Statutes Amendment (Victim Impact Statements) Bill

Introduction and First Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:29): Obtained leave and introduced a bill for an act to amend the Sentencing Act 2017 and the Victims of Crime Act 2001. Read a first time.

Second Reading

The Hon. K.J. MAHER (Minister for Aboriginal Affairs, Attorney-General, Minister for Industrial Relations and Public Sector) (15:29): I move:

That this bill be now read a second time.

I am pleased to introduce the Statutes Amendment (Victim Impact Statements) Bill 2024. This bill amends the Sentencing Act 2017 and the Victims of Crime Act 2001 in response to concerns that have been raised regarding the experiences of victims during the sentencing process.

Victim impact statements give victims of crime the important opportunity to provide a sentencing court with a personal statement about the impact of injury, loss or damage suffered by them as a result of that crime. These statements may be considered by the court when determining the sentence for an offence and often have a significant restorative and therapeutic value for victims of crime.

Section 10 of the Victims of Crime Act provides that a victim is entitled to have any injury, loss or damage suffered as a result of the offence considered by the sentencing court before it passes the sentence. This entitlement is exercised by the victim providing the court with a written personal statement, known as a victim impact statement.

Section 14 of the Sentencing Act gives the victim of an indictable offence or prescribed summary offence a right to provide the court with a victim impact statement. There are further provisions in section 13 of the Sentencing Act to enable victims of other offences to provide victim impact statements unless the court determines it would not be appropriate in the circumstances of the case. The court may allow the victim the opportunity to read their statement aloud to the court, cause a statement to be read aloud by another person, such as a prosecutor, or otherwise may consider a statement without it being read aloud.

The first amendment in this bill addresses a concern raised by the former Commissioner for Victims' Rights, Bronwyn Killmier, that victims are sometimes denied the opportunity to prepare a victim impact statement, particularly where a guilty plea is entered unexpectedly and the court proceeds immediately to sentencing submissions and the imposition of a sentence. It is understood that this concern arises primarily in the Magistrates Court, which hears the highest volume of criminal matters and where there is particular pressure to deal with matters expeditiously.

The bill inserts a new section 16(1a) and (1b) of the Sentencing Act to ensure that victims who are entitled to provide a victim impact statement are given adequate opportunity to exercise that right. New section 16(1a) states that where a victim has not had a reasonable opportunity to provide a victim impact statement, or has requested more time, the court must, on application by the prosecutor, adjourn the sentencing proceedings to give that victim a reasonable opportunity to prepare their statement. Pursuant to new section 16(1b), the court can refuse to grant the adjournment only if satisfied that special reasons exist that justify that refusal.

The second amendment in the bill addresses a concern that was raised regarding the editing of victim impact statements by prosecutors prior to them being provided to the court due to perceived issues of inadmissibility. It was suggested that, while well-intentioned, the practice of editing the victim statements can cause victims to perceive they are being censored and can leave them feeling dissatisfied with the process. The government considered and consulted on a recommendation made by the former Commissioner for Victims' Rights to prohibit this type of editing.

A number of stakeholders were not supportive of the initial proposal to introduce an outright prohibition, particularly in situations where a victim may require or request assistance, particularly from the prosecution, to compile a statement. The feedback provided by the Director of Public Prosecutions and South Australia Police on such an outright ban suggested that any editing of a victim statement by prosecutors is not common practice in South Australia. Changes to a victim impact statement may on occasion be suggested by a prosecutor where the statement contains irrelevant material, such as unproven allegations or language that is insulting or abusive.

This feedback is reflected in the DPP's recently updated prosecutorial guidelines, which now make clear that prosecutors should not edit or censor victims' impact statements in any way contrary to the wishes of the victim even where the statement includes gratuitously insulting or abusive language or information that is irrelevant to sentencing. These existing prosecutorial guidelines emphasise that it is the responsibility of prosecutors to provide reasonable assistance to victims, which might include explaining the risk of including irrelevant material, but it is for the victim to consider what course of action, if any, they might take.

Some concern remains among stakeholders, however, that prosecutors may provide inconsistent advice to victims about the need to remove the irrelevant or inflammatory content from a victim impact statement, or that there may be still a perceived need to suggest editing for fear a court could refuse a statement in its entirety.

To address this remaining concern, the bill inserts a new section 16(1c) in the Sentencing Act, which provides a clarification that a court must not refuse a victim impact statement on the ground that it includes material that is irrelevant or otherwise should not be included in the statement. The bill makes it clear that nothing in 16(1c) requires the court to have regard to such material in determining the sentence.

Thirdly and finally, the bill addresses the right of victims to be informed about their entitlement to provide a victim impact statement. As mentioned earlier, section 10 of the Victims of Crime Act currently provides that a victim is entitled to have any injury, loss or damage suffered as a result of an offence considered by the sentencing court before it passes a sentence.

Division 2 of part 2 of the Victims of Crime Act currently contains the declaration of principles governing the treatment of victims by public agencies and officials. This includes express entitlement to certain information such as information about the progress of a criminal investigation, court processes, the availability of services and how to obtain compensation for harm suffered as a result of an offence. The bill inserts a new section 9C in the Victims of Crime Act, which falls within this declaration of principles in division 2 of part 2.

The amendment gives victims an express entitlement to be informed, firstly, about their entitlement to provide a victim impact statement and, secondly, the manner in which the court will use the material, including the circumstances in which the material may be disregarded by the court or not read aloud by the court. This clarification clause is intended to target expectation management of victims around their rights, including the potential of editing their statement and how the statement may be used.

I would like to take this opportunity to thank all stakeholders who engaged in this important two-stage consultation process, including both the former and the current Commissioner for Victim's Rights. As a result of multiple feedback repeated on these forms, I am pleased that this bill strikes an important and appropriate balance between the interests of having criminals dealt with expeditiously and providing timely justice, together with the value of meaningful victim participation in the sentence. I commend the bill to the chamber and seek to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Sentencing Act 2017

3—Amendment of section 16—Statements to be provided in accordance with rules

This clause requires the court to adjourn sentencing proceedings in certain circumstances to allow a person who has suffered injury, loss or damage resulting from an indictable offence or a prescribed summary offence to prepare a victim impact statement. However, the court is not required to do so if satisfied that special reasons exist. This clause also prevents the court from refusing to receive a victim impact statement on the grounds that the statement includes irrelevant or other material.

Part 3—Amendment of Victims of Crime Act 2001

4—Insertion of section 9C

This clause requires that a victim be informed about their right to have any injury, loss or damage suffered as a result of an offence considered by the sentencing court before it passes sentence, and the manner in which the court will use any material provided to the court in exercise of that right.

Debate adjourned on motion of Hon. L.A. Henderson.