R v Birmingham (No 2) No. Sccrm-96-305 Judgment No. S6390

[1997] SASC 6390

R  v  BIRMINGHAM

(No 2)

Perry J

On 24 September 1997 I sentenced the defendant on three counts to which he had pleaded guilty, namely, causing death, causing grievous bodily harm, and causing bodily harm, all by dangerous driving.

During the course of the submissions given before I pronounced sentence, a question arose with respect to my ability as sentencing Judge to read and take into account so-called victim impact statements furnished by relatives of the deceased, whose death was the subject of the first count.  During the course of my sentencing remarks, I said that I was of the view that I was entitled to have regard to the victim impact statements, and that I had done so.  I intimated that I would deliver separate reasons for taking that course.

The statements in question were furnished by the father and mother of the deceased.  They are separate statements which each of them has personally signed.

At the time of his death, their son was aged 20 years.

In his statement the deceased’s father writes of the intensity of his grief at the loss of his son; sleeplessness; interference with personal relationships; difficulty in concentrating; and interference with his ability to function satisfactorily in his employment.

In her statement, the deceased’s mother writes of how much the love of her son meant to her; that she cries during the day and is sleepless at night; a feeling of emptiness; and describes other aspects of her emotional reaction.

Relevant provisions of the Criminal Law (Sentencing) Act 1988 are:

"S10  A court, in determining sentence for an offence, should have regard to such of the following matters as are relevant and known to the court:

.........

(d)     the personal circumstances of any victim of the offence;

(e)     any injury, loss or damage resulting from the offence;

........"

"S7(1)       Subject to subsection (2), the prosecutor must, for the purpose of assisting a court to determine sentence for an offence, furnish the court with particulars (that are reasonably ascertainable and not already before the court in evidence or a pre-sentence report) of -

(a)     injury, loss or damage resulting from the offence; and

(b)     injury, loss or damage resulting from -

1. any other offence that is to be taken into account specifically in the determination of sentence; or

1. a course of conduct consisting of a series of criminal acts of the same or a similar character of which the offence for which sentence is to be imposed forms part.

1. The prosecutor may refrain from furnishing the court with particulars of injury, loss or damage suffered by a person if the person has expressed a wish to that effect to the prosecutor.

1. The validity of a sentence is not affected by non-compliance or insufficient compliance with this section."

In s3, "injury, in relation to an offence" is defined to include "pregnancy, mental injury, shock, fear, grief, distress or embarrassment resulting from the offence".

In support of his contention that on a proper construction of the Act victim impact statements were only able to be received and taken into account when they related to the immediate victim of the offence, Mr Barnett of counsel for the defendant, drew attention to the decision of Hunt CJ at common law, sitting in the Criminal Division of the New South Wales Supreme Court in Previtera.   That case concerned observations made by Hunt CJ during the course of sentencing the defendant on a charge of murder by strangulation of an 81 year old woman.

During the course of his remarks, Hunt CJ referred to the fact that he had been provided with a victim impact statement given by the deceased’s son. Pursuant to s23C(3) of the Criminal Procedure Act (1986) (NSW), the court is obliged to receive a victim impact statement "given by a family victim" and "may make any comment on it that the court considers appropriate". The section goes on to state:

".... the court must not consider the statement in connection with the determination of the punishment for the offence unless the court considers that it is appropriate to do so."

Elsewhere in the Act "family victim" is defined to mean "a member of the immediate family of the primary victim of the offence" where the primary victim has "died as a direct result of that offence".

After referring to the statutory provisions, Hunt CJ expressed the view that it would "never be appropriate" to take such a statement into account in sentencing an offender in such a case.  He went on :

"... it is impossible to see how any loss or injury suffered by persons other than the victim directly injured by the crime could ever be relevant to sentencing ...... however relevant they may be to the issue of compensation.  .........

In cases where the victim is still alive - that is, the victim directly injured by the offender’s criminal act - victim impact statements will no doubt serve the useful purpose in the criminal courts of establishing the consequences of the crime upon that victim.  A problem arises, however, in those cases - such as the present - where the crime involves the death of the victim.  The consequences of the crime upon the victim (death) has already been proved (or admitted) by the time the offender comes to be sentenced.  It may be that, in the case of a slow lingering and painful death, information from the family would be relevant, but that would be a very rare case.  The present case is certainly not such a case.  The law already recognises, without specific evidence, the value which the community places upon human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar.  It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another.  ............

The victim impact statement in the present case, as I have said, speaks of the reactions of the deceased’s son and daughter to the  murder.  That material is relevant to any compensation which they may seek from the Victim Compensation Tribunal, but it is irrelevant to the task which I have to perform here in sentencing the prisoner.  It is therefore inappropriate to consider it in determining the sentence to be imposed upon the prisoner in this case."

In Miller, the Court of Criminal Appeal of the Supreme Court of Victoria had occasion to consider, in the context of a sentence imposed for murder, s5(2) of the Sentencing Act (1991) (Vic) which is identical terms to ss10(d) and (e) of the Criminal Law (Sentencing) Act. In its judgment in that case, the court observed:

"... even in the absence of a victim impact statement, a sentencing judge was entitled to draw reasonable inferences from the evidence before him of any injury, loss or damage suffered by victims and their immediate families.  However, it is still good law that a sentencing judge should not ‘be required to impose a harsher penalty upon an offender who caused the death of a person who was widely loved than upon one who causes the death of an unloved victim’.

In the present case, there was evidence of the fear that had been felt by residents of Bendigo at the time following the murder; there was evidence in the depositions from the mother of the deceased, which touched upon their loss.  We are not persuaded that the judge misdirected himself by referring to, and taking account of, the effect on Bendigo community of this crime, or of the anguish of her family.  Commonsense would allow inferences to be drawn in respect to these matters, in the absence of direct evidence."

In The Laws of Australia  a number of authorities are gathered together under the following proposition:

"Unless authorised by statute, the impact of the death of a homicide victim on others is not relevant to sentence."

In one of the cases which the learned author goes on to cite, Inkson,  Zeeman J is quoted as saying:

"The senseless killing of a human being cannot but give rise to outrage.  At the same time particular outrage, expressed in a large part because of the regard in which a particular deceased was held, is not a relevant consideration.  To admit it as being relevant would give rise to the perception that punishment is to be governed by the value to be placed on a particular life rather than on human life in general.  This would be entirely contrary to principle, as was accepted by the Court of Criminal Appeal in Victoria in R v Penn [(unrep, 9/5/1994, CCA Vic, 339 of 1993) at 6].  Courts uphold the sanctity of human life.  They should not put greater value on one life rather than on another or do anything which may be so understood."

Insofar as Zeeman J refers to Penn, that case was expressly held in Miller (supra) no longer to be good law, following an amendment to the Victorian legislation.

Another of the cases cited is De Souza,  in the course of which Dunford J is quoted as observing:

"It is ... difficult to see how such material could be relevant to the sentencing process.  In particular it cannot be relevant to the objective seriousness of the offence.  The primary victim is dead, a human life has been taken and each human life has an intrinsic value.  The life of one homicide victim cannot, it seems to me, be of more intrinsic value than another because he or she comes from a close family or has loving relatives.  That is not to deny that quite obviously any death, particularly that of a happy vibrant, caring twenty-one year old from a loving family must have a devastating effect on those who are left behind."

For present purposes it is unquestionably right, not only as a philosophical proposition but for the purposes of the law, that courts should not put a greater value on one human life as opposed to another.  I use the words "for present purposes" as in some circumstances, such as actions under the Wrongs Act for damages in fatal accident cases, the proposition does not hold good.

But with respect to those who have expressed the contrary view, it appears to me that there is no breach of that basic principle, to make allowance for the trauma and upset suffered by surviving members of the victim of a homicide in the context of the South Australian Criminal Law (Sentencing) Act. In my opinion, the words in the Act, "any injury, loss or damage resulting from the offence", are apt to describe not only the effects of the offence upon the immediate victim, but also the effects, insofar as they answer that description, on others.

In that context it is not a matter of valuing one life more than another.  Rather it is a question of having regard to the totality of the "injury, loss or damage", which may include injury, loss or damage suffered by others apart from the immediate victim.

An example which comes to mind is in the case of a bank robbery.  Commonly, the victim named in the information is the teller who has been threatened and who has handed over the money.  In such a case, victim impact statements are properly received to indicate that another person (the bank) has suffered a substantial loss.

I do not consider that the interpretation which I have placed on the legislation offends any basic tenet of sentencing principles.  After all, offenders must take victims as they find them, even when one speaks of the immediate victim of a crime of, say, assault.  An act of assault may have devastating consequences on one victim, but for various reasons, consequences which would have been nowhere near so severe if the same assault had been perpetrated on another.

So it is in the case of homicide.  "Injury, loss or damage" to others flowing from the death of one human being may be much more severe in one case than in another.  The act obliges the court to have regard to any "injury, loss or damage" resulting from the offence.  There is no reason to give those words a narrow or confined meaning.  Furthermore, there would be little point in obliging the court to have regard to such matters if it was not intended that its consideration of them would have the capacity to affect the sentence.

I would add the qualification, however, that there is an obvious difference between the abhorrence of the community at large to a particular crime and the "injury, loss or damage" suffered by the immediate victim and near relatives of the immediate victim.

As for the former, in my opinion, that is not within the scope of what must be allowed for under s10(e) of the Act.  The court is entitled to take community outrage into account but in a guarded and circumspect manner.  It would not be right to yield to anything which might be described as a "lynch mentality".  When community outrage is a reaction to what might be horrifying circumstances of a particular crime, it is those horrifying circumstances, being circumstances of aggravation, which attract the appropriately heavier penalty, rather than community outrage.

I should make it clear also that retribution is not part of the law of this State.

Insofar as community outrage may be an expression of concern at a particular class of offence, that may properly be taken into account in the allowance for general deterrence.

Before parting with the matter, I must say that given the youth of the deceased and the circumstances of his death, the grief and outrage felt by the surviving parents is very much what I might have expected, even if I had not had the benefit of the victim impact statements in question.  It follows that even without the benefit of those statements, I doubt that I would have imposed a less severe sentence.