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Part IB of the Crimes Act 1914 (Cth)

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Last Updated:8 February 2008

List of subheadings:

The Common Law
Crimes Act 1914 (Cth)
- Definition
- Section 16A(2)(d) and (e)
Proposed federal scheme
States and Territories
- Differing State and Territory Approaches
Further reading

Commentary on Victim Impact Statements in The Common Law

A court sentencing a federal offender may allow victim impact statements to be tendered.

There are no specific legislative provisions governing the tendering of victim impact statements for federal offences but a court has a general power at common law to receive information 'as it thinks fit to enable it to impose the proper sentence.' [1] In some jurisdictions this power has been expressed in legislation (see: Sentencing Act 1997 (Tas) s 81 and Penalties and Sentences Act 1992 (Qld) s 15) however this has not occurred in the federal jurisdiction.

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Commentary on Victim impact statements under the Crimes Act 1914 (Cth)

There is no statutory provision expressly authorising the tendering of victim impact statements in the Crimes Act 1914 (Cth). [2]Consequently, victims of federal offences do not have a right to be heard under federal sentencing legislation.

There is no prohibition on courts receiving victim impact statements prior to sentencing federal offenders. Courts sentencing federal offenders have allowed victim impact statements to be tendered. [3]Yet it is not clear from the case law which legal basis the courts have relied upon to allow these statements to be admitted.

There are two ways a court sentencing a federal offender may receive victim impact statements. Professors Warner, Fox and Freiberg state that a court may receive victim impact statements under common law powers (see above). Alternatively, a court may allow victim impact statements to be tendered in accordance with its state or territory legislative scheme: see States and Territories for the applicability of these provisions.

The Australian Law Reform Commission in its 2006 report on the sentencing of federal offenders, Same Crime, Same Time, recommended that specific provisions be made for victim impact statements in federal sentencing legislation (Recommendation 14-1).

There is currently a Bill before parliament seeking to introduce a federal scheme to govern the tendering of victim impact statements for federal offences (see Proposed Federal Scheme).

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Definition of 'victim impact statement'

A 'victim impact statement' is broadly regarded as a statement that provides details to the court of the harm suffered by a victim resulting from the offence. Generally, a victim impact statement can be tendered as a written statement. Some jurisdictions also allow the information to be presented orally. The shape, form and content provided in a victim impact statement varies dependent upon the governing legislative scheme.

There are provisions in all Australian jurisdictions that enable victim impact statements to be considered by a court prior to sentencing. Some jurisdictions have enacted specific guidelines governing the use of victim impact statements while in other jurisdictions the court may accept the victim impact statements under general powers leaving the preparation and form of the victim impact statement unregulated. Where States and Territories have enacted specific provisions, there is variation across the jurisdictions over the definition of key terms such 'victim' and 'harm'. Moreover, legislative provisions in some jurisdictions only govern the tendering of victim impact statements for certain offences and the issue of who is entitled to tender a victim impact statement to a court varies significantly across the jurisdictions: see further Differing State and Territory Approaches.

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Section 16A(2)(d) and (e) of the Crimes Act 1914 (Cth)

Once tendered, victim impact statements may inform the court of matters relevant to federal sentencing and thus assist the court in the satisfaction of its obligations under the Crimes Act 1914 (Cth). [4]

Section 16A(2) of the Crimes Act 1914 (Cth) provides a non-exhaustive list of matters a court must take into account in Commonwealth sentencing. The list is not set out in a hierarchy of importance or significance. [5]

'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: Crimes Act 1914 (Cth) ss 16A(2)(d) and 16A(2)(e) (respectively).

• Under the common law the impact of the crime upon the victim was recognised as a relevant sentencing factor see, eg, Dixon-Jenkins (1991) 55 A Crim R 308, 316 where the Court remarked:

...it is always relevant for a court before sentence to take into account, on proper material (note Richards (unreported, Court of Criminal Appeal, Vic, 6 August 1981)), the impact which a crime actually had upon a victim: Webb [1971] VR 147; Boyd [1975] VR 168; Richards; Lee (unreported, Court of Criminal Appeal, Vic, 1 September 1983).

Section 16A(2)(e) (any injury, loss or damage resulting from the offence) provides statutory recognition for this important principle.

• The personal circumstances of any victim of the offence (s16A(2)(d)) is a additional factor that a court is to take into account in sentencing federal offenders. This factor does now appear in similar state and territory provisions but it is not always as broadly drafted see, for example, s 33(1)(d) of the Crimes (Sentencing) Act 2005 (ACT) which states 'd) if the personal circumstances of any victim of the offence were known to the offender when the offence was committed—the circumstances'.

Section 16A(2) commences by stating, 'In addition to any other matters, the court must take into account such of the following matters as are relevant and known to the court:...' (emphasis added). The term 'relevant and known' suggests that s 16A(2) cannot be relied upon as authority for a court to receive victim impact statements. Nonetheless, once this material is before the court, the court must take relevant and admissible information regarding the personal circumstances of the victim and any injury, loss or damage resulting from the offence into account when sentencing.

Although operating in the context of West Australian statutory provisions, the following comment by Steytler J in Hooper v The Queen [2003] WASCA 179, [27] highlights the significance of information provided to the court by means of victim impact statements. Steytler J said:

These provisions... ensure that judges know of the actual, rather than the assumed, consequences of the crimes which come before them: cf Mitchell v The Queen (1998) 20 WAR 257 at 260, per Kennedy J, and R v Dowlan [1998] 1 VR 123 at 140, per Charles JA (emphasis added).

Moreover in cases where the offender has pleaded guilty, [6]judicial and academic commentators have noted that a court is unlikely to have had evidence of the personal circumstances of the victim or the extent of the injury, loss or damage upon the victim placed before it. [7]

In R v P (1992) 39 FCR 276 the Full Federal Court recognised that information provided in a victim impact statement may assist the court to impose a proper sentence. The Full Court remarked:

In the absence of statutory provisions for victim impact statements in the Australian Capital Territory, we do not see any impropriety in the Director of Public Prosecutions, or the representatives of the Director, whether acting as counsel or as solicitor, ensuring that the court has before it sufficient material of a proper kind to enable it to proceed to sentence upon a realistic assessment of the injury to or loss suffered by a victim. It is essential, however, that the material be presented in such a way that the prosecuting authority will not only not be seen to be promoting the interests of the victim at the expense of the interests of justice, but also the reality will be quite otherwise. Vengeance is not to be equated with justice. And the understandable feelings of a victim or a relative of a victim must not be allowed to move the Court beyond the way of justice... (emphasis added). [8]

Note the caution made by the Court that the 'feelings of a victim or relative must not be allowed to move the Court beyond the way of justice.' [9] See also: R v Singh [2006] QCA 71 where Fryberg J in the Supreme Court of Queensland (Court of Criminal Appeal) warned against too great a reliance on assertions of fact made in victim impact statements. Fryberg J remarked:

Sentencing judges should be very careful before acting on assertions of fact made in victim impact statements. The purpose of those statements is primarily therapeutic. For that reason victims should be permitted, and even encouraged, to read their statements to the court. However, if they contain material damaging to the accused which is neither self-evidently correct nor known by the accused to be correct (and this includes lay diagnoses of medical and psychiatric conditions) they should not be acted on. The prosecution should call the appropriate supporting evidence. It is unfair to present the accused with the dilemma of challenging a statement of dubious probative value, thereby risking a finding that genuine remorse is lacking, or accepting that statement to his or her detriment.

It is for 'the judge to find those facts which he or she considers bear upon the sentence to be passed': R v Storey [1998] 1 VR 359, 367. Thus in federal sentencing 'the personal circumstances of any victim of the offence' and 'any injury, loss or damage resulting from the offence' are matters of fact to be determined by the sentencing court: see further Fact Finding At Sentence.

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Proposed federal scheme

A Bill to introduce a federal scheme for victim impact statements and victim reports is currently before Parliament. [10]

The Crimes Amendment (Victim Impact Statements) Bill 2006 (Cth) was introduced into the Senate by Shadow Minister for Justice and Customs Senator Joe Ludwig on Wednesday, 18 October 2006. The Bill proposes to amend s 16A(2) by inserting subsection '(ea) any victim impact statements and victim reports'. Therefore victim impact statements and reports, where relevant and known, would be a matter a court must take into account in sentencing a federal offender.

The Bill also proposes to insert a substantive provision, s 16AA, into the Crimes Act 1914 (Cth). The proposed s 16AA sets out the federal scheme and defines key terms. In particular, there is a requirement that a victim be notified of his/her entitlement to file a victim impact statement. The proposed scheme allows the victim to present the victim impact statement where permission is granted by the court. There is also provision for the prosecutor to prepare a victim report and tender this to the court (with the victim's permission) in circumstances where the victim is not willing or unable to produce a victim impact statement.

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STATES AND TERRITORIES

There is no right or requirement for victims to be given an opportunity to be heard under federal sentencing legislation. However, they may have a right by virtue of state or territory sentencing legislation.

A court sentencing a federal offender may operate under its own state or territory legislative scheme governing the tendering of victim impact statements: Judiciary Act 1903 (Cth) ss 68(1) and 79. Professors Fox and Freiberg state:

Since the Commonwealth has not entered this field, state courts exercising federal jurisdiction continue to be subject to the obligation imposed by Judiciary Act 1903 (Cth), s 68(1), to apply to persons charged with offences against commonwealth laws the same state procedural laws as are applicable to persons charged with offences against state law. The victim impact legislation is a matter of sentencing procedure and thus is picked up in the same fashion as the power to call for pre-sentence reports, the right to increase sentence on a prisoner's appeal and the rules allowing the Crown to appeal against sentence. [11]

However, there is some contention as to whether all provisions governing victim impact statements fall within s 68(1) of the Judiciary Act 1903 (Cth). In the Same Crime, Same Time report the Australian Law Reform Commission found that:

practitioners have noted that it is not always clear whether particular sentencing provisions can be categorised as 'procedural'. The question of whether s 68 of the Judiciary Act picks up and applies particular state and territory provisions to the sentencing of federal offenders often has to be tested on a case-by-case basis. [12]

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Differing State and Territory Approaches

There is considerable variation amongst the States and Territories in the provisions that govern the tendering of victim impact statements. For a comparative analysis of the key differences between the state and territory provisions see Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006), [14.15 - 14.31].

• Australia Capital Territory - Crimes (Sentencing) Act 2005 (ACT) Pt 4.3.
• New South Wales - Crimes (Sentencing Procedure) Act 1999 (NSW) Pt 3 div 2 ; regs 8-11 Crimes (Sentencing Procedure) Regulation 2005 (NSW)
• Northern Territory - Sentencing Act (NT) ss 106B, and 106A [Definitions].
• Queensland is the only jurisdiction which has not enacted a specific scheme governing the tendering of victim impact statements in court. Nonetheless, victim impact statements are used and tendered in Queensland (R v Singh [2006] QCA 71). The sentencing court has a general power to receive any information it considers appropriate to enable it to impose a proper sentence and this power has been legislatively entrenched (Penalties and Sentences Act 1992 (Qld) s 15 ). The court must have regard to the nature of the offence and seriousness of the offence, including any physical or emotional harm done to a victim: Penalties and Sentences Act 1992 (Qld) s 9(2)(c). Section 14 of the Criminal Offence Victims Act 1995 (Qld) provides that harm caused to the victim by the crime should be put to a sentencing court by the prosecutor. Legislation also provides that in sentencing a child for an offence, a court must have regard to any impact of the offence on a victim: Juvenile Justice Act 1992 (Qld) s 150(1)(h).
• South Australia - Indictable Offences Criminal Law (Sentencing) Act 1988 (SA) s 7A , General Criminal Law (Sentencing) Act 1988 (SA) ss 7, 10(1)(d) and (e); Aboriginal Defendants Sentencing Conference Criminal Law (Sentencing) Act 1988 (SA) s 9C; r 19 Supreme Court Criminal Rules 1992 (SA); r 41.06 Magistrates Court Rules 1992 (SA)
• Tasmania - Indictable Offences Sentencing Act 1997 (Tas) s 81A, see also Sentencing Act 1997 (Tas) s 81 and Part 2 Criminal Rules 2006; Summary jurisdiction Pt 9A Justices Rules 2003 (Tas).
• Victoria - Sentencing Act 1991 (Vic) Pt 6 div 1A.
• Western Australia - Sentencing Act 1995 (WA) Pt 3 div 4 .

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Footnotes

[1] K Warner, Sentencing in Tasmania (2nd ed, 2002) 26. See also R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 175.

[2] In 1989 the issue of victim impact statements was debated by Parliament at the introduction of Part 1B of the Crimes Act 1914 (Cth). Attempts, at this time, to amend the Crimes Act 1914 (Cth) and introduce a provision which specifically enabled a victim to inform the court of their personal circumstances and injuries were unsuccessful. See further: Commonwealth, Parliamentary Debates, House, 30 October 1989, 2078 (N. A. Brown); Commonwealth, Parliamentary Debates, Senate, 19 December 1989, 4765 (R.M. Hill).

[3] see Weinert v Cth DPP [1999] SASC 34; DPP (Cth) v Hunter (2003) VSCA 171.

[4] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 174-5.

[5] See Explanatory Memorandum, Senate, Crimes Legislation Amendment Bill (No 2) 1989 (Cth), 7.

[6] Statistics show that a high proportion of federal offenders pleaded guilty: see Part IB and the Sentencing of Federal Offenders - Trends in Federal Sentencing.

[7] See J Flatman and M Bagaric, 'The Victim and the Prosecutor: The Relevance of Victims in Prosecution Decision Making' (2001) 6(2) Deakin Law Review 238, 242; S Garkawe, 'The Role of the Victim During Criminal Court Proceedings' (1994) 17 UNSW Law Journal 595, 612; M Hinton, 'Expectations Dashed: Victim Impact Statements and the Common Law Approach to Sentencing in South Australia' (1995) 14 University of Tasmania Law Review 81, 99; R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 166; C J Sumner, 'Victim Participation in the Criminal Justice System' (1987) 20 Aust & NZ Journal of Criminology 195, 206.

[8] R v P (1992) 39 FCR 276, [26].

[9] R v P (1992) 39 FCR 276, [26].

[10] Commonwealth, Parliamentary Debates, Senate, 18 October 2006, 57 (J. Ludwig).

[11] R Fox and A Freiberg, Sentencing: State and Federal Law in Victoria (2nd ed, 1999) 174.

[12] Australian Law Reform Commission, Same Crime, Same Time, Report No 103 (2006) [14.7].

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