R v Kirk

[2015] QSC 336

SUPREME COURT OF QUEENSLAND

CITATION:

R v Kirk [2015] QSC 336

PARTIES:

R

v

KIRK, Matthew-John

(defendant)

FILE NO/S:

SC No 688 of 2015

DIVISION:

Criminal

PROCEEDING:

Sentence

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

18 September 2015

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2015

JUDGE:

Peter Lyons J

ORDER:

The prosecution’s application for leave to tender two statements from the parents of the deceased is refused.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING PROCEDURE – MATERIAL RELEVANT FOR DETERMINING APPROPRIATE SENTENCE – VICTIM IMPACT STATEMENTS – where the defendant pleaded guilty to one count of being an accessory after the fact to murder – where the prosecutor sought leave to tender two statements from the deceased’s parents under s 15 of the Victims of Crime Assistance Act 2009 (Qld) – where both statements express the consequences for the parents resulting from the murder – whether s 15 applies to the statements – whether the statements detail the harm caused by the defendant’s offence

Victims of Crime Assistance Act 2009 (Qld), s 15

COUNSEL:

B Merrin for the prosecution

A Edwards for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions (Queensland) for the prosecution

Legal Aid Queensland for the defendant

1. Peter Lyons J: In this case the Prosecution has tendered two statements from the parents of the deceased person. The tender is made under s 15 of the Victims of Crime Assistance Act 2009 (Qld). I should stress at the outset that the question I am at present considering is a technical one about whether those are documents to which the section applies. It is not about the relevance of the effect of the defendant’s criminal conduct on the family of the deceased. That effect is plainly relevant, as is conceded by the defendant’s counsel, and it is a matter I will inevitably take into account. However, I do not consider these documents are documents to which the section applies.

2. The section makes provision for the giving to the Court of details of the harm caused to a victim by the offence and, in particular, whether such details may be given in the form of a victim impact statement.  For the purposes of the section, the term “victim” is defined in s 5 of the Act to include a person who has suffered harm because a person is a family member of a person who has died because of crimes committed against that person.  The term would therefore extend to the parents of the deceased.  However, the section focuses on details of the harm caused to such persons by the offence, no doubt being a reference to the offence with which the defendant is charged.  That offence in the present case is the offence of being an accessory after the fact to murder. 

3. The term “accessory” is itself defined in s 10 of the Criminal Code Act 1899 (Qld) to mean, for present purposes, a person who assists another who is, to the first person’s knowledge, guilty of an offence, in order to enable the other person to escape punishment. The elements of the offence are said, in the annotations to s 307 in Carter’s Criminal Code, to be: the accused having knowledge that a person has murdered another, assists that person in order to enable that person to escape punishment.

4. Consistent with that definition, the defendant’s conduct in the present case has been accurately characterised by the Prosecution in a way to which I will refer in my sentencing remarks, but it may broadly be described as providing assistance to the person said to have committed the murder for the purpose of enabling that person to avoid the authorities, coming to know of the murder.  It would follow, therefore, that the section relates to the provision of details of the harm caused to the parents of the deceased by what I might broadly describe as the defendant’s role in concealing the murder. 

5. That view, it seems to me, is consistent with the definition of “victim impact statement” found in s 15(9) of the Victims of Crime Assistance Act, which refers to a statement which, amongst other things, sets out the particulars of the harm caused to these persons by an offence, no doubt being the offence with which the defendant is charged.

6. The two statements, unsurprisingly, express the very significant and distressing consequences for the parents of the deceased resulting from the murder.  The first, that of the father, is directed only to that matter and, in my view, is not a victim impact statement.  The second is primarily directed to the same topic, although there is a sentence which refers to the state of mind of the deceased’s mother in the period prior to her learning what had happened.  Taken as a whole, however, in my view, that document is not a victim impact statement either. 

7. Accordingly, I am of the view that neither is a document to which s 15 applies. As I have said, that really only goes to the method by which relevant information about the consequences of the defendant’s conduct can be placed before the Court. When I say consequences, I am referring to consequences for the deceased’s parents. It is not a ruling that such matters are irrelevant. Accordingly, I refuse the tender.