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 that people suffer in the course of exposure to various dangers, not just in criminal law, but also in civil law. It is usually taken to cover various sorts of disturbance or disorder, not amounting to a recognised mental illness. It is an expression, which is used to cover such events, as the harm suffered by a person who is a witness to a road accident in which someone is seriously injured, and obviously that causes harm.

5 In the victim impact statement that is proposed to be tendered in this case, there is some material which, in my view, would fall within the expression ‘nervous shock’, and there is some material which describes mental illness. There is no question, at any time, that the victim suffered any actual physical harm. In its present form, a large part of the statement, although it is clearly what the victim feels, is not permissible as part of a victim impact statement, and those parts of it should be deleted. In my view, it is the responsibility of the prosecution, in such matters, to make sure that what is tendered as a victim impact statement falls squarely within the expression used in the Act.

6 This is a criminal proceeding and, although the rights of the victims are important, and are recognised by the provisions which allow victims to make statements, the law is important. It is certainly the case, that what a victim suffers is important and is serious. I have been referred to the case of Slack [2004] NSWCCA 128. There, the leading judgment was given by Sperling J. At para 57 his Honour described the effect of what the victim, in that case, said it had done to her. She talked about the experience that she had had after the events that gave rise to the charge, and the treatment she has had. In that case, it seems that the Crown did rely on the statement as evidence of harm to the victim. I now read from some further passages from what Sperling J said:

60. Section 28(4) provides that the court must not consider a victim impact statement unless it has been given by or on behalf of the victim to whom it relates or by or on behalf of the prosecutor, and must not consider a victim impact statement given by a family victim…

And I omit some words there because they do not apply in this case.

The implication is that a victim impact statement may, in the discretion of a court, be received and taken into account as evidence of harm caused by the offence and, in that way, as evidence relevant to the determination of punishment by sentence.

61. Whilst a sentencing hearing is not subject to the rules of evidence unless an order to that effect is made and whilst s 28 also, by implication, allows the court to take a victim impact statement into account in determining the appropriate punishment by sentence, the weight to be given to such a statement is for the court to determine. In RKB ( NSWCCA, 30 June 1992, unreported) it was acknowledged that a sentencing court is required to take into account the impact of criminal behaviour on the victim or victims of such behaviour but, it was said, what is required is an objective assessment of the crime’s effect.

62. The court is required to be satisfied of the facts in question beyond reasonable doubt. In these circumstances, substantial weight cannot be given to an account of harm in an unsworn statement, not necessarily and almost certainly not in the victim’s own words, untested by cross-examination and, in the nature of things, far from being an objective and impartial account of the effect of the offence on the victim.

He goes on to say

64. ….. I would mention that it is impermissible for a sentencing judge to treat the distress of the victim in having to give evidence as a matter of aggravation: Siganto (1998) 194 CLR 656 at [27]. I do not construe the provisions of the Crimes (Sentencing Procedure) Act 1999 as modifying that approach.

7 And in this case it is clear, and I think it is acknowledged, that for a victim to have to give evidence in a trial is always difficult. It is also clearly difficult for a victim in a trial to have to listen to legal argument such as this, but it is the function of the court to make sure that the law is applied properly and that what the court hears and receives is no more and no less than the law applies.

8 What I am going to say is that it is clear that there are parts of this statement that do fall within the description of victim impact statements.

9 The object of this legislation is clearly to allow victims of crimes to say how the crime has had an impact on them, provided that it relates to physical harm, mental illness or nervous shock. In my view there are parts of this statement which fall within that description and I consider that the Court should receive a statement to that effect. It seems to me that what is not really permissible, and I will start from the end of the statement, is everything in it from the heading, “Physical impacts of the assault”. The two parts, “Emotional impacts of the assault” and “Psychological impacts of the assault”, although not entirely directed to the matters, I think, for practical purposes, could comprise the statement.

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