R v David Qin (No 2)

[2008] NSWDC 169

Reported Decision: 7 DCLR (NSW) 196

District Court

CITATION:	R v David Qin (No 2) [2008] NSWDC 169
HEARING DATE(S):	10 - 19 December 2007 - Trial, 7 March 2008
EX TEMPORE JUDGMENT DATE:	7 March 2008
JURISDICTION:	Criminal
JUDGMENT OF:	Goldring DCJ
DECISION:	Objection to contents of Victim Impact Statement allowed in part
CATCHWORDS:	CRIMINAL LAW - Victim Impact Statement - personal harm - mental illness - nervous shock
LEGISLATION CITED:	Crimes (Sentencing Procedure) Act 1999
CASES CITED:	R v Slack [2004] NSWCCA 128
PARTIES:	Crown David Qin (Offender)
FILE NUMBER(S):	07/11/0576
COUNSEL:	P Aitken, solicitor advocate (Crown) B Murray (Offender)
SOLICITORS:	NSW DPP Hurlstone Park Legal

JUDGMENT

1 HIS HONOUR: In this matter the prosecution has advised me that the victim of these offences has prepared a victim impact statement which he proposes to tender. Mr Murray, who appears for the offender, has, correctly in my view, drawn my attention to the provisions of the legislation, which relate to the use of victim impact statements. The Crown concedes that, in this case, it does not propose to rely on anything contained in the statement, for the purposes of s 21A of the Crimes (Sentencing Procedure) Act, that is, as an aggravating or other factor in sentencing.

2 It strikes me as a little difficult to understand the Crown’s position, if it is saying that the impact on the victim is not harm, but is still relevant to the process of sentencing. As I understand the purpose of the provisions relating to victim impact statements, it is to allow someone, who has been the victim of an offence, to express his or her feelings about the impact that the offence has had on them. A ‘victim impact statement’, as defined in s 26, means, “a statement containing particulars of”, and I omit some words, “any personal harm suffered by the victim as a direct result of the offence”, and ‘personal harm’ is defined as being the “actual physical bodily harm, mental illness or nervous shock”.

3 The persons who are permitted to give statements are the victims themselves, and in some cases a professional person is allowed to assist them. In this case, the victim impact statement has been handed to me, and I have read it. It is the sort of statement that can be expected from someone who has been the victim of an offence such as this. It indicates that she has feelings of stress and anger and resentment, which is only to be expected. It also says that she has suffered anxiety and panic attacks, depression, damage to her self-esteem and damage to her relationships with other people. Again, that is to be expected.

4 The question is whether those matters, or any of them, relate to mental illness or nervous shock. The term ‘nervous shock’ is not defined in the legislation. It is an expression, which has been used in the law to describe the sort of harm…