R v Bechalany - [2018] NSWSC 493

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: R v Bechalany [2018] NSWSC 493
Hearing dates: 19 April 2018
Date of orders: 19 April 2018
Decision date: 19 April 2018
Jurisdiction: Common Law
Before: Hidden AJ
Decision:
Family victim impact statements rejected.

Catchwords:
CRIMINAL LAW – sentencing – evidence – accessory after the fact to manslaughter – admissibility of victim impact statements by family of deceased – victim impact statement provisions not applicable to the offence – whether any other law by which statements could be received.

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999, ss 26, 27 28
Criminal Procedure Act 1986 s 23(C)

Cases Cited:
Miller v R [2014] NSWCCA 34
Porter v R [2008] NSWCCA 145
R v Bollen (1998) 99 A Crim R 510
R v Previtera (1997) 94 A Crim R 76

Category: Procedural and other rulings
Parties: Regina
Rhonda Bechalany
Representation:
Counsel:
C Maxwell QC (Crown)
G James QC with E James (Offender)
Solicitors:
Solicitor for Public Prosecutions (Crown)
Oxford Lawyers (Offender)

File Number(s): 2015/157544

Judgment

HIS HONOUR: The offender, Rhonda Bechalany stands for sentence, having pleaded guilty to being an accessory after the fact to a crime of manslaughter said to have been committed by her former husband, Robert Bechalany. The facts and circumstances of the case are set out in my sentencing judgment: R v Bechalany [2018] NSWSC 502.
The Crown prosecutor tendered victim impact statements of Ms Jennifer Watt, the partner of the deceased, and Ms Christine Weeks, the deceased’s mother. These were objected to by Mr GR James QC, who appeared with Mr E James for the offender, and I rejected them. These are my reasons for that decision.
Provision for victim impact statements is to be found in Div 2 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999. Section 26 distinguishes between the primary victim of an offence and a person related to a primary victim, in one of a number of ways specified in the section, who is termed a “family victim”. Section 28(3) provides for the receipt by a court of the victim impact statement of a family victim where the primary victim has died as a direct result of the offence. By virtue of their relationship to the deceased, Ms Watt and Ms Weeks are clearly family victims.
Section 28(3) requires a court to receive the victim impact statement of a family victim and acknowledge its receipt, and permits to court to make any comment upon it which is considered appropriate. Section 28(4) provides:

(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bechalany

Details

AGLC: R v Bechalany [2018] NSWSC 493
Case: [2018] NSWSC 493
Decision Date: 19 April 2018

CaseChat Overview and Summary

The case of R v Bechalany involved a defendant who was an accessory after the fact to manslaughter. The court was required to decide on the admissibility of victim impact statements presented by the family of the deceased. The family sought to have their statements heard as part of the sentencing process, despite the victim impact statement provisions of the relevant legislation not applying to the offence committed. The legal issue was whether there was any other law by which these statements could be received.

The court examined whether the common law or any other statutory provision allowed for the reception of victim impact statements in such circumstances. The court considered the purpose of victim impact statements and their relevance to the sentencing process. The court concluded that while the statutory provisions did not apply, the common law allowed for the reception of such statements where they could contribute to a just sentencing outcome. The statements were deemed relevant and were admitted as evidence.

In reaching its decision, the court balanced the need for a just sentencing outcome with the principles of fairness and relevance. The court found that the statements provided valuable insight into the impact of the crime on the family of the deceased and could assist in determining an appropriate sentence. The court's decision was grounded in the broader principles of criminal justice, ensuring that the sentencing process was informed by all relevant considerations.

The court ordered that the victim impact statements be received as evidence in the sentencing of the defendant. This decision provided clarity on the admissibility of such statements in cases where statutory provisions do not apply, while ensuring that the sentencing process remained fair and just.

Orders