DPP v Hilton

The proceedings on sentence were heard before me on 22 October 2025. At that hearing, the prosecution tendered a victim impact statement from the victim’s mother, but not the victim herself.

The offender’s counsel objected to the victim impact statement of the victim’s mother. He made clear that in doing so, he did not object to the victim’s mother’s statements of the harm that she personally experienced on account of the offending. As a person with parental responsibility for the victim, the victim’s mother is entitled to make a victim impact statement in her own right: see s 49(1)(b) and (c) of the Crimes (Sentencing) Act 2005 (ACT) and DPP v Mitchell (No 2) [2023] ACTSC 118 at [9] – [12]. His objection was to the victim’s mother’s assertions of the harm that has been occasioned to the victim on account of the offending. In this respect, the offender’s counsel noted that s 51(1) – (3) of the Crimes (Sentencing) Act provide that: 51 Victim impact statements—form and contents (1) A victim impact statement for the offence must identify the victim to whom it relates. (2) The statement must include the full name of the person who makes the statement. (3) If the person who makes the statement is not the victim (or the victim’s representative)— (a) the statement must indicate that the victim does not object to the statement being made to the court; and (b) if practicable, the victim (or representative) must sign the statement, or make a separate written or oral statement to the court, to verify that the victim does not object.

The offender’s counsel submitted that the effect of s 51(3) is that a person cannot make a statement about the harm occasioned to another victim without the Court receiving an assurance that the victim does not object to the statement being made.

I was informed that the victim has not been shown her mother’s statement, and that the victim was also not aware that her mother has made a statement. I understand that there is a concern that the victim may become distressed by reading her mother’s statement.

Concerning s 51(3), the offender’s counsel submitted that: The purpose of this provision is to ensure that ‘primary’ victims such as [the victim] can participate in the sentencing process, and to empower them so that others who might purportedly speak for them can only do so with their consent. [The victim] is not a person who is incapable of giving her consent (or expressing her non-objection) to a VIS being given about the harm that she suffered because of the offending. Section 51(3) has important work to do in enshrining and empowering victim participation in sentencing proceedings, particularly so in the circumstances of the present case.

In contrast, the prosecutor submitted that: The matter is before the Court because the law recognises that the child victim is unable to consent to the offending behaviour, yet on a strict interpretation of provision, requires the consent of the child victim for the Court to receive material as to the harm suffered by the child as a result of the offending because it requires consent. (emphasis in original)

There are problematic aspects of both submissions.

The offender’s submission does not acknowledge that there are some victims for whom a representative such as a family member, or carer must be able to speak. For example, where the victim of the offending is an infant or very young child, it may not be possible, or appropriate, for the victim to tell the Court about how the offending has affected them, or even to make a statement that they do not object to another describing the effects of the offending upon them. In such a case, it is both necessary and proper that the victim’s parent or other carer inform the Court not only of the effect of the offending upon them, but also speak to the effect of the offending upon the child.

On the other hand, at the heart of the prosecution’s submission is a false assumption about consent. It does not follow from the fact that a child under the age of 16 years is unable to legally consent to intercourse that a child under 16 years cannot tell the Court about the harm that they have experienced from offending of this nature. An assumption that a 15 year old cannot speak on their own behalf cannot be justified.

The difficulty arises from the drafting of s 51(3), which does not make entirely clear when a victim impact may, or should, be given by a victim’s representative.

Nonetheless, it is well-established that in applying s 51(3), an approach should be taken which has due regard to the “purpose of allowing participation by the people most affected by the offending in the sentencing process, and hence, avoiding, to the extent possible, a technical and punctilious approach to the taking and resolution of objections that might be adopted in the course of mainstream criminal practice”: Director of Public Prosecutions (DPP) v Mitchell (No 3) [2024] ACTSC 274 at [16], citing R v Swift [2007] VSCA 52; 15 VR 497 at [6] – [8].

Taking a pragmatic approach, I do not consider that it is appropriate to disallow any part of the mother’s victim impact statement as a result of non-compliance with s 51(3) of the Crimes (Sentencing) Act. As the offender’s counsel properly acknowledged, the victim’s mother is a victim of the offending in her own right, and she has a clear right to speak about the harm which the offending has occasioned to her.

In circumstances where I have not received a victim impact statement from the victim herself, or any psychological evidence which indicates that it would may cause unnecessary distress to the victim to read her mother’s victim impact statement, I have approached the statements concerning the harm occasioned to the victim with caution, appreciating that the causes of a victim’s distress may be multifaceted, and not only attributable to offending.

Nonetheless, the offending was of a character which commonly gives rise to “profound and deleterious effects upon victims”: R v Page [2022] ACTCA 65 at [52]. These effects are sometimes not immediately appreciated, even by the victim themselves. Further, it is clear from the agreed statement of facts that the offending has caused the victim mental harm. She was hospitalised shortly after the offender’s arrest. Accordingly, I will sentence the offender on the basis that he caused harm not only to the victim’s mother, but also to the victim herself, and that the extent of that harm may be lifelong.

The offender’s remaining objections concern matters which the offender submits are not relevant to the Court’s determination. These include matters concerning the distress caused by the offender’s successful bail application, submissions as to the length of the sentence that the Court should impose and a statement that the offender “would do well to avoid [the victim’s] father”.

Some latitude must be given to victims when considering the admissibility of victim impact statements. The rejection of a victim’s account of their experiences can exacerbate the trauma of the offending itself. Where the prosecution makes clear when aspects of the victim impact statement is to be understood as containing an account of a victim’s perception of events, or describing the victim’s experience of the aftermath of the offending, the statement will usually be permissible: see similarly DPP v Robins (a pseudonym) (No 2) [2025] ACTSC 518 at [23] – [28].

However, numerous authorities of this Court have held that it is impermissible for a victim impact statement to urge any particular sentence upon the Court: see, for example, R v Al-Harazi (No 7) [2017] ACTSC 350 at [65] – [66] and the cases cited therein. Accordingly, I am required by law not to place weight on the statements as to the appropriate sentence to be imposed.

Most importantly, s 51(7) of the Crimes (Sentencing) Act prohibits the inclusion of anything that is “offensive, threatening, intimidating or harassing” in a victim impact statement. The statement concerning the victim’s father can only be read as an implied threat. It should not have been included in the victim impact statement that was tendered by the prosecution. I will place no weight on this statement, and it will be redacted from the victim impact statement that has been admitted into evidence.

This is not to be critical of the victim’s mother in making the statement. It is clear that the victim’s mother has been profoundly affected by the offending upon her daughter. The distress of the victim’s mother is entirely understandable. However, there remains upon the prosecution the obligation to ensure that a victim impact statement is in admissible form. The authorities referred to in Al-Harazi (No 7), as well as more recent authorities of this Court, emphasise the need for the prosecution to advise victims about the proper scope and content of victim impact statements. See similarly Kader v DPP [2024] ACTCA 31 at [74]. The present case is a reminder of the critical role of the prosecution in this respect.

The offender will be sentenced in accordance with the reasons outlined above.