Crimes (Sentencing) Act 2005 (ACT), ss 33(1)(f), 34(1)(e), 47, 49, 51, 53; Pt 4.3

Berichon v DPP (Vic) [2013] VSCA 319

Cheung v R [2001] HCA 67; (2001) 185 ALR 111

Gumbinyarra v Teague [2003] NTSC 25

R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1

R v Miller [1995] VicRp 60; [1995] 2 VR 348

R v Nahlous [2013] NSWCCA 90

R v Timbery [2008] NSWDC 340

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

R v Schmidt [2013] ACTSC 295

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

1. On 21 November 2013, Alexander Iacuone, Alexander Duffy and JR came before me for sentence following a jury returning a verdict of guilty in respect of each co-accused for the charge of conspiracy to murder. In the course of the sentence hearing the Crown sought to tender two Victim Impact Statements ('VIS'). The first was made by the complainant, Calum Rowan. The second was a joint statement made by his parents.

2. Counsel for the accused Iacuone, Mr Chapple SC, objected to two paragraphs of the tender, one in each statement, and said that they should be excluded on the basis that the harm complained of was not caused by the offence within the meaning of s 47 Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The harm complained of in each VIS arose from the cross examination of the complainant by Mr Chapple.

3. The Crown did not wish to be heard in relation to the objection, however did indicate that the impugned paragraphs were not put forward as a criticism of Mr Chapple, but rather, as counsel for the Crown put it:

They're put forward as, I suppose, a metabolisation of the harm suffered by the victim in this matter as an extension of the crime, going through what he found to be quite a traumatising experience through the trial process, rather than a criticism of the trial process itself.

4. I ruled that the paragraphs objected to should not be received and indicated I would provide reasons in due course. These are those reasons.

5. The impugned paragraph in the complainant's VIS read as follows:

I understand Mr Chapel [sic] was trying to do his job and I expected to be cross examined but did not expect to be verbally attacked. I feel strongly that an experience [sic] defence lawyer should not have treated me this way. He was overly aggressive, he made me feel like I was on trail [sic]. I am the victim giving evidence against the men who tried to take my life. It is hard enough to go through all of this again but for him to speak to me in this manor [sic] has magnified the incident beyond belief. As soon as he addressed me he made me relive the brutal attack all over again while telling me I was a lier [sic] and painting me as a criminal. I did the right thing for the community by standing up against my attackers and did not deserve or expect to be treated in such a way. As I am writing this victim impact statement it is hard enough to know i [sic] have to face the men who tried to take my life, but also knowing I have to face the man who attacked my character and intimidated me. I'm sure there is a better way to approach a victim on the stand rather then [sic] the way Mr Chapel [sic] did. The aggression and angry [sic] that he displayed was over the top and unnecessary in my opinion.

6. The impugned paragraph in the complainant's parents' VIS read:

Mr Chapel [sic] I [sic] believe that he strayed outside the normal boundary with his aggressive manor [sic] in his cross examination of our son who was the victim, our son had waited nearly 5 years, to give his evidence, he had already been traumatize [sic] by the attack, now he was being treated like he was the accused by Mr Chapel [sic].

7. I should point out that I did not see anything improper in Mr Chapple's cross-examination of the complainant at the trial of the offenders. However, that does not answer the question of admissibility.

8. Part 4.3 of the Sentencing Act provides the legislative regime for a VIS. Section 47 provides the following definitions of a VIS:

"victim impact statement", for an offence, means a statement made by or for a victim of the offence that contains details of any harm suffered by the victim because of the offence.

(a) as a result of, or in the course of, the commission of the offence; or

(b) in the course of assisting a police officer in the exercise of the officer's power to arrest a person for the offence or to take action to prevent the offence.

(b) mental injury or emotional suffering (including grief); and

(e) substantial impairment of rights accorded by law.

(a) a person (a primary victim) who suffers harm because of the offence; or

(b) if a primary victim dies because of the offence - a person who was financially or psychologically dependent on the primary victim immediately before the primary victim's death.

10. The harm complained of by the complainant and his parents in the impugned portion of their respective VIS, which could be characterised as mental or emotional suffering, would be harm of a type encompassed by the definition of 'harm' in s 47.

11. Section 49 provides for who can make a VIS:

(1) The following people may make a victim impact statement for the offence:

(b) a person who has parental responsibility for a victim of the offence;

(c) a close family member of a victim of the offence;

(e) a person with an intimate personal relationship with a victim of the offence.

"parental responsibility" - see the Children and Young People Act 2008, division 1.3.2.

The complainant and his parents would both be entitled to provide a VIS under s 49.

12. Section 51 allows a VIS to be made "by or for more than 1 victim". The statement must not contain anything that is offensive, threatening, intimidating or harassing: s 51(6). Section 53 provides that a court must consider any VIS in proper form given to the court in relation to an offence.

13. Two principle issues in relation to the contents of a VIS arise out of the question of the admissibility of the impugned paragraphs. Firstly, whether the parents of the victim in this case can provide a VIS of harm suffered by the victim; and related to that, whether the parents can provide a VIS detailing harm suffered by them. Secondly, whether the harm, i.e. distress from cross-examination, detailed in the impugned paragraphs of both the victim's and the parents' statements is harm "because of" the offence.

14. The first limb of the first issue is answered quite simply. Section 47 defines a VIS as a statement "made by or for a victim". Section 49 lists those who can provide a VIS; the victim's parents are such individuals. The impugned paragraph of the victim's parents' VIS deals with the victim. It is therefore, in my opinion, provided "for" him within the meaning of s 47.

15. Turning to the second issue, what is admissible in a VIS under s 47 are details of the harm suffered by a victim. In the case of R v Nahlous [2013] NSWCCA 90 in the Court of Criminal Appeal of NSW, Adamson J (with whom Hoeben CJ at CL and Davies J agreed) considered the meaning of "victim" within the Commonwealth VIS scheme at [102]-[104]:

The question whether the term "victim" in s 16A(2)(d) is confined, in the instant case to the 14-year old girl herself or whether it comprehends her mother as well is a matter of statutory construction which also requires a consideration of the subject offence. The expression plainly includes the person who is being groomed. The question is whether it is apt to include the family, or in this case the mother, of that person.

There are Commonwealth offences where the categories of victims may be large, diffuse groups of people. For example, in R v Zhu [2013] NSWSC 127, Hall J, when sentencing an offender for insider trading offences, accepted at [203] the Crown submission that there were at least three classes of victims: the market, including the investing community at large; the offender's employers; and those who traded with the offenders who were not privy to the inside information. Statements to a similar effect were made in DPP v John Francis O'Reilly [2010] VSC 138 at [19]. Customs offences have similarly been regarded as having the community as a whole as a victim: Chief Executive Officer of the Australian Customs Service v Karam (No 2) [2013] NSWSC 33, [27].

The offences committed by the respondent are not, in my view, apposite to include a class of victims beyond the person being groomed. In this context I consider that the word "victim" in s 16A(2)(d) means the primary victim herself and not the loved ones of the victim, who may also suffer by reason of their feeling for the primary victim.

16. Section 16A(2)(d) of the Crimes Act 1911 (Cth) has since been replaced, but at the time of this decision required a court to take into account "the personal circumstances of any victim of the offence". Adamson J contrasted the Commonwealth provision with the NSW provisions, the latter providing for family victims, which the former did not (that has since been amended with s 16AAA). The ACT legislative scheme also does not provide for "family victims" but does require that the impacts of the offence upon the victim's family be taken into account: s 33(1)(f). With respect, the approach adopted by Adamson J appears to be most sensible approach to the definition of "victim" in the context of statements such as these. Although, it could be argued that because a court is required to consider the impact upon families, such persons should also be considered "victims" for the purpose of s 47, that extension of the definition may create difficulties in combination with s 49, effectively meaning that persons quite remote will be able to provide a VIS by virtue of their relationship with a family member of the victim. Extending the definition in this way is liable to create an ever expanding category of "victims."

17. Conversely, a narrow interpretation could be given to a victim by imposing a strict test for causation arising out of the definition of "victim" being dependent upon harm being suffered "because of" the offence. However, superior courts have cautioned against striving to put a narrow interpretation on "victim" in the context of a VIS: see R v Miller [1995] VicRp 60; [1995] 2 VR 348 at 354; Berichon v DPP (Vic) [2013] VSCA 319 at [36].

18. As Adamson J says in Nilhous, the meaning of victim in a legislative scheme like that found in Pt 4.3 will be determined by a combination of statutory interpretation and the circumstances of an offence. The definition of "victim" given in s 47 is of someone who has suffered harm because of or as a result of the offence. In my opinion, "victim" should not be given an unconfined definition, but rather, having regard to the s 47 definition and the comments of Adamson J, should be given its ordinary meaning.

19. Who is a victim of any given offence will ultimately need to be decided on a case by case basis by reference to the type and circumstances of the offence before the court. It will be suitably clear in most cases who is a victim of the offence, and where there is some question it is for the court to determine. In the present case, I do not consider that the parents of the victim of the conspiracy to murder will be victims for the purposes of Pt 4.3 and s 47 of the Sentencing Act. As the VIS may only contain details of harm suffered by a victim, and as the complainant's parents were not victims, their VIS could not contain material outlining the effect of the offence on them.

20. There being no doubt that the complainant's parents were entitled to provide a VIS detailing the harm suffered by the complainant because of the offence, it is necessary to consider the second issue of whether the harm complained of was suffered "because of" the offence. This question is the issue towards which Mr Chapple's objection was principally directed.

21. "Because of" an offence is defined in s 47 as meaning "as a result of, or in the course of". Clearly, emotional suffering caused to a victim by the need to give evidence at trial is not harm which occurs "in the course of" the offence. If a court is to take such evidence into account it must be because it is harm "as a result of" the offence.

22. In the Northern Territory Supreme Court decision of Gumbinyarra v Teague [2003] NTSC 25, Mildren J, on appeal from the Magistrates Court of that Territory, did not admit a VIS made by the a member of the staff of a health clinic of which the appellant had smashed a window and in doing so injured himself bleeding profusely over the door and floor. The VIS signed by a member of the staff of the clinic dealt with the feelings of insecurity staff had when called out a night and the risks to them in cleaning up the appellant's blood. The clinic was unoccupied when entered by the appellant. Counsel for the appellant on appeal before Mildren J said that the staff were not "victims" as they had suffered no "harm" as a result of the offence. Mildren J applied the civil law test of reasonable foreseeability and considered the harm allegedly suffered by the staff was "too remote" to be referable to the appellant's conduct. His Honour said at [11]-[13]:

The factors which tell against holding the appellant responsible for the staff's stress are (1) that none of the staff were present in the building at the time; (2) there was no stress suffered by any individual on hearing or learning about the break-in to the building; (3) the stress is said to arise whenever the staff are called out to the building at night. Whichever test is applied, I do not consider that the appellant's conduct is the cause of that stress.

The risk of injury in cleaning up hospitals is not in my view "harm" suffered by anyone. There is no evidence that in fact anyone was injured in any way by cleaning up the blood spills.

In those circumstances, I agree with the appellant that the VIS was inadmissible if it was received and used as a relevant sentencing consideration... The word "victim" in s 5(2)(b) is not defined. In my view the staff were not "victims" at all. There was no intention proven to injure them and it was not reasonably foreseeable that they would suffer any harm in the circumstances. No damage or injury to the staff was "caused" by the appellant so as to fall within s 5(5)(d).

23. In Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, Mason CJ said at 387-388:

The issue of causation was left to the jury to decide as one of fact. In this respect I agree with the statement made by Burt CJ in Campbell v The Queen (1981) WAR 286, at p 290; (1980) 2 A Crim R 157, at p 161, that it is "enough if juries (are) told that the question of cause for them to decide is not a philosophical or a scientific question, but a question to be determined by them applying their common sense to the facts as they find them, they appreciating that the purpose of the enquiry is to attribute legal responsibility in a criminal matter"; see also Timbu Kolian v The Queen [1968] HCA 66; (1968) 119 CLR 47, per Windeyer J at p 69. That is the test that has been applied in negligence cases by this Court: see March v E and M.H. Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506.

Similar statements were made by other members of the Court.

24. The same test should apply, in my opinion, to determining causation for the purposes of a VIS. It is cannot be doubted that any finding of fact by a criminal court contrary to the accused and for the purposes of sentencing must be found beyond a reasonable doubt: Cheung v R [2001] HCA 67; (2001) 185 ALR 111. In deciding how an offender is to be sentenced, the court must consider any VIS: s 53 of the Sentencing Act. In addition, in sentencing an offender, the court must take into account any injury, loss or damage resulting from the offence as well as the effect of the offence on the victim, their family or anyone else who may make a victim impact statement: s 33(1)(f). It does not follow from this requirement that the test of admissibility of details of harm in a VIS is whether the court is satisfied beyond a reasonable doubt that the harm occurred as a result of the offence. Courts frequently receive evidence which is ultimately not accepted as establishing a fact to the requisite standard. Admissibility in that regard depends on relevance, and if the proposed evidence of harm is arguably relevant it will usually be received, with the question of what it proves to be determined by the sentencing judge. There will of course be cases where the harm allegedly suffered is so remote from the offence that evidence of the harm will be irrelevant. Public policy considerations may also play a role in determining whether the evidence should be received.

25. However, I echo the comments of Refshauge J in the recent decision of R v Schmidt [2013] ACTSC 295 at [74]:

There were some matters in the Victim Impact Statements that were not in accordance with the legislation, however. In order to preserve the value and acceptability of such statements, I urge those charged with helping victims to prepare them to pay close attention to the legislation and comply with it.

26. Counsel for Iacuone referred me to the decision of R v Timbery [2008] NSWDC 340 wherein Berman DCJ stated very simply at [43] that the effect of the trial is not a relevant consideration:

There are a number of matters contained within it that I am not allowed to take into account when formulating a sentence to impose upon the offender. These include other acts of criminality of which the offender has not been convicted, the conduct of others, the effect of the trial process and what in effect amounted to submissions on sentence.

27. I agree that, with respect, Berman DCJ must be correct. In our criminal justice system a person is presumed innocent. A plea of not guilty which goes to trial which in turn results in a finding of guilt does not somehow aggravate the offence committed. Any harm suffered by a victim as a result of the ordinary processes of a criminal trial will usually be too remote from the offence itself to be taken into account as harm occurring as a result of the offence. A proper construction of the Sentencing Act supports this conclusion. The Sentencing Act also makes clear that a failure to plead guilty does not increase the severity of a sentence that a court otherwise would have imposed: s 34(1)(f). The maximum penalties are set for offences with the presumption of innocence in mind. A plea of guilty will usually result in a reduction in the sentence the court would otherwise have imposed for the utilitarian value of saving the court and the community the expense of a trial, as well as reflecting any remorse demonstrated by the offender.

28. In Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at [21]-[22] the High Court (Gleeson CJ, Gummow, Hayne and Callinan JJ) said:

It is argued on behalf of the appellant that the manner in which Angel J referred to the appellant's plea of not guilty indicates that his Honour treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the appellant defended himself against the charge. Without question, that would have constituted a serious error. In R v Gray [1977] VicRp 27 the Victorian Court of Criminal Appeal said:

"It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence."

A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.

29. R v Thomson & Houlton (2000) 49 NSWLR 383 Spigelman CJ (Wood CJ at CL, Foster AJA, Grove and James JJ agreeing) set out the following at [119]-[123]:

As noted above, a factor identified as a benefit from a plea of guilty is the avoidance of the need for witnesses to give evidence, particularly victims and their families and, especially, sexual assault victims. In Siganto supra at [23], the High Court regarded such benefits as relevant to the aspect of remorse.

This is a consideration which varies to a significant degree with the nature of, and circumstances of, an offence. It is often the case that the ordeal of a victim and of his or her family, and the anxiety of independent witnesses, continues until the trial. A plea permits the healing process to commence. A victim does not have to endure the uncertainty of not knowing whether he or she will be believed, nor the scepticism sometimes displayed by friends and even family prior to a conviction. A victim will also be spared the personal rumination of the events - reliving the rape, as it is described in that context. An early plea of guilty minimises these effects.

Like the element of remorse, this consideration depends on the specific circumstances of the offence and overlaps to a substantial extent with other aspects of the specific case which are relevant to the sentencing task.

These conclusions are reinforced by consideration of the "instinctive synthesis" approach to the sentencing process which has generally been accepted as the appropriate approach. The aspects of the guilty plea that go to remorse and witness vulnerability are much more closely associated with other factors concerning the circumstances of the offender and of the offence, including other evidence relating to contrition, than the element of advantage to the administration of criminal justice. The public interest served by encouraging pleas of guilty for their utilitarian value is a distinct interest.

For these reasons I am of the opinion that any general quantitative guideline should focus on the utilitarian advantage derived by the criminal justice system from encouraging pleas of guilty.

30. In R v Borkowski [2009] NSWCCA 102; (2009) 195 A Crim R 1, Howie J (with whom McClellan CJ at CL and Simpson J agreed) said at [32] that:

The utilitarian discount does not reflect any other consideration arising from the plea, such as saving witnesses from giving evidence but this is relevant to remorse...

31. The assumption in our criminal justice system is that a complainant will be called to give evidence at trial. The distress a complainant feels in giving that evidence does not somehow make the offence more serious, although the fact that a complainant has to give evidence will usually be relevant to sentencing as disentitling the offender to the leniency he or she may have been entitled to if that were not necessary. A guilty plea thereby saving the victim and other witnesses from giving evidence is relevant to remorse and may entitle the offender to some leniency.

32. As I mentioned at the outset of these reasons, I did not see anything untoward with the cross-examination of the complainant at the trial of the accused. Mr Chapple engaged in forceful questioning, but it was not inappropriate. The forensic decision to adopt a certain style rather than another in the cross-examination of a complainant or another witness and that person's reaction to that style cannot alone be relevant to sentence. However, it is conceivable that questions put to a witness and perhaps even the manner or language in which they are couched may be relevant in appropriate circumstances to the offender's demonstration of remorse. Section 34(1)(e) of the Sentencing Act says that the offender's behaviour in court is an irrelevant consideration for the purpose of increasing the severity of the sentence. It may be that forensic decisions at trial of the nature described would be covered by this section. It is not necessary to decide that question here.

33. Mr Chapple objected to the portions I have extracted above, and I ruled them out. They could not have been relevant to sentence.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of his Honour, Justice Burns.