Director of Public Prosecutions v QPX

[2014] VSC 133

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2013 0098

DIRECTOR OF PUBLIC PROSECUTIONS

v

QPX

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JUDGE:	BONGIORNO JA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2014
DATE OF JUDGMENT:	17 March 2014
CASE MAY BE CITED AS:	DPP v QPX
MEDIUM NEUTRAL CITATION:	[2014] VSC 133

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CRIMINAL LAW – Sentencing – Victim impact statements – Division 1C, ss 8K and 8L, Sentencing Act 1991

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THE IDENTITIES OF THE DEFENDANT IN THIS CASE AND CERTAIN OTHER PERSONS HAVE BEEN SUPPRESSED BY A PROCEEDING SUPPRESSION ORDER PURSUANT TO THE OPEN COURTS ACT 2013

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R Elston SC	Office of Public Prosecutions
For the Defence	Mr P Morrissey SC with Mr C Mylonas	Slades & Parsons Solicitors

HIS HONOUR:

1 In this matter a number of victim impact statements have been filed with the court in accordance with s 8K of the Sentencing Act 1991.  It was necessary for the court to examine these victim impact statements to ensure that they complied with the provisions of the Act. 

2 Division 1C of the Sentencing Act provides the legislative framework in which victim impact statements may be created and regulated. It defines their purpose in s 8K(1) as "to assist the court in determining sentence". The same section defines the class of persons who can make such statements – a victim of the offence, that is to say a person who suffered injury, loss or damage, including grief, distress, trauma or other significant adverse affect as a direct result of the offence (emphasis added). 

3 Section 8K(3) of the Act permits, in certain limited circumstances, a person to make a victim impact statement on behalf of another person, thereby generally confining the making of victim impact statements to persons who themselves are direct victims of the crime committed by the prisoner to be sentenced. In particular, the Act also defines the contents of a victim impact statement as being "Particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence" (s 8L(1)).

4           Accordingly, victim impact statements are documents, the contents of which are defined by law.  They are intended to assist the court in ensuring that the consequences of a particular criminal act are fully understood by the Court so that the sentence to be imposed by the judge will be fixed in circumstances where he or she is fully informed as to the effect of the particular crime on its victims, including secondary victims such as, in this case, close relatives. 

5           What a victim impact statement must not contain is information as to the effects of a crime on people other than the person writing the victim impact statement himself or herself.  It must not contain material or information about the perpetrator of the crime or abuse of the perpetrator.  That is not the function of a victim impact statement.  It must not contain opinions or arguments as to what sentence should be imposed, whether as to the type of sentence or its length.  That is solely a matter for the Court. 

6           Although considerable leniency is extended to victims who provide victim impact statements, particularly when they do so without any or any adequate assistance, there is a line which must be drawn.  The information provided must be as to effect of the crime on the person writing the statement. 

7 Section 8L of the Sentencing Act provides that the court may rule as inadmissible the whole or any part of a victim impact statement.  By so ruling the court is not expressing any opinion as to the correctness of the victim impact statement; it is simply ensuring that the law is complied with so that the only material on the public record is material which should be so recorded. 

8           This question or something similar to it was dealt with by the Court of Appeal in R v Dowlan [1998] 1 VR 123. Charles JA said:

The evident purpose of the 1994 legislation [which created victim impact statements] was to give victims of crime an opportunity to place before the courts their own statement of the impact a crime has had upon them and their families and in doing so both to involve victims in the workings of the criminal justice system and to ensure that judges are educated as to the consequences of the crimes with which they are concerned in sentencing.  It would be quite destructive of the purpose of these statements if their reception in evidence was surrounded and confined by the sorts of procedural rules applicable to the treatment of witness statements in commercial cases.  The reception of victim impact statements must, it seems to me, 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.[1]

[1]R v Dowlan [1998] 1 VR 123, 140.

9           In this case some eight victim impact statements have been prepared and filed in accordance with the Act.  They are from family members who describe the effects of the crime we are here concerned with on them.  However, in many cases they also stray into matters which should not have been the subject of a victim impact statement because they are irrelevant to the task this court must perform. 

10          I have read those victim impact statements carefully and, after hearing submissions from defence counsel and giving the Crown an opportunity to comment, I have redacted them so that they comply with the law. 

11          They will be marked as an exhibit and read in that redacted form.  The unredacted originals will be placed on the file in an envelope marked "not to be opened other than by or on the order of a judge".

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