Raccosta v The Queen
[2012] VSCA 59
•4 April 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0153
| JOHN RACCOSTA | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | Neave JA, Mandie JA and Cavanough AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 14 March 2012 |
| DATE OF JUDGMENT | 4 April 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 59 |
| JUDGMENT APPEALED FROM | DPP v Raccosta (Unreported, County Court of Victoria, Judge Sexton, 16 June 2011) |
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CRIMINAL LAW – Appeal against sentence – Armed robbery – Total effective sentence of five years’ imprisonment with non-parole period of two and a half years – Total effective sentence exceeded Crown range given below – Whether sentence manifestly excessive – Whether undue weight given to Victim Impact Statement –Appeal dismissed
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| Appearances: | Counsel | Solicitors |
| For the appellant: | Mr D Dann | Slades & Parsons |
| For the respondent: | Mr D Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA:
MANDIE JA:
CAVANOUGH AJA:
On 11 March 2011, after a five day trial by jury in the County Court, the appellant, John Raccosta, was convicted of one count of armed robbery. On 16 June 2011 he was sentenced to 5 years’ imprisonment, with a non-parole period of 2½ years. He now appeals against that sentence.
Nature and circumstances of the offending[1]
[1]The following summary is based partly on the Crown’s summary of relevant facts set out in its written case dated 20 September 2011, partly on the sentencing judge’s description of the offending, and partly on the appellant’s summary of facts in his written case dated 24 August 2011, all of which were consistent. There was no dispute about the circumstances of the offending during the hearing before us.
At 11.30 pm on 2 January 2008 the appellant, then aged 44, approached the complainant who was working as a prostitute in the St Kilda area. They agreed that she would perform sexual services for him for a fee. The complainant got into the appellant’s car and directed the appellant to a secluded place. On arrival the appellant paid the complainant with a $100 note and sexual services were performed in the back seat of the car.
The appellant proceeded to smoke a cannabis bong. Afterwards he produced a knife and put it to the complainant’s face, saying something like: ‘I have got to do this, give me back the money’ (referring to the $100 note). The knife looked home made. It had grey masking tape around the handle and was about 40-45 centimetres long. The complainant told the appellant that her money was in a bag in the front seat. The appellant told her to get it. She attempted to open the side door of the vehicle, but it was locked. The appellant stated ‘If you try anything, I’m going to slit your throat’. The complainant then got into the front seat, obtained the $100 note and handed it over to the appellant because she thought he was going to hurt her. The appellant told her to get out of the car and she did so. He got out also and pushed her up against the side of the car. He asked her what else she had in her possession. He again threatened to slit her throat. The complaint dropped her bags and her jacket. After seeing that she had nothing else of value in her possession, the appellant told her to go. She ran off towards St Kilda Road, saw a police car and reported what had happened. The appellant was arrested on 14 January 2008.
The appellant admitted to police that he had used the services of a street prostitute in the St Kilda area on two or three previous occasions. He denied having been in the area on the date of the offence and stated that he had been away with his son during this period.
There was a trial in March 2010 in the County Court at which the appellant pleaded not guilty. The jury could not agree on a verdict.
On the re-trial in March 2011, the appellant again pleaded not guilty. He admitted that he had had sex with the complainant in the car on the night in question for a fee, but denied smoking the bong, using the knife to demand the money back, and threatening the complainant. He was nonetheless convicted.
Notwithstanding that the home made knife was in the car, the learned sentencing judge was not satisfied that the appellant had planned the offence as distinct from having committed it spontaneously.
Gravity of the offence
Before the learned sentencing judge it was submitted on behalf of the appellant that the offence was in the category of a low level armed robbery, equivalent to an armed robbery on a vulnerable institutional person, such as a robbery at knifepoint of a service station or a 7-Eleven Store in the early hours of the morning where there is a lone attendant.[2] Counsel submitted that the level of vulnerability of a prostitute was equal to that of a lone service station attendant or someone in a similar situation. The Crown submitted that this complainant was in a more vulnerable situation than a service station attendant, in that she and the appellant had gone to a very isolated place, they had just had sex and they were in the back seat of the car when the appellant pulled the knife on the complainant late at night.[3] Her Honour found that the victim was more vulnerable than a service station attendant because she was alone with the appellant in a dark, isolated place and had no protection or detection systems immediately available to her, whereas although a service station attendant may be working alone at night, he or she will usually be in a well lit environment and usually with closed circuit cameras and an emergency alarm available and with the real possibility of members of the public being around.
[2]Plea transcript, 13.
[3]Plea transcript, 18.
Further, her Honour accepted the Crown submission that, since the appellant had previously used the services of a street prostitute, it was likely that he was aware of their particular vulnerability and perhaps concluded that such a victim was unlikely to report the crime to police.
In his written case, the appellant submitted that the learned sentencing judge erred in finding that this offence was in a more serious category because the victim was alone in a dark car park. He submitted that the complainant had a person acting as her lookout and protector on the night; that she found police assistance only a short distance away; and that there is little to distinguish her position from that of other low level armed robbery victims. However, on the hearing before us counsel for the appellant (who had not drawn the appellant’s written case) did not press this point. In our view, the learned sentencing judge’s observations about the particular vulnerability of the victim were well open to her.
Impact on the victim
The complainant was not physically injured during the course of the armed robbery. However, before the learned sentencing judge, counsel for Mr Raccosta acknowledged that the court would have ‘no doubt’ that this offence had had a ‘significant impact on the victim’.[4] The learned sentencing judge dealt with this aspect as follows:
(8)There is a victim impact statement in this matter which I have read. I accept that there was a considerable impact on the victim. She states that she was making some positive changes in her life when you committed the crime against her and she attributes the negative turn that her life has taken since to that crime. I accept that she already had some difficulties to overcome including a long-standing heroin addiction, and a criminal history, and it is hard for me to state precisely how much your crime has contributed to the various matters she refers to, but I do not need to state it precisely.
(9)I am satisfied that your victim suffered as a result of your actions and it is her perception that it is affecting her still. She has lost her partner, being the father of her children, she is currently homeless and at risk of losing the care of her children again and unable to work or study, all things which were beginning to turn positive for her at the time of the crime. I am sure she has been advised this by the police and the OPP but I confirm that she should accept any assistance that is offered to her to help in putting this crime behind her. Such assistance will eventually allow her to regain some control and begin rebuilding her life, for her sake and that of her children. I wish her well.
[4]Plea transcript, 2.
The appellant submits that these two paragraphs indicate that the learned sentencing judge gave too much weight to the victim impact statement. The appellant does not dispute that the complainant’s history since the time of the offence has been as described by her in the victim impact statement. His complaint is only about the question of the extent to which the offence caused or contributed to the complainant’s subsequent unhappy circumstances. We will return to this matter when we come to deal with ground 2.
The appellant’s personal history and prospects of rehabilitation
The appellant makes no criticism about the accuracy or comprehensiveness of the learned sentencing judge’s observations concerning the appellant’s personal history and prospects of rehabilitation. Her Honour’s remarks in those respects were as follows:
(10)I have been told something of your personal history. You are now aged 48 years and were aged 44 at the time of the offence. Since you left school at the age of 16½, you have always been employed. You ran your own steam-cleaning business for about seven years which you set up after receiving compensation for work accidents which occurred in 1989. You sold the business at a profit and began working as a metal polisher in about 1997. Since then you have worked continuously in the metal industry where your skill is apparently well regarded. I am told that you will have no trouble finding employment on your release from custody. At the same time you have also worked continuously in the music industry as a drummer over many years.
(11)It was put that you had no financial motive for committing this crime as you were always in work. I accept that you had contributed to society as a worker in a number of fields but I cannot say what your reason was for committing the crime. I do note that while you were in constant full time employment, you were in the process apparently of purchasing a home and this may have provided some motive to regain the $100 you had just spent on a prostitute.
(12)You were married but are recently divorced. The marriage produced a son now aged 12 in whose care you have been involved. In particular, through him you have been involved in a youth group and trips to camps and libraries. Until you were incarcerated after the jury’s verdict, you had been paying your son’s school fees. While in custody, you have already undertaken a course and plan to do more during your sentence.
(13)You had admitted to ten prior convictions including seven relating to dishonesty offences. I am told that the offences in June 2005 arose from you stealing from a former employer because of money apparently owing to you. The offences of dishonesty are particularly relevant to your sentence today as it means that I will not be sentencing you as a person who has been of good character before the commission of this dishonesty offence, which is a more serious offence than you have previously committed, including the use of force and a weapon. I am told that since this offence over three years ago, you have only received an infringement notice for exceeding .05 and have no other matters pending.
(14)I have heard evidence from a friend of yours who has known you for about three years. She confirmed your excellent reputation for work in the metal industry and also gave evidence of the loving relationship you share with your son and the help that you have given others. She is aware of the circumstances of your offending and describes this as out of character. She plans to support you in custody and has already been visiting you.
(15)I also take into account the references I received from other friends and a cousin. All spoke of their disbelief that you committed this offence and stated that it was out of character for you and that there could not have been a financial motive. I accept that those who know you considered you to be unlikely to commit this crime but of course I must act on the basis that you did.
(16)On balance, I am satisfied that the chances of your rehabilitation are reasonably good. Although you have a criminal history, you have the support of friends and an ability to gain employment on your release. You also have a son in whose life you will wish to remain a part and presumably wish to influence him in a positive way. All these things will contribute to your rehabilitation and I find that they also make the likelihood of your re-offending in the same way quite low.
…
(20)Since you committed this offence there has been a delay. Two years passed between the commission of the offence and your first trial held in March 2010. At that trial the jury were unable to reach a verdict. Due to the workload in this Court, the next trial could not be listed until twelve months later. That delay to the first trial, and since then, is no fault of yours and in that whole period you have not engaged in any offending of this serious kind. Therefore I take this delay into account in mitigation.
Grounds of appeal
Mr Raccosta was given partial leave to appeal, on the following grounds:
(1) The sentence imposed was manifestly excessive in that
(a)The prosecution informed the Court that the proper sentencing range was between 2½ and 3½ years with a minimum non‑parole period of between 18 months and 2½ years;
(b) The appellant stole $100 and did not injure the victim;
(c) The appellant had no prior convictions for the offence;
(d)The offence took place on 2 January 2008 and since that time the appellant had only received a traffic infringement notice for drink/driving;
(e)The appellant had a good work history and had effectively rehabilitated himself since the offence;
(f)The appellant had contributed to the community by his involvement with a local youth group and assistance to elderly neighbours;
(g)The delay in the resolution of this matter was not due to the appellant as an earlier jury was discharged when it was unable to reach a verdict.
(2)The learned sentencing judge gave too much weight to the victim impact statement when the victim had been a heroin addicted prostitute at the time of the offence with issues concerning the custody of her children but in her victim impact statement related all her current problems to the offence.
Leave to appeal on proposed grounds 3, 4 and 5 was refused on the basis that they were no more than possible reasons why the sentence might be manifestly excessive. However it was indicated that these points could be raised in argument under the first ground. The proposed additional grounds were:
(3)The sentencing judge placed too much weight on the vulnerability of the victim.
(4) Current sentencing practices were not given sufficient weight.
(5)The sentencing judge did not sufficiently take into account the rehabilitation of the applicant between the offence and sentencing.
Ground 1: manifest excess
To establish the ground of manifest excess, the appellant must demonstrate that it was not reasonably open to the learned sentencing judge to impose the sentence which she imposed. In R v Stuttard Maxwell P said: [5]
When the sentencing task has obviously been performed carefully and cogently by the sentencing judge, to whom our law confides that function, it will always be difficult, in my view, for a submission of manifest excess to succeed. The appellant must persuade the Appeal Court that, despite the sentencing function apparently having been conscientiously discharged, nevertheless the judge went so badly wrong … that this Court should be satisfied that the discretion was not properly exercised at law, such that it would fall to this Court to exercise the discretion afresh.
In our view, this is a case in which ‘the sentencing task has obviously been performed carefully and cogently by the sentencing judge’. Every matter that was urged on behalf of the appellant at the plea hearing was considered and dealt with by the learned sentencing judge. Likewise, every matter now relied upon by the appellant under the ground of manifest excess was expressly referred to by her Honour, who has a wealth of relevant sentencing experience.
[5][2006] VSCA 112, [26]. See also R v Abbott (2007) 170 A Crim R 306, [13]-[15] (Maxwell P); R v Langdon & Langdon [2004] VSCA 205, [67]-[75] (Gillard AJA).
Before this Court, the appellant placed particular emphasis on the fact that on the plea the prosecutor submitted that an appropriate range was a maximum of two and a half to three and half years’ imprisonment with a minimum term of one and a half to two years’ imprisonment. Despite this, her Honour imposed a head sentence of five years’ imprisonment and a non-parole period of two and a half years. Before us, counsel for the appellant submitted that powerful mitigating factors had informed the range proffered by the Crown below. In particular, counsel submitted that the appellant had limited priors, with none for armed robbery or violence. Counsel referred to the context and circumstances of the appellant’s prior convictions for dishonesty, as outlined to the learned sentencing judge.[6] He submitted that these represented low level examples of dishonesty offences. Counsel submitted that the present offence also fell to be classified as a low level armed robbery, although, as indicated above, he did not persist with the suggestion that the offence was no more serious than holding up a lone service station attendant at night. Counsel referred also to her Honour’s lack of satisfaction that the offending was planned rather than spontaneous.
[6]Plea transcript, 7-8. See below.
As to delay, counsel referred to the period of three and a half years between the offending and the date of the sentence, which was partly explained by the need for two trials. Counsel stressed that this point involved more than mere delay. It was highly relevant, he said, to the prospects of rehabilitation. The appellant had been employed during the period of the delay and had made family and community contributions. Since being in custody pending the plea and sentence, he had already undertaken a course and planned to do more courses during the sentence. The trial judge herself had found that the appellant’s prospects of rehabilitation were ‘reasonably good’ and that the likelihood of his re-offending in the same way was ‘quite low’.
As to current sentencing practices, counsel for the appellant referred to a table of 27 cases appended to the written case in reply filed by the Crown, entitled ‘Overview of Low Range Armed Robbery Sentences in the Court of Appeal’, relating to the period 2007 to 2011. Counsel pointed out that the average head sentence for armed robbery in the table was two years and six months. On the other hand, counsel accepted that all 27 cases related to guilty pleas and that, in a sense, the list was self-selecting in that it was a list of cases where an individual armed robbery sentence of under five years was imposed. Counsel then referred to the ‘Sentencing Snapshot’ relating to armed robbery which was said to show an average head sentence of three years. Whilst the sentencing snapshot encompassed all types and levels of armed robbery, once again it encompassed a large number of guilty pleas. Like his predecessor on the plea, counsel for the appellant said that he had been unable to find any single example of a sentence for armed robbery committed in similar or comparable circumstances.
In our opinion, the ground of manifest excess has not been made out. The sentence imposed was towards the top of the available range, but was open.
The maximum penalty for this offence is 25 years’ imprisonment.
The appellant had pleaded not guilty and so was not entitled to any discount and could not show any remorse.
The learned sentencing judge was not bound by the range suggested by the prosecution.[7] The question is whether the sentence imposed could be imposed in the exercise of a sound sentencing discretion.[8]
[7]Campisi v R [2010] VSCA 183, [19]-[21]; Hilder v R [2011] VSCA 192, [30]-[32]; JPR v R [2012] VSCA 50 at [44].
[8]JPR v R [2012] VSCA 50 at [44].
Before us, counsel for the Crown could not explain why the particular range had been put by the Crown below. He noted that the range which had been put represented the exact average based on the statistics. The limited usefulness of sentencing statistics, especially averages, has been frequently noted.[9]
[9]DPP v CPD (2009) 22 VR 533, [57]; DPP v Terrick (2009) 24 VR 457 at 475 [74]-[75]; White v R [2010] VSCA 261, [22]; Hudson v R [2010] VSCA 332, [32]; Hasan v R [2010] VSCA 352, [45]‑[46].
As mentioned above, the learned sentencing judge is a very experienced judge in this field. She referred expressly to the ranges that had been put by the prosecution and by the defence respectively. She commented that ‘to give a sentence in either range would be equivalent to give a sentence following a plea of guilty’.[10] The appellant had no entitlement to a discount for a plea of guilty, no remorse was shown and no valid reason was able to be put forward to explain the offending. Her Honour further remarked that the sentence needed to reflect the seriousness with which Parliament considers armed robbery. It carried the highest maximum sentence available in the County Court. That was to be balanced against the relevant mitigating factors, taking current sentencing practices into account. Her Honour expressly mentioned that the sentencing statistics were based on all sentences, the vast majority of which arose from pleas of guilty, whereby the statistics were likely to be skewed downwards.[11]
[10]Sentencing remarks, [25].
[11]Ibid.
We agree with the submission made by counsel for the Crown before us that this was a serious example of armed robbery. It involved a vulnerable victim in an isolated place, as the learned sentencing judge observed.[12] The knife could easily have been used to kill or seriously injure the victim. It was conceded by counsel for the appellant that the sentencing judge was entitled to take into account against Mr Raccosta that he had twice threatened to kill the complainant, notwithstanding that Mr Raccosta had not been charged with a separate offence of threatening to kill. In addition to holding a knife to the complainant’s face, the appellant pushed her up against the car. He was prepared to take not only the $100 but anything else of value that she may have had. The victim was put in real fear, and the offence has had a significant adverse effect on her. This crime may represent a low level armed robbery as compared with, say, a premeditated bank robbery using a sawn off shotgun and masks, as the appellant submits, but nevertheless the offence was serious compared with other ‘low level’ armed robberies. The learned sentencing judge was correct to emphasise the importance of general deterrence and denunciation.
[12]Sentencing remarks, [5].
It was well open to the learned sentencing judge to describe the appellant’s prospects of rehabilitation as ‘reasonably good’ as distinct from anything better. The appellant had relevant prior convictions. Although they did not involve armed robbery or any other form of violence, they did involve several instances of dishonesty going back to 1998 and reaching up until May 2006. On the plea, the appellant’s counsel made submissions about the circumstances of the prior convictions. He was unable to elaborate upon the 1998 conviction for theft and obtaining property by deception, save to say that the appellant received a fine without conviction. In June 2005 the appellant was sentenced to an intensive correction order for two burglaries and two thefts. They were said to relate to a time when the appellant was a sub-contractor for a metal company which went into liquidation owing him some $3,200. The owner of the company claimed that the company could not pay Mr Raccosta what it owed him. Mr Raccosta twice went back to the company’s premises and stole tools to make up the money that he thought he was owed and this led to him being charged with the offences. The appellant’s intensive correction order was later cancelled and he actually served 64 days in prison, representing the unexpired portion of the intensive correction order. The last of the prior convictions, in May 2006, were for theft, driving an unregistered vehicle and fraudulently altering a registration label. The appellant took a registration label from a wrecked car in a wrecking yard and put it on his own car, which was unregistered. This led to the three different charges, all heard on the one occasion, and Mr Raccosta was fined $800 for these matters. As counsel for the Crown remarked, the appellant’s priors could have been a lot worse but they are bad enough. Combining them with the fact that the appellant admittedly lied to the police about his movements on the night in question, pleaded not guilty, can show no remorse and cannot explain why he engaged in the offending, it was well open to the sentencing judge to determine that the appellant’s prospects of rehabilitation were only ‘reasonably good’. After all, the fact that the appellant had a good work history and a good relationship with his son did not prevent his prior offending or his offending on the occasion in question.
We note that the learned sentencing judge fixed a lower than usual non-parole period, being 50% of the head sentence. The non-parole period was only six months higher than the top of the range suggested by the Crown below.
What we have said so far covers the matters particularised in the subparagraphs under ground 1 together with the matters referred to in proposed grounds 3, 4 and 5 which the appellant was permitted to argue under ground 1. The appellant did not suggest that the subject matter of ground 2 (allegedly giving too much weight to the victim impact statement) might also support the manifest excess ground. However, for completeness, we indicate that we would not be persuaded that this sentence was manifestly excessive even if we were to treat the matters advanced under ground 2 as being relevant to the manifest excess ground.
We turn now to consider ground 2 individually.
Ground 2: victim impact statement
Ground 2 asserts that the learned sentencing judge gave ‘too much weight’ to the complainant’s victim impact statement. The ground does not assert that any part of the statement was inadmissible or should not have been taken into account at all.[13] The giving of weight to particular relevant considerations in the exercise of the sentencing discretion is classically a matter for the sentencing judge.[14] Indeed it has been said that a complaint that the sentencing judge has given too much or too little weight to a particular sentencing consideration will not of itself constitute a ground of appeal. In Gorladenchearau v R[15] Maxwell P said:
Axiomatically, a complaint about the weight given to a particular sentencing consideration is not a ground of appeal. As this Court has explained in Director of Public Prosecutions (Vic) v Terrick[16] and again in Scerri v The Queen,[17] the bringing together of relevant considerations in a sentencing decision does not involve – could not involve – the attribution of quantitative significance to individual qualitative factors.[18] The only way in which this Court can evaluate a complaint about the weight given to a particular consideration is as a particular of the manifest excess ground. Under that ground, the Court will examine the sentence actually imposed, and ask whether it was reasonably open to the judge to impose that sentence if appropriate weight were given to all relevant factors.[19]
[13]Compare Tran v R [2011] VSCA 383, [18]-[29].
[14]Nguyen v R [2011] VSCA 32, [52]; House v R (1936) 55 CLR 499.
[15][2011] VSCA 432, [34]. See also CF v R [2012] VSCA 22, [14]; compare R v Bernath (1997) 1 VR 271, 277 (Callaway JA).
[16](2009) 24 VR 457, 459–60 [5].
[17][2010] VSCA 287, [22]–[24], [30].
[18]See also Mamonitis v The Queen [2011] VSCA 370, [8].
[19]Clarkson v The Queen [2011] VSCA 157, [89].
On the plea, counsel for Mr Raccosta did not distinctly object to the reception into evidence of any part of the victim impact statement. Rather, he made a submission about the inferences which could be drawn from it.[20] After acknowledging that her Honour would have no doubt that the offence had had a significant impact on the victim, he pointed out that the victim impact statement had been made some three and a half years after the offence and that it set out a lot of things that had gone wrong in the victim’s life, including the ending of her relationship with her fiancée, her ceasing a university course and her becoming homeless. He submitted that the Court would not be able to draw an inference that ‘those effects necessarily followed from this one offence’.[21] Her Honour observed that she would not be able to exclude that possibility either. Counsel accepted that. He also accepted her Honour’s further observation that ‘often these things are a matter of perception’. Her Honour proceeded to say that if, as a result of what happened to the complainant, she felt unable to do certain things and this had other flow-on effects, then there would have been an impact, even if somewhat indirect.[22] Counsel did not demur. Her Honour then acknowledged that there can be ‘all sorts of reasons why people go down some paths and not others’ and noted that there was no psychological material before her.[23] She said that while she would not necessarily exclude all of the material in the victim impact statement, it was ‘not something one can be definite about’. Counsel agreed with this, and submitted further that the complainant was a young woman who had had significant problems in her life before the offence, and that ‘one cannot discount the possibility’ that ‘some’ of the things she talked about in her victim impact statement were the result of ‘a number of different factors in her life, apart from this offence’.[24] Her Honour agreed that this was possible. The discussion concluded as follows:
HER HONOUR: On the other hand, she may have been, as she says, getting her life together, although she was out working that night, but if she was getting her life together, and this caused her to go backwards, then that’s a direct effect. But I accept that there are degrees of looking at these things.
COUNSEL:If your Honour pleases.
HER HONOUR: Yes, well, subject to all of that discussion, I’ll accept as Exhibit A on the plea, the victim impact statement.
[20]Plea transcript, 2.
[21]Plea transcript, 2-3.
[22]See Sentencing Act 1991 s 5(2)(daa). See also s 5(2)(da). Compare s 5(2)(db).
[23]Plea transcript, 3.
[24]Plea transcript, 4.
We note that counsel for Mr Raccosta could have, but did not, require the attendance of the complainant for cross-examination on her victim impact statement.
Having regard to the discussion between counsel and her Honour about the victim impact statement, which occurred only one week before sentence was delivered, we do not accept the appellant’s submission before us to the effect that the relevant paragraphs of her Honour’s sentencing remarks (set out above) should be interpreted as including findings that all, or a significant part, of the specific troubles referred to by the victim were in fact caused or contributed to by the offence.
Indeed, the tenor of paragraphs 8 and 9 of her Honour’s sentencing remarks is to the contrary. The only definite finding she makes is that the offence had a ‘considerable impact’ on the victim. That was common ground, and remains so. Otherwise her Honour’s remarks in paragraphs 8 and 9 refer principally to what the complainant ‘states’ and to the complainant’s ‘perception’. Indeed her Honour expressly indicates that it is hard for her to state precisely how much the crime has contributed to the various matters referred to by the complainant, and her Honour says that she does not need to state it precisely. In paragraph 9, which contains expressions of advice and hope, her Honour appears to be directing herself more towards the complainant than towards Mr Raccosta.
Her Honour’s overall approach is consistent with the observations of Nettle JA (with whom Vincent JA and Habersberger AJA agreed) in R v Swift[25]:
(6)The appellant’s argument implies that a victim impact statement is to be equated to Crown evidence and, consequently, that the Crown has a responsibility to put the statement in admissible form. That is not the case. The purpose of a victim impact statement is to give the victim of crime the opportunity to place before the court his or her own statement of the impact of the crime on him or her and his or her family and to ensure that the sentencing judge is informed of the victim’s concerns.[26] Moreover, since victims of crime are usually lay persons with little understanding of the rules of evidence, and who are likely to be emotional about the subject of their statements, it is to be expected that they may include inadmissible material. As Vincent JA observed in Director of Public Prosecutions v DJK:[27]
“… The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court’s attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made.”
(7)Hitherto, counsel appearing before sentencing judges have tended not to say a great deal about the admissibility of the contents of victim impact statements. In effect, they have left it to sentencing judges to work out which parts of a statement are admissible and may be relied upon. Such an approach is to some extent contrary to mainstream criminal practice, where the taking of objections tends to be punctilious. But it has considerable advantages, in the context of a plea, which are likely to appeal to both sides. It also accords with the observations of Charles JA in R v Dowlan and of Vincent JA in Director of Public Prosecutions v DJK that it would be destructive of the purpose of victim impact statements if their reception in evidence were surrounded and confined by the sorts of procedural rules which are applicable to the treatment of witness statements in commercial cases.
We note in particular the quoted observation of Vincent JA in Director of Public Prosecutions v DJK[28] to the effect that normally it would not be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Before us, counsel for the appellant acknowledged that ground 2 would fall away or lose strength to the extent that the learned sentencing judge’s remarks in question are interpreted as referring to the complainant’s perception rather than to any direct causal connection between the offence and specific difficulties later experienced by the complainant.
[25](2007) 15 VR 497, 498-499 [6]–[7].
[26]R v Dowlan [1998] 1 VR 123, 140 (Charles JA).
[27][2003] VSCA 109, [17]. See also DPP v Toomey [2006] VSCA 90, [21].
[28][2003] VSCA 109, [17].
There is no warrant for inferring that the learned sentencing judge found that the impact on the victim was greater than that which was conceded by the appellant, much less that she increased the sentence on such a basis. The fact that the appellant did not rely on ground 2 as part of his manifest excess argument is consistent with this.
Indeed, insofar as ground 2 was expressed as an independent complaint to the effect that ‘too much weight’ was given to the victim impact statement, it seems that the ground was misconceived in any event.[29]
[29]See the first paragraph under the heading ‘Ground 2: victim impact statement’ above and the cases there cited.
We would not uphold ground 2.
Conclusion
For these reasons we would dismiss this appeal.
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