Victim Impact Statements (“Vis”)

Where a person is a victim of certain crimes, they may choose to provide a Victim Impact Statement to the Court detailing the physical, mental or emotional harm they have suffered as a result of the Defendant’s actions. 

The legislative basis for use of victim impact statements is contained under Division 2 of the Crimes (Sentencing Procedure) Act 1999. 

What is a “Victim Impact Statement”?

A victim impact statement is a voluntary written or oral statement given to the Court by a person that experienced harm, injury or distress as a direct result of the offender’s actions and offence.  

Definition of “Victim”:

The legislation defines where a person is a victim for the purpose of providing a victim impact statement at Section 26 of the Act.

A “primary victim” means a person against whom the offence was committed or a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned. 

A “family victim” means any of the following persons, whether or not the person suffered harm as a result of the offence:

1. In relation to an offence as a direct result of a primary victim who has died – a person who was, at the time of the offence committed, a member of the primary victim’s immediate family, 
2. In relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost regardless of the gestational age of the foetus – a person who was, at the time the offence was committed, a member of the primary victim’s immediate family, whether or not the primary victim died. 

When Can a VIS Be Used in Court?

Victim Impact Statements can only be tendered to the Court for specific offences as outlined in Section 27 of the Act. In the Local Court, a Victim Impact Statement can be used where:

• The offence results in the death of any person,
• A higher maximum penalty may be imposed if the offence results in the death of any person that may be imposed if the offence does not have that result, 
• An offence referred to in Table 1 of Schedule 1 of the Criminal Procedure Act 1986, 
• A prescribed sexual offence that is referred to in Table 1 of Schedule 1 of the Criminal Procedure Act 1986, or 
• An offence against section 54D, 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900. 

What Can a Victim Impact Statement Include:

The content of a victim impact statement will depend on the party seeking to provide that statement to the Court. 

A primary victim can prepare and provide a statement that contains particulars of the following suffered by the primary victim, or by members of the primary victim’s immediate family, as a direct result of the offence:

1. Any personal harm, 
2. Any emotional suffering or distress, 
3. Any harm to relationships with other persons, 
4. Any economic loss or harm that arises from the above. 

A family victim may prepare a statement that;

1. In relation to an offence as a direct result of which a primary victim has died – particulars of the impact of the primary victim’s death on the family victim and other members of the primary victim’s immediate family, and 
2. In relation to an offence committed against a primary victim who was pregnant at the time of the offence was committed and was as a result of which the foetus was lost, regardless of the gestational age of the foetus – particulars of the impact of the loss of the foetus on:
   1. The family victim, and
   2. Other members of the primary victim’s immediate family.

How is a VIS given to the Court?

A victim may read out the whole or part of their victim impact statement to the Court after conviction but before sentencing the offender. 

What does the Court Do with a VIS?

Section 30E of the Act prescribes how the Court is to use a victim impact statement. 

Where a victim impact statement is tendered, the Court must consider any statement at any time after it convicts but before it sentences the offender for the offence and may make any comment on the statement that the Court considers appropriate. 

For a victim impact statement to be taken into account in connection with the determination of punishment for the offence on the basis that the harmful impact of the primary victim’s death on the family victim is an aspect of harm done to the community can only be done if the Prosecution applies for this to occur and the Court considers it appropriate to do so. 

Just because a VIS is not tendered to the Court on sentence, it does not give rise to any inference that the offence had little or no impact on the victim nor the victim’s family members.