Published by Geoff Harrison | 13 November 2024
The purpose of a Victim Impact Statement (VIS) is to give victims of crime a voice in court before the offender is sentenced. The victim or the members of the primary victim's immediate family can express the impact of any personal harm, emotional suffering or distress, harm to relationships, and economic loss or harm that has been caused as a result of the offence. The offences to which Victim Impact Statements apply are set out in s27 of the Crimes (Sentencing Procedure) Act 1999 ('the Act'). A VIS may only be tendered to the court by the prosecutor: s30A of the Act.
Other Sources:
Cases:
Porter v R [2008] NSWCCA 145 (Where the statutory scheme does not apply see [53] - [54])
Miller v R [2014] NSWCCA 34 (see [155] - [156])
R v Thomas [2007] NSWCCA 269 (see [36] - [37])
Extracted Legislation:
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 26
Definitions
In this Division--
"closed-circuit television arrangements" means the arrangements for giving evidence provided for by section 294B or Division 4 of Part 6 of Chapter 6 of the Criminal Procedure Act 1986.
"family victim" means any of the following persons, whether or not the person suffered personal harm as a result of the offence--
(a) in relation to an offence as a direct result of which a primary victim has died--a person who was, at the time the offence was committed, a member of the primary victim's immediate family,
(b) in relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost, regardless of the gestational age of the foetus--a person who was, at the time the offence was committed, a member of the primary victim's immediate family, whether or not the primary victim died.
"member of the primary victim's immediate family" means any of the following--
(a) the victim's spouse,
(b) the victim's de facto partner,
Note--: "De facto partner" is defined in section 21C of the Interpretation Act 1987.
(c) a person to whom the victim is engaged to be married,
(d) a parent, step-parent or guardian of the victim,
(e) a grandparent or step-grandparent of the victim,
(f) a child or step-child of the victim or some other child for whom the victim is the guardian,
(g) a grandchild or step-grandchild of the victim,
(h) a brother, sister, half-brother, half-sister, step-brother or step-sister of the victim,
(i) an aunt, uncle, niece or nephew of the victim,
(j) in the case of a victim who is an Aboriginal person or a Torres Strait Islander--a person who is or has been part of the close family or kin of the victim according to the Indigenous kinship system of the victim's culture,
(k) any person who the prosecutor is satisfied is a member of the victim's extended family or culturally recognised family to whom the victim is or was close,
(l) any person who the prosecutor is satisfied is a person with whom the victim had a close relationship analogous to a family relationship, or whom the victim considered to be family.
"personal harm" means actual physical bodily harm or psychological or psychiatric harm.
"prescribed sexual offence" has the same meaning as it has in the Criminal Procedure Act 1986.
"primary victim", in relation to an offence, means--
(a) a person against whom the offence was committed, or
(b) a person who was a witness to the act of actual or threatened violence, the sexual offence, the death or the infliction of the physical bodily harm concerned,
being a person who has suffered personal harm as a direct result of the offence.
"victim" means a primary victim or a family victim.
"victim impact statement" has the meaning given by section 28 (1) and (2).
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 27
Application of Division
(1) This Division applies only in relation to an offence that is being dealt with by the Supreme Court, the Industrial Relations Commission, the District Court, the Local Court or the Children's Court, and only as provided by this section.
(2) In relation to an offence that is being dealt with by the Supreme Court or the District Court, this Division applies only if the offence is being dealt with on indictment in the Supreme Court or on indictment or summarily in the District Court and is--
(a) an offence that results in the death of, or actual physical bodily harm to, any person, or
(b) an offence that involves an act of actual or threatened violence, or
(c) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or
(d) a prescribed sexual offence, or
(e) an offence against section 54D(1), 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900.
(3) In relation to an offence being dealt with by the Industrial Relations Commission, this Division applies only if--
(a) the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW) , and
(b) the offence results in the death of, or actual physical bodily harm to, any person.
(4) In relation to an offence that is being dealt with by the Local Court, this Division applies only if the offence is--
(a) an offence that results in the death of any person, or
(b) an offence for which a higher maximum penalty may be imposed if the offence results in the death of any person than may be imposed if the offence does not have that result, or
(c) an offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986 and that--
(i) results in actual physical bodily harm to any person, or
(ii) involves an act of actual or threatened violence, or
(d) a prescribed sexual offence that is referred to in Table 1 of Schedule 1 to the Criminal Procedure Act 1986, or
(e) an offence against section 54D(1), 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900.
(4A) In relation to an offence that is being dealt with by the Children's Court, this Division applies only if--
(a) the offence is an offence against section 91H, 91J, 91K, 91L, 91P, 91Q or 91R of the Crimes Act 1900 , or
(b) the offence is not an offence referred to in Table 2 of Schedule 1 to the Criminal Procedure Act 1986 and the offence is--
(i) an offence that results in the death of, or actual physical bodily harm to, any person, or
(ii) an offence that involves an act of actual or threatened violence, or
(iii) an offence for which a higher maximum penalty may be imposed if the offence results in the death of, or actual physical bodily harm to, any person than may be imposed if the offence does not have that result, or
(iv) a prescribed sexual offence.
(5) Nothing in this Division limits any other law by or under which a court may receive and consider a victim impact statement in relation to any offence to which this Division does not apply.
(6) This Division extends to any offence referred to in subsection (1)-(4A) that is dealt with under section 33.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 28
Contents of victim impact statements
(1) A primary victim in relation to an offence may prepare a statement (a
"victim impact statement" ) that contains particulars of the following suffered by the primary victim, or by the members of the primary victim's immediate family, as a direct result of the offence--
(a) any personal harm,
(b) any emotional suffering or distress,
(c) any harm to relationships with other persons,
(d) any economic loss or harm that arises from any matter referred to in paragraphs (a)-(c).
(2) A family victim in relation to an offence may prepare a statement (a
"victim impact statement" ) that contains--
(a) in relation to an offence as a direct result of which a primary victim has died--particulars of the impact of the primary victim's death on the family victim and other members of the primary victim's immediate family, and
(b) in relation to an offence committed against a primary victim who was pregnant at the time the offence was committed and as a result of which the foetus was lost, regardless of the gestational age of the foetus--particulars of the impact of the loss of the foetus on--
(i) the family victim, and
(ii) other members of the primary victim's immediate family.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 29
Formal requirements for victim impact statements
(1) A victim impact statement must--
(a) be in writing, and
(b) comply with any other requirements prescribed by the regulations.
(2) Photographs, drawings or other images may, subject to the regulations, be included in a victim impact statement.
(3) A victim impact statement may relate to more than one victim.
(4) The preparation of a victim impact statement is not mandatory.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 30
Victim may be assisted
(1) A representative of a primary victim may (subject to the regulations) do any of the following on behalf of the victim, but only if the primary victim is incapable of doing so because of age, impairment or otherwise--
(a) provide information for the preparation of a victim impact statement,
(b) object to the tendering of a victim impact statement.
(2) A representative of a victim may (subject to the regulations) do any of the following on behalf of the victim--
(a) prepare a victim impact statement,
(b) read a victim impact statement.
(3) Anything done by a representative in accordance with this section is taken to have been done by the victim.
(4) The regulations may specify the persons or classes of person who may be a representative of a victim for the purposes of this section.
(5) A representative of a victim who provides information for the preparation of a victim impact statement or prepares a victim impact statement for the victim is not precluded from providing information or preparing a victim impact statement on the representative's own behalf in relation to the same offence if otherwise eligible.
CRIMES (SENTENCING PROCEDURE) ACT 1999 - SECT 30A
Tendering of victim impact statements
(1) After it is prepared, a victim impact statement is to be provided to the prosecutor in the relevant proceedings.
(2) A victim impact statement may be tendered to the court only by the prosecutor.
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