Citation: R v David Qin (No 2) [2008] NSWDC 169
Court: District Court of New South Wales
Date: 7 March 2008
Judge(s): Goldring DCJ
Background
The offender had been tried on criminal charges, with the trial running in December 2007 and sentencing proceedings following in March 2008. The victim of the offences prepared a victim impact statement for tender at sentencing. The statement described a range of emotional, psychological, and physical impacts the victim attributed to the offending.
Defence counsel raised an objection to the contents of the statement, drawing the court's attention to the statutory framework governing victim impact statements under the Crimes (Sentencing Procedure) Act 1999 (NSW). The Crown confirmed it did not propose to rely on the statement as an aggravating factor under s 21A of that Act.
The court was required to determine which parts of the statement were admissible as a matter of law, before the statement could be received at the sentencing hearing.
Legal Issues
- Whether the contents of the victim impact statement fell within the statutory definition of "personal harm," meaning actual physical bodily harm, mental illness, or nervous shock, as required by the Crimes (Sentencing Procedure) Act 1999
- What the term "nervous shock" encompasses for the purposes of the Act
- Which portions of the statement were permissible to tender and which should be deleted
Decision
Goldring DCJ confirmed that a victim impact statement may only contain particulars of "personal harm" suffered by the victim as a direct result of the offence, and that "personal harm" is defined in the Act as actual physical bodily harm, mental illness, or nervous shock. Material falling outside those categories cannot form part of a valid victim impact statement, regardless of how genuinely it reflects the victim's experience.
The court noted that "nervous shock" is not defined in the legislation but carries a well-established legal meaning: it covers various disturbances or disorders not amounting to a recognised mental illness, of the kind suffered when a person is exposed to a traumatic event or danger. Feelings of stress, anger, and resentment, while entirely understandable in a victim of crime, do not on their own satisfy this threshold.
Reading the statement as a whole, the court found that some portions did fall within the descriptions of nervous shock or mental illness, and those parts were permissible. Other portions, including the section headed "Physical impacts of the assault," were not, as there was no suggestion the victim had suffered actual physical bodily harm. The court determined that the two sections headed "Emotional impacts of the assault" and "Psychological impacts of the assault" could, for practical purposes, comprise the admissible statement.
His Honour also noted, drawing on R v Slack, that because victim impact statements are unsworn and untested by cross-examination, substantial weight cannot automatically be given to them. The court further observed that the prosecution bears responsibility for ensuring that material tendered as a victim impact statement conforms to the Act's requirements.
Orders Made
- The objection to the contents of the victim impact statement was allowed in part.
- The section of the statement headed "Physical impacts of the assault" was to be excluded.
- The sections headed "Emotional impacts of the assault" and "Psychological impacts of the assault" were permitted to comprise the victim impact statement for the purposes of sentencing.
Key Takeaways
- Under the Crimes (Sentencing Procedure) Act 1999, a victim impact statement is confined to particulars of "personal harm," defined as actual physical bodily harm, mental illness, or nervous shock. Material outside these categories is inadmissible regardless of its emotional authenticity.
- "Nervous shock," though undefined in the legislation, carries its established legal meaning: psychological disturbance or disorder falling short of a recognised mental illness, caused by exposure to a traumatic event or danger.
- The District Court confirmed that the prosecution bears responsibility for ensuring that a victim impact statement tendered at sentencing conforms to the statutory definition before it is placed before the court.
- Citing R v Slack, the court noted that unsworn, untested victim impact statements cannot automatically attract substantial weight, and that the sentencing court must make an objective assessment of the crime's effect on the victim.
- Feelings of stress, anger, and resentment, while understandable responses to criminal offending, do not on their own bring a statement within the statutory definition of personal harm.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 26, 28
Cases:
- R v Slack [2004] NSWCCA 128 (Sperling J)
- Siganto v The Queen (1998) 194 CLR 656
- RKB (NSWCCA, 30 June 1992, unreported)