Australia: Victim Impact Statements in New South Wales

Due to recent amendments to the Crimes (Sentencing Procedure) Act 1999 (the Act), Victim Impact Statements (VIS) may now be taken into account when determining the quantum of sentence in workplace matters.

The purpose of a VIS is threefold; to allow the harm suffered to be recognised, to provide the victim with an emotional outlet and to assist the court in determining the extent of harm caused by the crime in cases where the injury, emotional harm, loss or damage caused by the incident may be substantial. This may attract larger penalties under s 21A(2)(g) of the Act.

A VIS will be admissible in work health and safety proceedings where the offence is an offence against Division 5 of Part 2 of the Work Health and Safety Act 2011 or Subdivision 3 of Division 3 of Part 3 of the Rail Safety National Law (NSW), and the offence results in the death of, or actual physical bodily harm to, any person.

Under s 30 of the Act, a VIS must be in writing and may include photos, drawings or other images.

The Act differentiates between primary victims, those harmed by the incident or who witness the incident, and family victims, who may only provide a VIS if the incident results in a fatality.

If a primary victim is incapable of providing a statement, the victim's parent or a member of the victim's family may provide a VIS for the victim.

A VIS by a family victim will be relevant in sentencing only to the extent that it facilitates the recognition of harm to both the victim and the community under s 3A(g) of the Act. A family victim VIS will only be considered where the prosecutor makes an application to have it considered and the court finds this to be appropriate.

The extent to which a VIS is considered is primarily left to the discretion of the judge, but caution is often exercised, given the fact that VISs are generally not subjected to cross-examination. It is unclear whether the amendments will result in greater testing of VISs as evidence, given that this would appear to be contrary to the intended purpose of the VIS.

We would like to acknowledge the contribution of Ian Hedberg to this article.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.