Solicitors:
Solicitor for Public Prosecutions (Crown)
Oxford Lawyers (Offender)
File Number(s): 2015/157544
[2]
Judgment
HIS HONOUR: The offender, Rhonda Bechalany stands for sentence, having pleaded guilty to being an accessory after the fact to a crime of manslaughter said to have been committed by her former husband, Robert Bechalany. The facts and circumstances of the case are set out in my sentencing judgment: R v Bechalany [2018] NSWSC 502.
The Crown prosecutor tendered victim impact statements of Ms Jennifer Watt, the partner of the deceased, and Ms Christine Weeks, the deceased's mother. These were objected to by Mr GR James QC, who appeared with Mr E James for the offender, and I rejected them. These are my reasons for that decision.
Provision for victim impact statements is to be found in Div 2 of Pt 3 of the Crimes (Sentencing Procedure) Act 1999. Section 26 distinguishes between the primary victim of an offence and a person related to a primary victim, in one of a number of ways specified in the section, who is termed a "family victim". Section 28(3) provides for the receipt by a court of the victim impact statement of a family victim where the primary victim has died as a direct result of the offence. By virtue of their relationship to the deceased, Ms Watt and Ms Weeks are clearly family victims.
R v Bechalany [2018] NSWSC 493 | Case summary | Zoe
Section 28(3) requires a court to receive the victim impact statement of a family victim and acknowledge its receipt, and permits to court to make any comment upon it which is considered appropriate. Section 28(4) provides:
(4) A victim impact statement given by a family victim may, on the application of the prosecutor and if the court considers it appropriate to do so, be considered and taken into account by a court in connection with the determination of the punishment for the offence on the basis that the harmful impact of the primary victim's death on the members of the primary victim's immediate family is an aspect of harm done to the community.
Section 27 deals with the application of Div 2. Relevant for present purposes are ss (2) and ss (4) of that section, which provide:
27 ...
(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.
...
(4) 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.
The offences referred to in subs (2) do not embrace the present offence, accessory after the fact to manslaughter. The Crown prosecutor accepted as much, but submitted that the victim impact statements here were admissible by virtue of subs (4). Whether that is so turns upon whether there is "any other law" by which they might be received. He relied on the judgments of Johnson J (with whom the other members of the court agreed) in two decisions of the Court of Criminal Appeal: Porter v R [2008] NSWCCA 145 and Miller v R [2014] NSWCCA 34.
In Porter, put shortly, the applicant had been dealt with for a number of counts of arson involving business premises. Victim impact statements by the proprietors of those businesses, setting out the effects upon them of the offences, economic and psychological, had been received in the sentence proceedings. On appeal, it was contended that they should not have been admitted as the offence did not fall within the categories set out in s 27(2). In rejecting this ground, Johnson J said at [52] that the applicants needed to "demonstrate that the evidence concerning loss and harm to the victims ought not to have been taken into account on sentence." His Honour continued at [53]:
The fact that the statements were entitled 'victim impact statements', and were prepared on forms which were not appropriate technically to the offences, does not mean that the content of the statements was inadmissible...
At [54], referring to authority, his Honour stated that "it is well established at common law that loss or damage suffered by a victim is a factor to be taken into account in the sentencing process..." He added that in the case at hand, the evidence was also admissible to establish that the emotional harm, loss and damage caused by the offences was substantial, an aggravating factor under s 21A(2)(g) of the Act. His Honour concluded at [56] that the evidence of the victims "bore upon the objective seriousness of the Applicant's crimes and was properly taken into account on sentence."
Miller was a fraud case, in which it was again contended on appeal that a victim impact statement by the victim of the fraud should not have been admitted because the offence was not embraced by s 27(2). Again Johnson J rejected that ground for the reasons he had given in Porter. Referring to Div 2 of Pt 3 of the Act as a whole, his Honour said at [156]:
Sections 26-30A Crimes (Sentencing Procedure) Act 1999 do not codify and confine the circumstances in which evidence may be received by a sentencing court of the impact of crimes upon a victim. It was open to the sentencing Judge in this case to receive material which bore upon the question of the emotional and financial impact of the Appellant's crimes upon [the victim].
These cases, of course, were concerned with statements about the impact of crimes on persons who were the direct victims of them: to use the language of Div 2, primary victims. As Johnson J made clear, evidence of the effects of crimes upon their direct victims bear upon the assessment of the gravity of the offences and are clearly admissible at common law.
However, whether evidence of the impact of a homicide upon persons bearing a relationship to the deceased is admissible at common law is another matter. In the well-known case of R v Previtera (1997) 94 A Crim R 76; Hunt CJ at CL held that it was not. His Honour there considered the predecessor of the current victim impact statement regime, s 23(C)(3) of the Criminal Procedure Act 1986. That section provided for victim impact statements generally, and dealt with victim impact statements by a family victim in ss (3). That sub-section was broadly similar to s 28(3) and (4) of the current legislation. In particular, it required the Supreme Court or the District Court to receive the victim impact statement of a family member, and permitted the court to make any comment upon it which it considered appropriate, but added that the court "must not consider the statement in connection with the determination of the punishment of the offence" unless it considered that it was "appropriate to do so."
For the reasons expressed at pp 84-87 of the report, Hunt CJ at CL held that it never would be appropriate to do so. His Honour referred (at 85) to the fundamental difference between punishing the offender for a crime, and compensating the victim or others affected by the crime for their loss or injuries suffered as a result it. His Honour added (also at 85) that the "consequences of any crime upon the victim who is directly injured by it are always relevant to sentencing the offender as part of the objective circumstances of the crime..." For that purpose, his Honour noted (at 86) their victim impact statements would "no doubt serve the useful purpose in criminal courts of establishing the consequences of the crime upon that victim."
His Honour concluded (at 86-87):
The law already recognises, without specific evidence, the value which the community places upon human life; that is why unlawful homicide is recognised by the law as a most serious crime, one of the most dreadful crimes in the criminal calendar. It is regarded by all thinking persons as offensive to fundamental concepts of equality and justice for criminal courts to value one life as greater than another. It would therefore be wholly inappropriate to impose a harsher sentence upon an offender because the value of the life lost is perceived to be greater in the one case than it is in the other (footnotes omitted).
The view of Hunt CJ at CL was affirmed by the Court of Criminal Appeal, in a case in which his Honour presided, and with the agreement of Hulme J and Graham AJ: R v Bollen (1998) 99 A Crim R 510 at 529-30. Of course, the Chief Judge in those cases was dealing with the issue whether evidence of this kind was relevant to sentence in homicide cases. The issue arose in Bollen because the sentencing judge was found to have taken victim impact statements to family victims into account in determining sentence. The present legislation, like its predecessor, envisages that victim impact statements of family victims might be received and considered by the court without being taken into account on sentence. However, that procedure itself is the product of the legislation and has no counterpart at common law.
In Porter at [55] and Miller [155], Johnson J noted that the "purposes of sentencing include recognition of the harm done to the victim of crime and the community", citing s 3A(g) of the Crimes (Sentencing Procedure) Act 1999. Similar language is used in s 28(4) insofar as it permits the court to take into account the victim impact statement of the family victims on sentence "on the basis that the harmful impact of the primary victim's death on the members of the victim's immediate family is an aspect of harm done to the community."
The Crown prosecutor submitted that, while the offender in the present case was not "the direct perpetrator" of the homicide, the assistance she provided to Mr Bechalany in his attempt to evade justice had a "directed bearing on the harm suffered" by the family of the victim. He relied on the "spirit and rationale" of Porter and Miller to argue that that is a matter which I should take into account as "an example of the harm suffered by the community." Whether those last words were a reference to s 28(4) or s 3A(g) is unclear.
The reference by Johnson J to s 3A(g) in Porter and Miller was, of course, in the context of cases dealing with the effects of the crimes on primary victims. I do not understand s 3A(g) to have altered the relevant common law stated by Hunt CJ at CL in Previteria and Bollen. It is in that sense that the term "victim" in the paragraph should be understood and, of course, the harm done to the community by criminal activity has long been at the heart of sentencing law. In Bollen (at 529-30) Hunt CJ at CL noted that, when referring to the victim impact statements, the sentencing judge had said that the "consequence of the crime committed by the appellant was that the community had lost one of its number (and that the deceased's family had lost a loving member)." The Chief Judge saw "nothing wrong with that statement", adding that it "does no more than recognise the value which the community places upon human life."
Section 28(4) provides the sentencing judge with a discretion to take into account the victim impact statement of a family victim for the purpose of determining sentence. That discretion is the product of the sub-section, and the reference to the notion of harm done to the community does not alter the fact that it is not a discretion which would otherwise be available. It arises as part of the regime provided by Div 2 of Pt 3, from which the present offence is excluded. As I have said, the same applies to the receipt of a victim impact statement even if it is not taken into account in determining sentence.
Accordingly, for the purpose of s 27(4), there is no "other law" by which the material in the victim impact statements here could be received.
[3]
Amendments
27 October 2020 - coversheet - removed publication restriction notation
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Decision last updated: 27 October 2020