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Victim Impact Statements

Victim Impact Statements

The content on this page was last reviewed on 18 September 2023.

1. Overview

Pursuant to s 16A(2)(ea) of the Crimes Act 1914 (Cth), where the victim of an offence has suffered harm as a result of the offence, a sentencing court must take into consideration any victim impact statement.

A ‘victim impact statement’ is defined as an oral or written statement made by the victim of an offence describing the impact of the offence on the victim, including details of the harm suffered by the victim as a result of the offence: s 16AAAA.

Harm is inclusively defined as ‘physical, psychological and emotional suffering’, ‘economic and other loss’ and ‘damage’: s 16(1).

2. Federal statutory scheme

Under the Crimes Act 1914 (Cth), victims of a crime may read a victim impact statement to the Court: s 16AB(4).

A victim impact statement must be taken into account in determining the sentence for an offence if the 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)–(e). See Victim of the Offence. However, “[n]o implication is to be drawn from the absence of a victim impact statement for a victim”: s 16AB(3).

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: B v The Queen [2015] NSWCCA 103.

Section 16A(g)(iii) also requires the court to take into account the degree to which the timing of a guilty plea ‘resulted in any benefit to the community, or any victim of, or witness to, the offence’. See further: Guilty Plea.

3. Entitlement 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 16AAAA(1)(a).

Only one victim impact statement may be made for each victim of an offence, except by leave of the Court: s 16AB(2).

3.1 The individual victim

The term ‘victim’ as it is used in the Crimes Act 1914 (Cth) should be construed broadly: Kabir v R [2020] NSWCCA 139, [62].

In R v Khan (No 11) [2019] NSWSC 594 the court interpreted the term ‘victim’ by reference to the definition of ‘harm’ s 16(1), which provides that ‘harm’ includes physical, psychological and emotional suffering, economic and other loss, and damage. Justice Bellew concluded that a victim may be a person who endures psychological, emotional, or economic suffering (at [22]). In Khan, this included those who suffered psychological and emotional harm through witnessing a violent offence (at [23]).

The term ‘victim’ has also been broadly construed in dishonesty offences to include a friend or acquaintance of the principal victim who is unwittingly manipulated to aid in an offence: Kabir v R [2020] NSWCCA 139, [63].

In firearm trafficking offences, the term ‘victim’ has been construed to include police officers or others who are impacted by the importation of illegal firearms: R v Manuel [2020] WASCA 189 at [84].

In some white-collar and economic offences, the term ‘victim’ has been construed broadly. In R v Zhu [2013] NSWSC 127, Hall J held at [203] that there are ‘at least three classes of victim’ of insider trading offences:

  1. The market, including in particular the investing community at large;
  2. The [offenders’] employers, by reason of the breach of trust … [and]
  3. Individuals being the class of persons who trade with an Offender without having access to that inside information.

Similarly, customs offences have been regarded as victimising ‘the community at large’: Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [27] (McCallum J).

In R v Nahlous [2013] NSWCCA 90 the Court of Criminal Appeal considered Zhu and Karam (No 2) in determining the scope of the term ‘victim’ in the context of child exploitation offences at [103]–[105]. The Court ultimately confined the term to the primary victim of the offence, to the exclusion of family members. Adamson J (Hoeben CJ at CL and Davies J agreeing) stated at [102], [104]:

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’.1 [Emphasis added]

3.2 Family victim impact statements

A court may give leave for a member of the principal victim’s family to tender a victim impact statement: s 16AAAA. Individuals who are considered to be a member of a person’s family are set out in s 16A(4):

Section 16A

  1. For the purposes of a reference in this Part to a family, the members of a person’s family are taken to include the following (without limitation):
    1. a de facto partner of the person;
    2. someone who is the child of the person, or of whom the person is the child, because of the definition of child in section 3;
    3. anyone else who would be a member of the person’s family if someone mentioned in paragraph (a) or (b) is taken to be a member of the person’s family.

Section 3 of the Crimes Act 1914 (Cth) provides that the term ‘child’ includes a person who meets the definition of ‘child’ in the Family Law Act 1975 (Cth). ‘Child’ is defined in s 4 of that Act.

4. Form and timing

A victim impact statement may be either an oral or written statement: s 16AAAA(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 16AAAA(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 16AAAA(1)(d). However, the Court may order that this requirement not apply to a particular oral statement: s 16AAAA(2).

5. Restrictions

Section 16AB(5) of the Crimes Act 1914 (Cth) sets out a number of limitations on the use of victim impact statements.

Section 16AB

  1. A victim impact statement is not to be read to the court, or otherwise taken into account, to the extent that:
    1. it expresses an opinion about an appropriate sentence; or
    2. it is offensive, threatening, intimidating or harassing; or
    3. admitting it into evidence would otherwise not be in the interests of justice.

6.  Testing of facts in a 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 [2015] NSWCCA 103,2 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. The Court rejected the claim that the offender had been denied natural justice, stating at [206]:

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.

6.1 Victim impact statements as 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: see R v Olbrich [1999] HCA 54, [24]-[27]; Filippou v The Queen [2015] HCA 29, [64].3

In the state case of R v Tuala [2015] NSWCCA 8, the Court reviewed authorities concerning victim impact statements taken into account under the Crimes (Sentencing Procedure) Act 1999 (NSW). Simpson J (Ward JA and Wilson J agreeing) stated at [78]–[81]:

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.

7. Purpose of Victim Impact Statements

The purpose of victim impact statements has been the subject of judicial consideration under comparable state and territory sentencing regimes.

In R v FD [2006] NSWCCA 31, the Court considered the New South Wales scheme for receiving victim impact statements under the Crimes (Sentencing Procedure) Act 1999 (NSW).  Sully J (Hall J agreeing) noted that the scheme ‘attempts to balance interests that are not easily balanced’: at [97]. These interests were explained at [98]–[101]:

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]

Emphasis has also been placed on the need for victims of crime to have a forum to speak on their experience. In JMW v Tasmania [2017] TASCCA 22, Brett J (Pearce J and Porter AJ agreeing) held at [76] that there are two key purposes of a victim impact statement:

To a considerable extent, the purpose of such a statement, including the opportunity for its oral delivery by the victim, is therapeutic. However, its statutory function also includes the provision of information relevant to the formulation of sentence, to the court. … [Limiting the contents of a victim impact statement] would place an artificial and unrealistic fetter upon the clearly intended therapeutic nature of the right afforded to victims, if statements were required to be kept within the bounds of the forensic provision of information.

8. Protection of 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).

  • Division 1 outlines applicable definitions and proceedings to which the Part applies.
  • Division 2 concerns the admissibility of evidence impugning vulnerable persons.
  • Division 3 concerns protections for witnesses during cross-examination.
  • Division 4 provides for special facilities for vulnerable persons to give evidence.
  • Division 5 provides for the use of video recordings to give evidence.
  • Division 5A includes special rules concerning trials on appeal or after discontinuance.
  • Division 6 provides for persons to accompany vulnerable persons when giving evidence, exclusion of people from the courtroom, warnings about vulnerable persons’ evidence, publication identifying vulnerable persons, the court’s general powers in relation to vulnerable persons, and miscellaneous provisions concerning video evidence.

  1. R v Nahlous [2013] NSWCCA 90 pre-dates the addition of s 16AAAA(a)(ii) to the Crimes Act 1914 (Cth) which gives permits the consideration of family impact statements in addition to victim impact statements.[]
  2. Section 16AB(6) had not commenced at the time of the proceedings: B v The Queen [2015] NSWCCA 103, [197].[]
  3. See further Standard of Proof.[]
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