This article was written by Andrew Fraser - Managing Associate - Canberra
Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...
Victim Impact Statements (ACT)
Victim Impact Statements are an important – and increasingly prominent – part of our criminal justice system. The purpose of a Victim Impact Statement (VIS) is to provide the court with the victim’s perspective on the impact of the offending on their life (after the accused has been found guilty or has pleaded guilty). However, while Victim Impact Statements have a significant role to play, care must be taken that the entire proceeding is not subsumed by them. This article deals with Victim Impact Statements in the ACT.
Legislation and victims of crime
ACT legislation recognises that victims are central to the sentencing exercise and provides for their needs to be taken into account in various ways.
Firstly, recognising the harm done to the victim of a crime and to the broader community is one of the enumerated purposes of sentencing contained in section 7 of the Crimes (Sentencing) Act 2005. These are the purposes for which sentences may be imposed by judges and magistrates.
Secondly, if the court is considering imposing either an Intensive Corrections Order or an Alcohol and Drug Treatment Order, it must specifically consider the impact of the offence on any victims.
Thirdly, the act also provides that courts can order that reparations be paid by offenders to “a person (the injured person) [who] suffers loss or incurs expense (including any out-of-pocket expense) as a direct result of the commission of the offence (s19(1)(b)).
Certain victims of crime may also claim financial assistance under the Victims of Crime (Financial Assistance) Act 2016.
Victims of crime and the sentencing process
Section 33 of the act sets out 27 nominated “relevant considerations” for judicial officers when sentencing. A number of these considerations relate to victims. These include:
- The personal circumstances of any victim of the offence if they were known to the offender when the offence was committed;
- The effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a Victim Impact Statement;
- Whether a victim of the offence was a pregnant woman.
Any contemplated reduction of a defendant’s sentence for a guilty plea (under section 35) or for assistance to law-enforcement authorities (under section 36) must be considered only if appropriate in light of “the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a Victim Impact Statement”.
Persons who are preparing Pre-Sentence Reports for the court about possible sentencing outcomes can consult with victims before making their recommendations.
Who is a victim?
Section 47) defines “a victim of an offence” as:
(a) a person (a primary victim) who suffers harm because of the offence; or
(b) if a primary victim dies because of the offence — a person who was financially or psychologically dependent on the primary victim immediately before the primary victim’s death.
What is a Victim Impact Statement?
A Victim Impact Statement is a statement made by or for a victim of an offence that contains details of any harm suffered by the victim because of the offence.
Under section 49, any of the following persons may make a VIS:
- a victim of the offence;
- a person who has parental responsibility for a victim of the offence;
- a close family member of a victim of the offence;
- a carer for a victim of the offence; and
- a person with an intimate personal relationship with a victim of the offence.
Victim Impact Statements can be written or oral (s50) and can contain photographs, drawings or other images, but must not include anything that is offensive, threatening, intimidating or harassing (s51).
The court must allow the Victim Impact Statement to be read out in court if the maker of the statement wishes the statement to be given to the court in that way (s52).
The act describes in detail the “effect” of a VIS. The court “must” consider any such statement and must not draw any inference about the harm suffered by a victim from the fact that a Victim Impact Statement is not given. The defence may cross-examine a person who makes a Victim Impact Statement on the contents of the statement, but this can be a risky course, and one undertaken only very cautiously, and certainly only under instructions.
Case law on Victim Impact Statements
Any material in Victim Impact Statements that does not relate directly to the offences charged can cause significant distress to offenders, who can sometimes feel that they are being blamed for everything that ever went wrong in the victim’s life. However, courts – and defence counsel, – are loath to take issue with Victim Impact Statements, as to do so can cause further upset to victims.
In the 2020 case of R v DQ [2020] ACTSC 352, Justice David Mossop noted the issues that often arise with Victim Impact Statements, saying:
“The Victim Impact Statement also included other material not directly relevant to the impact of the offending upon the victim or the children which I have not referred to. It is not uncommon for Victim Impact Statements to go beyond the matters which will be of direct relevance to the sentencing exercise.”
Justice Mossop then referred to the 2007 Victorian Court of Appeal case of The Queen v Swift [2007] 15 VR 497, which itself quotes the earlier matter of R v Dowlan [1998] 1 VR 123, in which Charles JA said (at 140): “The reception of Victim Impact Statements must, it seems to be, be approached by sentencing judges with a degree of flexibility; subject, of course, to the overriding concern that, in justice to the offender, the judge must be alert to avoid placing reliance on inadmissible matter.”
If you require legal advice or representation in any legal matter please contact Armstrong Legal.