offender culpability, Previtera’s effect is to confine that discretion to non-fatal offences. Previtera is authority for the proposition that family statements cannot impact an offender’s sentence out of the need to construe their sentence objectively. This is due to the fact that, in the eyes of the NSWCCA, the consequences of the death of the victim are already known to the court, informed through the immediate circumstances of death, and because the deceased’s life cannot be deemed to be more valuable because family members tender a statement indicating the trauma of their loss. Previtera thus stands as authority for the proposition that in death we are all equal.[22]
The second limitation on the provisions allowing for victim impact evidence flow from the recent case of R v Slack. R v Slack provides that the weight accorded to the account of harm stated by the victim must be read in accordance with its lack of reliability under the law of evidence. The risk to victims is that significant aspects of an impact statement would be of lesser salience to the sentencing court. At best such information may be ‘unlikely to be able to contribute significantly to the finding of facts adverse to an accused’.[23] The problem for victims will be that a court may be unwilling to draw information from an impact statement, one of the few opportunities for victims to contribute to the sentencing of their offender, unless the information presented has been adduced previously within the rules of evidence.[24] Combined, these developments restrict victim agency in the criminal justice system; a result that is arguably inconsistent with the 1996 reforms that sought to provide for the greater participation of victims in the New South Wales justice system.
R v Previtera ruled that where the primary victim dies as a result of the offence, any victim impact statement tendered by a family member ought not be taken into account in the sentence imposed. Effectively, a court’s discretion should be limited to exclude the consideration of such evidence. In this matter, Hunt CJ at CL ruled that where the offender kills the victim, the harm occasioned to the victim is already known to the court. As the death of the victim would have been a matter of concern at trial, having been adduced as evidence, the consequences or impact of the death on family members, or their attitudes towards the circumstances of death, become immaterial. This is due to the fact that, despite family members indicating the contrary, no single life is more valuable than another, according to principles of fairness and equality at law. The exclusion of victim impact evidence is thus legitimated out of the need to limit the constitution of harm to the fact that death has occurred.
The facts of R v Previtera are as follows. Salvatore Previtera pleaded guilty to the murder of Eileen Cantlay on 22 March 1995, the day his trial was listed for hearing. For some months, Previtera had lived with his mother, next door to the victim. Ms Cantlay was 81 years of age at time she was killed. Allegedly, Previtera saw the victim arrive home, watching her through her kitchen window. He walked over to her house seeking to rob her. Ms Cantlay permitted Previtera to enter her home because he was her neighbour’s son. He told the police, that at that stage, he felt like grabbing the victim and robbing her, but that ‘it just didn’t seem right, something didn’t feel right’. He then left, returning to Ms Cantlay’s home later that night. As she escorted Previtera from her home a second time, he grabbed her from behind, laid her down on the floor and tied her hands and legs together with some cord. He asked Ms Cantlay whether she had any money, taking 50 to 60 dollars from her handbag. Previtera then began stroking her hip or thigh. At that stage he became erect, stood up and masturbated to ejaculation. The ejaculant landed on the upper part of the victim’s body. Previtera then strangled Ms Cantlay with the cord from a nearby table lamp, together with the cord used to bind her hands and legs. After strangling Ms Cantlay, Previtera looked around her house searching for more money. At Previtera’s sentencing hearing, the Crown tendered a victim impact statement by Ms Cantlay’s son. The statement described his, and his sister’s, reactions to their mother’s murder. Section 23C of the Criminal Procedure Act 1986 (NSW) (as it then was) provided that the court was required to receive and acknowledge the statement, but that it should not consider the statement in the determination of the punishment to be imposed ‘unless the court considers that it is appropriate to do so’.
Following Hunt CJ at CL’s reasoning in Previtera, a homicide where victim impact statements are specifically considered may lead the sentencing court to hold that the loss of the victim is more valuable than another homicide where no such statements are tendered. This decision has been subsequently upheld in the NSWCCA in R v Bollen.[25] According to Previtera, the sentencing court’s adherence to the content of such statements should be limited out of the requirement that there be an objective assessment as to the seriousness of an offence, specifically in terms of the harm occasioned to both victim and community.[26]Out of the requirement that a court construe a sentence objectively, and in so far as it must examine the impact of the victim’s death from the perspective of the victim and community, the sentencing court must take a restricted approach to the use of family statements, understanding such evidence as purely subjective and potentially damaging to the objective assessment required. The court’s role therefore is to apply the sentencing principle that punishment be objectively proportionate to the seriousness of the offence and culpability of the offender. For a sentencing court to maintain Jacob’s J dicta that ‘a man must be given the sentence appropriate to his crime and no more’, the court must utilise sources of evidence that put the death occasioned on an even plane, untainted by claims of sentiment from family members.[27]
However, the recent decisions of R v Berg[28] and R v Tzanis[29] question the need to revisit Previtera on the grounds that the views of family victims may be admissible in homicide cases where such statements inform and allow appropriate weight to be given to the harm done to the community.[30] This is consistent with s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW), introduced in 2002, which prescribes that a court may impose a sentence on an offender, inter alia, to recognise the harm done to the victim of the crime and the community. Thus, the use and application of family victim impact statements in New South Wales sentencing courts, where the victim dies as a result of the offence, requires re-consideration.
Although current authority prohibits the consideration of victim impact statements in homicide cases, various criticisms of Previtera’s consequences have emerged since the decision was handed down in 1997. Such criticisms include those alluded to by Hunt CJ at CL in Previtera, that the exclusion of victim impact statements may be contrary to parliament’s intent which expressly permits the tendering of such statements.[31] Others have argued that such statements play a broader role in judicial proceedings by providing family victims the opportunity to put their emotional suffering and loss on record and by allowing proper public respect to be paid to those feelings.[32] Arguments critical of this agenda have been raised indicating that victims have become disillusioned by the lack of consideration given to their impact statement.[33] Alternatively, impact statements may allow the introduction of material hitherto unavailable to sentencing courts, particularly since the actual harm suffered by the victim is largely subordinated for the concept of legal harm adopted by lawyers and judges.[34]
In Berg, Spigelman CJ refers to the possibility that Previtera may need to be revisited on the basis that s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) provides for an assessment of harm in sentencing from the context of the victim and the community. This is reflected in Tzanis, a case involving two charges, one of dangerous driving occasioning death, and another of dangerous driving occasioning grievous bodily harm. Referring to the harm occasioned as a result of the offence as indicated by the sentencing judge, Spigelman CJ remarks:
The Crown drew attention to the reference his Honour made later in the course of his remarks on sentence when he introduced the reference to victim impact statements by the sentence:
‘I have referred to the harm resulting from these offences.’
That this sentence may be a reference back to the part of his Honour’s remarks directed to para 2(g) is suggested by the use of the word “harm” which appears only in the context of “emotional harm”. If it is exclusively a reference of this character then this case will give rise to a significant issue as to the approach this Court has hitherto taken to the use of victim impact statements…[35]
The issue in Tzanis was whether the sentencing judge considered the harm occasioned to the deceased’s family through an impact statement, prohibited under Previtera. The court sought to determine if the sentencing judge took into consideration, in the context of the reading out of the impact statement to the sentencing court, the harm occasioned as a result of the offences, specifically where death was occasioned. As indicated by Spigelman CJ, this was impermissible under current authority:
The reference by his Honour to para (2)(g) cannot be understood exclusively, and perhaps not at all, to be a reference to the harm caused to the family of the deceased whose victim impact statements were read to the Court. The reason for that is that his Honour explicitly used the plural of “offences” in the crucial passage which, to repeat, is:
‘Para 2(g), the harm caused by the offences was substantial.’
This clearly encompasses a reference to the second count, being the count of inflicting grievous bodily harm. There was no victim impact statement with respect to this count. Nevertheless his Honour said that he took into account para (2)(g) as an aggravating factor for both offences. This indicates that, with respect to the dangerous driving causing death offence, he took into account the fact of death. This was impermissible.[36]
Apart from the fact that Tzanis stands as authority for the application of the Previtera rule, the case provides a strong indication that the NSWCCA is seeking an opportunity to reconsider Previtera and Bollen on the basis of whether the Previtera rule unduly restricts the ambit of family impact evidence as a valuable source of evidence informing a sentencing court as to the actual harm resulting from the offence. From Berg, it appears that the NSWCCA is considering the relevance of family impact statements in order to give full weight to s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), that a sentencing court ought to ‘recognise the harm done to the victim of the crime and the community’. Spigelman CJ refers to the possibility of such an appeal, albeit determining in the case of Tzanis that the opportunity to review the authorities of Previtera and Bollen did not arise:
There are differences amongst the States in this regard which do not seem to be explicable by differences in the respective statutory regimes (cf R v Birmingham (No 2) (1997) 96 A Crim R 545 at 549; Mitchell v R (1998) 104 A Crim R 523 especially at 531–533; and see also the apparent change in the attitude of the Victorian Court of Criminal Appeal between R v Penn (1994) 19 MVR 367 and R v Miller [1995] VicRp 60; [1995] 2 VR 348 esp at 354).
It appears that no suitable vehicle has emerged for the purposes of the grant of special leave by the High Court to resolve these differences. This Court has sat a Bench of five in order to reconsider Previtera and Bollen if necessary. Nevertheless it is not appropriate to do so unless the issue squarely rises.
In my opinion, it does not arise.
In Bollen, Hunt CJ at CL suggests that the content of family victim impact statements could inform the loss of the victim from the community’s perspective, to objectively assess the harm occasioned by the offence. The NSWCCA in Bollen allowed the appeal on sentence on the basis that the sentencing judge took explicit account of the victim impact statements in forming his opinion as to the harm to the victim. Hunt CJ at CL states:
When referring to the Victim Impact Statements, the judge said that the consequence of the crime committed by the Appellant was that the community had lost one of its number and the Groves family had lost a loving member - one who was a husband, father, son and brother. I see nothing wrong with that statement. It does no more than recognise the value which the community places upon human life. However, the judge then said that he had ‘borne in mind’ the seven statements filed, the material which they contained about the deceased and the reaction of the respective authors of those statements to his death.[37]
A fundamental part of the sentencing process involves the weighing up of the harm occasioned to the victim against the seriousness of the offence. The doctrine of proportionality emphasises that the final sentence imposed must be commensurate with the gravity of the offence, in all respects, as determined by contemporary community standards. This ensures that offenders receive the appropriate level of punishment for the correction of their aberrant conduct, restraining arbitrary or capricious punishment, to afford the offender some chance at rehabilitation.
Ostensibly, the issue with family victim impact statements flows from the subjective nature of their substantive basis. The general approach taken to such statements is that sentences informed by the personal perspective of family members are likely to be excessive; beyond what is required to realise the aims of sentencing. Due to personal loss and subjectification, it is accepted that a victim will be more likely to adopt harsher views towards the offender, compared to other members of the community, detached from the offence. This tendency may be particularly demonstrated where a victim seeks punishment of an offender out of a desire for retribution or vengeance. Alternatively, certain victims may be unduly forgiving of their offender, particularly where the offender may be known to the victim, or where they are a family member. In either case, the issue is that a family impact statement may be so out of step with an objective assessment of the seriousness of the offence that it defeats sentencing principles that call for the weighing up of the competing aims of sentencing in an objective, proportionate way. As Veen [No. 2] makes clear, the principle of proportionality is so fundamental that it precludes a lengthier sentence in order to protect of the community from feared recidivism alone.[38] Thus, even the need to protect the community against dangerous offenders must be proportional to the other objects of sentencing, including prospects of rehabilitation. The final sentence imposed must be based on the entire circumstances of the offence and the offender.
The doctrine of proportionality stresses the requirement that a sentencing judge must objectively assess the seriousness of the offence and harm occasioned, according significant weight to the harm occasioned from the community’s perspective. Objective proportionality, therefore, is not a limited term. Fox outlines other issues that may increase or decrease the final sentence.[39] Fox indicates that these factors, some of which flow from the recognition of the victim’s status as significant to the criminal offence, be assessed in the following terms:
Harm is obviously an objective circumstance, but the problem is to weigh the harmfulness of criminal behaviour that invades different interests, for example physical integrity, personal privacy, proprietary rights, public order, moral standards, administration of justice and government, etc. Harm must include both advantages gained by the offender and losses caused to the victim.[40]
With an indication that a sentence may not be disproportionate to the circumstances of the offence, as successfully argued in Veen [No 1] and affirmed in Veen [No 2], the seriousness of an offence should be informed by various sources. The problem is that a court must balance several, often competing, factors to constitute a proportionate sentence. Various remarks have been made of the difficulty of sentencing in the context of a range of sentencing principles that may provide for a range of discernable, appropriate, sentences.[41] In this context, the High Court in Veen [No 2] ruled that whilst a sentence may not be extended merely to protect the community, the protection of the community, amongst other issues, continues to be material.[42] Veen [No 2] provides that various issues, including an offender’s ongoing threat to the community, be considered to constitute a sentence proportionate to seriousness and culpability. Following Veen [No. 2] and the nature of proportionality outlined by Fox, the perspective of the victim or their family may also count toward a consideration of offence seriousness. The requirement that a sentencing court objectively assess the entire circumstances of the offence mandates consideration of broad community standards and expectations. In homicide cases, this will necessarily include the views of others, such as primary and family victims. This was the issue in R v Birmingham (No. 2),[43] where in the context of the relevance of victim impact evidence to the sentencing process, Perry J questioned the view that equality of law demands that one life cannot be viewed above another. His Honour stated that it was more a ‘question of having regard to the “totality of the injury, loss or damage”, which may include injury, loss or damage suffered by others apart from the immediate victim’.[44] In this way, credence is given to the well acknowledged notion in tort law, that you take your victim as you find them. As such, Birmingham (No. 2) is authority for the proposition that harm to others, including the family of the victim, ‘may be much more severe in one case than in another’.[45]
Within the objective assessment required of all sentencing judges, there is an opportunity to contemplate the consequences of the offence on the victim and their family so as to bring about a sentence that considers the views of a variety of interested parties. As suggested by the NSWCCA in Tzanis, a reconsideration of the key prohibitions espoused in Previtera and affirmed in Bollen may be justified under current sentencing principles, specifically the requirements of s 3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW) to consider harm to the victim and community, to include the views of family victims as tendered in a victim impact statement. A reconsideration of family victim impact statements in this regard would see a New South Wales sentencing court use family impact statements to inform itself of sentencing issues such as the potential impacts of the offence on the community, the likelihood of recidivism, and the extent to which the offence breached current community standards. This is already occurring in other Australian states where a more inclusive view of objective seriousness is taken towards the content of victim impact statements.[46] The sentencing court would still be required to carefully balance, as required by Veen (No. 2), the competing objectives of sentencing such that the value of the deceased is not held out over other relevant factors of sentencing. Careful consideration would need to be given to the reasonableness of the trauma of family members in accordance with the overall requirement that the court pass a sentence that is proportionate to all circumstances of the criminal offence.
The restrictions put in place by Slack limit the consideration of victim harm for two key reasons. First, Slack, unlike Previtera, applies to all victim impact statements. Unlike the Previtera rule, which is limited to family impact statements in homicide cases, Slack restricts the conclusions which may be made on the harm occasioned to the victim where a statement is tendered before any sentencing court in New South Wales. Secondly, in terms of conventional sentencing practice, information tendered before a sentencing court tends not to be admitted under evidence law. Thus, save an order to the contrary, all evidence before a sentencing court may be considered in determining the final sentence to be handed down. Submissions on an appropriate sentence, or documents tendered during the sentencing process, may be considered by the sentencing judge as a matter of discretion. This includes mitigating evidence adduced by the defence.[47] However, where a victim impact statement is led by the prosecution accounting for the harms occasioned to the victim by an offence, claims in the statement detrimental to the accused may now be disregarded unless admitted under the rules of evidence. Otherwise, impact evidence may be considered where directly supported by evidence formerly adduced at trial. This is despite the fact that an impact statement may have been drafted either personally by the victim, or with the assistance of an accredited specialist.[48] By excluding impact evidence in this way, Slack applies the sentencing principle that facts adverse to the defendant need to be proven beyond reasonable doubt.[49] Facts in favour of a defendant, facts seeking to mitigate sentence, are only required to be established on the balance of probabilities. The Victorian Court of Appeal in R v Storey[50] adopted the view, since endorsed by the High Court in R v Olbrich[51], that a sentencing judge:
…may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.
Thus, a sentencing court now must consider the material contained within a victim impact statement conditional to it being consistent with evidence proven beyond reasonable doubt at trial, or otherwise tested within the rules of evidence, by potentially exposing the victim to cross-examination in open court.
The facts of Slack involve two sexual assaults by the appellant against the victim, who at the time of the offence was under the age of 16 years. These charges were brought as aggravated sexual assaults under s 61J of the Crimes Act 1900 (NSW) due to the victim’s age. The appellant plead not guilty to both counts and was tried by a jury in the New South Wales District Court. The jury returned a verdict of guilty on both counts. The trial judge sentenced the appellant to five years imprisonment, with a non-parole period of three years. The assaults occurred when the victim was invited to sleep at the appellant’s house. The victim gave evidence that the appellant entered the her room, knelt beside her bed, put his hands under the covers, and placed two fingers in her vagina, moving his fingers around for two to three minutes. The appellant then stopped and left the room but came back, and again knelt beside the bed, put his hands under the covers, and placed two fingers in the victim’s vagina for about one minute. The next day, the victim was driven home. The victim then contacted the Kids Helpline. The Crown’s case against the appellant consisted of testimony from two counsellors from the Kids Helpline. At trial, dispute arose as to the exact date of the sexual assaults. There were also discrepancies in the victim’s evidence as to the nature of the assault, specifically whether penetration had actually occurred, and whether the sexual assault was physically possible given testimony as to the positioning of the bed against a wall.
The case of Slack was heard before Grove, Simpson and Sperling JJ of the NSWCCA. Justice Sperling gave the leading decision, with which Grove and Simpson JJ agreed. His Honour ruled that the sentencing judge did not give weight to the victim impact statement ‘beyond a finding that the offence was not without some trauma to the complainant’.[52] In the course of the sentencing hearing, defence counsel submitted that the ‘actual penetration was to the slightest degree and was not accompanied by physical discomfort, damage or trauma’.[53] Justice Sperling ruled that the judge used the victim impact evidence, tendered during sentencing but not within the law of evidence, to dismiss counsel’s submission that the sexual assault was not without some harm to the victim. His Honour noted that the impact statement indicated how, following the offence, the victim became withdrawn and easily upset. Justice Sperling understood the sentencing court’s consideration of this statement, however, as pointing to the possibility that the offence potentially caused the victim to experience some emotional trauma. Significantly, his Honour held that the sentencing court’s consideration of the victim impact statement did not elicit ‘a finding as to the nature and extent of such harm in any particular respect’.[54] With this consideration in mind, Sperling J gave a broader ruling as to the role of victim impact statements in the sentencing process. His Honour held that, with regard to victim impact evidence, that substantial weight cannot be given to an account of harm in an unsworn statement, least because of the fact that such information is best characterised as aggravating evidence tending against the accused. His Honour said:
Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine…
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.[55]
By reviewing the acceptability of victim impact evidence against the sentencing principle that facts in aggravation need to be established beyond reasonable doubt, the NSWCCA advocates that such instruments are at best peripheral to the sentencing process. At worst, reference to impact evidence may cause the sentencing process to miscarry. This reasoning limits the functional purpose of such statements as they apply within the criminal justice system, by reducing the utility of impact evidence as irrelevant, if not potentially damaging, to the formulation of a proportionate sentence. As a result of this line of reasoning, the therapeutic benefits available to victims will be limited. The benefits of tendering a victim impact statement are widely recognised in the victim’s rights literature.[56] This literature argues that victim impact statements inform the sentencing court inter alia of the impacts of the harms, injuries or traumas that may not have arisen, or been marginal, to those issues raised at trial. These additional harms, as told by the victim themselves, may ultimately explain the consequences flowing from an offence, giving victims some access to justice. As such, many victims take advantage of the ability to tender such a statement.[57] Slack now stands to limit the consideration of such material, adding to the weight of authority now restricting the victim’s ability to enjoy those powers made available to them in the 1996 reforms.
The common law has long allowed for the consideration of victim harm as a matter of sentencing discretion.[58] As noted, a statutory basis for the consideration of victim interests was inserted into the Crimes (Sentencing Procedure) Act 1999 (NSW) with the inclusion of s 3A in 2002.[59] However, as indicated by the debate surrounding the Previtera rule, the courts have tended toward a limited notion of victim harm out of the need to construe a sentence in accordance with a restricted definition of the doctrine of objective proportionality, basing a sentence on the overall seriousness of the offence as provided by limited sources of evidence. The need to question the contribution of victims, specifically in terms of the provision of victim impact statements to sentencing courts, is made on the basis that victims are likely to interpret the harm occasioned against them in a subjective sense, in terms of vengeance, emotion or other personal sentiment. It is on this basis that RKB held that a victim is generally not capable of providing an objective assessment of the effect of the crime upon them.[60] This is contrary to the position of the defendant, who enjoys wide discretion to motion evidence seeking to mitigate his or her culpability.
Further reference to the decision of Slack indicates that sentencing courts are less likely to accept victim impact evidence where the information contained in the statement supports an aggravated view of facts in issue. R v Maisey[61] suggests that a sentence will be reconsidered where evidence provided by the victim has influenced a view taken against the offender, and especially where no other source of evidence as adduced at trial acts as a source of corroboration pursuant to the persuasive burden of proof, beyond reasonable doubt:
It would have been better if the Crown had placed an up to date medical report with the assistance of up to date x-rays. They, of course, may have been far from conclusive. With complaints of pain a court and the doctors largely depend on the veracity and resilience of the person suffering the injuries.
In R v Slack [2004] NSWCCA 128 at [58] Sperling J said: “Harm to the victim of an offence is a relevant consideration: Henry (1999) 46 NSWLR 346 at [95], Hall (NSWCCA 28 Sep 95, unrep). It is a factor in aggravation. As such the court must be satisfied as to the facts beyond reasonable doubt.”[62]
Victim impact evidence was likewise considered in R v Wilson.[63] In this matter the Court ruled:
Notwithstanding a plea of guilty, it is always open to an offender to challenge the factual bases of the case advanced by the Crown. Witnesses may be called for cross-examination to enable determination of disputed issues of fact. This may happen, particularly, where the Crown seeks to establish circumstances aggravating the offence. However, although there appears to be nothing in Part 3, Division 2 of the Sentencing Procedure Act to prevent it, it has not been customary for cross-examination to take place in relation to the contents of victim impact statements. S30A of the Sentencing Procedure Act permits a victim, or a member of the immediate family of the victim, or some other representative of the victim, to read out the whole or any part of a victim impact statement to the court after it has been duly received. The section does not appear to envisage that cross-examination on the content of the statement would be permitted.
It may be, in an appropriate case, that a sentencing judge would decline to accept a victim impact statement, or attribute to it less weight than otherwise might be the case. This could arise where (as, arguably, happened here) the Crown sought, by way of a victim impact statement, to establish matters seriously going to the assessment of the objective gravity of the offence that were either in issue or not conceded.[64]
Standards applicable to the testing of evidence at trial, as suggested in Wilson, do not apply to victim impact statements. However, the strongest indication that the NSWCCA will reconsider a sentence where the trial judge has accorded some credence to the harm occasioned by the victim as accounted in a victim impact statement is made clear in Bain v R.[65] In this matter, counsel for the appellant submitted that the sentencing judge took account of a victim impact statement in finding a matter of aggravation against the accused. Counsel submitted that this finding had to accord with the rule established in Slack, that facts in aggravation, however supplied to the sentencing court, must be established beyond reasonable doubt before they are allowed to impact against the accused. Justice Sully ruled:
The applicant submits that it means at least this: that a finding that any of the s 21A(2) aggravating factors has been established must be a finding made beyond reasonable doubt; and that, at least as a general rule, that cannot be done simply by accepting and acting upon a victim’s own description made in a statement that is both unsworn and untested by cross-examination.
In the current state of the law I am of the opinion that such submission must be accepted. To accept the submission adds yet another layer of forensic controversy upon those otherwise attending the current statutory provisions respecting victim impact statements; but be that as it may, the decisions of this Court in R v Slack [2004] NSWCCA 128 and in R v Wilson [2005] NSWCCA 219 seem to me to be clear authority supportive of the applicant’s submissions.[66]
Apart from affirming the rule endorsed in Slack, the NSWCCA in Bain applies the rule that facts in aggravation under s 21A(2)(g), facts which indicate that the ‘the injury, emotional harm, loss or damage caused by the offence was substantial’, may be supplied by way of impact statement.[67] However, where supplied by an impact statement, evidence of substantial emotional harm will only be accepted so long as those facts can be accepted beyond reasonable doubt, which as Slack indicates, is unlikely under the current provisions allowing for the tenure of impact statements.[68] Bain suggests that, where impact evidence is presented going to facts in aggravation of harm, the sentencing judge must determine ‘whether there is in hand evidence capable of establishing at all the incidence of, relevantly, emotional harm’.[69] The evidence spoken of here is that adduced at trial, pursuant to the persuasive burden, as accepted by the jury.
Victim impact statements perform a different role than evidence presented at trial, going towards facts in issue. An impact statement, as indicated below, provides opportunities that would not otherwise be available to victims of crime. Certainly, issues remain with the need to tender impact statements that contain submissions of an acceptable quality, whilst affording victims the opportunity to put their injury, loss or trauma on record before the sentencing court. However, the more recent cases applying Slack have tended to reject the contents of the impact statement before the court in favour of the rule of evidence that facts in aggravation need be established on the persuasive burden. These authorities indicate that information impacting unfairly on the defendant ought to be excluded save it being adduced pursuant to the law of evidence. This is especially the case where the victim impact statement is exaggerated, misleading or false. Despite questions being asked of their content, the victim impact statement movement was established to progress the cause of increased victim agency at law, by providing victims the opportunity to inform a court of the harms they have experienced as a result of an offence.[70] To deny victims an opportunity to exercise this privilege is to increase the harm occasioned by further marginalising them from the trial process. Impact statements are thus important, as a source of information as to offence seriousness and offender culpability, and as a tool of therapeutic jurisprudence. Given these legitimate functions of impact statements, consideration need be given to how the limitations in place as a result of Slack may be overcome. As indicated in Wilson, though not specifically envisaged, cross-examination of statements is possible under New South Wales provisions. Given that impact statements may be used to ameliorate the effects of crime upon the victim, their purpose as tools of therapeutic jurisprudence, if required to be made under the law of evidence, requires further consideration.
Victim impact evidence has been rationalised as significant to the sentencing process for several, connected reasons. In terms of sentencing law and procedure, impact evidence plays a formative role in sentencing proceedings by enabling the consideration of the actual harms suffered by the victim, highlighting these harms as a matter of significance to the criminal justice process. As a sentencing court will be principally concerned with an assessment of the objective seriousness of the injuries occasioned, statements encouraging the consideration of subjective perspectives will be generally excluded from the final sentence imposed. However, actual harms as construed by the victim will be more likely characterised as private, subjective, or merely speculative, information inconsistent with the doctrine of proportionality requiring an objective evaluation of the facts. Such material is prone to being seen as prejudicial and vengeful, or alternatively unduly forgiving of the offender. Such evidence is not seen as conducive of the objective assessment required under current sentencing law. Given the requirement that facts in aggravation be established on the persuasive burden, as Slack indicates, significantly less weight may now be placed on victim impact statements in sentencing proceedings. As Wilson provides, a court may refuse to accept a victim impact statement, consider it less influential, or require it to be sworn, possibly by the cross-examination of the victim providing the statement. The authorities flowing from Slack raise the real issue that victims will continue to be marginalised within the criminal justice system. This is particularly the case where victims stop offering impact evidence where they believe the court will be dismissive of it when formulating sentence. A similar situation has been created for family victims under Previtera. Although a court is required to tender a family impact statement, Previtera holds that such statements are to be given no weight at all. Despite this dilemma within New South Wales sentencing courts, victim impact statements allow for the inclusion of the victim in a procedural sense, an experience not made available elsewhere in the criminal justice system.
Various authors have noted significant therapeutic benefits associated with the ability to tender a victim impact statement in court.[71] In a general context, therapeutic benefits include anything that help restore a victim to their pre-offence position, whether this be by repairing actual harms by allowing the victim to tell their narrative of the offence, by increasing a victim’s overall satisfaction with court proceedings or by facilitating an involvement in the criminal justice system more generally. By recognising their status as a constituent of the criminal action, affording victims increased voice and representation through the vehicle of an impact statement, victims maintain higher levels of satisfaction, encouraged by their ability to contribute to the final sentence imposed on their offender.[72]
Various therapeutic outcomes have been documented by Edna Erez where victims were given the option to tender an impact statement in court.[73] Erez sees these benefits resulting from three broad situations involving impact statements. The first includes aspects of procedural fairness, including the ability to participate in judicial proceedings, such as the sentencing process in which the offender is present. The second situation involves the use of an impact statement as evidence, where the court receives the impact statement, examines its content, and acknowledges this examination in the sentencing decision. And finally, where the impact statement addresses the offender’s admission of guilt, where a guilty plea has been entered in earlier proceedings. Erez suggests that in these situations, victims choosing to tender an impact statement are likely to report beneficial outcomes, by taking advantage of an opportunity to engage the very processes that determine the fate of the offender. By providing an opportunity to personally contribute to the assessment of the harm occasioned by the offence in a way consistent with judicial processes for the determination of an appropriate sentence, the victim can gain a higher sense of fulfilment by taking an active role in the justice system.
Critical to Erez’s approach to the use of impact statements is that the therapeutic benefits of such statements will not be available unless the victim understands that their statement is read as a genuine account of the harm suffered. Significantly, the statement must be believed by the sentencing judge. Marginal benefits would thus be gained where a statement is merely tendered, read, but then rejected as irrelevant to sentence. The rejection of an otherwise legitimate statement may cause more harm to the victim, further undermining their already peripheral role in proceedings. Where evident, impact statements containing prejudicial or vengeful suggestions should be excluded. Importantly, impact statements do not provide a mechanism through which the victim can make any comment on the offence or offender. Statements indicating an appropriate sentence or level of punishment are usually rejected for this reason.[74] However, statements setting out the trauma felt by victims as directly relevant to the harm occasioned would be valuable to the court. These benefits flow from an opportunity otherwise not available to the victim, mainly the ability to inform the court about their personal suffering, in their own words – something that may not be entered into evidence at trial unless the victim is called as a witness. Even then, a victim will not be able to tell of the impact of the crime upon them, instead responding to counsel’s questions manifestly concerning the elements of the offence. A court will always be interested in the nature of the harm occasioned so long as it is relevant to the offence. However, a victim’s perspective on the trauma sustained from an offence may not become apparent to the court until an opportunity is provided in which the victim can affirm their perspective on the injuries suffered. Unencumbered by technical categories of harm in which testimony is provided by medical or other experts, or rules of evidence as to relevance, victims, through an impact statement, are free to express the actual consequences of the offence upon them.
As for family statements adduced under Previtera, any indication as to harm consequent on the death of the deceased will be struck out as irrelevant to sentence. The extent to which Slack seeks to exclude information presented in an impact statement is less clear. At best, Slack seeks to exclude those statements that may aggravate, or be seen to aggravate, the seriousness of the offence, or the culpability of the offender. The problem is that even where the victim talks of nominal harms resulting from an offence, such as a heightened sense of awareness of crime causing difficulties at home or work, the statement can be objected to because it contains aggravating remarks prohibited under Slack. Perhaps only the attributes of age, occupation, and relationship status, or other statistics as to the status of the victim, could withstand Slack’s exclusions, and influence sentence.
The literature suggests that the purposes of victim impact statements are twofold. They perform a role as instruments through which an appropriate sentence can be determined, and as a medium through which victims may exercise some agency over proceedings by playing an active role in the sentencing process. The marginalisation of impact statements as mere subjectivity may jeopardise their broader therapeutic outcomes. Where information in a statement can be excluded because it is not directly supported by evidence, or struck out as inherently biased towards sentencing principles constituting the process as an objective one, consequences will follow. As criminal proceedings are intimately connected with the victim, and since impact statements have been well received by victims generally, facilitating recovery and rehabilitation from the criminal incident, any move to restrict their ambit in court may have the disastrous effect of further alienating victims from the criminal trial process. The cases of Previtera and Slack may thus encourage a direct decline in the therapeutic benefits available to victims. The issue to be determined is how the principles of sentencing law currently limiting the use of impact statements may be read against the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) so as not to limit the therapeutic benefits available to victims.
In 1996, various new powers were introduced into New South Wales law for the amelioration of the harm occasioned to victims as a consequence of crime. This article has examined the introduction and interpretation of victim impact statements in the context of the spirit of the 1996 reforms, to provide victims greater access to and agency within the sentencing phase of trials for serious offences in New South Wales. The 1996 briefing paper ‘Victims Rights and Victims Compensation: Commentary on the Legislative Reform Package 1996’, demonstrated that the ambit of the 1996 reforms was to accord victims a greater role in judicial and related proceedings.[75] As demonstrated through the cases of Previtera and Slack, the NSWCCA has chosen to tread carefully with regard to the power granted to victims of crime in the context of sentencing law principles that require sentencing be construed objectively, proportionate to the actual harm occasioned.
Section 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW) has been interpreted in Previtera in favour of maintaining the objective standard of sentencing in order to balance the competing demands of sentencing discretion. The limitations placed on this section are significantly prohibitive, however, when the principle of objective proportionality is defined as limited to those accounts of harm that may be construed objectively. This leads to a criticism of the current tendency for sentencing courts to locate, or rather isolate, interpretations of harms deemed to be objective factual accounts. Those instances of harm that accord with normative perceptions of victim experience as understood by the sentencing judge, on account of the principles emphasised in Previtera, will more likely impact on sentence, as such accounts of harm fit comfortably within the lexicon of objective reasoning required under the doctrine of proportionality. This tendency to marginalise as subjective the victim’s views on the death occasioned, however, removes their characterisation of harm in favour of a clinical interpretation of the offence which generalises harm away from the victim.[76] It is argued that the court’s reasoning in Previtera ought to be revised, where appropriate, to include views that may inform a court as to the broader impacts of the offence, from the victim’s perspective. A sentencing court need not limit the consideration of family views out of a restrictive application of the doctrine of proportionality. Private views, including those of family victims, ought to be afforded weight in an understanding of the objective characteristics of the offence. To effect such a change the NSWCCA, however, would be required to recognise the appropriate use of such statements in the context of a broader, more inclusive, interpretation of sentencing principles as outlined by Fox.
It has been indicated in Tzanis and Berg that, given an appropriate opportunity, the relevance of family impact statements should be reconsidered in the context of sections s3A(g) and 28(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW). What Spigelman CJ suggests in each case is a review of the terms of reference in Previtera to balance the competing interests of ss 3A(g) and 28(4), enabling the consideration of family views in line with the limitations placed on objective proportionality in Veen [No 2]. However, the degree to which a change in New South Wales law will be mandated over the current provisions, should the NSWCCA decide to depart from the provisions of Previtera at all, will depend on whether the court understands family members’ views to be an important source of information as to harm occasioned, and whether the court connects the utility of this information to offence seriousness and offender culpability. The court cannot proceed on the basis that the subjective views of family members are, a priori, relevant. Given the general acceptance of the principle that in death we are all equal, family statements will need to be viewed as informing the court as to the offence from the community’s perspective. In its broader objective analysis of the offence, the NSWCCA will need to locate the needs of family victims as relevant to the determination of the harms consequent on the offence, rather than limiting the constitution of personal harm to a general assessment of the tendered evidence.
The other impediment against the use of victim impact evidence in New South Wales flows from the sentencing principle that facts in aggravation must be established beyond reasonable doubt. To this end, Slack indicates that facts against the accused ought not to be taken as aggravated by reference to unsworn evidence from the victim. The problems presented in Slack, however, are not universal. Victim impact evidence is used widely in Victorian sentencing courts, for example, where the rule against unsworn facts in aggravation being excluded is overcome by requiring that all impact statements are drafted as statutory declarations, or presented orally on oath.[77] Given the important role impact statements now play in sentencing proceedings in terms of according the victim some sense of agency within the criminal justice system, and the fact that the tenure of such statements has documented therapeutic benefits for victims, adopting similar provisions as those in Victoria would allow New South Wales victims to present material adverse to the accused without the problem of information being excluded as unreliable. As impact statements should be prepared and considered as a matter of course, it is preferable that the Crimes (Sentencing Procedure) Act 1999 (NSW) be amended to provide for the receipt of sworn statements, either by statutory declaration or orally on oath, to further enable courts to consider victim related information relevant to facts in issue, including situations where victim related information is presented that extends on facts in issue. As an alternative, or possible addition, to such amendments, impact statements may be admitted on the proviso that the author is open to cross-examination, as per Wilson, should that be required. However, given the numerous safeguards in New South Wales criminal procedure for the limitation of the examination or cross-examination of the victim, exposing a victim to potential cross-examination as a means of obtaining sworn evidence should not inform model practise.[78] This is particularly so where an alternative procedure, the provision of impact evidence as a sworn statement, will suffice. The latest recommendations from the New South Wales Attorney-General’s Department, however, provide that victims be subject to potential cross-examination, as suggested in Wilson.[79]
The precedent value of Previtera and Slack has been shown to be significant. As indicated by the more recent cases, victim issues continue to present novel problems for the NSWCCA. Arguably, the issue of victim participation within the New South Wales criminal justice system should be revisited to resolve current tensions between the doctrine of proportionality, the principle of equality at law, and the law of evidence. This resolution is pressing not only because ambiguity, where possible, should be removed from legal processes, but because respect for the status of victims is integral and valuable to the resolution of the criminal offence. As victim impact statements are rationalised as tools of therapeutic justice, compromise must be reached over the role of impact evidence and the basis of its reception in New South Wales law. The answer lies in two key directions. The first, the revision of the common law principles that exclude family impact statements, and second, the amendment of sentencing legislation to allow for the swearing of victim impact evidence. Although modification or amendment of the law is fundamental to the future acceptance of impact statements, it is important to note that such statements are not traditional forms of evidence, and as such may challenge current principles of sentencing. This challenge is indicated by the fact that the victim of crime has long been excluded from common law processes concerning the prosecution and punishment of the offender, despite their relevance to sentencing. It is important, therefore, not to singularly adjudge the utility of impact statements by current sentencing principles developed without active input from the victim. It is now necessary to revise these principles in terms of the ambit of the 1996 changes to New South Wales law, changes that advocate the victim’s wider participation in the justice system. Inherent in these changes is the greater sensitivity of New South Wales courts to the plight of the crime victim, both as the recipient of harm and as a constituent of the justice process. A criminal law that gravitates toward a position censuring legitimate victim input will see a decline in the restorative capacity of the justice system. This is especially so where a victim’s understanding of events is excluded on the basis of a standard of objectivity coloured by exclusive notions as to proportionality. The solution to the problems presented in Previtera and Slack, therefore, must start with the boarder appreciation of the utility of the victim in the criminal justice system. The criminal process ought to be inclusive of various perspectives, including the victim’s. Only then will sentencing be truly proportionate to objective fact. A broader definition as to objective seriousness must be encompassed compared to the exclusive definition currently endorsed by the New South Wales Court of Criminal Appeal.
* BA (Hons), LLB (Hons), GradDipLegPrac, PhD. Solicitor and Barrister (NSW). Associate Lecturer, Division of Law, Macquarie University, NSW 2109. Email: Tyrone.Kirchengast@law.mq.edu.au.
[1] New South Wales Parliament, Victims Rights and Victims Compensation: Commentary on the Legislative Reform Package 1996, Briefing Paper 12/96 (1996).
[2] When determining the compensation payable following a criminal incident, the Victims Compensation Act 1996 (NSW) prescribed a narrow definition of ‘act of violence’, limited to actual acts of a violent nature. All compensable injuries had to flow from an act that would fall within this definition.
[3] These sections were later transferred to the Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 Div 2. The original provisions were contained in the Crimes (Sentencing) Amendment Act 1987 (NSW), inserting s447C into the Crimes Act 1900 (NSW). However, this provision never commenced, and was later repealed by the Victim Rights Act 1996 (NSW), to be transferred and re-enacted in the Criminal Procedure Act 1986 (NSW).
[4] The Crimes Legislation Further Amendment Act 1997 (NSW)5. inserted ss 23AA, 23C(4) into the Criminal Procedure Act 1986 (NSW) (since transferred to the Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 Div 2).
[6] Crimes (Sentencing Procedure) Amendment (Victim Impact Statements) Act 2004 (NSW).
[7] Crimes (Sentencing Procedure) Act 1999 (NSW) s 26.
[8] The Victims Legislation Amendment Act 2003 (NSW) inserted s 30A into the Crimes (Sentencing Procedure) Act 1999 (NSW) to allow for the reading out of a victim impact statement where it has been duly received by a court, after conviction but before sentence.
[9] R v Previtera (1997) 94 A Crim R 76.
[10] The Crimes (Sentencing Procedure) Act 1999 (NSW) s 26, as amended by the Victim Support and Rehabilitation Amendment Act 2006 (NSW) schedule 2 defines ‘Member of the primary victim’s immediate family’ as: (a) the victim’s spouse, or (b) the victim’s de facto spouse or same-sex partner, being a person who has cohabited with the victim for at least 2 years, or (b1) a person to whom the victim is engaged to be married, or (c) a parent, grandparent, guardian or step-parent of the victim, or (d) a child, grandchild or step-child of the victim or some other child for whom the victim is the guardian, or (e) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim.
[11] Tyrone Kirchengast, The Victim in Criminal Law and Justice (2006) 192-194.
[12] R v Slack [2004] NSWCCA 128.
[13] See Woolmington v DPP [1935] AC 462 (Lord Sankey) as to the notion that the persuasive burden of proof remains the ‘golden thread’ central to the determination of criminal liability.
[14] Andrew Von Hirsch, Doing Justice: The Choice of Punishments (1976) 79.
[15] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(1).
[16] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(2).
[17] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(3).
[18] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(4)(a)
[19] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(4).
[20] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(5).
[21] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(3). Compare to original section (Criminal Procedure Act 1986 (NSW) s 23C) providing for the tendering of family statements as inserted by the original Victims Rights Act 1996 (NSW) sch 2.
[22] See R v Dang [1999] NSWCCA 42 25 (Adams J).
[23] R v Slack [2004] NSWCCA 12 8 (Grove J).
[24] Ibid.
[25] R v Bollen (1998) 99 A Crim R 510.
[26] Crimes (Sentencing Procedure) Act 1999 (NSW) s21A; R v Geddes (1936) 36 (NSW) SR 554; R v Dodd (1991) 57 A Crim R 349; R v Veen [No 1] [1979] HCA 7; (1979) 143 CLR 458; R v Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465.
[27] R v Veen [No 1] [1979] HCA 7; (1979) 143 CLR 458, 478.
[28] R v Berg [2004] NSWCCA 300.
[29] R v Tzanis [2005] NSWCCA 274.
[30]R v Berg [2004] NSWCCA 300 43. See, also, Attorney General’s
Application Under s37 of the Crimes (Sentencing Procedure) Act 1999 (No 2 of 2002) [2002] NSWCCA 515 57-59. Attorney General’s Application held that since the introduction of the s3A(g) of the Crimes (Sentencing Procedure) Act 1999 (NSW), several sentencing principles may require reconsideration in terms of the harm done to the community. As Spiegelman CJ suggests in Berg, victim impact statements be used to characterise the community response to the offence before a sentencing court. This would mean that family statements may have a broader role than currently conceived under Previtera.
[31] Crimes (Sentencing Procedure) Act 1999 (NSW) s 28(3).
[32] See New South Wales, Parliamentary Debates, Legislative Assembly, May 21, 2003, 926 (Bob Debus, Attorney-General). As to the use of victim impact statements as a means of encouraging a dialogue of restorative justice within and beyond the sentencing court, see Edna Erez ‘Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings’ (2004) 40 Criminal Law Bulletin 483, 491-498.
[33] Martin Hinton, ‘Expectations Dashed: Victim Impact Statements and the Common Law Approach to Sentencing in South Australia’ [1995] UTasLawRw 1; (1995) 14 University of Tasmania Law Review 1, 81-99.
[34] Rob White and Santina Perrone, Crime and Social Control: An Introduction (1997) 221.
[35] R v Tzanis [2005] NSWCCA 274 14, 15.
[36] Ibid 17, 18.
[37] R v Bollen (1998) 99 A Crim R 510, 529-530.
[38] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 472.
[39] Richard G Fox, ‘The Meaning of Proportionality in Sentencing’ [1994] MelbULawRw 1; (1994) 19 Melbourne University Law Review 489.
[40] Ibid 499.
[41] David Garland, ‘Philosophical Argument and Ideological Effect: An Essay Review’ (1983) 7 Contemporary Crises 79, 81-82.
[42] Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465, 473.
[43] R v Birmingham (No. 2) (1997) 92 A Crim R 545.
[44] Ibid 548-549.
[45] Ibid 549.
[46] See R v Miller [1995] VicRp 60; [1995] 2 VR 348; R v Birmingham (No. 2) (1997) 92 A Crim R 545.
[47] Such evidence is admitted on the balance of probabilities.
[48] See Crimes (Sentencing Procedure) Regulation 2000 (NSW) reg 9. A victim impact statement may be complied by a “qualified person”, specifically a person ‘qualified by training, study or experience to provide the particulars required for inclusion in a victim impact statement.’. This would ordinarily include psychologists, social workers and counsellors. A victim impact statement may be amended by the prosecutor with permission of the author of the statement, prior to it being tendered. Victim impact statements should be prepared by trained personnel and not parents or friends of the victim: R v King (Unreported, New South Wales Court of Criminal Appeal, 20 August 1991).
[49] As to the problem of unsigned impact statements, see R v Nichols (1991) 53 A Crim R 455, 458-459 (Olsson J).
[50] R v Storey (1997) 89 A Crim R 519, 530.
[51] R v Olbrich (1999) 199 CLR 270, 281.
[52] R v Slack [2004] NSWCCA 128 56.
[53] Ibid 55.
[54] Ibid 63.
[55] R v Slack [2004] NSWCCA 128 61-62.
[56] See, eg, Tracy Booth, ‘The Dead Victim, the Family Victim and Victim Impact Statements in New South Wales’ (2000) 11 Current Issues in Criminal Justice 292, 296; Edna Erez, ‘Victim Voice, Impact Statements and Sentencing: Integrating Restorative Justice and Therapeutic Jurisprudence Principles in Adversarial Proceedings’ (2004) 40 Criminal Law Bulletin 483, 491-498.
[57] Ian Edwards, ‘The Place of Victims’ Preferences in the Sentencing of “Their” Offenders’ (2002) Criminal Law Review 689.
[58] Siganto v The Queen (1998) 194 CLR 656.
[59] See Crimes (Sentencing Procedure) Act 1999 (NSW) s 3A. Section 3A commenced on 1 February 2003.
[60] R v RKB [1992] (Unreported, New South Wales Supreme Court, Badgery-Parker J, 30 June 1992).
[61] R v Maisey [2005] NSWCCA 347.
[62] Ibid 57,58 (original emphasis).
[63] R v Wilson [2005] NSWCCA 219.
[64] Ibid 27,28.
[65] Bain v R [2006] NSWCCA 79.
[66] Ibid 14,15.
[67] Ibid 8-16; Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(2)(g).
[68] See R v Youkhana [2004] NSWCCA 412 26 (Hidden J).
[69] Bain v R [2006] NSWCCA 79 11.
[70] Leslie Sebba, Third Parties: Victims and the Criminal Justice System (1996).
[71] JV Roberts and Edna Erez, ‘Communication in Sentencing: Exploring the Expressive Function of Victim Impact Statements’ (2004) 10 International Review of Victimology 223.
[72] See, for example, the German experience where victims are provided a role alongside the prosecutor as adhesive prosecutor. This role however is available only to those victims of serious offences. See below, n 73, 494.
[73] Erez, above n 55, 491-498.
[74] With the exception of Northern Territory practice, which allows the victim to make recommendations on the actual punishment to be served: Sentencing Act 1995 (NT) s 106B(5A).
[75] NSW Parliament, above n 1, 9-11.
[76] Edna Erez and Linda Rogers ‘Victim Impact Statements and Sentencing Outcomes and Processes: The Perspectives of Legal Professionals’ (1999) 39 British Journal of Criminology 228, 234.
[77] Sentencing Act 1991 (Vic) s 95A(2).
[78] Criminal Procedure Act 1986 (NSW) ss 93, 294A.
[79]Attorney-General’s Department (NSW) Victim Impact Statements: Information Package (2006) 5.
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