DPP v Mitchell (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Mitchell (No 2)
Citation:	[2023] ACTSC 118
Hearing Date:	19 May 2023
DecisionDate:	22 May 2023
Reasons Date:	23 May 2023
Before:	Mossop J
Decision:	1. Each of the passages of the victim impact statements contained within Exhibit 1 which are marked up in yellow are admitted as part of the relevant victim impact statement.
Catchwords:	CRIMINAL LAW – ADMISSIBILITY – Admissibility of victim impact statements – portions of statements challenged on the basis that challenged portions do not fall within the definition of “victim impact statement” as per s 47 of the Crimes (Sentencing) Act 2005 (ACT)– all challenged portions ruled admissible
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes (Sentencing) Act 2005 (ACT), ss 47, 48, 49, 50, 51 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 96
Cases Cited:	R v Iacuone; R v Duffy; R v JR (No 2) [2014] ACTSC 149 R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 R v Porter (No 3) [2022] ACTSC 236
Parties:	Director of Public Prosecutions Stephen Leonard Mitchell (Offender)
Representation:	Counsel M Howe (DPP) T O’Rourke (Offender)
Solicitors Director of Public Prosecutions Aulich Criminal Law (Offender)
File Number:	SCC 319 of 2022

MOSSOP J:

Counsel for the offender has objected to various passages in the victim impact statements that were read at the sentence hearing of Stephen Leonard Mitchell. Counsel for the prosecution submitted that they were admissible. In order to permit the sentencing hearing to proceed smoothly, the parties agreed that it was open to the court to permit the statements to be read in full and subsequently rule upon the objections. This was a course adopted in R v Porter (No 3) [2022] ACTSC 236 at [61]. I made an order ruling on the objections prior to sentencing the offender. These are my reasons for that order.

The passages objected to were marked up in yellow on each relevant victim impact statement within Exhibit 1. Other passages which were not relied upon by the prosecution were marked up in green and were not admitted as part of the victim impact statement.

The relevant provisions of the Crimes (Sentencing) Act 2005 (ACT) are ss 47-51.

Section 49 provides for who may make a victim impact statement:

49Victim impact statements—who may make
(1)The following people may make a victim impact statement for the offence:
(a)a victim of the offence;
(b)a person who has parental responsibility for a victim of the offence;
(c)a close family member of a victim of the offence;
(d)a carer for a victim of the offence;
(e)a person with an intimate personal relationship with a victim of the offence.

(2)In this section:
parental responsibility—see the Children and Young People Act 2008, division 1.3.2.

In order to understand this provision, it is necessary to have regard to the definitions in s 47 of the Act. That provides:

47Definitions – part 4.3
In this part:
because of, an offence, means—
(a)as a result of, or in the course of, the commission of the offence; or
(b)in the course of assisting a police officer in the exercise of the officer’s power to arrest a person for the offence or to take action to prevent the offence.
harm includes—
(a)physical injury; and
(b)mental injury or emotional suffering (including grief); and
(c)pregnancy; and
(d)economic loss; and
(e)substantial impairment of rights accorded by law.
victim, of an offence, means—
(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.
victim impact statement, for an offence, means a statement made by or for a victim of the offence that contains details of any harm suffered by the victim because of the offence.

Section 51 provides:

51Victim impact statements—form and contents
(1)A victim impact statement for the offence must identify the victim to whom it relates.
(2)The statement must include the full name of the person who makes the statement.
(3)If the person who makes the statement is not the victim (or the victim’s representative)—
(a)the statement must indicate that the victim does not object to the statement being made to the court; and
(b)if practicable, the victim (or representative) must assign the statement, or make a separate written or oral statement to the court, to verify that the victim does not object.

(4)If the victim to whom the statement relates is not a primary victim, the statement must identify the primary victim and state the nature and length of the victim’s relationship with the primary victim.
(5)If the statement is made by a person who is not the victim, the statement must indicate the nature and length of the person’s relationship with the victim.
(6)The statement may contain photographs, drawings or other images.
(7)The statement must not contain anything that is offensive, threatening, intimidating or harassing.
(8)This section does not prevent a victim impact statement being made by or for more than 1 victim.

Central to the operation of these provisions is the definition of “victim impact statement” which, in turn, picks up the concept of a “victim” and specifies the causal relationship (because of) with the “harm” (as defined) that must be established.

A number of points can be made about the operation of these provisions in the context of the present proceedings.

First, a parent of the child who was abused may be a “primary victim” if that parent suffers “harm” “because of” the offence in s 47.

Second, “harm” is broadly defined and includes “emotional suffering (including grief)”.

Third, the causal requirement is that the harm is suffered “as a result of” the commission of the offence. There is no qualification built into that causal requirement.

In light of the language of these provisions, it is clearly open for a parent of an abused child to give evidence as a primary victim of emotional suffering, including grief that they experienced as a result of the offending. If they would not have experienced such emotional suffering or grief if the offending did not occur, then that will be enough to establish that it was as a result of the offending.

The evidentiary status of victim impact statements is different to other evidence in the sentencing proceedings. The content of the statement is something that must be considered by the court in sentencing the offender: s 53(1)(a). However, the absence of a victim impact statement may not be used in order to draw an inference about harm suffered by a victim: s 53(1)(b). A maker of a victim impact statement may not be cross‑examined by or on behalf of an offender without leave of the court: Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 96. Such leave may only be granted if the cross‑examination “would materially affect the likely sentence to be imposed on an offender”: s 96(2)(b). The limitations on the content of a victim impact statement are provided by the definition of the term “victim impact statement” in s 47 and the requirement in s 51(7) that “[t]he statement must not contain anything that is offensive, threatening, intimidating or harassing.”

These provisions reflect the fact that the purpose of a victim impact statement is not purely evidentiary but also represents an important aspect of participation by a victim in the sentencing process: R v Loeschnauer [2022] ACTSC 30; 98 MVR 484 at [41]. It appears to me that, in those circumstances, much is left to the judgment of the court as to what use is to be made of the statements and, in particular, whether any findings of significance for the purposes of the sentences imposed should be made on the basis of the contents of those statements. As the parties made only limited submissions on the authorities relating to the scope and admissibility of victim impact statements, it is not appropriate to reach any concluded views beyond those which are necessary to rule on the admissibility of the passages objected to.

The offender did, however, refer in some detail to the decision in R v Iacuone ; R v Duffy; R v JR (No 2) [2014] ACTSC 149. Particular reliance was placed upon the manner in which Burns J addressed whether or not the manner in which a victim was cross-examined during the trial could be harm as a result of the offence for the purposes of a victim impact statement. It is unnecessary to consider the precise issue that Burns J dealt with as that is not raised in this case. So far as there are issues raised in the victim impact statements in the present case about the amount of time that it has taken, notwithstanding earlier complaints, for the justice system to catch up with the offender, I consider that those matters are relevant not because they involve criticism of the justice system but because they illustrate and explain the long period that the victims of the offending have had to endure prior to the vindication of their complaints.

The following table identifies the passages objected to, my ruling and my reasons for that ruling.

Author Passage objected to Ruling and reasons

B “and the strikes in three… As such,” “2) Stephen Mitchell groomed me… perverse sexual gratification” Admit. Each of these paragraphs describes psychological consequences of the offending now suffered by the victim. Although aspects of the statements might require clarification if treated in the same way as ordinary evidence, in the context of the statement they adequately express harm suffered by the victim because of the offence.

C “and you have not served any time. I do not get bail”. Admit. The victim is expressing the duration of her suffering by reference to a jail sentence. It is thereby conveying in her own words details of the harm that she says she has suffered. Contrary to the submissions of the offender, it is not an adverse reflection on the criminal justice system but rather a statement of the gravity of the consequences of his offending for her.

Mother of C “We have 7 children… family does now.” Admit. This is a statement describing the lack of trust in other people that has arisen for her as a consequence of the breach of trust committed by the offender. The loss of trust is within the scope of “mental injury or emotional suffering” which is a result of the commission of the offence. For the reasons set out earlier, a parent of a victim of child abuse may themselves be a “primary victim” for the purposes of “victim” in s 47.

“We immediately went… exception of us” Admit. This passage describes having gone to police in 2003 and her assertion that nothing was done. She records that “[t]his put a greater strain on [C] and us”. Emotional suffering by a victim arising from a failure by the authorities over a 20-year period to prosecute an offender in the knowledge that, for at least some of the period, other potential victims were being exposed to the offender’s conduct, falls within the scope of harm as a result of the offence.

“the same way… Grandchildren” Admit. The reference to being overprotective of her grandchildren is another example of a loss of trust which is one of the most common consequences of sexual offending and falls within the scope of “mental injury or emotional suffering”.

Husband of C “The fact that this has taken over 20 years, with all these reports, and all these people affected to get to this point is not justice. This is time that we will never get back” Admit. This is an example of a comment by the author about how he feels as a result of the long time that it has taken to prosecute the offender. The point he is making is that the 20‑year period is time lost to him and his wife as a result of the damage caused by the offending. Although the language used has a rhetorical flavour, it is making a point about harm in the form of mental injury or emotional suffering and does not infringe the prohibition in s 51(7).

D “many” Admit. This word exists in a sentence which indicates that the offender traumatised her and “many” other young children. Clearly it could not be relied upon in order to suggest criminal offending that has not been charged. It is reasonably open to read it as targeted at the number of child victims the subject of the present proceedings.

“He even tried… home” Admit. This is a fact which is not admitted as part of the agreed statement of facts. It occurs in the context of a paragraph describing the extent of control that he exercised over D’s life which is in more general and extensive terms than appears in the statement of facts. It describes part of the context in which the offending occurred, rather than harm as a consequence of the offending. I would not refuse to admit it as part of the statement although, plainly enough, the statement does not record any offence or a consequence of the offence and hence could not increase the appropriate sentence to be imposed.

Mother of D [6] “In 2009… put back the pieces” Admit. This paragraph relates to the effect on D’s mother of the disclosing what had happened to her. This is harm as a result of the offence and hence D’s mother is a “primary victim” for the purpose of the definition of victim in s 47. She is therefore entitled to make a statement about the impacts upon her as well as the impacts upon her daughter.

[8] “I have… my own trauma.” Admit. This is admitted for the same reasons as the admission of [6].

[9] “I have yet… pain greater” Admit. This is admitted for the same reasons as the admission of [6].

Footnote 1 Admit. This footnote explains why the author says it is important for her to express how she feels. This explanation is consistent with the purpose of a victim impact statement.

[12] “myself and my family” Admit. This refers to the damage of the offender’s crimes on her and her family. It is admissible for the same reasons as [6].

[15] “I feel… disregarded” Admit. This is a comment by the author that she feels that the loss of her child’s passion as a sportsperson and her potential to flourish is a “devastating and grievous harm that cannot be undone”. The comment about her feeling that this is unnoticed or disregarded is part of her explanation of the harm done to her daughter.

[17] Admit. This is a description of the impact of her own feelings of stupidity and failure at having failed to protect her daughter. It is mental harm which is a result of the offending. It is admissible for the same reasons as [6].

[22] “Many fail still.” Admit. This is a statement about the operation of systems to protect children. It is in the context of a paragraph in which she explains that she was not alone in failing to protect D. Although it is a comment about present systems for child protection, it can be read as the author attempting to put her own perceived failings in a societal context. It is not inadmissible.

[24] “We do not… either” Admit. This is a statement that “we” do not celebrate D’s firsts because they are intertwined with trauma. Given D’s outstanding record as a climber, her mother’s statement is evidence of “mental injury or emotional suffering” that both her mother and she have suffered as a result of the offence.

[33] “grooming and” Admit. This is part of a statement that the offender committed “grooming and child sexual abuse acts against [D]”. No discrete grooming offences were charged. However, the conduct disclosed in the statement of facts may reasonably be described as grooming (see for example [109], [111] of the reasons for sentence).

[36] except “including those dying of cancer” Admit. This paragraph refers to the author feeling upset knowing that the offender was treated as part of her family for several years and by documents she has read associated with that time. This falls within the scope of mental injury or emotional suffering as a result of the offending.

Footnote 13 Admit. This footnote is to a statement that “[s]o many things should have sounded alarm bells” and describes an incident involving a note found in D’s climbing bag which was reported to police but in relation to which D’s mother was assured that nothing was wrong. The finding of the note and its report to police is referred to in the agreed facts. It is relevant to the emotional suffering that has been caused to D’s mother.

[42] “Given my… reference” Admit. This is a reference to D’s mother having suffered sexual abuse herself and hence finding it more difficult to recognise at the time that D was “a textbook demonstration of a sexually abused and traumatised young person”. It is relevant to understanding the harm, in the form of emotional suffering, that has been caused to D’s mother.

[50] “Privately and silently my heart shattered” Admit. This is a very poignant statement about the impact upon D’s mother of her daughters comment that if she had a child she would be unable to protect it from sexual abuse such as that which she suffered. This is permissible because these mother is a “primary victim” within the meaning of the definition of “victim” in s 47.

[53] Admit. This paragraph relates to the pain that she suffers knowing that her daughter was sexually abused and that she feels she failed to protect her. It is evidence of emotional suffering caused by the offending.

[62] First two sentences Admit. This passage refers to coercion to be silent and to “keep the scars… hidden on the inside”. The agreed facts do not contain any specific facts relating to coercion. However, they do disclose a reluctance to make any complaint. The statement about coercion needs to be read in the context of the agreed facts but is not inadmissible.

[69] “myself, my family” “their families, and communities” Admit. This refers to injury and harm to herself and her family as well as the families and communities of the other victims. Given that D’s mother is a “primary victim” the statement about her hope for the operation of the justice system is not inadmissible.

The order that was made prior to sentencing the offender was:

1. Each of the passages of the victim impact statements contained within Exhibit 1 which are marked up in yellow are admitted as part of the relevant victim impact statement.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop

Associate:

Date: 23 May 2023

Author	Passage objected to	Ruling and reasons
B	“and the strikes in three… As such,” “2) Stephen Mitchell groomed me… perverse sexual gratification”	Admit. Each of these paragraphs describes psychological consequences of the offending now suffered by the victim. Although aspects of the statements might require clarification if treated in the same way as ordinary evidence, in the context of the statement they adequately express harm suffered by the victim because of the offence.
C	“and you have not served any time. I do not get bail”.	Admit. The victim is expressing the duration of her suffering by reference to a jail sentence. It is thereby conveying in her own words details of the harm that she says she has suffered. Contrary to the submissions of the offender, it is not an adverse reflection on the criminal justice system but rather a statement of the gravity of the consequences of his offending for her.
Mother of C	“We have 7 children… family does now.”	Admit. This is a statement describing the lack of trust in other people that has arisen for her as a consequence of the breach of trust committed by the offender. The loss of trust is within the scope of “mental injury or emotional suffering” which is a result of the commission of the offence. For the reasons set out earlier, a parent of a victim of child abuse may themselves be a “primary victim” for the purposes of “victim” in s 47.
“We immediately went… exception of us”	Admit. This passage describes having gone to police in 2003 and her assertion that nothing was done. She records that “[t]his put a greater strain on [C] and us”. Emotional suffering by a victim arising from a failure by the authorities over a 20-year period to prosecute an offender in the knowledge that, for at least some of the period, other potential victims were being exposed to the offender’s conduct, falls within the scope of harm as a result of the offence.
“the same way… Grandchildren”	Admit. The reference to being overprotective of her grandchildren is another example of a loss of trust which is one of the most common consequences of sexual offending and falls within the scope of “mental injury or emotional suffering”.
Husband of C	“The fact that this has taken over 20 years, with all these reports, and all these people affected to get to this point is not justice. This is time that we will never get back”	Admit. This is an example of a comment by the author about how he feels as a result of the long time that it has taken to prosecute the offender. The point he is making is that the 20‑year period is time lost to him and his wife as a result of the damage caused by the offending. Although the language used has a rhetorical flavour, it is making a point about harm in the form of mental injury or emotional suffering and does not infringe the prohibition in s 51(7).
D	“many”	Admit. This word exists in a sentence which indicates that the offender traumatised her and “many” other young children. Clearly it could not be relied upon in order to suggest criminal offending that has not been charged. It is reasonably open to read it as targeted at the number of child victims the subject of the present proceedings.
“He even tried… home”	Admit. This is a fact which is not admitted as part of the agreed statement of facts. It occurs in the context of a paragraph describing the extent of control that he exercised over D’s life which is in more general and extensive terms than appears in the statement of facts. It describes part of the context in which the offending occurred, rather than harm as a consequence of the offending. I would not refuse to admit it as part of the statement although, plainly enough, the statement does not record any offence or a consequence of the offence and hence could not increase the appropriate sentence to be imposed.
Mother of D	[6] “In 2009… put back the pieces”	Admit. This paragraph relates to the effect on D’s mother of the disclosing what had happened to her. This is harm as a result of the offence and hence D’s mother is a “primary victim” for the purpose of the definition of victim in s 47. She is therefore entitled to make a statement about the impacts upon her as well as the impacts upon her daughter.
[8] “I have… my own trauma.”	Admit. This is admitted for the same reasons as the admission of [6].
[9] “I have yet… pain greater”	Admit. This is admitted for the same reasons as the admission of [6].
Footnote 1	Admit. This footnote explains why the author says it is important for her to express how she feels. This explanation is consistent with the purpose of a victim impact statement.
[12] “myself and my family”	Admit. This refers to the damage of the offender’s crimes on her and her family. It is admissible for the same reasons as [6].
[15] “I feel… disregarded”	Admit. This is a comment by the author that she feels that the loss of her child’s passion as a sportsperson and her potential to flourish is a “devastating and grievous harm that cannot be undone”. The comment about her feeling that this is unnoticed or disregarded is part of her explanation of the harm done to her daughter.
[17]	Admit. This is a description of the impact of her own feelings of stupidity and failure at having failed to protect her daughter. It is mental harm which is a result of the offending. It is admissible for the same reasons as [6].
[22] “Many fail still.”	Admit. This is a statement about the operation of systems to protect children. It is in the context of a paragraph in which she explains that she was not alone in failing to protect D. Although it is a comment about present systems for child protection, it can be read as the author attempting to put her own perceived failings in a societal context. It is not inadmissible.
[24] “We do not… either”	Admit. This is a statement that “we” do not celebrate D’s firsts because they are intertwined with trauma. Given D’s outstanding record as a climber, her mother’s statement is evidence of “mental injury or emotional suffering” that both her mother and she have suffered as a result of the offence.
[33] “grooming and”	Admit. This is part of a statement that the offender committed “grooming and child sexual abuse acts against [D]”. No discrete grooming offences were charged. However, the conduct disclosed in the statement of facts may reasonably be described as grooming (see for example [109], [111] of the reasons for sentence).
[36] except “including those dying of cancer”	Admit. This paragraph refers to the author feeling upset knowing that the offender was treated as part of her family for several years and by documents she has read associated with that time. This falls within the scope of mental injury or emotional suffering as a result of the offending.
Footnote 13	Admit. This footnote is to a statement that “[s]o many things should have sounded alarm bells” and describes an incident involving a note found in D’s climbing bag which was reported to police but in relation to which D’s mother was assured that nothing was wrong. The finding of the note and its report to police is referred to in the agreed facts. It is relevant to the emotional suffering that has been caused to D’s mother.
[42] “Given my… reference”	Admit. This is a reference to D’s mother having suffered sexual abuse herself and hence finding it more difficult to recognise at the time that D was “a textbook demonstration of a sexually abused and traumatised young person”. It is relevant to understanding the harm, in the form of emotional suffering, that has been caused to D’s mother.
[50] “Privately and silently my heart shattered”	Admit. This is a very poignant statement about the impact upon D’s mother of her daughters comment that if she had a child she would be unable to protect it from sexual abuse such as that which she suffered. This is permissible because these mother is a “primary victim” within the meaning of the definition of “victim” in s 47.
[53]	Admit. This paragraph relates to the pain that she suffers knowing that her daughter was sexually abused and that she feels she failed to protect her. It is evidence of emotional suffering caused by the offending.
[62] First two sentences	Admit. This passage refers to coercion to be silent and to “keep the scars… hidden on the inside”. The agreed facts do not contain any specific facts relating to coercion. However, they do disclose a reluctance to make any complaint. The statement about coercion needs to be read in the context of the agreed facts but is not inadmissible.
[69] “myself, my family” “their families, and communities”	Admit. This refers to injury and harm to herself and her family as well as the families and communities of the other victims. Given that D’s mother is a “primary victim” the statement about her hope for the operation of the justice system is not inadmissible.

[2023] ACTSC 118

22 May 2023