List of Subheadings
- 1. Overview
- 2. Federal Statutory Scheme
- 3. Definition of ‘victim impact statement’
- 4. Persons entitled to make a victim impact statement
- 5. Form and timing of victim impact statement
- 6. Restrictions on victim impact statements
- 7. Testing of facts in a victim impact statement
- 8. Protection for vulnerable persons
- 9. Use of victim impact statements under comparable state and territory regimes
The content on this page was last reviewed on 24 April 2017.
Recent cases alert
R v Khan (No 11)  NSWSC 594 — people who witnessed and actively intervened in terrorism attack considered ‘victims of the offence’, distinguished from R v Nahlous  NSWCCA 90.
It is now widely accepted that the recognition of the impact of a crime upon victims is relevant to sentencing.1 In June 2013, the Crimes Act 1914 (Cth) was amended to include a scheme for the use of victim impact statements in the sentencing of federal offenders.2
A ‘victim impact statement’ is defined by s 16AAA of the Crimes Act 1914 (Cth). The statement must describe the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence: s 16AAA(1)(b).
Harm is inclusively defined as ‘physical, psychological and emotional suffering’, ‘economic and other loss’ and ‘damage’: s 16(1).
2. Federal Statutory Scheme
A victim impact statement for the victim is included as a matter which the court must take into account in determining sentence, if the individual who is a victim has suffered harm as a result of the offence: s 16A(2)(ea). In addition, ‘the personal circumstances of any victim of the offence’ and ‘any injury, loss or damage resulting from the offence’ are listed as matters to be taken into account: ss 16A(2)(d) and 16A(2)(e) respectively. See Personal Circumstances of Any Victim of the Offence. However, no implication is to be drawn from the absence of a victim impact statement for a victim: s 16AB(3).
Note: Irrespective of the provision of a victim impact statement, evidence of harm suffered by a victim of an offence may still be admitted in the sentencing hearing under general principles.3
3. Definition of ‘victim impact statement’
A victim impact statement is an oral or written statement that describes the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence: s 16AAA.
4. Persons entitled to make a victim impact statement
The statement must be made by either the individual victim, a member of the individual’s family if the court gives leave, or a person appointed by the court: s 16AAA(1)(a).
Only one victim impact statement may be made for each victim of an offence, unless the court gives leave: s 16AB(2).
4.1 The individual victim
In R v Nahlous  NSWCCA 90 the court considered the term ‘victim’ in the context of s 16A(2)(d) and a victim impact statement which was tendered under the state laws applicable at that time. Adamson J stated at  and  (Hoeben CJ at CL and Davies J agreeing):
The question whether the term “victim” in s 16A(2)(d) is confined, in the instant case to the 14-year old girl herself or whether it comprehends her mother as well is a matter of statutory construction which also requires a consideration of the subject offence.
The offences committed by the respondent are not, in my view, apposite to include a class of victims beyond the person being groomed. In this context I consider that the word “victim” in s 16A(2)(d) means the primary victim herself and not the loved ones of the victim, who may also suffer by reason of their feeling for the primary victim. Unlike the state legislation, s 16A does not introduce the concept of “family victim” (emphasis added).
4.2 Family victim impact statements
A court may give leave for a member of the individual’s family to tender a victim impact statement: s 16AAA(1)(a)(ii). Individuals who are considered to be a member of a person’s family are set out in s 16A(4).
(a) a de facto partner of the person;
5. Form and timing of victim impact statement
A victim impact statement may be either an oral or written statement: s 16AAA(1).
All or part of a victim impact statement for a victim may be read to the court by or on behalf of the victim: s 16AB(4).
If the statement is written, it must be ‘signed or otherwise acknowledged by the maker of the statement’, and ‘given to both the prosecutor and offender (or the offender’s legal representative) at a reasonable time before the hearing for determining the sentence to be passed’: s 16AAA(1)(c).
If the statement is to be oral, then ‘a written or oral summary of the statement must be given to both the prosecutor and offender (or the offender’s legal representative) at a reasonable time before the hearing for determining the sentence to be passed’: s 16AAA(1)(d). However, the court may order that this requirement not apply with respect to a particular oral statement: s 16AAA(2).
6. Restrictions on victim impact statements
Section 16AB(5) of the Crimes Act 1914 (Cth) sets out a number of limitations on the use of victim impact statements.
(a) it expresses an opinion about an appropriate sentence; or
(b) it is offensive, threatening, intimidating or harassing; or
(c) admitting it into evidence would otherwise not be in the interests of justice.
7. Testing of facts in a victim impact statement
The person convicted of the offence may only test the facts in a victim impact statement with the leave of the court by way of cross examination: s 16AB(6).
In B v The Queen  NSWCCA 103, the Court held that there was no denial of natural justice where the offender was not permitted to cross-examine the father of her child on his victim impact statement. The offender had taken the child from the jurisdiction contrary to a court order, and the victim impact statement by the father related to his suffering as a result of a loss of contact with his child. Section 16AB(6) did not apply to the proceedings.5 The Court rejected the claim that the offender had been denied natural justice, stating at :
The victim impact statement was not applied in a way that was adverse to Ms B’s interests on sentence. In circumstances where it is clear from the sentence imposed by her Honour that reliance was not placed on the statements made by Mr B in his victim impact statement in a manner adverse to Ms B, there was no denial of natural justice in Ms B not being permitted to cross-examine Mr B, particularly where the indicated scope of cross-examination bore the hallmarks of cross-examination for a collateral purpose, namely to establish that Mr B had committed criminal offences against his son.
8. Protection for vulnerable persons
Part IAD of the Crimes Act 1914 (Cth) includes provisions for the protection of vulnerable persons. Protections available for vulnerable persons under Part IAD apply to the reading of a victim impact statement and cross-examination of the maker of the statement: see s 16AB(7).
9. Use of victim impact statements under comparable state and territory regimes
The permissible use of victim impact statements under comparable state and territory regimes may indicate how use of victim impact statements will develop in the federal context.
For example, in R v FD  NSWCCA 31, the Court considered the New South Wales scheme for receiving victim impact statements under Crimes (Sentencing Procedure) Act 1999 (NSW). Sully J (Hall J agreeing) noted that the scheme ‘attempts to balance interests that are not easily balanced’,6 explaining some of these interests at –:
There is, first, the imperative need to ensure that no offender is sentenced upon a basis that yields to a “lynch mentality”, to borrow from Perry J in Reg v Bermingham (No. 2) (1997) 96 A Crim R 545 at 549.
There is, secondly, the no less imperative need not to allow an offender to be sentenced upon a basis, or in a particular manner, that is dictated, more or less, by the victim(s). And even less so upon a basis, or in a particular manner, that responds, more or less, to the malignant prejudices that are daily the fruit of what Brennan J described as follows in The Queen v Glennon (1992) 173 CLR 592 at 611:
“Another phenomenon which has contributed to the problem in recent years, especially in the media of television and radio, is the promotion of personalities who affect to convey the moral conscience of the community and to possess information, insights and expertise in exceptional measure.”
There is, thirdly, the need to afford the victims of crime, and especially the victims of violent crime, a forum in which they can make a public statement in words of their own choosing, in order to have the emotional catharsis of ensuring that their grief and loss have not been either ignored altogether, or expressed in what they see as an inadequate way.
There is, fourthly, a political imperative deriving from perceived voter dissatisfaction with sentencing outcomes in serious criminal cases, and especially in cases of serious crimes of violence (emphasis in original).
9.1 Victim impact statements and aggravating factors
It is a well-established principle of sentencing that facts cannot be taken into account in a way that is adverse to the interests of the offender at sentence, unless those facts have been established beyond reasonable doubt: R v Olbrich  HCA 54.7
Courts have considered the interaction between this common law principle and statutory schemes permitting the receipt of victim impact statements in state sentencing schemes. This issue is yet to be considered in the context of the federal statutory scheme.
In R v Tuala  NSWCCA 8, the Court reviewed authorities concerning victim impact statements taken into account under the New South Wales scheme, contained in the Crimes (Sentencing Procedure) Act 1999 (NSW). Simpson J (Ward JA and Wilson J agreeing) stated at –:
What is here in issue is the extent to which a victim impact statement can be used to prove an aggravating factor … It is to be remembered that such aggravating factors must be proved beyond reasonable doubt.
In some of the cases considered above, considerable weight was attached to the manner in which the sentencing process was conducted. Where no objection was taken to the victim impact statement, no question raised as to the weight to be attributed to it, and no attempt made to limit its use, the case for its acceptance as evidence of substantial harm has been considered to be strengthened. (It is, perhaps, a little unfair to take into account that no objection to the admission of the statement was taken, given that such statements are admissible by statute, but that does not preclude argument as to the weight to be attributed to them.)
Further, where the statement tends to be confirmatory of other evidence (either in a trial, or in the sentencing proceedings) or where it attests to harm of the kind that might be expected of the offence in question, there is little difficulty with acceptance of its contents.
Difficulties can arise, for example, where:
- the facts to which the victim impact statement attests are in question; or
- the credibility of the victim is in question; or
- the harm which the statement asserts goes well beyond that which might ordinarily be expected of that particular offence; or
- the content of the victim impact statement is the only evidence of harm.
In these cases, considerable caution must be exercised before the victim impact statement can be used to establish an aggravating factor to the requisite standard.
- See, eg, Arie Freiberg, Fox & Freibeg’s Sentencing: State and Federal Law in Victoria (Thomson Reuters, 3rd ed, 2014) 328–31.
- Crimes Legislation Amendment (Law Enforcement Integrity, Vulnerable Witness Protection And Other Measures) Act 2013 (Cth).
- See, eg, B v The Queen  NSWCCA 103.
- R v Nahlous  NSWCCA 90, .
- B v The Queen  NSWCCA 103, .
- R v FD  NSWCCA 31, .
- See further Standard of Proof.