Commonwealth of Australia Explanatory Memoranda

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CRIMES AMENDMENT (VICTIM IMPACT STATEMENTS) BILL 2006

   CRIMES AMENDMENT (VICTIM IMPACT STATEMENTS) BILL 2006

                       EXPLANATORY MEMORANDUM


OUTLINE

The purpose of this Bill is to introduce a scheme at the Federal level for the provision
of Victim Impact Statements and Victim Reports. Allowing the victim to have a
voice in federal criminal proceedings is an important part of restorative justice.

A Victim Impact Statement is an oral or written statement which is presented in a
criminal trial, after conviction and before sentencing. The statement sets out details
of the harm suffered by the victim of the offence arising out of that offence. Subject
to certain considerations, the court shall consider the Victim Impact Statement before
passing sentence.

A Victim Report serves a similar function as the Victim Impact Statement, except
insofar as it is prepared by the prosecutor rather than the victim. They may be used in
certain circumstances enumerated in the Bill, where the victim is deceased, cannot be
located or where the victim is not submitting a victim impact statement but does not
object to the victim report.

The Bill is designed to bring the Commonwealth in line with other Australian
jurisdictions, most of which have legislation specifically providing for the provision
of these statements and reports.

In some instances a victim of a federal crime may be able to access a State or territory
regime that provides for victim impact statements. However these vary from
jurisdiction to jurisdiction. In setting up a federal scheme, the Bill has sought to
incorporate best practice, and will ensure consistency in access to Victim Impact
Statements by federal victims, regardless of where the trial is held.

Importantly, the Bill will make it clear that the sentencing judge or magistrate may
take the contents of a Victim Impact Statement or Victim Report into account when
passing sentence.

FINANCIAL IMPACT STATEMENT

As these amendments are merely procedural changes to court and sentencing rules, it
is not expected that there will be any financial impact.
NOTES ON CLAUSES

Clause 1: Short title
This clause sets out the short title by which this Act may be cited - Crimes
Amendment (Victim Impact Statement) Act 2006.

Clause 2: Commencement
This clause provides that this Act commences on the day on which it receives the
Royal Assent.

Clause 3: Objects
This clause provides a brief statement of the objectives of the Act.

Clause 4: Schedule(s)
This clause provides that the amendments to the Crimes Act 1914 made by this Act
are set out in a Schedule.
Schedule 1--Amendment of the Crimes Act 1914

Item 1 - Section 16A(2)(ea)

Item 1 inserts a new subsection into section 16A.

Section 16A provides a list of matters to which the court may have regard when
passing sentence. This item introduces a new subsection (2)(ea) which provides that
the court may have regard to Victim Impact Statements and Victim Reports in passing
sentence.

Item 2 - Section 16AA

Item 2 inserts a new section 16AA into the Crimes Act 1914. This section provides
the basis for the new regime of victim impact statements.

Subsection 1 sets out the definitions for the section.

A victim impact statement is an oral or written statement prepared by the victim of a
crime for the court's consideration in sentencing, setting out details of the harm
suffered by the victim arising out of the offence. A victim report is a similar
statement, but prepared by the prosecutor.

Harm is defined to include:

(a)     Physical injury;
(b)     Psychological or emotional suffering, including grief;
(c)     Contraction or fear of contraction of a sexually transmissible medical
condition;
(d)     Pregnancy suffered as a result of criminal activity (e.g. rape, sexual servitude);
(e)     Economic loss.
It should be noted that a victim of rape, child-sex tourism or a sexual servitude
offence may consider a pregnancy suffered as a result of criminal activity to be a
harm, regardless of whether they later decide to keep the offspring children who may
result.

Victim is defined to include:
(a)    a natural person who suffers harm arising from an offence; or
(b)    where the person referred to in paragraph (a) dies as a result of the
commission of the offence, a person who was a relative of, or who was financially or
psychologically dependent on the person.
Access to the VIS regime set out in the Bill is therefore restricted to natural persons.

Relative includes a relative according to Aboriginal tradition or contemporary social
practice, a spouse or a de facto partner.

Subsection 2 provides that the victim of a crime will be notified that they are entitled
to file a victim impact statement and given sufficient time for a statement to be
prepared.
Subsection 3 provides for the creation of information guides for the purpose of
Subsection 2.

Subsection 4 provides that a prosecutor may present a victim impact statement to the
court where the victim has consented to do so, or alternatively (in cases where the
victim cannot give consent due to age, physical or mental disability, or harm suffered
as a result of the offence) present a statement prepared by a person who has a
sufficiently close relationship with the victim.

Subsection 5 provides that a victim report may also be presented to the court in
certain circumstances. A victim report, as noted above, is similar to a victim impact
statement except that it is prepared by the prosecutor. The subsection sets out three
circumstances in which a prosecutor may present a victim report.


Subsection 6 allows for the court to give permission for a person other than the
prosecutor to present the statement.

Subsection 7 provides that the court shall take each victim impact statement and
victim report into account in determining sentence, subject to the conditions of
subsections 11, 12, 13 and 14.

Subsection 8 allows the statement or report to refer to harms caused to the victim
arising out of other offences in certain circumstances. Examples include where the
victim has suffered harm as a result of offences committed under both federal and
State/Territory law.

Subsection 9 provides that the statement or report may contain a statement as to the
victim's wishes in respect of the order that the court may make in relation to the
offence.

Subsection 10 provides that the court cannot draw inferences from the non-
presentation of a statement or report, either in favour of an offender or against a
victim. This ensures that presentation of a victim impact statement is a genuine matter
of choice for the victim.

Subsection 11 provides that a Victim Impact Statement may be excised in whole or in
part. It is intended that this discretion not be used to silence victims, but rather to
maintain the dignity of the court and its proceedings.

Subsection 12 provides that a victim impact statement a) must be signed by the victim
or b) meet the requirements of subsection 4 and 5. Among other things, these provide
for circumstances where a victim cannot sign.

Subsection 13 provides that, a court shall not take a victim impact statement into
account if it is in writing unless it has been provided to the offender. If the statement
is oral, then a written or oral summary of the contents of the statement must be
provided to the offender.

This represents an opportunity for the offender to consider the harm they have caused.
Subsection 14 provides that victim impact statements may only be received by a court
where the offence involves an element of harm to a person. Harm is defined by
subsection 1.