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Supreme Court 19 April 2018

R v Bechalany

[2018] NSWSC 493

HomicidePublic order & justice offences
CRIMINAL LAW SENTENCING EVIDENCE

Citation: R v Bechalany [2018] NSWSC 493
Court: Supreme Court of NSW
Date: 19 April 2018
Judge(s): Hidden AJ

Background

The offender pleaded guilty to being an accessory after the fact to manslaughter, committed by her former husband. The substantive facts of the offending are addressed in a separate sentencing judgment (R v Bechalany [2018] NSWSC 502). This decision concerns only a discrete evidentiary question that arose during the sentencing proceedings.

The Crown prosecutor tendered victim impact statements from the deceased's partner and mother, both of whom qualified as "family victims" under the Crimes (Sentencing Procedure) Act 1999. Defence counsel objected to the tender of those statements. Hidden AJ rejected the statements and delivered these reasons explaining that decision.

  • Whether the victim impact statement provisions in Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 applied to the offence of accessory after the fact to manslaughter
  • If not, whether there was any "other law" (within the meaning of s 27(4) of that Act) by which the family victim impact statements could nonetheless be received
  • Whether common law principles permitting courts to consider the impact of a crime on a victim extended to impact statements from family members of a deceased victim in a homicide-related matter

Decision

Hidden AJ first confirmed that s 27(2) of the Crimes (Sentencing Procedure) Act 1999 limits the application of the victim impact statement regime to specific categories of offences: those resulting in death or bodily harm, involving actual or threatened violence, carrying a higher maximum penalty where harm results, or constituting a prescribed sexual offence. The Crown accepted that accessory after the fact to manslaughter did not fall within any of those categories. Accordingly, the statutory regime did not apply.

The Crown argued, however, that s 27(4) preserved the admissibility of the statements by reference to "any other law" under which a court may receive victim impact statements. In support, the Crown relied on Porter v R [2008] NSWCCA 145 and Miller v R [2014] NSWCCA 34, decisions in which the Court of Criminal Appeal held that evidence of the impact of crimes on direct (primary) victims was admissible at common law in sentencing proceedings. Hidden AJ distinguished those authorities: they concerned the effects of crimes on the persons directly harmed by the offending, not on family members of a deceased.

On the question of family victim statements in homicide-related cases, Hidden AJ applied the well-established authority of R v Previtera (1997) 94 A Crim R 76 and R v Bollen (1998) 99 A Crim R 510. In those cases, Hunt CJ at CL held that it is never appropriate to take family victim impact statements into account when determining sentence in a homicide matter. The rationale was that criminal courts sentence for the offence committed, not to compensate those affected by it, and that placing differential weight on the value of a victim's life according to the grief of surviving relatives would be fundamentally unjust.

Hidden AJ concluded that s 28(4), which confers a discretion to consider family victim impact statements as evidence of harm done to the community, is itself a product of the statutory regime from which the present offence is excluded. That discretion does not exist at common law independently of the regime. There was therefore no "other law" within s 27(4) that would permit the statements to be received, and they were rejected.

Orders Made

No orders were made in this decision.

Key Takeaways

  • The victim impact statement regime in Division 2 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 does not apply to the offence of accessory after the fact to manslaughter, as that offence falls outside the categories specified in s 27(2).
  • Common law principles permitting courts to receive evidence of a crime's impact on victims, as affirmed in Porter and Miller, extend only to primary (direct) victims. Those principles do not independently authorise the receipt of family victim impact statements in homicide-related sentencing proceedings.
  • Under Previtera and Bollen, it is not appropriate at common law to take the impact of a homicide on the deceased's family into account when determining sentence, on the basis that criminal sentencing must not place differential value on human life.
  • The discretion under s 28(4) to consider family victim impact statements as evidence of harm done to the community exists only within the statutory scheme. It does not survive as a freestanding common law entitlement where the offence is excluded from that scheme.
  • Section 27(4), which preserves "any other law" by which victim impact statements may be received, offered no pathway to admissibility here because no such other law existed in relation to family victim statements of this kind.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 26, 27, 28
- Criminal Procedure Act 1986 (NSW), s 23C

Cases:
- R v Previtera (1997) 94 A Crim R 76
- R v Bollen (1998) 99 A Crim R 510
- Porter v R [2008] NSWCCA 145
- Miller v R [2014] NSWCCA 34
- R v Bechalany [2018] NSWSC 502